STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MATHEW MUSGRAVE, Complainant

JON MATTHEW, Respondent A

and

NORTHLAND COMMUNITY SERVICES, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199502225, EEOC Case No. 26G960385

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, except that it makes the following modifications:

Delete paragraph number 4 of the Conclusions of Law and substitute therefor the following:

4. A reasonable person in Mr. Musgrave's position would not have considered the working conditions he was given (being cut to half-time and put under strict supervision) intolerable in view of the circumstances which led to their imposition, including the whole course of conduct by Mr. Musgrave which was a significant factor in leading to the imposition of those conditions. For this reason, as well as for the reason that the conditions were not imposed on Mr. Musgrave for any prohibited reason, the respondents did not constructively discharge Mr. Musgrave in violation of the Wisconsin Fair Employment Act.

DECISION

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

Dated and mailed: April 13, 1998
musgram.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

A careful review of the hearing record, including the extensive documentary record, leaves the commission persuaded that the facts of this case are accurately addressed by the Administrative Law Judge's very thorough Findings of Fact. For this reason the commission has adopted them as its own.

The commission has weighed the arguments made by the complainant in his briefs, but it finds them to be without merit, for the same reasons as are ably set forth in both the Administrative Law Judge's decision and the brief filed with the commission by the respondents.

Although recitation at length of the reasons for its decision is unnecessary in view of the Administrative Law Judge's thorough decision and the effective rebuttal of Mr. Musgrave's arguments in the respondents' brief, the commission would note that it found one piece of evidence to be particularly illustrative. Respondent's Exhibit 55, with its huge "NO" written by Musgrave below the Mr. Matthew's request that he inform Matthew of his willingness to comply with his directive, speaks volumes about what was going on here.

NOTE: The commission has modified the Administrative Law Judge's Conclusions of Law as reflected above because it does not agree with the suggestion of the Administrative Law Judge that a reasonable person in Mr. Musgrave's position would have considered the working conditions he was given (being cut to half-time and put under strict supervision) so intolerable as to lead them to quit their employment.

To find a constructive discharge it must be established that a reasonable person in the employe's position would feel compelled to resign by the difficult or unpleasant working conditions imposed on the employe. See, Waedekin v. Marquette Univ. (LIRC, 03/05/91). The commission believes that the "in the employe's position" element of this test requires consideration of context which goes beyond simply looking at the "difficult or unpleasant working conditions" imposed.

Based on a careful review of the entire record, the commission is satisfied that the situation Musgrave was in by the point at which he decided to quit his job, was one he had put himself in by his whole course of conduct prior to that time, and that his course of conduct had been unreasonable.

Therefore, the question presented when constructive discharge is asserted on such facts is, how does a reasonable person respond to the adverse consequences of unreasonable conduct which they themselves engaged in?

The commission believes that a reasonable person in Mr. Musgrave's position would have appreciated (albeit perhaps grudgingly) the necessity for and the appropriateness of the steps taken by the employer actions, and would have accepted them as the painful consequences of their own actions.

Therefore, the commission finds not only that there was no constructive discharge for discriminatory reasons -- it finds that there was no constructive discharge at all.

cc: Attorney David R. Carlson, Attorney for Respondents

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