Embarrassing group email, disciplinary write-ups not adverse actions, no constructive discharge

By Joy Waltemath

By Lorene D. Park, J.D.

Granting summary judgment against discrimination and retaliation claims by a former Home Depot store manager, a federal court in California found that she failed to show she suffered an adverse employment action, as required to support claims under California’s Fair Employment and Housing Act. While she was issued disciplinary write-ups and her supervisor accidentally sent an email about her poor performance to a group of store managers, these were not adverse employment actions, and her decision to quit based on the email did not constitute constructive discharge (Wheeler v. Home Depot U.S.A., Inc., March 22, 2017, Bencivengo, C.).

Hired in 1994 by Home Depot, the employee worked in various positions, including assistant store manager, co-manager, and eventually store manager (SM). In 2005, and again in 2012, she transferred to be SM at different locations. In the last few months of her employment, she received two progressive disciplinary notices from her district operations manager and five manager notes from the HR manager for poor store operations and appearances.

Email sent accidentally to group. On the afternoon of August 25, 2014, the district operations manager sent an email writing that the employee’s store had performed poorly for six months, and that she was not improving and was “at risk.” He meant to send the email to his boss, the district manager, but accidentally sent it to all SMs in the district (11 individuals). One recipient quickly informed him of the error and two minutes after the email, he sent another asking all SM’s to immediately delete the email. He then sent a third email apologizing for any embarrassment and he called the employee to apologize as well. He was later disciplined.

Constructive discharge? Meanwhile, when she received the email, the employee sent it to an HR manager, whom she later met at a coffee shop to discuss the issue. According to the employee, the HR manager asked her not to quit, but she responded that it didn’t make a difference because “if they had decided to terminate me, they were going to terminate me anyway. One way or another, it was going to happen, so why would I postpone it.” The HR manager then asked if she knew anyone that would hire her. According to the employee, this was a hint by the manager that the employee was right. The employee also testified that she had started taking her stuff home about a month before the email, but the email was the “straw that broke the camel’s back” and that was when she decided she had to go. She later sued for age and sex discrimination, as well as retaliation, claiming she had been constructively discharged.

FEHA claims fail. Granting summary judgment against the FEHA discrimination and retaliation claims, the court first found a genuine issue on whether the employee was performing her job satisfactorily despite her disciplinary notices, because a few days before her departure she received a positive evaluation and in her last year, she was in the top five stores in her district and received a bonus. That said, the employee failed to raise a triable question on whether she suffered an adverse employment action.

No adverse employment action. The evidence showed that she voluntarily resigned, and while she claimed constructive discharge, she did not meet the high bar for such a claim because she did not show “sufficiently extraordinary and egregious” working conditions. In the court’s view, the disciplinary notices she received and the embarrassing dissemination of the email concerning her poor performance were simply not enough. There was no evidence, for example, that the employee was also subject to epithets, harassment, or scorn.

Also rejected was the employee’s assertion that the email confirmed that she would receive a final write-up. To the contrary, the email was an internal document, not meant to be seen by the employee, where her supervisor relayed to his superior that she was “at risk.” That did not constitute a final write-up. Nor did the employee provide authority supporting her proposition that her subjective anticipation of an adverse employment action sufficed.

The employee also mischaracterized the evidence by claiming that she was given an “ultimatum” by the HR manager when they met at the coffee shop. To the contrary, her testimony established that the manager expressed concern for ability to find another job and the manager never said anything to the effect of “you will be fired.” Because the employee failed to show that she suffered an adverse employment action, her FEHA discrimination and retaliation claims failed.

Common law claim fails too. The court also granted summary judgment against the employee’s wrongful discharge claim under California common law, explaining that she was not discharged. Her defamation claim failed too. Though she alleged that a Home Depot vender was told that she had been fired for poor performance, she admitted in deposition that she did not know who had made that statement or when. Her lack of evidence was fatal to her claim.

Source:: Embarrassing group email, disciplinary write-ups not adverse actions, no constructive discharge