Employee alleges sexual harassment, sex discrimination, retaliation, hostile work environment
Constructive discharge, which is an employee’s reasonable decision to resign due to unendurable working conditions, requires proof that the employer made the conditions so intolerable that a reasonable person would feel compelled to resign, a recent Texas ruling said.
The City of Houston’s Department of Neighborhoods employed the plaintiff as a code enforcement officer trainee. In November 2018, the plaintiff was at a jobsite with several crew members, including Chris Varela.
Varela wanted a ride back to the office. He agreed to go with the plaintiff even though she informed him that she had to make a stop on the way back. When she arrived at a store parking lot, he grabbed her and kissed her. She rebuffed his advances before going to the store.
She resumed driving. He told her that they should go somewhere where they could talk. She ignored this and took him back to the jobsite. He supposedly slammed the door when he left the car. She believed that her rejection angered him.
The plaintiff’s supervisor, unaware of this incident, asked her to give Varela a ride back to the office. While she was driving, Varela pulled out his penis, began masturbating, took her hand from the steering wheel, and attempted to make her touch his penis.
The plaintiff notified her supervisor about these occurrences four days later. The next day, she reported the incident to Reginald Harris, her next-level supervisor. She wrote out her sexual harassment complaint in an email at his request.
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Harris forwarded the email to the city’s Office of Inspector General (OIG). While the OIG’s investigation was pending, Harris placed Varela on relief-of-duty status, suspended him with pay, and imposed a no-contact order so that he would not reach out to the plaintiff. Varela never returned to work.
In January 2019, the plaintiff told Harris that her coworkers were spreading rumors about her and requested information about the Employee Assistance Program so that she could receive counseling. Harris promptly provided this information and reminded her that an investigation was ongoing and that Varela was relieved from work duty.
Later that month, the OIG upheld the plaintiff’s allegations against Varela and notified her about its findings. That same day, the plaintiff told Harris saying she did not feel safe using her assigned parking space and asked for another location closer to her home where she could access the vehicle issued by the employer. Harris assigned her to a new parking location.
Harris started the process for terminating Varela’s employment. In February 2019, the plaintiff voluntarily resigned from her employment. Three days later, Varela resigned before Harris could complete the termination process.
In August 2019, the plaintiff filed a charge with the Equal Employment Opportunity Commission. She made claims of sex discrimination, retaliation, and hostile work environment. In October 2020, she filed a lawsuit with the same claims against the city. She alleged that the city’s actions and inactions led to her constructive discharge.
The city filed a summary judgment motion alleging that the trial court lacked subject matter jurisdiction because the plaintiff’s failure to exhaust her administrative remedies barred her suit against the city.
The trial court agreed with the city’s jurisdictional argument and summarily dismissed the plaintiff’s suit. The plaintiff appealed.
In the case of Christina Drew v. City of Houston, the Court of Appeals for the 14th District of Texas affirmed the judgment of the trial court. The plaintiff’s voluntary resignation did not amount to a constructive discharge, the appellate court held.
The plaintiff made the following arguments. First, she faced an intolerable work environment due to Varela’s attempts to reach her through coworkers and due to her retaliatory reassignment to the duty of inspecting buildings before demolition. Second, management’s lack of response and disregard for her safety as she inspected abandoned buildings on her own demonstrated constructive discharge.
The appellate court disagreed. The evidentiary record did not reflect the factors needed for a constructive discharge claim and did not support that the plaintiff’s reassignment was retaliatory or connected to her sexual harassment complaint, the appellate court said.
According to the appellate court, the evidence instead showed the following:
