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Employment Discrimination

On Behalf of | Apr 9, 2009 | Employment Law

Employment discrimination laws focus on substantial adverse employment actions, not petty nuisances in the workplace. This point was illustrated in the March 20, 2009 New Hampshire Federal Court decision of Elyssa B. Slater v. Town of Exeter and Richard Kane .

In May 2006, following her graduation from law school, Slater became employed by the Town of Exeter as its full-time police prosecutor and as such was a salaried employee. She was required to keep track of the hours she worked by punching in and out on a time clock. The previous prosecutors had, likewise, done so, but they had been part time and were paid by the hour. Slater found that punching a time clock was an indignity. She spoke to Lieutenant Fenerty, her immediate supervisor, stating that she felt she was being discriminated against because she was a woman or because she was young. She recalls Fenerty discouraging her from voicing her concerns with Chief Richard Kane and stated that she should “pick and choose her battles”, “watch her demeanor” and not use words like “grievance” if she chooses to speak to Chief Kane about the matter. Fenerty disputed part of Slater’s account of the conversation, yet did arrange for the meeting between her and Chief Kane. The meeting did not go well.

Slater had been hired based, in part, on Chief Kane’s recommendation. Chief Kane was upset at the pettiness of her claim of discrimination based upon punching a time clock as a civilian for the Police Department and yelled at her. Chief Kane did note to her, however, that she was ten months into the job and that he was only going to require her to punch a clock for the first year and therefore she had two months left of punching a clock. This was not good enough for Slater and she quit and claimed constructive discharge from the Town. After filing her claim with the New Hampshire Human Rights Commission, it ended up in federal court and the federal judge ruled that she was not entitled to go forward with her numerous claims against the Town and Chief Kane including, but not limited to, a claim that she was discriminated against, constructively discharged, and retaliated against.

The Court noted that petty slights or minor annoyances that often take place at work are something that all employees experience and that they fall outside the scope of anti-discrimination laws. The Court further noted that for a valid constructive discharge claim Slater would have to show that her working conditions were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign. Simply punching a time clock for the two remaining months is such a petty annoyance that it was not an adverse employment action such to support a discrimination claim. Slater stated that given Chief Kane’s demeanor, a reasonable employee standing in her shoes would have believed that her termination was imminent. The Court disagreed.

An employee, who leaves employment, when presented with legitimate options to continue with that employer, is precluded from claiming constructive discharge. Obviously punching a time clock for two months is a legitimate option other than quitting. The result was that after an extensive period of time and effort, Slater lost her claim and has an order from the Court, subject to appeal, that precludes her from getting in front a jury with her claims.

This case is a good lesson for employees that an adverse employment action supporting a discrimination claim must be more than any nuisance in the workplace. The employee must also connect that adverse employment action to discrimination based upon a protected class such as gender, race, or religion. Not enjoying your job or believing your boss is unreasonable is not enough of a reason to bring a claim.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].