In Walsh v. HNTB Corporation, 2023 WL 8851163 (D.Mass. Dec. 21, 2023), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s claim of hostile work environment and constructive discharge (on the basis of age discrimination) in violation of the Age Discrimination in Employment Act.
This decision teaches that the timing of allegedly discriminatory comments, in addition to their content, is a pertinent factor in the analysis.
From the decision:
Walsh also contends that she was constructively discharged as a result of an abusive workplace environment. As evidence, she cites: 1) comments by Vealey that she could “be replaced by younger, cheaper people” and that the company was “not getting its return investment” on her, 2) Clark refused to provide her with information on why her performance was purportedly lackluster and later told her to “shut up” and “stop asking” and 3) Clark told her that “she barely improved enough to get off the PIP.” HNTB responds that Walsh’s evidence amounts to stray comments and, in any event, occurred 10 months or more prior to her resignation. To establish a claim of constructive discharge plaintiff needs to adduce evidence of conditions “so onerous, abusive, or unpleasant” that a reasonable person would have felt compelled to resign. The Court notes that there is conflicting evidence as to when Vealey and Clark actually supervised plaintiff but, even attributing the offending remarks to her supervisor at the time, she has not supported a claim for constructive discharge on the theory of a hostile workplace based on the current record. Vealey’s purported comment that Walsh could “be replaced by younger, cheaper people” and that the company was “not getting its return investment” on her may indeed evince age-related animus. Clark’s comments, which included telling plaintiff to “shut up”, were certainly rude, intended to reflect frustration with Walsh and could be interpreted as contributing to establish a hostile workplace. The fact that these comments were made 10 months or more prior to plaintiff’s decision to resign, however, severely undermines plaintiff’s assertion that the workplace environment was so hostile that she has no real choice but to resign.
The court concluded that “[t]he temporal distance between those comments and the date of plaintiff’s resignation suggests that plaintiff had the choice to resign and chose to stay.”