The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.
James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey complained to two supervisors, the equal employment opportunity counselor, and a human resources specialist. McKelvey was told, "things aren’t going to change." He was also told, "[All] I can tell you is if you don’t like the way you’re being treated, go find another job."
After McKelvey was offered a position with the Oakland County Sheriff’s Department, he resigned from the armory on February 16, 2007.
In October 2007, McKelvey filed suit against the Secretary of the United States Army in federal district court, claiming failure to make reasonable accommodations, retaliation, hostile work environment and constructive discharge. The hostile work environment and constructive discharge claims survived summary judgment. Following a trial in October 2009, a jury ruled for McKelvey on both claims, awarding no compensatory damages on hostile work environment, but $4.4 million in front pay on the constructive-discharge claim.
After the trial, the Secretary filed motions for judgment as a matter of law on the constructive-discharge claim and to vacate the award of front pay. The district court granted both motions in January 2010. The court held that McKelvey had presented insufficient evidence to sustain a finding of constructive discharge, and in the alternative, that the proper remedy for a constructive discharge would be an order reinstating McKelvey to a job at the armory, not front pay.
On appeal, the Sixth Circuit Court of Appeals held that the district court improperly granted the employer’s post-trial motion on the constructive discharge claim. The Court held McKelvey had presented sufficient evidence that a reasonable person in his position would have felt forced to quit, supporting a finding of constructive discharge. The Court also rejected the Secretary’s argument that McKelvey waited too long to resign, holding other courts have permitted findings of constructive discharge for time gaps as long or longer than McKelvey’s.
The Sixth Circuit then reviewed the district court’s decision to deny front pay and found there was no abuse of discretion. Reinstatement is the preferred remedy when an employee is unlawfully discharged, and McKelvey provided no evidence that persuaded the Court to rule otherwise. Indeed, the Court found that the fact that McKelvey had obtained new employment in the interim made no difference. The Court noted that the Army had offered him immediate reinstatement at a higher salary, under a new supervisor and without any disruption to the operations at the armory or the need to displace another employee. In fact, the Court noted that upon returning to work, four out six of McKelvey’s co-workers would be new, with no connection to the harassment he had suffered.
The Court found determining front pay would be highly speculative at McKelvey’s young age, 38. The Court remanded the case to the district court to calculate the amount McKelvey should receive in back pay for the period between his discharge and reinstatement.
The McKelvey case is instructive to Ohio employers on both the constructive discharge and reinstatement issues, but it is also instructive with respect to the fact that harassment based on disability status is a viable cause of action under the ADA. Employers that learn of employee allegations of harassment based on a disability would be wise to investigate immediately and put a stop to it if it in fact is occurring.