COURT OF
APPEALS DECISION DATED AND
RELEASED July
3, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2584
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
HEALTH
ENTERPRISES OF WISCONSIN, INC.,
Petitioner-Respondent,
v.
LABOR
AND INDUSTRY REVIEW COMMISSION,
Respondent,
ALOYS
N. LECONTE,
Respondent-Appellant.
APPEAL
from judgment of the circuit court for Dane County: SARAH B.
O'BRIEN, Judge. Reversed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
DYKMAN,
J. Aloys N. LeConte appeals from a
judgment reversing an order of the Labor and Industry Review Commission
(LIRC). The trial court concluded that
there was no substantial evidence to support LIRC's finding of constructive
discharge. We reverse, concluding that
there was substantial evidence in the record to support LIRC's order.
BACKGROUND
LeConte
interviewed for the maintenance supervisor position at Janesville Health Care
Center (JHCC). He submitted a resume,
which included his age of fifty-four, to Mary Ann Wright, the administrator at
JHCC. At the job interview, Wright
stated to LeConte that she would like to hire a younger person, but that
LeConte qualified for the position. Wright
hired LeConte on the day of the interview, July 5, 1990.
As
a new employee of JHCC, LeConte was subject to a ninety-day probationary
period. He faced a substantial backlog
of work when he started. In addition,
JHCC was undergoing a major renovation project, resulting in large amounts of
additional work for LeConte.
Frequently,
Wright kept LeConte from finishing assigned tasks by pulling him off one job
before completion in order to start another.
Wright also delayed LeConte's work by not providing appropriate
maintenance materials for him to adequately complete assigned jobs.
Wright
made her preference for female employees clear. On several occasions she told Charlene Reis-Wittleif, the
director of nursing and assistant administrator, that female employees were
better than men. During LeConte's
employment, Georgia Dutcher, a licensed practical nurse at JHCC, said that she
overheard Wright state, "If I had my way, I would have an all female staff." Further, Wright started and participated in
an organization called WAM, "Women Against Men." One of the goals of WAM was to get the male
employees at JHCC fired.
Within
the first month of LeConte's employment, Wright informed Reis-Wittleif that she
wanted to get rid of LeConte. Wright
informed Reis-Wittleif of a plan to hire a female housekeeper with some
maintenance experience who would take over for LeConte once she got rid of
him. On August 6, 1990, Wright hired
Denise Anderson, who was under forty, into the housekeeping department. On August 8, 1990, Anderson replaced
LeConte.
On
the same day Anderson was hired, Wright drew up a negative evaluation of
LeConte and attached it to his time card.
LeConte received the evaluation when he came to work on August 8, 1990. The evaluation of LeConte, which took place
thirty days into his employment, did not follow the normal review procedures
standardized at JHCC, which provided for review after ninety days and then on a
yearly basis.
Prior
to this evaluation, Wright had not expressed any concerns or criticisms to
LeConte about his work. Further,
Dutcher testified that she customarily discussed problems about JHCC's
operations with Wright and that Wright made no complaints about LeConte to her.
LeConte
disagreed with the criticisms contained in the evaluation. For example, Wright specifically told
LeConte to stop writing the water heater temperatures on the calendar, but then
criticized LeConte for failure to perform this task.
After
receiving the review, LeConte approached Wright to discuss the evaluation. Although Wright indicated to LeConte that
she did not have time to discuss it, Wright also informed LeConte that if he
did not like the evaluation, he was terminated. According to LeConte, he believed his employment was terminated
when Wright made the negative evaluation of him. LeConte testified that Wright compelled him to leave because she
was unhappy with his performance and because she thought a younger person could
do the job and that LeConte's age was a restriction. After his conversation with Wright, LeConte left his keys and
beeper on the table and left JHCC.
Two
days later, LeConte approached Reis-Wittleif and informed her that Wright had
verbally fired him and requested his job back.
Reis-Wittleif stated that she could not help him. LeConte also contacted Wright about
returning to work, but Wright informed him that once an employee leaves JHCC,
he cannot return.
Reis-Wittleif
testified that once Wright learned of LeConte's legal claims, Wright told her
that she better hire another male maintenance person just to "cover her
butt." Wright then hired John Bowen, who was thirty years old. Bowen testified that, after his hire, Wright
told him she should have hired someone in his or her forties to help her case.
Based on its findings of
fact and conclusions of law, LIRC determined that JHCC constructively
discharged LeConte based on his age and gender.
STANDARD OF REVIEW
Our
standard of review is governed by §102.23(6), Stats., which provides that deference must be accorded to
LIRC's findings of fact and that a reviewing court may not substitute its own
judgment in evaluating the weight or credibility of the evidence.
When
an appeal is taken from a circuit court judgment on administrative review, we
review the decision of the agency, not the decision of the circuit court. Hoell v. LIRC, 186 Wis.2d 603,
612, 522 N.W.2d, 234, 238 (Ct. App. 1994).
We must affirm the agency's findings of fact if they are supported by
any credible and substantial evidence in the record. Id.
Alternatively, we will set aside an agency's action or remand the case
to the agency if we find that the agency's action depends on any finding of
fact not supported by substantial evidence in the record. Bucyrus-Erie Co. v. DILHR, 90
Wis.2d 408, 417, 280 N.W.2d 142, 146 (1979).
In
applying this standard, we have held that evidence will be considered
substantial if it is relevant, probative and credible so that a reasonable
fact-finder would find it adequate to support a conclusion. Advanced Die Casting Co. v. LIRC,
154 Wis.2d 239, 249-50, 453 N.W.2d 487, 491 (Ct. App. 1989). Substantial evidence does not require a
preponderance of the evidence; rather, as long as a reasonable person, after
reviewing the entire record, might have reached the same decision, the evidence
is sufficient. Bucyrus-Erie Co.,
90 Wis.2d at 418, 280 N.W.2d at 147.
DISCUSSION
To
prove a prima facie case of discrimination, the plaintiff must show that he was
discharged based on his age or sex. Douglas
v. PHH Fleetamerica Corp., 832 F. Supp. 1002, 1009 (D. Md. 1993). The plaintiff may establish this by showing
either actual or constructive discharge.
Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Constructive discharge occurs when an
individual's working conditions are made so miserable that a reasonable person
in his or her position would have felt compelled to resign. Bartman v. Allis-Chalmers Corp.,
799 F.2d 311, 314 (7th Cir. 1986).
Wisconsin
courts have held that it is appropriate to consider federal decisions when
interpreting the constructive discharge doctrine. Marten Transport, Ltd. v. DILHR, 176 Wis.2d 1012,
1020, 501 N.W.2d 391, 395 (1993). The
federal courts have been liberal in defining actions amounting to constructive
discharge, including even situations in which an employer simply made plain its
desire to be rid of a particular employee.
See, e.g., Christensen v. Equitable Life Assurance Soc'y of
the U.S., 767 F.2d 340, 343 (7th Cir. 1985), cert. denied, 474
U.S. 1102 (1986); Downey v. Southern Natural Gas Co., 649 F.2d
302, 305 (5th Cir. 1981). However, the
plaintiff still must show that the discharge was based on discrimination. Kovalic v. DEC Int'l, Inc.,
161 Wis.2d 863, 874, 469 N.W.2d 224, 229 (Ct. App. 1991).
The
issue here is whether there is substantial evidence to support LIRC's finding
that LeConte was constructively discharged by Wright based on his age or
sex. We hold that there is.
From
the first day of LeConte's employment, Wright made clear her preference for a
younger, female employee. She told
LeConte at his interview that she would prefer a younger person to fill the
position, but that LeConte was qualified.
The record is also replete with testimony that Wright preferred female
over male employees. Reis-Wittleif
testified that Wright constantly spoke of her preference for female
employees. Wright was a member of a
group against men. Further, Wright was
overheard saying that if she had it her way, she would have an all female
staff.
It
is undisputed that Wright made no express complaints about LeConte's work prior
to finding Denise Anderson to take over LeConte's position. It was only after Wright hired Anderson that
Wright gave LeConte the negative review, even though LeConte was not due for
review for another sixty days. When
LeConte attempted to speak to Wright about this review, she refused. However, Wright told LeConte that if he did
not like the review, he would be terminated.
LIRC accepted LeConte's testimony that, based on that conversation with
Wright, he believed that he was fired on August 8, 1990.
To
further establish the intended discrimination, LIRC credited the testimony of
Reis-Wittleif, who claimed that once Wright learned about LeConte's legal
claims, she said that she should hire another male maintenance man to
"cover her butt." Wright then
hired John Bowen, who testified that, after his hire, Wright told him she
should have hired someone older to help her case.
Based
on these findings, LIRC concluded that LeConte had been constructively
discharged from JHCC by Wright's clear desire to be rid of LeConte and replace
him with a younger, female employee. In
so finding, LIRC rejected Wright's contention that LeConte voluntarily quit
because he was unhappy with his review.
We
will affirm LIRC's order if the findings of fact are supported by any credible
and substantial evidence in the record.
See Hoell, 186 Wis.2d at 612, 522 N.W.2d at
238. It was reasonable for LIRC to conclude
that Wright was setting LeConte up for termination. The evidence in the record discloses Wright's explicit desire to
be rid of LeConte and replace him with a younger, female employee. There is a clear implication that Wright
induced LeConte to quit by writing the negative review, which she knew
contained false contentions. This
inducement could reasonably be construed as a constructive discharge. Accordingly, we reverse the judgment of the
circuit court.
Because
we are reversing the circuit court judgment, we need not address the issue of
attorney fee reduction.
By
the Court.—Judgment reversed.
Not
recommended for publication in the official reports.