Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Thursday, November 17, 2005 11:10 AM by Rod Satterwhite

Manage This

In this age of easily hurt feelings and heightened sensitivity to just about everything, it's nice to see a common sense decision in an employment case.  The Tenth Circuit just ruled - brace yourself - that a supervisor who "set goals and deadlines for an ongoing project, requested that [an employee] 1) keep track of her daily activities in fifteen-minute intervals for seven days, 2) work in her cubicle so [the supervisor] could more closely supervise her, and 3) inform [the supervisor] of dates she would be out of the office" did not constructively discharge the employee she was managing.  Turnwall v. Trust Co. of America, No. 04-1303 (10th Cir. 2005).

Apparently, shortly after the meeting in which Ms. Turnwall's supervisor set out the expectations described above, she "began to experience fatigue and memory loss" due to a medical condition, but never requested an extension or discussed the issue with her supervisor.  She just kept missing deadlines, and then claims she found it offensive when she was "criticized" for "dropping the ball."  She took intermittent leave under the FMLA during this time, went on a two-week vacation, then came back to work long enough to resign.  Then she sued for constructive discharge and intentional infliction of emotional distress. 

Thankfully, the Tenth Circuit held that the working conditions weren't objectively intolerable, and that there was no outrageous conduct, so they got it right.  But what does this lawsuit say about the average supervisor's ability to manage an employee who admittedly had problems prioritizing her work?  Goal setting and regular monitoring of progress are textbook management techniques, and were perfectly appropriate under these circumstances.  Nevertheless, the employer here had to defend a federal lawsuit, and a subsequent appeal, at no small cost, essentially because somebody couldn't handle criticism from a supervisor.

We are blessed with excellent Federal Judges here in the Eastern District of Virginia.  Ten years ago, one of them, the Honorable James Spencer, wrote perhaps the best description ever penned regarding the tendency in today's workplace for people to jump on the victim bandwagon:

"Personality conflicts are a fact of life, occurring in the work-place with the frequency of overly-demanding supervisors and crushed employee expectations. And yes, discrimination is also alive and well in America today. But one will not unearth invidious distinctions lurking beneath every act of discipline or every denial of advancement. Any attempt to argue otherwise trivializes the laws enacted to eradicate the bigotry that still blocks the path to individual achievement and inhibits our collective advancement.

It also fosters a culture of victims. This Court does not have the power to prevent the rain from falling into anyone's life, and is not about to intercede in every work-place squabble. Where, as here, the law offers no remedy, the responsibility for recovering from the occasional affronts of office life falls at the feet of the complainant.  Thus, a person who clings steadfastly to the belief that she has been unjustly wronged, when all the evidence suggests otherwise, risks more than a judicial defeat. She also imperils her own ability to rise above the normal setbacks of life and renders herself ill-prepared to face the next inevitable pitfall. And this self-inflicted wound is far more damaging.

To those souls who still labor under the heavy hand of illegal workplace discrimination, the doors of this Court will remain ever open. The pretenders, though, must learn to wrest control of their own lives from deleterious circumstances without seeking recourse from the courts."

Keegan v. Dalton, 899 F. Supp. 1503 (E.D. Va. 1995). 

Couldn't have said it better myself.

Comments

# re: Manage This

Friday, November 18, 2005 2:08 PM by George Lenard
Legally, it certainly sounds like a correct, common sense result. Constructive discharge is -- and should be -- very hard to prove.

In terms of management of people, I'm not so sure the heavy-handed approach may not in fact have made matters worse.

If, unlike lawyers, you are not accustomed to tracking your time so closely, it could certainly be unnerving.

If normally people working that job were given deadlines but not watched like a hawk, there's perhaps something to be said for letting someone like this employee hang thenselves -- or not -- working under the same degree of supervision as others. It would certainly avoid a (likely legally unsupportable, but still costly to defend) disparate treatment claim.

# re: Manage This

Friday, November 18, 2005 2:08 PM by George Lenard
Legally, it certainly sounds like a correct, common sense result. Constructive discharge is -- and should be -- very hard to prove.

In terms of management of people, I'm not so sure the heavy-handed approach may not in fact have made matters worse.

If, unlike lawyers, you are not accustomed to tracking your time so closely, it could certainly be unnerving.

If normally people working that job were given deadlines but not watched like a hawk, there's perhaps something to be said for letting someone like this employee hang thenselves -- or not -- working under the same degree of supervision as others. It would certainly avoid a (likely legally unsupportable, but still costly to defend) disparate treatment claim.

# re: Manage This

Saturday, November 19, 2005 8:36 AM by Rod Satterwhite
George is right that heavy handed management isn't the best approach. The carrot is better than the stick in most cases. Here, though, the plaintiff had written in her own self-evaluation that she had a problem prioritizing. Unfortunately, I've been to enough of those time-management seminars to recognize that one of the first things they tell you to do is track your time for a week to see where you're wasting it. Reading between the lines, you could argue that the manager here was actually trying to help the employee improve, and if that's the right spin on the facts, I just can't see that effort justifying a lawsuit.

# re: Manage This

Saturday, July 14, 2007 1:32 PM by Giorgos
Sorry :(