As to the former element, the non-renewal of an employment contract is an adverse employment action. See Harris v. Butler Cty., Ohio ex rel. its Sheriff's Dep't., 344 F. App'x 195, 199 (6th Cir. 2009). However, an employee's voluntary resignation ordinarily is not an adverse action.
Id. The Sixth Circuit further outlined this constructive discharge claim in Ford v. Gen. Motors Corp., 305 F.3d 545 (6th Cir. 2002) and Harris v. Butler Cnty., Ohio, 344 F. App'x 195 (6th Cir. 2009), stating that "[w]e have found . . . that an employee's resignation may constitute a constructive discharge when the employee reasonably believes his termination to be imminent." Harris, 344 F. App'x at 199 (citing Ford).
That is, "when the employee reasonably believed his termination to be imminent." Harris v. Butler Cty., Ohio ex rel. its Sheriff's Dep't, 344 F. App'x 195, 199 (6th Cir. 2009) (describing Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002)). But as with her actual-termination argument, Lee merely presents quotes without context.
If assumed in favor of the plaintiff, as the district court apparently did, then there is no error of qualified immunity. Defendants cite Harris v. Butler County, 344 Fed.Appx. 195 (6th Cir. 2009), for the proposition that Sigler cannot establish any "constitutionally protected activity" because he can prove no "undue intrusion" into his marital association. As an unpublished opinion, however, Harris can cast no doubt on the legal holdings of our clear published opinions in Adkins and Sowards.
โ[D]e minimis employment actions are not materially adverse and, thus, not actionable.โ Harris v. Butler Cty., Ohio ex rel. its Sheriff's Dep't, 344 Fed.Appx. 195, 199 (6th Cir. 2009). Dr. Holland has failed to present any admissible evidence to support his claim that the delay in the Call Agreement was materially adverse to him.
Persuasive authorities support this conclusion. See, e.g. , Green v. Town of East Haven , 952 F.3d 394, 405 (2d Cir. 2020) (recognizing that a resignation may be a constructive discharge if "it was objectively reasonable for an employee to feel compelled to resign in order to avoid being fired"); Harris v. Butler Cty. , 344 F. App'x 195, 200 (6th Cir. 2009) (recognizing "that an employee's resignation may constitute a constructive discharge when the employee reasonably believed his termination to be imminent"); Davis v. Koffee Kup Bakery, Inc. , No. 2:15-cv-152, 2016 WL 4411399, at *6 (D. Ver. Aug. 18, 2016) ("When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the employee resigns, the employer's conduct may amount to constructive discharge.") (quoting EEOC v. Univ. of Chi. Hosps. , 276 F.3d 326, 332 (7th Cir. 2002) ); Murray v. Town of N. Hempstead , 853 F. Supp. 2d 247, 269 (E.D.N.Y. 2012) ("[A] triable issue of fact as to constructive discharge may be demonstrated by proof that an employee was presented with the decision to resign or be fired.") (quotation omitted); Jones v. Willy, P.C. , No. H-08-cv-3404, 2010 WL 723632, at *7 (S.D. Tex. Mar. 1, 2010) (recognizing that a threat of termination may amount to a constructive discharge if the threat "place[s] the employee
But "nonrenewal of contract" is considered as an "adverse employment decision." See Harris v. Butler Cnty., Ohio ex rel. its Sheriff's Dep't, 344 F. App'x 195, 199 (6th Cir. 2009) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999)). Apparently recognizing this, in its reply the Board argues only that Goodsite "resigned."
Likewise, in Harris v. Butler County, Ohio ex. Rel. its Sheriff's Dept, the court held that a temporary delay (two to three months) in the plaintiff receiving his special commission did not constitute an adverse action in a claim for retaliation where the special commission did not entitle the plaintiff to additional pay but only allowed him to perform special detail assignments. 344 Fed. Appx. 195, 199 (6th Cir. 2009). Additionally, the District Court for the District of Columbia has addressed temporary details in the retaliation context head-on under the same "relatively low bar" set out in White.Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 596 (6th Cir. 2007).
Moreover, "an employee's resignation may constitute a constructive discharge when the employee reasonably believed his termination to be imminent." Harris v. Butler Cty., Ohio ex rel. its Sheriff's Dep't, 344 F. App'x 195, 199 (6th Cir. 2009) (citing Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002)). Therefore, to the extent that Defendants argue that Plaintiff has failed to state a claim of age discrimination based on circumstantial evidence, Defendants' Motion to Dismiss is DENIED.
Certainly, federal courts have held that "[t]here is no Ohio statute that is analogous to ยง 1983 that creates an independent cause of action to remedy violations of the Ohio Constitution." Harris v. Butler Cty., Ohio, No. 1:07CV069, 2008 WL 4186316, at *8 (S.D. Ohio Sept. 3, 2008), aff'd sub nom. Harris v. Butler Cty., Ohio ex rel. its Sheriff's Dep't, 344 F. App'x 195 (6th Cir. 2009). In their reply memorandum, Plaintiffs offer no rebuttal to the City's contention in this regard.