Bean, Robin J. v. WI Bell Inc ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1983
ROBIN J. BEAN,
Plaintiff-Appellant,
v.
WISCONSIN BELL, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 133—J.P. Stadtmueller, Judge.
____________
ARGUED JANUARY 14, 2004—DECIDED APRIL 26, 2004
____________
Before FLAUM, Chief Judge, and POSNER and DIANE P.
WOOD, Circuit Judges.
POSNER, Circuit Judge. Robin Bean, who is black, was
employed as a customer-service representative by the de-
fendant phone company and sues under Title VII, complain-
ing that she was suspended, and later terminated, because
of her race. The district court granted summary judgment in
favor of the company both on Bean’s claim and on the
company’s counterclaim, which was for breach of contract
under Wisconsin law. The company claimed that by resign-
2 No. 03-1983
ing, Bean had forfeited a $14,500 payment that the company
had given her when she relocated from its Milwaukee to its
Appleton office.
The facts, construed as favorably to Bean as the record
will permit, are as follows. At Appleton, unsatisfactory per-
formance resulted in her being placed on a “performance
team” that was “coached” by her supervisor, Scott Smith.
The two did not have a good relationship. He treated her
coolly, sometimes scowling at her, and she responded
hotly—when he pointed out that she had taken more than
the permitted number of minutes away from her desk, she
snapped at him that unless he wanted her to “poop” in her
chair she would take whatever time she needed. Part of the
coaching process involved making joint calls to customers.
Bean refused to make joint calls with Smith unless a union
representative listened in. There was no basis in the col-
lective bargaining agreement for such a demand, and it was
refused, but she continued to insist that she wouldn’t make
joint calls with Smith in the absence of a union representa-
tive. She was then suspended without pay for 10 days after
a review of her employment record revealed numerous
instances of inappropriate behavior on her part when she
had been employed at the company’s Milwaukee office.
Immediately upon her return to work after the suspen-
sion, a meeting was convened at which, with union rep-
resentatives present, management explained to Bean that
she would have to make joint calls with Smith without a
union representative’s listening in. When she realized this
meant that Smith would continue to be her supervisor, she
said she wouldn’t continue with the meeting until she had
consulted her “attorney.” (It’s unclear whether “attorney”
referred to a lawyer or a union steward.) The senior man-
ager present told Bean several times that if she left the room,
the company would deem her to be resigning. She re-
No. 03-1983 3
sponded that she was not resigning, but she left the room
anyway and the company declared that she had resigned,
and she was so informed when she returned to the confer-
ence room.
There is a question, critical to the counterclaim, whether
the termination of her employment should be treated as
resignation or discharge. It might seem critical to the issue
of racial discrimination as well, since, if she resigned, what
is the adverse employment action of which she is complain-
ing? Being forced, as a condition of retaining her job, to
make joint calls with Smith without a union steward
listening in? That would be far too trivial an imposition to
trigger liability under Title VII. Still, there is the 10-day
suspension for her initial refusal to make the joint calls, and,
if racially motivated, a suspension is of course actionable.
But there is no evidence that Bean’s 10-day suspension was
racially motivated. Her attempt to create a triable issue on
the basis of the McDonnell-Douglas case by presenting
evidence that the company treated worse-performing white
customer-service representatives better than it treated her is
a failure. What her evidence comes down to is that one of
the white customer-service representatives who was having
personal problems became hysterical while in the midst of
a customer call and called Smith “a fucker” but calmed
down and was not disciplined for her outburst, and another
was reprimanded but not suspended when he made
personal remarks to customers he was speaking with on the
phone, and, in a separate incident, while a customer was on
hold called the customer an “old hag.”
The misconduct of the two whites was not so egregious
that the fact that they weren’t suspended permits an infer-
ence that Bean was suspended because she is black. Her
own employment record contained many instances of inap-
propriate behavior that had not resulted in suspension. An
4 No. 03-1983
employer is likely to treat insubordination more harshly
than most other forms of employee misconduct, regardless
of race, because of the threat to workplace discipline. And,
speaking of insubordination, it is as certain as these matters
can be that Bean was fired (if that’s how her termination
should be characterized) not because of her race but because
she was insubordinate.
The difficult issue in this case involves the counterclaim.
When Bean was relocated to Appleton, the company, pur-
suant to the collective bargaining agreement, gave her
$14,500 for moving expenses on condition that she return
the money if she resigned (“voluntarily terminates employ-
ment,” in the language of the agreement) within two years
of the move. The company argues and the district judge
held that since Bean resigned within two years she has to
repay the $14,500. She argues that she was fired, and that
the company cannot turn discharge into resignation by
calling the former the latter.
The key concepts are those of constructive termination
and constructive resignation. “Constructive” here performs
its usual function in the law of indicating that something
will for reasons of policy be treated as if it were something
else. E.g., In re Marchiando, 13 F.3d 1111, 1115 (7th Cir. 1994).
Thus, to have “constructive notice” of something means you
don’t have notice of it but the law will pretend you do. E.g.,
Parker v. Sullivan, 898 F.2d 578, 579 (7th Cir. 1990).
Constructive termination, or, better, because more precise,
constructive discharge, refers to the situation in which an
employer precipitates an employee’s resignation by making
the employee’s working conditions unbearable. E.g., Hunt
v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000); Lee-
Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 45 (1st
Cir. 2003); Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.
2003). It is treated as discharge rather than resignation,
No. 03-1983 5
consistent with the general principle of contract law that
you cannot prevent the other party from performing his
duties under the contract and then turn around and accuse
him of breach of contract; you precipitated the breach and
are therefore responsible for it. Rustles v. Christensen, 241
N.W. 635, 636-37 (Wis. 1932); Tuf Racing Products, Inc. v.
American Suzuki Motor Corp., 223 F.3d 585, 589 (7th Cir.
2000); Herremans v. Carrera Designs, Inc., 157 F.3d 1118,
1124 (7th Cir. 1998); Mendoza v. COMSAT Corp., 201 F.3d
626, 631 (5th Cir. 2000); 2 E. Allan Farnsworth, Farnsworth on
Contracts § 8.6, pp. 454-55 (3d ed. 2004). The language of the
collective bargaining agreement (“voluntarily terminates
employment”) gestures toward this principle, reinforcing
the inference that no form of involuntary termination would
be a valid basis for snatching back the relocation payment.
So if management had forced Bean literally at gunpoint to
sign a letter of “voluntary” resignation, the letter could not
have been used as the basis for demanding that she return
the $14,500. However, forcing Bean to make joint calls with
Smith without a union representative’s being in attendance,
and refusing to allow her to insist on a change of supervi-
sors (Smith, even if cool, scowling, and generally unpleas-
ant, was not harassing or abusing Bean to a degree that
would have made the workplace intolerable to a reasonable
person), were not the kind of affronts that would have
compelled a reasonable employee in Bean’s position to leave
the company’s employ before her entitlement to the reloca-
tion payment vested. Anyway she concedes that she was not
constructively terminated.
The concept of constructive discharge is balanced by that
of constructive resignation. Just as Wisconsin Bell could not
be permitted to obtain a benefit from frustrating a condition
(that it not fire Bean) of its right to demand repayment of
relocation compensation, so Bean could not be permitted to
6 No. 03-1983
benefit from taking steps to frustrate a condition of her right
to retain that compensation (that she not resign within two
years) by making it impossible (more precisely, very costly)
for Wisconsin Bell not to fire her. E.g., Patterson v. Board of
Regents, 350 N.W.2d 612, 617-19 (Wis. 1984); Nottelson v.
Wisconsin Dept. of Industry, Labor & Human Relations, 287
N.W.2d 763, 769-70 (Wis. 1980); Lindsey v. Baxter Healthcare
Corp., 962 F.2d 586, 588 (7th Cir. 1992); Patterson v. Portch,
853 F.2d 1399, 1405-07 (7th Cir. 1988); Hammon v. DHL
Airways, Inc., 165 F.3d 441, 447-49 (6th Cir. 1999). If an
employee dynamited the workplace so that there was no
work for him to do, or if he murdered his boss and was
carted off to jail, he might in either case refuse to resign, but
as the cases that we have just cited make clear, the employer
would be entitled to deem him to have resigned—that is, to
treat him as if he had resigned. This case, however, is much
less extreme; and the formula adopted by the Supreme
Court of Wisconsin for deciding whether to classify a
termination of the employment relation as constructive
resignation when the employee doesn’t say anything to
indicate he’s quitting—namely whether the employee
engages in “conduct inconsistent with the continuation of
the employee-employer relationship,” Nottelson v. Wisconsin
Dept. of Industry, Labor & Human Relations, supra, 287 N.W.2d
at 769-70—is, as perhaps in the nature of the problem it
must be, extremely vague, which makes it difficult to decide
a nonobvious case on summary judgment.
Bean didn’t want to resign, or say she was resigning—
quite the contrary. She wanted to keep working for
Wisconsin Bell, just under different conditions—either a
different supervisor, or perhaps the same supervisor but
monitored, as it were, by a union steward. She was not
entitled to impose either condition, but that doesn’t mean
that she resigned. It means at the least that she was termi-
nated for cause, specifically for insubordination. So if ter-
No. 03-1983 7
mination for cause forfeited relocation compensation, that
would be the end of the case. But the collective bargaining
agreement, which was the source of Bean’s entitlement to a
relocation payment, did not provide that the relocation
payment would be forfeited upon termination for cause,
maybe because “cause” for termination is so open-ended
that such a condition would leave the employee insecure.
The question is then whether Bean’s behavior was so
extreme as to constitute constructive resignation, that is, a
forcing by the employee of termination by engaging in con-
duct inconsistent with her continuing in the job. Maybe
it did. By refusing to comply with the perfectly lawful
and reasonable order that she make joint calls with Smith
even if no union representative was present to monitor
them, and even more by apparently insisting that she be
reassigned to another supervisor, she may have left the
employer with no choice but to terminate her. But it’s not,
or at least not quite, as if she had said I am not resigning but
I choose not to do any work for you any more—here’s the
address to which to continue sending my salary checks. She
would still have been working even if her demand for the
presence of a union representative, or for a change of
supervisors, had been met.
Cause can rise to the level of constructive resignation,
however, as in Klatt v. Labor & Industry Review Comm’n, 669
N.W.2d 752, 759-62 (Wis. App. 2003), where the employee
refused to comply with the employer’s residency require-
ment. The requirement was very important to the employer
because it was a police department that wanted its officers
to live no more than 20 minutes from the police station so
that they could get there quickly if need be. It’s not as easy
to see how it could make a big difference to Wisconsin Bell
whether Bean worked under a different supervisor or made
joint calls with a union steward in attendance. But who
8 No. 03-1983
knows? What may have been important to the company was
not that the union representative not listen in to the joint
calls, or even that Bean continue working under Smith, but
that an employee not be permitted to set a bad example for
the other employees by forcing concessions from the
employer that the collective bargaining agreement did not
require. There are many ways in which an employee’s
conduct can disrupt the employment relation. And there is
the mundane point that union stewards are employees too,
and the more time they spend “stewarding” the less time
they spend working.
We do not wish to prejudge the issue. The line between
insubordination and constructive resignation (“conduct in-
consistent with the continuation of the employee-employer
relationship”) is obviously a fine one. Placing Bean on one
side or the other requires a judgment that, depending as it
does on a weighing of the facts of the particular case, is for
the trier of fact to make, Schultz v. Baumgart, 738 F.2d 231,
239 (7th Cir. 1984), subject to light appellate review.
To summarize, the dismissal of the Title VII claim is af-
firmed, but the grant of summary judgment on the counter-
claim is vacated and the case remanded for further consider-
ation of it. The district judge will want to consider the
option of relinquishing jurisdiction to the Wisconsin state
courts, since the only basis for federal jurisdiction over the
counterclaim is the supplemental jurisdiction of the federal
courts and the federal claim has been dismissed without a
trial. 28 U.S.C. § 1367(c)(3); Kennedy v. Schoenberg, Fisher &
Newman, Ltd., 140 F.3d 716, 727-28 (7th Cir. 1998).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
No. 03-1983 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-04