151 Constructive Discharge

In order to establish a constructive discharge under the Wisconsin Fair Employment Act, a Complainant must demonstrate not only that his working conditions were intolerable, but that they were intolerable for a reason that violates the Act. Looper v. IHOP Rest. (LIRC, 03/21/12).

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; persons alleging constructive discharge must show that the action by the employer caused their departure. Gephart v. Wis. Dep't of Corr. (LIRC, 11/18/09).

A finding of constructive discharge contemplates working conditions so difficult or unpleasant that a reasonable person confronted with them would feel compelled to resign. However, 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. In this case, the Complainant’s decision to quit was motivated by factors other than sexual harassment. Harper v. Menard, Inc. (LIRC, 09/18/09).

A constructive discharge is not found in every sexual harassment case. A constructive discharge is only found where the conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. A smattering of sexually-tinged comments made over the course of a year and a half, while certainly unpleasant and distasteful, is not sufficient to create a hostile working environment or to render working conditions so intolerable that a reasonable person would feel compelled to resign. Harper v. Menard, Inc. (LIRC, 09/18/09).

The sexual harassment in this case was not severe enough to drive a reasonable person to quit. The Complainant’s argument that the “in part” analysis should be applied because the sexual harassment was part of her reason for quitting was rejected. If working conditions were rendered so intolerable due to sexual harassment as to compel the employee to quit, she would not have waited to tender her resignation until other adverse, but non-discriminatory, incidents occurred. Harper v. Menard, Inc. (LIRC, 09/18/09).

To find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Where the Complainant’s “peace of mind” suffered after his supervisor commented to him during his performance evaluation that he was doing “just enough to get by” his loss of satisfaction and contentment in the job were not sufficient to trigger a finding of constructive discharge. Cole v. Northland Coll. (LIRC, 03/19/01).

A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. Further, a finding of constructive discharge will not be made based upon the fact of discrimination alone. The individual must also present evidence of “aggravating” factors. In this case, the Complainant introduced medical records which she alleges established the extreme psychological pressure she was under. While the records did show that the Complainant was under psychological stress, there was no persuasive evidence that this was the result of the imposition of discriminatory or retaliatory working conditions attributed to the Respondent. Sarazin v. W & G Transport (LIRC, 03/09/99).

A finding that there has been sexual harassment by the employer does not always establish a basis for finding that the Complainant was constructively discharged. The specific details and circumstances relative to the sexual harassment must always be looked to in deciding whether there was a constructive discharge. A Complainant’s failure to quit until some other cause intervened suggests that the discrimination was not so intolerable that the Complainant felt compelled to resign. Tobias v. Jim Walter Color Separations (LIRC, 08/13/97), aff’d on other grounds sub nom. Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999).

To find a constructive discharge it must be established that a reasonable person in the employee’s position would feel compelled to resign by the difficult or unpleasant working conditions imposed on the employee. The “in the employee’s position” element of this test requires consideration of context which goes beyond simply looking at the “difficult or unpleasant working conditions” imposed. In this case, the situation the Complainant was in was a result of his own course of conduct prior to that time. The question, thus, becomes how does a reasonable person respond to the adverse consequences of unreasonable conduct which they themselves engaged in? A reasonable person in the Complainant’s position would have appreciated the necessity and the appropriateness of the steps taken by the employer’s actions and would have accepted them as the painful consequences of their own actions. Therefore, there was no constructive discharge in this case. Musgrave v. Matthew (LIRC, 04/13/98).

A loss of prestige or supervisory duties does not, standing alone, constitute a basis for constructive discharge, particularly where the employee’s duties are changed with no reduction in pay. Dingeldein v. Village of Cecil (LIRC, 05/08/97), aff’d sub nom. Dingeldein v. LIRC (Shawano Co. Cir. Ct., 11/12/97).

When termination is an issue in the complaint, constructive discharge need not be pled as a separate cause of action. Health Enter. of Wis. v. Leconte (Dane Co. Cir. Ct., 05/17/95).

A Complainant was constructively discharged when she quit during an argument with her supervisor. The argument occurred immediately after the supervisor made a crude remark about the Complainant’s sexual activities. The Complainant’s quitting was, therefore, directly related to the sexual harassment. Given the pervasiveness of the sexual harassment in this case and the Respondent’s complete failure to take any remedial action, the Complainant reasonably concluded that she had no alternative but to quit her employment. Miller v. Oak-Dale Hardwood Prod. (LIRC 12/13/94), remanded on other grounds sub nom. Oak-Dale Hardwood Prod. v. LIRC, (Pierce Co. Cir. Ct., 02/16/96).

The Complainant did not establish that she was constructively discharged where there was no evidence showing that her working conditions were intolerable, difficult or unpleasant. The Complainant’s exit interview suggested that she may have decided to pursue other alternatives, including part-time work and returning to school full time. Plaski v. Blue Cross/Blue Shield United of Wis. (LIRC, 05/21/93).

The policies underlying the Wisconsin Fair Employment Act will be best served if, wherever possible, unlawful discrimination is attacked within the context of the existing employment relationship. In cases where the employer has not treated the employee in such a manner that it amounts to a constructive discharge, the most efficient way to resolve an employment dispute is through a continuing employment relationship. If the discrimination takes such a form that it amounts to a constructive discharge, the employee is free to resign without forfeiting the right to reinstatement and back pay. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The Complainant did not establish that her working conditions were so intolerable that she was forced to involuntarily resign where the Complainant, in part, contributed to the working conditions that she complained of and where her failure to complain about the working conditions suggests at least tacit approval on her part. Brettingen v. Dahl Ford Subaru (LIRC, 07/17/92).

Where the treatment of the Complainant consisted of nothing more onerous than that which many employees experience when a change in management brings some degree of change in their jobs, there was no constructive discharge. There having been no unlawful motive and no mistreatment, and the revision of the Complainant’s job duties having been a matter of correcting the unwarranted modification which had occurred during the tenure of her previous supervisor, the situation was not an intolerable one that would have made a reasonable person in the Complainant’s position feel compelled to resign. Forman v. Cardinal Stritch Coll. (LIRC, 06/08/92).

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. An employee is constructively discharged when the employer makes the employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. Persons alleging constructive discharge must show that action by the employer caused their departure. In this case, much of what the Complainant found intolerable in her workplace was caused not by the conduct of the employer, but by the extremely poor relationship between the Complainant and her co-workers. Riley v. American Family Mutual Ins. (LIRC, 03/30/92).

There are two lines of authority with respect to the facts necessary to establish a constructive discharge. The Department has adopted the line of authority which indicates that a constructive discharge occurs if working conditions are so difficult or unpleasant (for a discriminatory reason) that a reasonable person would feel compelled to resign. Proof of employer intent to cause the termination is not necessary. Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).

Constructive discharge requires that an individual resign involuntarily to escape working conditions so intolerable that a reasonable person in his position would have felt compelled to resign. The Complainant’s desire for reinstatement to his former position belies his claim that intolerable conditions underlay his resignation. Here, the Complainant alleged that he was constructively discharged on February 8, 1987. Yet just two working days later, the Respondent asked him to resume his employment with the Respondent, and the Complainant agreed. The fact that the Respondent had actually sought to rehire the Complainant after the Complainant had terminated the employment relationship negated any claim that the Respondent had implemented a plan to get rid of the Complainant because of his sex. James v. Associated Sch., Inc. (LIRC, 11/27/91).

The Complainant’s proposed amended complaint alleging that he was constructively discharged was dismissed as untimely because the constructive discharge allegation did not relate back to his original complaint alleging promotion and demotion discrimination. There were absolutely no facts in the original complaint from which it could be implied that such charge included a claim of constructive discharge. The record showed that the Respondent had actually sought to rehire the Complainant after the Complainant had terminated the employment relationship, thereby negating any claim that the Respondent had implemented a “design” or “overall plan” to get rid of the Complainant because of sex. James v. Associated Sch., Inc. (LIRC, 11/27/91).

A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. To find a constructive discharge it must be established that the working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. A finding of constructive discharge will not be made based upon the fact of discrimination alone. An employee must seek legal redress while remaining in his job unless confronted with an aggravated situation beyond “ordinary” discrimination. The policies underlying the civil rights statutes will be best served if, whenever possible, unlawful discrimination is attacked within the context of existing employment relationships. Waedekin v. Marquette Univ. (LIRC, 03/05/91), aff’d, Milwaukee Co. Cir. Ct., 01/21/92; aff’d (Ct. App., Dist. I, unpublished opinion, 04/26/94).

The burden of proof is on the employee to prove constructive discharge. Waedekin v. Marquette Univ. (LIRC, 03/05/91), aff’d, Milwaukee Co. Cir. Ct., 01/21/92; aff’d (Ct. App., Dist. I, unpublished opinion, 04/26/94).

An employee is constructively discharged when the employer makes the working conditions so intolerable that the employee is forced into involuntary resignation. Bartman v. Allis-Chalmers Corp., 799 F.2d 311 (7th Cir. 1986). The conditions of employment here, while considered intolerable by the Complainant, were not such that a reasonable and objective employee would consider them intolerable. Osteen v. LIRC (Milwaukee Co. Cir. Ct., 09/15/90), aff’d (Ct. App., Dist. I, unpublished opinion, 01/15/91).

The Complainant was not constructively discharged because of race where the racial epithets and racially offensive remarks, combined with the Complainant’s supervisor’s efforts to dissuade him from taking a voluntary demotion, were not such that a reasonable person in this situation would have felt that he had no other alternative but to quit his employment. Rodgers v. Western Southern Life Ins. (LIRC, 10/12/89). [Ed note: see Rodgers v. Western Southern Life Ins., 12 F.3d 668 (7th Cir. 1993) for a different result.]

The Complainant claimed that he was constructively discharged, arguing that on one occasion about ten days before his last day of work a co-worker called him “boy” and “nigger”, and that on another occasion that employee told a derogatory joke about blacks. The evidence showed that the Complainant never complained to management about the joke; he did complain to management about the other incident, and the employee was counseled and cautioned by the employer. Occasional or sporadic instances of the use of racial slurs do not in and of themselves constitute discrimination. The two incidents cited by Complainant would not be sufficient to establish that conditions were so intolerable that a reasonable person would be compelled to resign. Kennedy v. Pick ‘n Save (LIRC, 09/22/88).

An employee is constructively discharged when she involuntarily resigns to escape intolerable and illegal employment requirements. Where an employee fails to establish that there was an underlying illegal motivation for an employment action, she fails to establish a constructive discharge. Jensen v. F.W. Woolworth (LIRC, 05/22/87).

In order to establish a constructive discharge, a Complainant must have voluntarily resigned in order to escape working conditions which a reasonable person would consider intolerable. In a case in which the Complainant was found to have welcomed the sexual conduct she complained of, such conduct cannot be considered so intolerable that it forced the Complainant to quit. Winter v. Madison Home Juice Co. (LIRC, 07/19/85).

In order to establish a constructive discharge, an employee’s working conditions must have been made so difficult that a reasonable person in that position would have felt compelled to quit. Demro v. Packerland Packing Co. (LIRC, 08/31/84).

Where the owner of the Complainant’s place of work continuously sexually harassed her, the Complainant’s quitting constituted a constructive discharge. Dumas v. American Companies (LIRC, 07/13/83).

Although a female employee’s demand for pay equal to that of male employees was made in good faith, her resignation in the face of the employer’s refusal to meet her demand cannot be considered a constructive discharge. Laux v. Dixon (LIRC, 05/07/81), aff’d sub nom. Laux v. LIRC (Winnebago Co. Cir. Ct., 10/15/82).

Where an employee showed that her quitting was partially in opposition to her employer’s unequal wage practices, she was entitled to receive the pay difference between her job and the male’s salary until she found a better paying job. Ferguson v. Greb Plastics (LIRC, 09/19/77).