Dec. 16, 2009 – An employee who chose to quit rather than be fired cannot claim the choice was coerced, the Wisconsin Court of Appeals held today.
In Mercer v. City of Fond du Lac, 2009AP505, the court explained that such a dilemma does not amount to a “constructive discharge” when the employer does not harass the employee so severely as to change the conditions of employment, leaving the employee with little choice but to leave.
The court also held that costs awarded in a civil action can include those that a party incurs by using its own photocopy equipment.
Discipline for child pornography
Benjamin Mercer had been the City of Fond du Lac human resources director when police told City Manager Tom Ahrens that Mercer was using his work computer to view pornography, but that Mercer had not possessed or viewed child pornography. Criminal charges were not likely, the police reported.
The city’s personnel policy set forth progressive disciplinary procedures whereby the sanctions increase for repeat offenses or more serious misconduct. An employee charged in a criminal matter whose ability to perform subsequently became “seriously impaired” in the estimation of the city manager, would be suspended with or without pay until final judgment in the matter.
Under this policy, Ahrens issued a letter of reprimand revoking Mercer’s Internet privileges and directing Mercer to seek counseling. If Mercer complied with these terms, Ahrens said that the letter would be removed from his personnel file in six months.
The city council reviewed Ahrens’ handling of this episode in a closed session, asking Ahrens whether he intended to impose additional sanctions because council members believed some of the images Mercer viewed “possibly contained child pornography.” The city sought an independent investigation by the Wisconsin Department of Justice.
After the council meeting, Ahrens visited Mercer at home and told him the city council “wanted [Mercer] gone.” Mercer understood this to mean he could resign or he would be fired. Mercer chose to leave to “try to maintain some sort of employability,” submitting a written resignation.
Following his departure, the state charged Mercer with 33 counts of possession of child pornography and a jury found him guilty of 14. Mercer filed a civil suit against the city, the city council, and Ahrens, demanding compensation and reinstatement in his old job. The circuit court granted summary judgment in favor of the defendants and Mercer appealed.
Not coerced
In an opinion authored by Judge Harry G. Snyder, the court of appeals rejected Mercer’s assertion that his resignation resulted from the council’s “indirect mandate” to terminate him.
The court noted that an employer might attempt to avoid liability for wrongful discharge and engage in conduct to cause the employee to quit. But to succeed on a claim of “constructive discharge,” the court said that the employee must show that the employer engaged in “harassing behavior sufficiently severe or pervasive to alter the conditions of [his or her] employment” and that “the abusive working environment became so intolerable that [his or her] resignation qualified as a fitting response.”
In this case, the court said that Mercer failed to show any basis to read coercion into his seemingly voluntary resignation. As the city’s human resources director, the court remarked, Mercer “was familiar with the resignation procedure because he had accepted written resignations from other employees. He knew the implications of submitting his own resignation.” The court faulted Mercer for knowing of, but failing to use, the city’s administrative appeals process to contest a wrongful termination.
Mercer failed to persuade the court that his resignation was coerced because the council forced Ahrens to issue to him an ultimatum. The court criticized the argument for resting on only Mercer’s “suspicions” of what occurred at the council meeting. Mercer could point to no instance of harassment and Mercer admitted that the personnel policy authorized termination as a consequence for criminal activity, the court added.
“Essentially, Mercer’s complaint is that he believed the consequence of his improper computer use at work was a letter of reprimand that had a six-month lifespan,” the court wrote. “When Ahrens raised the specter of additional consequences, Mercer chose to resign rather than keep his job and see the process through.
“[A] resignation resulting from a choice between resigning or facing proceedings for dismissal is not tantamount to discharge by coercion,” the court wrote, quoting Dusanek v. Hannon, 677 F. 2d 538 (7th Cir. 1982).
Because Mercer did not stay in the job to see if or how the conditions of employment might change, Mercer could not demonstrate that an inhospitable workplace drove him to resign, the court said.
Costs
Mercer argued that the city should not be able to recover litigation costs that did not involve payment to a third-party vendor. Specifically, Mercer said that the city’s use of its own machines to make photocopies should be considered only an internal business expense.
The court rejected Mercer’s argument, noting that Wis. Stat. sec. 814.04 (2) does not say that recoverable photocopy costs must be paid to a third party. The court also said that Mercer tied his argument to the statute’s phrase, “actually paid out,” but that language only modifies “certified and other copies of papers and records in any public office” as a recoverable cost, not photocopies.
