The Alleged Adverse Employment Action That Wasn't

February 26, 2013

By: Terry O'Neil

In a prior blog post, we wrote about the utility of using pre-trial motions to dismiss employment discrimination complaints that are cobbled together with nothing more than conclusory allegations.  The focus of the pre-trial motions in those cases is to convince the Court that an employer should not be forced to incur the costs of discovery and/or trial when a plaintiff states only that he/she is a member of a protected class and was allegedly fired for being in the protected class.  A recent case discussed below creates another avenue for making a pre-trial motion, this time in the unique circumstance when an employee, fishing for a lawsuit, tries to artificially create his/her own adverse employment action.

It is well-settled that in order to state a prima facie case of employment discrimination, a plaintiff must plead and prove an adverse employment action.  What constitutes an adverse employment action in a context other than an actual termination, however, is not always immediately clear.  In certain situations an overzealous would-be plaintiff may resign herself right out of court.  This was the situation in Weisbecker v. Sayville Union Free School District, where Judge Bianco of the U.S. District Court for the Eastern District of New York dismissed pregnancy discrimination claims brought by an employee who resigned after being recommended for termination, but before the recommendation was officially acted upon.  Our law firm represented the employer in the case.

In Weisbecker, the plaintiff was a probationary elementary school teacher employed by the Sayville School District on Long Island.  Shortly after plaintiff went out on her second maternity leave, the Superintendent of Schools was informed that the plaintiff failed to submit her students’ grades for their report cards prior to taking leave.  An ensuing investigation revealed that while plaintiff had enough time to submit her grades prior to her leave, she failed to do so.  As a result of the findings from the investigation and in accordance with the procedures set forth in the New York Education Law, the Superintendent of Schools informed the plaintiff in writing of her recommendation to the Board of Education to terminate plaintiff’s employment.  Rather than avail herself of pre-termination opportunities to present her side of the story to the Board (as set forth in the Education Law), plaintiff simply resigned and filed her discrimination claims.

The issue facing Judge Bianco on the school district’s summary judgment motion was whether the termination recommendation by the Superintendent of Schools in and of itself constituted an adverse employment action and/or a constructive discharge.  In a well-reasoned decision, Judge Bianco held that a recommendation for termination that is subject to further approval is not an adverse action or a constructive discharge.  Rather, when a process is in place for a final review of the decision to terminate, a plaintiff cannot short-circuit that process on the assumption that the recommendation will automatically ripen into a termination.  Here, the Board of Education, not the Superintendent, had the final decision-making authority.  In reaching his conclusion, Judge Bianco cited a Seventh Circuit Court of Appeals case holding that a court should not assume that the final layer of approval for a termination is a “sham” entitling a plaintiff to leapfrog directly into litigation.

The decision in Weisbecker may be of significant benefit to entities that have multi-tiered layers of review before a final termination decision is made and becomes effective.  For those entities, a plaintiff’s failure to wait for the completion of the full process could very well mark the death-knell for any subsequent discrimination claim.