Wis.LIRC ER Decision: Riley, Jocelyn - March 30, 1992 - Constructive discharge - question of whether employer's conduct made working conditions so difficult or unpleasant that reasonable person would feel compelled to resign, is relevant only where the conduct actually caused the quitting; evidence here suggested employee quit not because of employer conduct but because of bad relations with co-workers and desire to resume her own private business

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JOCELYN RILEY, Complainant

AMERICAN FAMILY MUTUAL INSURANCE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8599634

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 11, 1991. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed March 30, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

To prevail, Complainant was required to show not only that she was constructively discharged, but also that the conduct which caused her constructive discharge was engaged in for a retaliatory motive. The Commission was not persuaded that Complainant adequately proved either of these things.

Complainant argues that the Administrative Law Judge erred in concluding that she was not constructively discharged. Specifically, she complains that the ALJ should not have looked to the question of why she actually quit her job, but only at the question of what a reasonable person would have done, since (in her view) the test for whether there has been a constructive discharge is wholly objective. The Commission does not agree. Certainly, when the question is whether or not the conduct that caused the quitting was severe enough to make the quitting a constructive discharge, the question is whether the conduct made the working conditions so difficult or unpleasant that a reasonable person confronted with them would feel compelled to resign. Waedekin v. Marquette University (LIRC, March 5, 1991, affirmed, Milwaukee County Circuit Court, January 22, 1992). However, as reflected in the preceding sentence, the question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting. This is implicit in the formulations of the test for constructive discharge which many tribunals have adopted. Thus, it has been held that an employe is constructively discharged when the employer makes an employe's working conditions so intolerable that the employe is forced into an involuntary resignation, Waedekin, supra, Bartman v. Allis Chalmers Corp. , 799 F.2d 311, 41 FEP Cases 949 (7th Cir. 1986), cert. denied 107 S.Ct. 1304, 43 FEP Cases 80 (1987), Bourque v. Powell Electric Mfg. Co, 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980), and that an employe is constructively discharged when he or she involuntarily resigns in order to escape intolerable and illegal working conditions, Jensen v. F.W. Woolworth Co. (LIRC, May 22, 1987), Winter v. Madison Home Juice Co. (LIRC, July 19, 1985). This merely reflects the fact, as the Seventh circuit noted in Bartman, that persons alleging constructive discharge must prove that action by the employer "caused their departure," 41 FEP Cases at 951. The Commission was persuaded that much of what Riley found intolerable in her workplace was caused not by the conduct of Hinz but by the extremely poor relationship between Riley and her co-workers. The Commission was also persuaded that Riley's decision to leave the Respondent was motivated in part by an affirmative desire to resume her private, free-lance business. Thus, there was significant reason to question whether Hinz ' conduct, whatever it was motivated by, was a cause in fact of the Complainant's resignation.

After a careful review of the record in this matter, the Commission has also concluded that the Administrative Law Judge correctly resolved the issues relating to the motivation of Hinz in the way he treated Riley, by finding that Hinz' treatment of Riley in the period at issue was not motivated by a retaliatory intent.

Hinz testified directly and at length about his conduct towards Riley and his reasons for what he did. He explained his actions persuasively and credibly denied that he treated Riley as he did because of any retaliatory motivation. The Administrative Law Judge, who had the opportunity to observe Hinz as he testified and to make judgments about his believability as a witness, obviously credited his testimony concerning his motivation. The Commission similarly finds Hinz' testimony credible. Additionally, the commission was persuaded by the fact that the record shows that Riley had dissatisfactions about Hinz' treatment of her even prior to her complaints about his conduct, and that other scriptwriters who preceded Riley in employment at Respondent had similar difficulties with and complaints about Hinz' treatment of them. Thus, the Commission concluded that Hinz' treatment of Riley which she attributed to a retaliatory motive was in fact only a reflection of his longstanding problems in effectively managing or even dealing with scriptwriters under his supervision.

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