P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HENRY C COLE, Complainant


ERD Case No. 199802086, EEOC Case No. 26G981469

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 19, 2001
colehe . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In his petition for commission review the complainant argues that the administrative law judge erred in denying him the right to review the entirety of Mr. Dreon's recommendations prior to the hearing. The complainant contends that there were recommendations involving two other employees that potentially had a direct bearing on his ability to develop his case. Specifically, the complainant maintains that he would have proved that all of the recommendations made by Mr. Dreon were complied with, and that this would have been evidence that the respondent intended to carry out all of the consultant's recommendations. The commission has considered the complainant's argument, but does not find it persuasive. The commission has reviewed the document in question, a copy of which is in the case file, but sees no reason to believe that the administrative law judge's evidentiary ruling was improper or that the contents of this document would have any direct bearing on the outcome of the case. The fact that the respondent may have followed other of Mr. Dreon's recommendations does not necessarily mean that it intended to follow his recommendation with respect to the complainant, and the commission finds credible Mr. Chase's testimony to the contrary. Thus, Mr. Dreon's recommendations with respect to other workers are not germane to the resolution of this matter.

The complainant's case is premised on the notion that Mr. Dreon's recommendation that he be discharged was based upon his age, and that, motivated by a desire to follow that recommendation, the respondent deliberately gave him a negative evaluation in order to induce him to quit. The commission does not find this argument compelling. To begin with, the commission is not convinced that Mr. Dreon's recommendation to eliminate the complainant's position was related to his age. While the commission recognizes that older employees are likely to be the most highly compensated by virtue of their seniority, and Mr. Dreon did indicate he believed the complainant was too highly compensated for what he did, he did not suggest replacing the complainant with a lower paid employee. Rather, Mr. Dreon's recommendation was to eliminate the complainant's position entirely and parse his duties out among existing staff. A recommendation to eliminate an expensive position that is not viewed as critical to the organization is not in and of itself tantamount to age discrimination, and the commission is unpersuaded that the recommendation was motivated by the complainant's age.

Moreover, Mr. Chase credibly testified that he did not intend to take Mr. Dreon's recommendation with regard to the complainant and that he wanted the complainant to continue in his employment. Mr. Chase went on to testify that he viewed the recommendation to discharge the complainant as "almost ridiculous," given the complainant's stated intention to retire within a few years time. Mr. Chase explained that the reason he made the critical statement during the complainant's performance review was not to induce him to quit, but in order to convey to the complainant that he needed to work harder on the upcoming fund raising campaign. Mr. Chase further indicated that, had he known his statement would cause the complainant to quit, he would not have made it. Under all the facts and circumstances, the commission is unpersuaded that the respondent either intended or desired to effectuate the complainant's separation from employment.

Last, and most importantly, regardless of the respondent's motivations in this case, the fact remains that the complainant was not subjected to any working conditions so severe as to render his quitting a constructive discharge. 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. See Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980);  Jorgenson v. Ferrellgas, Inc. (LIRC, January 10, 1992). In this case, the complainant's decision to resign was precipitated by his supervisor's comment to him during his performance evaluation that he was doing just enough to get by. While the commission can certainly appreciate that this remark was offensive and insulting to the complainant, it cannot be said to have rendered the complainant's working conditions so intolerable that a reasonable person would feel compelled to quit as a result. None of the complainant's privileges or job responsibilities were adversely affected by the remark, nor was he subjected to the type of abuse or ridicule that might make continued employment unfeasible. Although the commission does not doubt that, to use the complainant's own words, his "peace of mind" suffered after the performance review in question, a loss of satisfaction and contentment in the job is simply not sufficient to trigger a finding of constructive discharge.

In his petition the complainant also makes the argument that the administrative law judge ignored the fact that he was subjected to secret surveillance by a "sanctioned anonymous watcher" who then made negative reports about him to his supervisor. The complainant contends that this created extreme pressure for him and was a contributing factor in the constructive discharge. The evidence adduced at the hearing did establish that the company president reported some issues to the complainant's supervisor which were then passed on to the complainant. Specifically, the complainant was told that he should do a better job of signing in and out on the board so that others would know his whereabouts. While better management practices might have dictated that Mr. Chase not pass along anonymous criticisms in the course of a performance evaluation, this was an isolated occurrence which was not sufficiently serious to create the atmosphere of constant surveillance described by the complainant in his petition. Even when taking into consideration the anonymous criticism about the complainant's sign-in habits, the commission is unable to conclude that working conditions were so intolerable that the complainant was compelled to quit.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive. Because the complainant failed to demonstrate any reason to believe that he was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.

Richard P. Mackey
Keith W. Dallenbach

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