In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion: that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.
Far more intriguing to me, however, what was left unsaid in the decision: how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.
The Court devoted half a column of text describing how the parties went through successful two-month long mediation process, that resulted in an agreement less than a month before the plaintiff gave two weeks notice that she was leaving. The agreement provided the plaintiff with a flexible work schedule; training (funding permitted) that was alleged to have been previously denied in retaliation; and bi-weekly meetings in which plaintiff could bring up any future inappropriate comments or actions with all the supervisors involved in the allegations. Moreover, the mediation agreement was modified a week or so before plaintiff gave notice, to provide for one-on-one bi-weekly meetings with only the plaintiff and her new supervisor, who was not implicated in the original allegations.
The Court devoted half a column of text describing how the parties went through successful two-month long mediation process, that resulted in an agreement less than a month before the plaintiff gave two weeks notice that she was leaving. The agreement provided the plaintiff with a flexible work schedule; training (funding permitted) that was alleged to have been previously denied in retaliation; and bi-weekly meetings in which plaintiff could bring up any future inappropriate comments or actions with all the supervisors involved in the allegations. Moreover, the mediation agreement was modified a week or so before plaintiff gave notice, to provide for one-on-one bi-weekly meetings with only the plaintiff and her new supervisor, who was not implicated in the original allegations.
In reviewing the facts, the court was not moved by the employer's arguments that the plaintiff remained on the job long after the onset of the allegedly intolerable conditions; explored her options prior to leaving; and even gave two weeks notice. The court said these factors were considered by the jury, and it would not re-weigh the evidence.
However, as a mediator I am still confronted by the question of whether--as a matter of law--an employee should be able to be deemed constructively discharged where she went through what was, by all accounts, a successful mediation? Such a notion seems to contravene public policies in favor of alternative dispute resolution (ADR), requirements of good faith participation, and the principle that with mediation the parties move forward rather than look back.
I am left to wonder, did something happen after mediation that obviated or violated the agreement, and made the work situation intolerable at that point? The record reflected in the decision is silent and I find myself wishing the Court had elaborated a bit on that point.
Notes.
* Reprinted from another of the author's blogs, On New Mexico Labor and Employment Law.
