Sex discrimination and retaliation – employee resigns

Posted by: Aug 22, 2017By Brian Stutheit

A new case from the U.S. Court of Appeals in Colorado summarizes the risks of resigning a job because of feelings of discrimination or retaliation.

The case is Hiatt v. Colorado Seminary. The University of Denver hired Hiatt as Staff Psychologist and Training Director for the Health and Counseling Center (HCC).  The HCC offers “wellness services, including medical and counseling services, to DU’s student body.  Hiatt also supervised graduate students and post-doctoral fellows. DU demoted her because it decided among other things that a majority of the students refused to be supervised by her, and because she had entered an ethically grey romantic relationship with a former supervisee.  After her demotion, Hiatt filed a sexual orientation discrimination claim with the EEOC,  and she took a three-month leave of absence, which she related to workplace stress.  Dr. Hiatt returned to work at DU. Upon her return,  Hiatt’s boss increased Dr. Hiatt’s weekly clinical hours. She also required Dr. Hiatt to provide a doctor’s note to justify non-Family Medical Leave Act (” FMLA” ) sick leave, obtain permission before ” blocking her schedule” (i.e., make certain blocks of time in her calendar unavailable for clinical appointments), and make up for missed clinical time. Dr. Hiatt asserted that no other HCC clinical staff member faced similar requirements. Hiatt’s supervisors continued to criticize her performance.  One of her supervisors also told Dr. Hiatt that if she wanted to keep her personnel matters private, as she had requested, she should not tell people that she was ” suing the university” (presumably referring to her EEOC charge).  Dr.  Hiatt submitted a letter of resignation, in which she complained of ongoing discrimination in retaliation for filing  EEOC complaints.

In her lawsuit Dr. Hiatt basically claimed that DU discriminated against her because of her sexual orientation,  because she fails to conform to “gender norms.”  She claimed that DU retaliated for her filing the EEOC discrimination complaint by changing her work conditions after she returned from leave, and treating her less favorably than other employees, so she was forced to resign. .

The Court found that Dr. Hiatt was not constructively discharged, so there was no adverse employment action.  (No basis for a lawsuit)                            ” [C]onstructive discharge occurs when the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign… To establish constructive discharge, a plaintiff must show that she had no other choice but to quit…Dr. Hiatt cannot meet those standards. Although she may have subjectively believed that DU left her with no other choice but to quit, her  subjective views of the situation are irrelevant, and she must instead show the conditions of employment [were] objectively intolerable. The working conditions she describes–such as being required to work two extra hours per week, turn in timely case notes, and justify non-FMLA sick time–do not amount to an objectively intolerable working environment.”