Anxious Salesman Forced to Quit Raises Disability Bias Claims

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By Kevin McGowan

Sept. 15 — A traveling salesman diagnosed with anxiety and depression who quit after the employer responded to his accommodation requests by putting him on commission only and stopping his pre-paid travel expenses has triable disability bias claims under federal and state law, the U.S. Court of Appeals for the Sixth Circuit ruled Sept. 14.

Reversing summary judgment for International Services Inc., the Sixth Circuit said the district court erred by ruling Robert Hurtt can't show the employer subjected him to any “adverse action” because of his disability and accommodation requests.

Instead, the appeals court said constructive discharge can be adverse action, and a jury could find a reasonable employee in Hurtt's circumstances would feel compelled to quit because of the company's changes in his pay arrangements and failure to grant his accommodation requests.

Hurtt's retaliation claims under the Americans with Disabilities Act and Michigan's Persons with Disabilities Civil Rights Act also should go to a jury because an employee's “good-faith request for reasonable accommodations” is “protected activity” under those laws, the court said.

A jury could find the employer's actions taken immediately after Hurtt's accommodation requests “would dissuade a reasonable person from engaging in protected activity,” the court said.

Company Changed Pay Deal 

International Services sells management and tax consulting services to small and medium-sized businesses, the court said. When the company hired Hurtt as a senior business analyst in 2011, it agreed to pay him a 12 percent commission on Hurtt's sales of its services, provide him with a $70,000 annual “draw,” pre-pay his work-related travel expenses and give him a $40 per diem for food expenses.

The parties later disputed the meaning of the “draw,” as Hurtt said it meant that even if his earned commissions fell short of $70,000, he wouldn't owe anything to the employer and if his commissions exceeded $70,000, he retained the excess. But International Services said Hurtt's “draw” was “recoverable,” meaning if he made less than $70,000 in commissions, he must repay the difference.

After some months on the road, Hurtt was experiencing sleep deprivation, mental fatigue, hypertension and other symptoms of exhaustion. Hurtt spoke with Donna Brewer, the company's survey services director, about his need for a four-day work week and eight hours of sleep a night. In September 2012, Hurtt's treating therapist sent International Services a letter stating Hurtt had acute anxiety and depression, that Hurtt required immediate leave and that he might require additional leave over the next nine to 12 months.

On Sept. 4, Hurtt submitted a Family and Medical Leave Act request for intermittent leave when his anxiety and depression flared up. On Sept. 5, International Services terminated Hurtt's $70,000 annual draw. The employer placed Hurtt on a commission-only pay scale and terminated his pre-paid travel expenses. Those steps meant Hurtt became immediately indebted to International Services for about $23,000 representing previously advanced, unearned commissions.

Hurtt protested that the new pay conditions made it “very difficult for [him] to afford” to work and requested a return to the prior arrangement. He communicated with Brewer about his need for the $70,000 draw and discussed his potential date of return to work. But the company never relented and Hurtt never returned. He sued International Services under the ADA, the Michigan civil rights law and the FMLA.

Constructive Discharge Is ‘Adverse.'

The district court improperly held a discrimination plaintiff can't use a constructive discharge claim to establish an adverse employment action, Judge Damon J. Keith wrote.

The district court cited Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 114 FEP Cases 1651 (6th Cir. 2012), in support of its holding. But the Sixth Circuit said Regan was a fact-based decision that a particular sex and disability bias plaintiff hadn't produced sufficient evidence to support her constructive discharge claim.

Regan “did not hold, as a matter of law, that the use of a constructive discharge [claim] to establish an adverse employment action was impermissible or contrary to Sixth Circuit precedent,” Keith wrote. “Indeed, this court has repeatedly held to the contrary.”

“Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she has suffered an adverse employment action,” the court said.

Hurtt's evidence was sufficient to raise a jury issue of constructive discharge, the court said. A jury could find that International Services' modifications of Hurtt's pay arrangements immediately after he requested accommodation meant the employer “deliberately created intolerable working conditions,” as perceived by a reasonable person, and the employer intended to force him to quit, the court said. There's no dispute Hurtt actually did quit as a result, the court said.

An employer's “complete failure to accommodate” an employee's disability also can support a constructive discharge finding, the court said.

“Assuming that Hurtt was denied a reasonable accommodation and that his draw was wrongfully terminated, a jury could reasonably infer [International Services] knew that Hurtt's working conditions would become so intolerable as to force Hurtt to quit,” the court said.

Describing the district court's analysis of Hurtt's disability bias claims as “cursory at best,” the Sixth Circuit remanded his ADA and state law discrimination and retaliation claims for trial.

FMLA Claim Reinstated

The court also revived Hurtt's FMLA interference claim, saying the “crux” is whether International Services' actions had the effect of discouraging Hurtt and other employees from using FMLA leave.

That International Services “did not literally interfere” with Hurtt's FMLA leave, by denying it or demanding he report to work, “does not impede” Hurtt's statutory claim, the court said.

“By engaging in an act that would discourage Hurtt from using his FMLA leave, [International Services] could be liable under a claim for FMLA interference,” the court said. “Here, Hurtt contends that [International Services] discouraged him from using his FMLA leave by terminating his draw.”

The facts viewed in the light most favorable to Hurtt—that International Services adversely changed his pay conditions immediately after Hurtt requested FMLA leave—raise a jury issue of FMLA interference, the court said.

Judges Eric L. Clay and Algenon L. Marbley joined in the decision.

Nicholas B. Roumel in Ann Arbor, Mich., represented Hurtt. Tishkoff & Associates represented International Services Inc. The Equal Employment Opportunity Commission participated as an amicus for Hurtt.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at