Pro Wrestling Photo Not Enough to Pin Employer
An employer isn’t immune from a discrimination claim when an employee quits instead of being fired. An employee who quits can still bring a “constructive discharge” claim, arguing that his working conditions were intolerable and that he had no other option but to quit.
This is a high bar to clear. For example, in the recent case of Coleman v. City of Irondale, the employer won summary judgment on a constructive discharge claim, despite racial slurs, inappropriate screensavers, and—yes—a pro wrestling photo.
The plaintiff in the case, Coleman, worked as a police officer for the city of Irondale, Alabama. In 2014, while still an officer, Coleman complained that the City denied him opportunities because of his race and subjected him to offensive conduct. Shortly thereafter, he resigned, stating that he feared for his safety.
Coleman then filed a lawsuit, alleging constructive discharge and retaliation. In support of his constructive discharge claim, he relied on 1) a text message he received from another officer three years earlier that contained the “n-word”; (2) being passed over for promotions and a new vehicle, and not receiving a laptop; 3) screensavers on office computers that showed, for example, Barack Obama “standing next to a car with oversized rims”; and 4) a photo of the professional wrestler Junkyard Dog, which was taped to his locker around the time of his complaints.
The court held that some of these events, such as the “n-word” text and offensive screensavers, were too far removed from the date of resignation to constitute grounds for constructive discharge. As for the Junkyard Dog photo, a co-worker had taped a number of photos of wrestlers to the lockers of officers in an effort to “boost morale.” The city investigated and removed the photo within days, three months before Coleman resigned. Thus, the photo was “too temporally remote” to “support a claim for constructive discharge.” Finally, under the circumstances, a “reasonable person” would not have felt “compelled to resign” based on the “unavailability of a laptop computer” or the “denial of a newer vehicle.” Thus, Coleman’s claim of constructive discharge failed.
Likewise, Coleman’s retaliation claim didn’t pass muster, because it was based on actions that either took place before his complaints of mistreatment or weren’t “adverse employment actions.”
The case also included an interesting evidentiary issue. Coleman sought to rely on handwritten journal excerpts to support his claims. But under the hearsay rule, a plaintiff cannot use his own out-of-court statements to prove the truth of the matter asserted in those statements—unless they fall within a hearsay exception.
One of those hearsay exceptions, found in Federal Rule of Evidence 803(1), is the “present sense impression” exception. A “present sense impression” is a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” For example, if a plaintiff takes notes of a conversation with his boss while the two are talking, those notes can qualify as a “present sense impression.”
But Coleman’s journal didn’t qualify under this exception. Coleman could not show precisely when he wrote the entries or when the events described in the journal occurred, so he could not show that his writings were made while or immediately after he perceived the events that he was describing. As a result, his journal excerpts were inadmissible and the court refused to consider them.