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Hurt Feelings Don't Support Constructive Discharge

By Robyn Hagan Cain | Last updated on

If you read about sexual harassment claims for the saucy details, this post will be a disappointment. But if you secretly hope that a run-of-the-mill constructive discharge claim will belie the notions of respect and cohesiveness in academia, you're in for a treat with today's Sixth Circuit Court of Appeals selection.

This case, Savage v. Gee, has it all: sexual harassment claims, constructive discharge allegations, First Amendment retaliation, and a controversial reading recommendation.

Scott Savage was Head of Reference and Library Instruction at The Ohio State University's Bromfield Library in Mansfield, Ohio. He also served on a committee that selected a required reading book to be assigned to all incoming freshmen on the campus. Savage suggested four books in an email to the committee, arguing that the selection should "confront accepted wisdom" at the University.

One of Savage's suggestions, The Marketing of Evil by David Kupelian, contains a chapter describing homosexuality as aberrant human behavior. The suggestion was not well-received, and Savage eventually withdrew from the committee.

Professors began sending email messages about the book selection fiasco. One professor emailed all University faculty and staff stating that Savage had made him "fearful and uneasy being a gay man on this campus." Another sent a message to the entire Mansfield campus summarizing the argument and stating that Savage's continued endorsement of the book amounted to calling "gay and lesbian people 'evil.'" Faculty members filed reports and forms against Savage, complaining about "harassment based on sexual orientation" and "inappropriate behavior."

Savage responded with a complaint of harassment against faculty members for filing false sexual harassment claims against him.

The University ultimately determined that there was no basis for the internal complaints. Shortly thereafter, Savage took a leave of absence from his job because of his "extreme emotional distress" related to the accusations against him, and his belief that the University had not "taken any meaningful action to vindicate" him. He later renewed this leave. Savage subsequently resigned his position and filed a lawsuit against the University alleging constructive discharge and First Amendment retaliation.

The district court found that Savage's free speech was not protected, that he had not been constructively discharged, and granted summary judgment for the University. The Sixth Circuit Court of Appeals affirmed.

First, the appellate court reasoned that Savage didn't satisfy the First Amendment retaliation requirements because his statements, made pursuant to his duties as a government employee, were not protected speech. Furthermore, Savage failed to present evidence of any adverse employment action based on the speech.

Next, the Sixth Circuit found that Savage failed to demonstrate that his work conditions were objectively intolerable and that the University intended for him to quit, both of which are required to support a constructive discharge claim. Hurt feelings, the court noted, are insufficient to support a claim.

Before you file a First Amendment retaliation and constructive discharge complaint on behalf of a public employee, make sure that the fact pattern satisfies the legal requirements for your claim.

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