HR Management & Compliance

Was Boss’s Unprofessional Behavior Unwelcome? 8th Circuit Court Has the Answer

The 8th Circuit—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—recently heard a claim for constructive discharge based on a hostile work environment, gender discrimination, and age discrimination. Did the employee have a viable claim?Background

For decades, “Henrietta” worked as a bench technician in the finishing department of companies owned by a local family. Her last employer was MJ Optical, Inc. At some point before 1993, “Sherman” became vice president of MJ Optical. As a result, he supervised the whole shop, and Henrietta interacted with him every day.

Henrietta maintained that she had a purely employer-employee relationship with Sherman, even though it sometimes extended beyond work. For instance, she attended his daughter’s wedding, Sherman enrolled in a few college courses with her grandson, and he lent her church a hog cooker. Henrietta admitted she had a “good” relationship with Sherman for most of her employment.

Henrietta claimed that changed at her husband’s funeral in 1999 when she was standing outside the funeral home and Sherman walked by and “grabbed [her] fanny.” When she asked, “What was that all about?” he replied, “I thought you needed it.”

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From that point onward, Sherman occasionally touched Henrietta’s buttocks at various times during the workday. According to her, he “would either smack it really hard or grab [her] whole cheek of [her] butt. I mean, it was no love pat.” She flashed him “a dirty look” at least once after he touched her, but she never complained to him or anyone else because she believed it wouldn’t have done any good.

Sherman also began telling Henrietta she needed to find a man, which she took to mean he thought sex with a man would make her happy. Again, she didn’t communicate any frustrations about his recurring comments to him or anyone else. She also recalled one exchange during which he commented on her breasts while she was standing in front of his desk, saying, “You’d better watch those things because they’re going to poke my eyes out,” and asked whether her nipples were “the size of nick[el]s or quarters.” Embarrassed by the interaction, she “probably turned red” and went home and bought padded underclothes.

Henrietta found herself on the receiving end of what she perceived to be age-related affronts, too. For instance, Sherman told her that he only kept her around to “watch her die,” even when other MJ Optical employees were present and could hear him. She acknowledged the comment was occasionally prompted by her asking him why he kept her around and was sometimes meant as a joke. He also told her that her hands weren’t any good anymore whenever she needed his assistance fitting lenses into difficult frame styles. Again, she never informed him that she didn’t find his comments funny, nor did she complain to anyone else.

The chain of events that ultimately led to Henrietta leaving MJ Optical began on May 9, 2013, when she noticed a problem with a large number of frames. She reported the issue to Sally—the president of MJ Optical and Sherman’s mother—who tasked Sherman with finding and fixing it.

After Sherman determined there was nothing wrong with the tracing machine, he turned his focus to Henrietta’s work in the “mounting area.” In an attempt to diagnose the problem, he “temporarily asked [Henrietta] to refrain from completing her mounting work.” She said she kept busy with other work and didn’t consider the short-term reassignment to be a demotion. Moreover, she received the same pay rate, wasn’t worried she would be fired, and didn’t complain in any way.

Despite explicit instructions to the contrary, Henrietta resumed her spot at the mounting station 2 or 3 days later when she noticed it was unoccupied. As she tells it, she was about to start working when Sherman noticed her from the front of the shop and came at her “like a bull moose, . . . red in the face, chomping his tongue like he does when he gets angry.” He told her, “I don’t want you doing that, sit down. Let somebody else do it.” It wasn’t the first time he had exhibited an angry demeanor in the workplace, and Henrietta feared he might become physically aggressive.

After the encounter, Henrietta was “shaking and crying” so much that she could hardly function. She sought out Sally and described Sherman’s outburst, noting how upset it made her. Sally dismissed the notion that Sherman would ever hit Henrietta but said she would talk to him about his anger problem.

Despite finally registering a complaint against Sherman, Henrietta didn’t mention any mistreatment based on her sex or age. The conversation ended with Sally telling her to “go home and plant flowers,” which she did, taking the afternoon off with pay.

Rather than return to work the next day, Henrietta resigned from MJ Optical by leaving a voice mail for Sally. She again mentioned that she was afraid of Sherman’s “noncontrollable” anger and expressed her gratitude to Sally for being a good boss. There was no evidence of any communications between Henrietta and anyone at MJ Optical between the day she quit and the day she filed discrimination charges.

In October 2014, Henrietta sued MJ Optical in federal court for sex and age discrimination in violation of federal and state law. Despite noting that Sherman’s behavior was “without a doubt disgusting,” the district court ruled in favor of MJ Optical, dismissing Henrietta’s claims. She appealed.

8th Circuit’s Decision

Sex discrimination. Henrietta argued that she was constructively discharged because MJ Optical failed to control Sherman’s conduct. To prove constructive discharge, she had to show that her employer deliberately created intolerable working conditions with the intention of forcing her to quit. According to the court, an employee isn’t constructively discharged if she quits without giving her employer a reasonable chance to work out the problem.

The court noted that Henrietta never told anyone that there was a problem in need of fixing. The only time she complained about Sherman was one day before she quit, and her complaint was about his aggressive conduct unrelated to her sex. It was clear to the court that her failure to seek a solution before quitting—either by telling Sherman to stop his offensive behavior or by alerting her immediate supervisor or Sally to the alleged harassment—was fatal to her constructive discharge claim.

Henrietta argued that any attempt to fix the problem would have been futile because Sally wouldn’t have done anything about it. However, she didn’t support that conclusory allegation with any concrete examples of Sally ignoring such a complaint. In fact, she said she considered Sally to be “a good boss” and recalled her promising to talk with Sherman the one and only time she complained about his behavior.

The court noted that “part of an employee’s obligation to be reasonable . . . is an obligation not to assume the worst, and not to jump to conclusions too fast.” Because Henrietta didn’t suffer an adverse employment action that led her to quit her job, her claim of disparate treatment based on her sex failed.

Age discrimination. In analyzing Henrietta’s age discrimination claim, the court reiterated that she had to show she suffered an adverse employment action based on her age. Again, the court noted that she didn’t alert anyone at MJ Optical about what she perceived to be age discrimination or otherwise attempt to resolve the issue in any way. Therefore, she didn’t give the company a reasonable chance to fix the problem before she quit, and she couldn’t maintain a claim for disparate treatment based on her age.

Hostile work environment. To prove her hostile work environment claim, Henrietta had to produce evidence that Sherman’s conduct was unwelcome. The court noted that the proper inquiry was whether she indicated by her conduct that the alleged harassment was unwelcome. It concluded that she hadn’t provided sufficient evidence that Sherman’s behavior was unwelcome.

The court pointed out that Henrietta and Sherman had known each other for more than 40 years, and Henrietta admitted their relationship was positive for most of that time. The court also noted that after Sherman’s allegedly offensive conduct began in 1999, Henrietta continued to work at MJ Optical for almost 15 years without once telling him to stop or complaining to anyone else about his behavior. During that time, Henrietta and Sherman joked around with each another, they occasionally exchanged “I love yous,” and Henrietta sometimes touched Sherman “between the shoulders.”

While the court was under no illusion that those actions were similar to Sherman’s unprofessional and boorish behavior, it found there was no evidence that his allegedly severe and pervasive conduct was unwelcome. The court further found there was no evidence that Sherman was aware his conduct distressed Henrietta. Quite the opposite—he apparently saw his actions as an attempt “to lighten [the] mood a bit.”

Finally, when Henrietta did complain to Sally about Sherman’s treatment of her, she didn’t mention any of the conduct she now claims created a hostile work environment. Other than “a dirty look” when he touched her, the first indication she gave that she felt discriminated against was when she filed her administrative charge. That was too little, too late, according to the court. Because she didn’t show the complained-of conduct was unwelcome, she couldn’t maintain a hostile work environment claim.

Bottom Line

Proving a discriminatory constructive discharge is a difficult task. If an employee quits before giving her employer a reasonable shot at remedying the objectionable behavior, she probably won’t get a trial on her constructive discharge claim.

Moreover, an employee attempting to prove a hostile work environment claim must be able to point to examples of her own conduct that indicated she considered the offensive behavior unwelcome at the time it occurred.

Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at

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