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by Linda Trainor | March 10, 2009


Key Issue: Under the Americans with Disabilities Act, an employee who elects "constructive demotion" may enjoy the same rights as an employee who is constructively discharged.

The Case: Fenney v. Dakota, Minnesota & Eastern Railroad Company, 8th Circuit Court of Appeals, No. 02-1479 (2003)

When working as a locomotive engineer, Ronald Fenney suffered injuries (loss of his thumb and most of his middle finger and damage to the radius bone) that resulted in limited use of his right hand and arm. But he was still able to handle his engineering duties. Some time after his accident, the Dakota, Minnesota & Eastern Railroad (DME) hired Fenney as an "on-call" locomotive engineer. On-call engineers perform the same duties as regular engineers; however, an on-call engineer can be called at any time to report to work.

Under the bargaining agreement between DME and a local union, on-call workers must be given at least 1.5 hours advance notice to report to work. However, some workers requested, and were granted, more notice, known as a "long call." Fenney was typically given 2.5 to 3 hours notice because it took him extra time to bathe, dress, shave, prepare a meal, and drive to work on time.

Then new management implemented a policy standardizing the on-call notice to two hours. Fenney asked for accommodation several times, but his requests were always denied, even though he produced a letter from his doctor stating that he required more time to care for himself. The union also wrote a letter to the company requesting accommodation. The company said that it would only make an accommodation if Fenney could prove that the previous management had "guaranteed" the advance call.

Finally, in an effort to avoid the risk of losing his job, Fenney asked to be assigned to another position with regular hours. Because he lacked seniority, the only regular hours position he could qualify for was weekend conductor. The pay rate was less, and weekend conductors could only work four days a week rather than up to seven days a week for on-call engineers. After demoting himself, Fenney sought and received a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC). He filed suit, charging intentional discrimination and a failure to accommodate under the ADA and the MHRA (Minnesota Human Rights Act).

A federal district court found in favor of the company, saying that "& Fenney is not substantially limited in the major life activity of caring for himself." Fenney appealed.

The U.S. 8th Circuit Court of Appeals concluded that the district court erred in its opinion that Fenney is not substantially limited in the major life activity of caring for himself. It went on to say that it would apply the same analysis to constructive demotions that it would to constructive discharges, and found that Fenney had proven the elements of constructive demotion, which is an adverse employment action. The case was sent back for further proceedings.

Compliance quote. An employee cannot claim an adverse employee action if the individual voluntarily resigns & unless the circumstances leading to the resignation are a result of the employers actions (i.e., resignation was the only viable alternative). Then the resignation is considered constructive discharge.

Constructive discharge cases are more common than constructive demotion cases. Employers typically argue that an employee did not suffer adverse employment action if he or she elected voluntary demotion. However, in case of a dispute, the 8th Circuit Court of Appeals joins the 1st, 5th, 6th, and 7th Circuits, concluding that constructive demotion should be analyzed according to the same standards as constructive discharge.

In order to prevail in a constructive demotion charge, employees must show both that they found the environment to be abusive and that objective persons in the position would have felt that they had to demote themselves because of discriminatory work conditions.

The 8th Circuit explains. "Fenney was faced with the following choice: Take a lower paying job, one that he could report to on time, or show up to work late repeatedly and risk discharge. Therefore, a reasonable person could conclude that Fenney had no choice at all. Through its action, [DME] had created an environment in which Fenney had no choice other than to demote himself."


Filed Under: Workplace Issues

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