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Whistleblower’s constructive discharge claim can’t go forward

Resigning employee packing up desk

A recent decision from the Massachusetts Appeals Court highlights how hard it is for an employee suing for constructive discharge to prove that they had no other option except for resigning.

Constructive discharge occurs when an employee resigns because the employer has created a hostile work environment. So, even though the employee may have technically resigned, the resignation is not considered truly voluntary under the law.

In the case of Armato v. Town of Stoneham, Richard Armato was a Department of Public Works employee who oversaw golf courses in Stoneham. Armato gave written and oral notice to his immediate supervisors of allegations by an elected town moderator who was also a golfer that four individuals were “cooking the books” of the golf courses. The town moderator later confronted Amato at the course, swearing at him and threatening to sue him if he wrote any other letters asserting allegations about the accounting at the courses.

Similar arguments continued on other occasions with the town moderator and other board members, often impeding Armato from doing his job. Eventually, a decision was made to privatize the golf courses. Armato was offered a tranfer to other positions in the town, but he declined them and took early retirement.

Armato sued the town for constructive discharge under the public employee whistleblower statute, M.G.L. c. 149, § 185, claiming that board members harassed him to an extent that he was left with no choice but to decline the transfer offers and retire early.

But the Appeals Court rejected his claim, holding that a reasonable employee would not have felt forced to resign under the circumstances.

“As for the verbal abuse described above, the encounters were brief, and most occurred nowhere near Armato’s workplace but during chance meetings around town. The alleged persecutors … were not town employees, but rather elected officials who had no authority over Armato. Armato’s feud with [the town moderator] … predated his cooking the books report and continued after his retirement,” the court said.

It went on to say that “[t]hese unpleasant encounters must be balanced against Armato’s daily workplace interactions with the supervisors in his direct chain of command that had actual authority over him. First, Armato ‘thought pretty well’ of his immediate supervisor … Although Armato claimed that [the town moderator, who also had authority over Amato,] ‘changed,’ he admits that, after his cooking the books report, [the town moderator], with whom he spoke daily, continued to treat him in a friendly manner.”

“To sum up, Armato has shown that, over a twenty-one month period, he got into a number of verbal arguments with some town officials around town while he was not working, and was subjected to one or two acts of harassment at the golf course … The board, the recreation committee members, and the defendants had legitimate business reasons for taking the actions that Armato claims unduly interfered with his employment. Viewed from the requisite objective standard, as a matter of law, the acts of harassment did not create such an intolerable and hostile work environment that a reasonable employee would have felt compelled to resign,” the court said.

The reasoning here applies to other employment scenarios and workplaces as well. Employers should be sure to have anti-retaliation policies and train their managers about those policies. They must also keep clear records of any employment decisions that affect the terms and conditions of employment of any workers.

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