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Work Beyond Pay Grade Can Be Grounds for Constructive Termination, Court Rules

By Mark Theodore & Dixie Morrison on November 18, 2022
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The federal court for the Northern District of California recently declined to dismiss a former Al Jazeera International employee’s constructive wrongful termination claim against the news outlet, finding that requiring an employee to perform tasks more advanced than their pay level, without promotion, could constitute “intolerable” working conditions.

The plaintiff alleges she was working as a producer for Al Jazeera when she was offered a promotion to senior producer.  She began taking on a senior producer’s job responsibilities, and Al Jazeera arranged for her to undergo management training.  At the management training, the plaintiff discussed her experiences with gender discrimination in the workplace.  Shortly after this training, an executive producer informed her that she would not be promoted to senior producer.

Even though this promotion was revoked, the plaintiff continued to be assigned work that a senior producer would do, without increased compensation or a senior producer credit for the shows she worked on.  The plaintiff had the “sense” that she would never be promoted based on her gender and in retaliation for her comments about gender discrimination, including when she was told that a senior executive did not want her to speak about her experiences with discrimination.  A few months after she learned she would not be promoted, the plaintiff resigned.  The plaintiff then sued, alleging among other causes of action that the treatment of her constituted constructive discharge.

The court ruled the plaintiff’s complaint alleged sufficient facts to proceed; specifically, the court noted, when asked to perform a more senior position’s work “without credit, proper pay, or possibility of advancement”—and when the plaintiff reasonably believed that she would never be promoted—the plaintiff “reasonably understood her options were to either resign or be taken advantage of.”

Personnel actions like work assignment or promotion decisions typically cannot by themselves form the basis for a constructive wrongful termination claim, which requires that the working conditions themselves are “so intolerable or aggravated” that a reasonable employee “would be compelled to resign.”  The court’s ruling here is a reminder that working conditions need not necessarily be dangerous, painful, or humiliating to be “intolerable” for a reasonable employee.

With the court’s denial of Al Jazeera’s motion to dismiss, the plaintiff’s constructive termination and other discrimination-related claims may proceed—for now.  We will continue to monitor this case for any substantive updates.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

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Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a…

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a variety of industries in litigation and arbitration relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, trade secrets, breach of contract, and whistleblower matters in both the single-plaintiff and class and collective action contexts. She also maintains an active traditional labor and collective bargaining practice and regularly counsels employers on a diverse range of workplace issues.

Dixie earned her J.D. from Harvard Law School, where she was the Executive Editor of Submissions for the Journal of Sports and Entertainment Law. Dixie received her B.A., magna cum laude, from Pomona College. Prior to law school, she served as a labor and economic policy aide in the United States Senate.

Read more about Dixie MorrisonEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    California Employment Law Update
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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