Memorandum of constructive discharge complaint
JDT2 Task 1
Shira M. Blanchette
Western Governors University

TO: Jean Jones, CEO
FROM: Shira Blanchette, HR director
DATE: 10/4/13
SUBJECT: Constructive discharge complaint

A. Constructive Discharge
The Zippeedoo Toy Company has been experiencing huge growth over the past year, leading to a change in scheduling for production personnel. Where all personnel once worked eight (8) hours per day, five (5) days per week, it became necessary to shift production personnel to a rotating schedule of twelve (12) hours per day, four (4) days on, 4 days off throughout the month. This led to personnel being scheduled over the weekend, as well as during the week. Employees were required to work from one to three Sundays per month, depending on rotation. When the new schedule was announced, Mr. Tibbet resigned his position in the production group. He has filed a claim of constructive discharge with the Equal Employment Opportunity Commission (EEOC) which alleges that Zippeedoo Toy Company required practices which conflicted with his religious beliefs, forcing him to leave the company.

Constructive discharge is an illegal and discriminatory practice that forces an employee to resign employment due to intolerable working conditions. In order to meet the criteria of a constructive discharge, Mr. Tibbet must prove that his resignation occurred a) due to conditions that any reasonable person would have found unbearable, and b) that the Zippeedoo Toy Company was aware that the schedule change would have a serious impact on Mr. Tibbet, but did nothing to remedy the situation (Zilmer v. Carnation Company, 1989), thus forcing his resignation. B. Title VII
Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, religion, sex, or national origin. In this case, Mr. Tibbet alleges that Zippeedoo Toy Company violated his right to practice his religion by scheduling him to work on Sunday, his holy day. He is also attempting to demonstrate that Zippeedoo Toy Company came up with this schedule intentionally to interfere with his ability to worship. Under the stipulations of the act, Zippeedoo Toy Company must make reasonable accommodations for religious observance and practices of all of its employees, unless an “undue hardship” would occur for the business (Trans World Airlines, Inc v. Hardison, 432 US 63- Supreme Court 1977). "where the employee's needed work cannot be performed by another employee of substantially similar qualifications during the period of absence" (29 CFR § 1605.1 (b) ,1976). C. Response
The recommendation is for litigation.

Mr. Tibbet was the only employee out of twenty in the production group that resigned after the schedule change was announced, and no complaints were brought to human resources attention that the schedule change would adversely affect any of the other workers. While Mr. Tibbet’s religious faith may have prevented him from performing his required job duties, at no time did he bring this fact to the attention of his supervisor, nor to the human resources department, so no reasonable person would agree that the company created an intolerable work situation. Therefore, Mr. Tibbet’s resignation stands, and does not meet the criteria for constructive discharge.

Zippeedoo Toy Company did not set up the schedule for production personnel with the intent to prohibit anyone from practicing their religion. HR was not made aware that Mr. Tibbet felt that Zippeedoo had discriminated against him because of his religion, and Mr. Tibbet did not request that reasonable accommodations be made such as the possibility of switching shifts, or finding his own coverage so that he could attend services at his church. Zippeedoo Toy Company is not in violation of Title VII because the changes made to scheduling were done for “a legitimate, non-discriminatory reason” (St. Mary’s Honor Center v. Hicks, 1993). The decision was made solely on the basis of an increased need to produce product to meet increased demand.
C1. Legal References
Clowes v. Allegheny Valley Hospital (1993) is a case in which an employee resigned her position, and later claimed that she was constructively discharged due to increasing harassment from her supervisor, creating an intolerable workplace. In examining her allegations, it was found that the supervisor did not encourage her to resign, but instead implemented a corrective action plan which would have assisted Ms. Clowes in achieving the goals of the unit that she was assigned to. Ms. Clowes accepted the terms of the agreement, and failed to state that she would feel the need to resign if she was not transferred, or was allowed to work for another supervisor. Her grievance was filed long after she resigned her position, and had accepted another job. Because she did not discuss her concerns with her supervisor or hospital management, and evidence was produced that upheld the supervisor’s safety concerns, her claim of constructive discharge was denied. Mr. Tibbet had worked for Zippeedoo Toy Company for 5 years, and had excellent attendance records and annual reviews. There are no disciplinary actions on record for Mr. Tibbet. There is no evidence that Mr. Tibbet experienced harassment from his supervisor or co-workers, nor did he discuss his concerns with his supervisor, HR, or management.
Zilmer v. Carnation Company (1989) is also a case of alleged constructive discharge. The plaintiff alleges that after 31 years of good standing with the company, certain certifications were required as a condition of employment. Due to the employees work responsibilities, he did not feel that he would be able to devote the time needed to attend classes and study for the certification. He alleges that the only reason this requirement was implemented was to get rid of him or force him to resign, so that the employer could bring in friends and other associates as replacements, thereby creating a constructive discharge situation. Evidence can be shown that Zippeedoo Toy Company made changes to production schedule in order to meet increased demands, and was not aware that the change would impact personnel to the point that they felt their workplace could no longer be tolerated.

Trans World Airlines, Inc. v. Hardison specifically addresses Title VII (Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e) dismissal of an employee based on religious practices. Mr. Hardison was accommodated by Trans World by changing Mr. Hardison’s shift so that he could attend church on Saturdays. He was put on night shift, but later requested a transfer to another area which was on day shift. Other employees had higher seniority than Mr. Hardison, and therefore his request to be absent on Saturdays could no longer be accommodated, as someone from another department would have to fill in for him, causing “undue hardship” to the company. There would not be any reason for Zippeedoo to refuse Mr. Tibbet’s requests, if any had been made, as there are many employees that would have been available and willing to work his Sunday shift. Overtime for those employees would be a negligible cost to Zippeedoo’s bottom line.

C2. Legal recommendations
Faragher v. Boca Raton (1998) helped to set the stage for the need for companies to provide policies and training of all employees to prevent discrimination of any protected class under Title VII (1964). The City of Boca Raton implemented a policy regarding sexual harassment, but did not verify that outlying facilities were advised of its contents. It is imperative that Zippeedoo Toy Company include recommendations of the EEOC Compliance Manual (2008) into existing policies in order to prevent any type of harassment. Verification that Zippeedoo Toy Company informed all employees of the policies contents will include documentation of robust training to be kept in each employee’s file. This training should be repeated yearly. This is essential in order for Zippeedoo Toy Company to demonstrate a good-faith defense (Kolstad v. American Dental Association, 1999) in the event of a future claim.
Zippeedoo Toy Company needs to make clear how employees can report claims of harassment or discrimination, and the fact that this can be done with someone other than the employee’s immediate supervisor. Posters describing employee’s rights under Title VII will be placed prominently in the employee break room. Investigations of complaints need to be taken seriously, and addressed immediately to prevent the situation from escalating to a litigious level.
Going forward, clear, concise communication and focused training should keep Zippeedoo Toy Company in the clear.

References
Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964). Retrieved 10/4/13 from http://www.eeoc.gov/laws/statutes/titlevii.cfm Earp, N.C., EEOC Compliance Manual (2008). Section 12: Religious discrimination, no.
915.003, Retrieved 10/6/13 from http://www.eeoc.gov/policy/docs/religion.html
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) no. 97-282 U.S. Supreme Court. Retrieved
10/6/13 from http://scholar.google.com/scholar_case?case=15103611360542350644&q=prevention+of+Title+VII+violations+&hl=en&as_sdt=2,44
Kolstad v. American Dental Assn. (98-208) 527 U.S. 526 (1999)
139 F.3d 958, vacated and remanded. Retrieved 10/7/13 from http://www.law.cornell.edu/supct/html/98-208.ZO.html
“Religious” nature of a practice or belief (1976). Title 29, subtitle b, chapter XIV, part 1605,
§1605.1. Retrieved 10/6/13 from http://www.law.cornell.edu/cfr/text/29/1605.1
St. Mary’s Honor Center v. Hicks, 509 U.S. 502-Supreme Court 1993 No 92-62 decided June 25,
1993. Retrieved 10/6/13 from http://scholar.google.com/scholar_case?case=18165245625373387733&q=constructive+ discharge%3B+religion%3BTitle+Vii&hl=en&as_sdt=2,44
Trans World Airlines, Inc. v. Hardison , 432 U.S. 63 (1977), no. 75-1126. Retrieved 10/5/13 from http://scholar.google.com/scholar_case?case=15783181943891982721&q=Title+VII+religious+violation&hl=en&as_sdt=2,44