Constructive discharge: how bad is objectively bad.

Gardner v Abbot, et al, No. 3-12-00680-CV (Tex. App. — Austin July 18, 2013)

This is an employment discrimination case based on sexual orientation.  Gardner was a homosexual employee at a child-support center for the State who alleges he was constructively discharged due to the hostile environment and harassment from his supervisor imposed base on his sexual orientation. He sued alleging various causes of action but the trial court granted the State’s plea to the jurisdiction and summary judgment and he appealed.

One of Gardner’s job requirements was to meet a specific call quota. Employees usually spent 40 hours a week on the phone taking calls. Strict oversight existed to make sure employees comply with call requirements. The court specifically noted that while an employee may feel an issue is minor, it may have significant impact for the call center. Gardner received high annual evaluations, but did have several disciplinary warnings.

Gardner alleges harassment activities such as being asked how his father (Baptist preacher) feels about his lifestyle when heterosexual employees were not asked the same type of thing and the supervisors refused to distribute Gardner in is Halloween costume (Geisha Girl) when heterosexual costumers were distributed as part of a social employee distribution. In June 2008, Gardner contends his job was threatened when told he was taking too long for calls. After several disciplinary warnings regarding idle call time and improper transfers, Gardner resigned.  He sued his supervisors directly, Greg Abbott, and the State of Texas alleging Texas Constitutional violations. The trial court granted the defendants plea to the jurisdiction for partial claims, and while a second plea was pending, the defendants filed motions for summary judgment which were granted. After reviewing the alleged facts and evidence the court held none of the alleged facts are such that a reasonable person would not feel compelled to resign.  The court specifically noted that while Gardner alleged general heightened scrutiny of his performance, the court was only going to consider specific instances factually alleged and supported.  The court affirmed the dismissal based on the grant of the summary judgment and therefore the issues raised in the pleas were not necessary to address.

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