Court Reinstates Constructive Discharge Claim for Disabled Vet

December 21, 2011 ( – A federal appellate court has reinstated a constructive discharge claim for a disabled veteran who was taunted and bullied in his civilian job with the National Guard.

However, the 6th U.S. Circuit Court of Appeals agreed with a lower court that a $4.4 million jury award was not the proper remedy for a constructive discharge.  

A jury previously ruled for James McKelvey on both claims of a hostile work environment at Selfridge Air National Guard Base and eventually at the Detroit Arsenal and constructive discharge, awarding no compensatory damages on the hostile-work-environment claim but $4,388,302 in front pay on the constructive-discharge claim. After trial, the Secretary of the U.S. Army filed motions under Federal Rules of Civil Procedure 50 and 59 for judgment as a matter of law on the constructive-discharge claim and to vacate the award of front pay. The district court granted both motions, holding that McKelvey had presented insufficient evidence to sustain a finding of constructive discharge and, in the alternative, that the proper remedy for a constructive discharge would be an order reinstating McKelvey to a job at the armory, not front pay.  

The 6th U.S. Circuit Court of Appeals found a U.S. district court erred when it granted the Secretary’s motion to dismiss the constructive discharge claim as a matter of law. The court said that should only happen when “reasonable minds could come to but one conclusion, in favor of the moving party,” but noted that in this case, “reasonable jurors could have gone either way on this issue.”  

An employer is liable for constructive discharge when it coerces an employee to leave by creating “working conditions so intolerable that a reasonable person would have felt compelled to resign.”  

James McKelvey, who lost his right hand and injured his left hand, eye and lungs attempting to defuse a roadside bomb in Iraq, presented evidence that his employers gave him little work while his colleagues were “slammed,” that he was assigned to menial work; and that he suffered constant harassment. His supervisors repeatedly called him, among other derogatory things, “all f***ed up,” “a piece of s***,” “worthless,” and “a f****** cripple.”  “Repeated over the course of nine months, this constant stream of invective could sustain a finding of constructive discharge,” the court wrote in its opinion.  

McKelvey’s complaints went unaddressed, and one Lieutenant Colonel told him “[All] I can tell you is if you don’t like the way you’re being treated, go find another job.” McKelvey did find another job with the Oakland County Sheriuff’s Department.  

The appellate court noted that in deciding whether to award front pay, district courts must consider several factors, including “an employee’s duty to mitigate, the availability of employment opportunities, the period within which one by reasonable efforts may be re-employed, the employee’s work and life expectancy, [and] the discount tables to determine the present value of future damages.” The court determined that these factors counsel against an award of front pay in McKelvey’s case.  

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee, the court noted. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. The court also found that McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.  

The court opinion is available at