Friday, January 4, 2008

The Iowa Caucus

A Simple Prayer


Robert B. Fitzpatrick

Mine eyes have seen . . .
Medgar, dead at the hand of hate,
Ross’ grocery store in Port Gibson, and the voices of hope,
Unita in Mayersville, Eddie Ford, Roosevelt and Pauline, and most especially, our Ms. Daisy, Ms. Minnie Ripley,

Mine eyes have seen . . .
Martin, dead at the hand of hate,
Tut gone forever, but Rosie at Head Start with the sparkling eyes of a child,
Then hope again, Bobby,

Mine eyes have seen . . .
Anna Walentynowicz in Gdansk, and,
The Philosopher King, Václav Havel,
And death yet again, Fr. Popieluszko, but hope alive at St. Stanislas Kostka,

Mine eyes have seen . . .
The smile, the erect bearing, and those wonderful shirts – after Robbin Island, and,
Lucky Dube voicing the hope,
And then death again this last fall as we killed our own, Lucky,

Mine eyes have seen . . .
And, my back straightened with pride this morning,
I thought I saw beyond the horizon,
Or, was it but a dream,

Protect your son, Oh Lord,
Work your will,
And let us see,
Whether the refrain is complete.

Is A Constructive Discharge Claim A Continuing Violation And If So, Who Cares?

In response to my post regarding the opinion in Mayers of the D.C. Court of Appeals,
there has been some discussion that, for example, if a former employee, who alleges that he/she was constructively discharged as a result of an accumulation of intolerable acts, on the 365th day after the resignation/constructive discharge, the former employee's complaint might be time barred if the last of the series of intolerable acts that precipitate the resignation occurred 366 or more days before the filing. Frankly, while that is intellectually interesting, I doubt if any Judge would give the time of day to such an argument. The culminating event, the resignation/constructive discharge, has to be an actionable event even though, in a sense, all of the wrongs that lead the employee to quit Suders-like preceded resignation and, in some cases, could be all outside the one year statute of limitations.

On a nearly silly tangent, I have to assume that Maryland, even after Hass, in a constructive discharge circumstance where the person announces their resignation on day X to be effective on X plus two weeks, the statute of limitations begins to run from the announcement date, not the effective date of the constructive termination.

Having said the above, the discussion regarding my initial post, has led me to revise my conclusion that whether or not the courts denominate constructive termination cases as akin to Morgan - cumulative wrong cases is indeed of significant value to Plaintiffs. Let me explain my thinking.

If constructive termination is viewed as a cumulative wrong, then the entire string of events that eventually "breaks the camel's back" and culminates in a resignation called a constructive termination, under Morgan, so long as there is no break in the chain, the entire chain/string of events is actionable and all of the wrongs committed during the chain are compensable, not just the events that occurred within the one year D.C. Human Rights Act statute of limitations. So, if it is death by a thousand cuts over more than a year, the events before the year before filing are not only evidence, under Morgan they are liability events.

Thus, the jury can consider all of the events no matter how far back in time the chain of events goes, in assessing the amount of the jury's award. So, while maybe a bit esoteric, conceiving of constructive termination as a cumulative wrong is helpful for closing argument and for shutting down arguments that the events prior to the one year period unduly swayed the jury and affected inappropriately the amount of their award.

Also, viewing constructive terminations as cumulative wrongs shuts down arguments by the defense that the events occurred within one year before the resignation in toto do not amount to sufficient intolerability to justify an employee, like the police woman in Suders, saying "enough is enough", and having her resignation viewed as a fit response to the intolerable acts.