Can Employees Intentionally "Self-Terminate" Themselves Through Poor Performance or Misbehavior? Pa. Fed. Judge Says No to "Constructive Quit" Theory

4 Year Old Girl Blowing Raspberry and Holding Ears

Can an Employee "Force Termination" So That a Termination May be Reclassified as a Quit?

No Matter the Employee's Behavior, an Employer May Not Recast a Termination as a Quit

In a March 31, 2021 opinion in EMC Outdoor, LLC v. Stuart, federal judge Nitza Quinones Alejandro, sitting in Philadelphia, considered a novel argument in a declaratory judgment action filed by an employer against its former employee, alleging violations of restrictive covenants contained within her employment agreement.

To make a long story short, if the employee was fired, she would be free to compete, but if she quit she would not.

The employer uncovered evidence that the employee had been planning to join a competitor for some time, and provided the court with examples of the employee's misconduct that it contended was designed to lead to her termination. In other words, during the months leading up to her termination, the employee's performance nosedived to such an extent it was plain that she wanted to be fired.

Eventually, the employer obliged, and the employee immediately went to work for a competitor, and to solicit former clients.

It was against this backdrop that the employer asked the court to declare that the employee had fired herself intentionally, and to designate her separation as a quit.

Judge Quinones Alejandro rejected this legal argument:

EMC attempts to argue that Stuart "self-terminated" herself from EMC by performing so poorly that "her willful misconduct left EMC with no choice but to terminate her employment[.]" Plf. Resp. Br., ECF 110, at 6. Initially, it is worth acknowledging this concession that EMC did, indeed, terminate Stuart's employment. Second, this Court agrees with Stuart that EMC presents no evidence that such a concept has ever been recognized as a legal theory. Indeed, this Court is similarly unaware, as Defendants note that they are, "of any published decision by any court finding an employee's work performance (as opposed to a job abandonment and simply not appearing for work) could constitute a `self-termination' that would convert an involuntary termination into a voluntary one." Def. Br., ECF 107 at 17 n.5.
Further, contrary to EMC's contentions, it is irrelevant whether Stuart's work performance was poor (intentionally or unintentionally so) prior to her termination, or whether she had been hoping to be fired. The reasons why EMC fired Stuart are equally irrelevant. The only relevant, material fact regarding Section 12's applicability is which party ended Stuart's employment: EMC or Stuart? The record is clear that it was EMC.

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Leading to a Constructive Discharge

EMC Outdoor, LLC v. Stuart: Federal Court Refuses to Adopt Constructive Quit Theory, the Counterpart to a Constructive Discharge

Courts throughout the United States have for decades recognized the principal of "constructive discharge." A recent decision issued buy another Pennsylvania federal district court judge earlier this year in Forrester v. Solebury Township in explains that principal as follows:

Forrester also fails to plausibly plead constructive discharge. Resignations from employment are presumed voluntary "until the employee presents evidence to establish that the resignation or retirement was involuntarily procured." Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). The Third Circuit recognizes "two circumstances in which an employee's resignation or retirement will be deemed involuntary for due process purposes: (1) when the employer forces the resignation or retirement by coercion or duress, or (2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a material fact to the employee." Id. at 228.
The Third Circuit has identified a "non-exhaustive list of factors" to evaluate a constructive discharge claim due to coercion or duress:
(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice [he] was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel.
Judge v. Shikellamy Sch. Dist., 905 F.3d 122, 125 (3d Cir. 2018) (citation omitted). The standard for determining whether a resignation was forced by coercion or duress is objective. See id. at 125. "[T]he ultimate issue is not what [Forrester] [him]self felt or believed, but whether a reasonable person under the circumstances `would have felt compelled to resign.'" Id. (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010)).

Judge Quinones Alejandro was unwilling to recognize a reciprocal theory to the constructive discharge doctrine whereby an employee could by duress or coercion force an employer to terminate employment so that, as a matter of law, the employer could characterize the separation as a quit, and there are apparently no cases holding otherwise.