Key Points

  • The Eighth Circuit affirmed summary judgment against a former Rochester, Minn., fire department manager who retired rather than accept a reclassification carrying a pay cut of almost $12,000.
  • Loss of supervisory duties, criticism and reduced pay were held not to create objectively intolerable working conditions sufficient for constructive discharge.
  • The employer's efforts to redesign the job, including an apparent violation of the bargaining agreement's reclassification rules, showed an intent to retain the employee rather than force him out.
  • The ADEA and equal protection claims independently failed because the employee never raised age bias before retiring, a requirement the court noted does not apply under the Minnesota Human Rights Act.
  • The procedural due process claim failed because voluntary retirement is not a deprivation and the employee never used available grievance procedures.

A federal appeals court on Wednesday rejected an age discrimination lawsuit by a former Rochester, Minnesota, fire department manager who retired rather than accept a demotion that would have cut his pay by almost $12,000, ruling that a reduced role, critical performance reviews and a "blunt" email from his supervisor did not amount to forcing him out of his job.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously affirmed summary judgment for the City of Rochester and three officials against Curtis Pronk, who had worked as the fire department's administrative services manager since 2006 and was 60 when he retired in August 2021. Circuit Judge Loken wrote the opinion, joined by Chief Judge Colloton and Circuit Judge Benton.

The ruling turned on constructive discharge, a doctrine that treats a resignation as a firing when an employer deliberately makes working conditions so intolerable that the employee is effectively forced to quit. The panel held that Pronk failed every part of that test: his conditions were not objectively intolerable, the city showed no intent to drive him out, and, for his federal claims, he never told his employer he believed he was being targeted because of his age.

According to the opinion, Pronk for years received "successful" ratings from Fire Chief Erik Kerska and Deputy Fire Chief Vance Swisher, both of whom were his friends. After the City Council rejected a recommendation to hire another administrative assistant, Kerska launched a strategic review of the department, and the two administrative assistants Pronk supervised told Swisher that he was not a good manager.

Swisher prepared two reviews of Pronk's 2020 performance. The official one rated him "successful" so he could still receive a merit raise. An "alternate" review, which Swisher shared with Kerska but did not submit to human resources, was harsher, stating that "People feel [Pronk] makes answers up or bluffs his way through discussions even when he does not have a clear understanding."

In May 2021, department leaders decided to reclassify Pronk's job rather than place him on a performance improvement plan, a step meant to put him "into something he could be successful at." At a July 2021 review he was rated "unsatisfactory" and told he would become an "Administrative Services Specialist". When Pronk wrote that he was being "walked out the door," Swisher replied: "I am sorry to be blunt, but you have not been successful previously and I don't think you would be successful moving forward."

Pronk's collective bargaining agreement allowed reclassification only if a position's duties changed by at least 40 percent and required that the changes go to the union president. Kerska admitted he did not know whether Pronk's duties had changed that much, and no one sent the changes to the union president or the City Council. After an Aug. 9 meeting about his revised duties, Pronk announced he would retire at the end of the month. A 50-year-old man replaced him.

Pronk argued that the accelerated review, lost supervisory duties, pay cut and new assignments, taken together, made his job intolerable. The panel disagreed. "While no doubt intolerable for Pronk at the time, these working conditions fall well short of establishing the kind of objectively intolerable conditions required to prove constructive discharge," Judge Loken wrote.

The court acknowledged that the city could have used a performance improvement plan or less "blunt" language, but said "'objectively intolerable' working conditions require more than disagreements with management about courses of action, especially where there is a factual basis for the employer's actions, such as complaints by co-workers."

The panel also rejected Pronk's argument that the department's disregard of the bargaining agreement showed it was trying to push him out. "RFD's apparent violation of the CBA reclassification policy, if anything, supports a finding Defendants wanted to keep Pronk employed," the court wrote, adding that the record showed "Defendants did what they could to keep Pronk as an employee." Swisher and Kerska both testified that they were surprised when Pronk chose to retire.

The age discrimination claims under the federal Age Discrimination in Employment Act and the Constitution's equal protection guarantee failed for an additional reason under the circuit's 2017 decision in Blake v. MJ Optical, which holds that an employee who quits without giving the employer a reasonable chance to fix the problem was not constructively discharged. Pronk felt the criticism was age-based but never said so, the court found, and his "walked out the door" remark "did not communicate the belief he was facing the age discrimination later alleged in this lawsuit." The panel rejected his argument that complaining would have been futile because of Swisher's email.

In a footnote, the court said that notice rule does not govern Pronk's claim under the Minnesota Human Rights Act, because the Minnesota Supreme Court declined in 2023 to require such notice under state law. That claim still failed on the intolerability and intent grounds.

Pronk's procedural due process claim fared no better. The panel agreed with the district court that the bargaining agreement's just-cause protection gave him a property interest in his job, but held that "it was Pronk's decision to retire and voluntarily give up his employment," so he was not deprived of anything. Even if he had been, the court said, he never used the grievance procedures of either union he belonged to. His civil conspiracy claim fell because there was no underlying constitutional violation.

The decision upholds U.S. District Judge Michael J. Davis's January 2025 dismissal of all claims.