I. Constructive Discharge
Defendants contend that Plaintiffs do not carry their
initial burden of establishing a prima facie case of
discrimination because neither can show that he was in fact
discharged. Although Defendants do not contest that a
resignation can sometimes operate as a legal or constructive
discharge, Defendants argue that the resignations of both
Bernstein and Nissenson were wholly voluntary. It is
well-established that to find a discharge in an employment
discrimination case, the trier of fact must be satisfied that
the plaintiff's working conditions were "so difficult and
unpleasant that a reasonable person in [his] position would
have felt compelled to resign." See, e.g., Scott v. Oce
Industries, 536 F. Supp. 141, 148 (N.D.Ill. 1982); Nolan v.
Cleland, 686 F.2d 806, 812-14 (9th Cir. 1982); Downey v.
Southern National Gas Co., 649 F.2d 302, 305 (5th Cir.), reh'g
denied, 656 F.2d 704 (1981).
Defendants argue that this Court should adopt the minority
position of the Eighth and Tenth Circuits, which have added a
second requirement to the test: Plaintiff must also prove the
employer's actual intent to force the employee to resign.*fn3
Because the Seventh Circuit has yet to address constructive
discharge in the employment discrimination context, this Court
chooses to adhere to the objective standard followed by the
Fifth, Sixth, Ninth, Eleventh, and District of Columbia
Circuits, as well as by districts courts in the Second and
Third Circuits and in our own Northern District of
Application of this "reasonable person" test involves
complex questions of fact, including, inter alia, the nature
of the working conditions, their difficulty or unpleasantness,
and what a reasonable person would or would not do under such
conditions. Thus, the issue of whether there has been a
constructive discharge normally should be left to the trier of
fact. Bailey v. Binyon, 583 F. Supp. 923, 929 (N.D.Ill. 1984).
See, e.g., Nolan, 686 F.2d at 812-14 (holding that summary
judgment was improper on the issue of constructive discharge).
Situations may exist, however, where an employee's actions are
unreasonable as a matter of law and summary judgment is
appropriate on the issue of constructive discharge. See, e.g.,
Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 676
(N.D.Cal. 1980) (employer's motion for summary judgment on the
issue of constructive discharge granted because plaintiff was
unable to show that employer policies and inadequate working
conditions for lower-level editors were particular to her. Id.
Each case must be decided on the facts, but courts have
found that a reasonable person may be "constructively
discharged" by a dramatic decrease in responsibility; by a
demotion; or by being informed
by a superior that one has reached a "permanent plateau" in
one's career.*fn5 For example, in Scott v. Oce Industries, 536
F. Supp. at 145, after plaintiff complained about salary
disparities between the sexes, her supervisor avoided speaking
to her and instead communicated various changes in her duties
by written memoranda. She was also stripped of several
previously-held responsibilities. Id. Under these
circumstances, the court found a constructive discharge.
Similarly, in one ADEA case, Downey v. Southern National Gas
Co., 649 F.2d 302, 305 (5th Cir. 1981), plaintiff told the
personnel director of his disappointment over denial of a
transfer request which he made following a demotion at the age
of 58. According to plaintiff's testimony, the director
informed him that the company did not have anything else for
him to do and that he was in danger of discharge and subsequent
loss of retirement benefits. Under those facts, the court
reversed summary judgment because there was a contested issue
as to constructive discharge.
This Court finds that Defendants have failed to show that
there is no genuine issue of material fact on the question of
whether Plaintiffs here were constructively discharged.
Because the cases focus heavily on the specific facts of each
case in analyzing what a `reasonable person' would do in
certain circumstances, Defendants' arguments that unless an
employer utters certain specific words or creates a particular
combination of working conditions, the employee cannot as a
matter of law prove constructive discharge, are
unconvincing.*fn6 Viewing the facts in the light most
favorable to Plaintiffs, it is entirely possible that a
reasonable person in such circumstances might have felt
compelled to resign.
According to Bernstein, after he complained that his new job
was a `sham,' he was told that there was no other place for
him in the company and that he might want to look elsewhere.
His secretary was transferred elsewhere, and he was left with
a telephone, a desk, and a job that required only
approximately an hour per day to perform. In addition, Beumer
and Zivin checked with him periodically to see how his job
search was progressing. Of course, Defendants have a different
version of the facts.*fn7
Nissenson also states facts in his deposition upon which a
trier of fact could base a finding of constructive discharge.
According to Nissenson, once Kulik and Van der Linden were
transferred to DESC, Nissenson found himself removed from the
process of financial reporting. He expended a great deal of
effort on his new cost-cutting assignment, reviewing every
expenditure, but was frustrated by a lack of information. He
repeatedly complained to Zivin about his lack of
responsibilities, but received no response. When he told Zivin
that his job had been taken away and that he felt he had no
choice but to retire, Zivin responded that retirement would be
best.*fn8 Because the evidence in the record reveals a clear
and material factual conflict regarding whether Bernstein and
Nissenson were constructively discharged, this Court cannot
find that Plaintiffs' resignations were unreasonable as a
matter of law. Accordingly, Defendants' motion for summary
judgment on the issue of constructive discharge is denied.
II. Discrimination Based on Age
Defendants next contend that even assuming, arguendo, that
Plaintiffs can establish a prima facie case of age
discrimination, they have proferred legitimate reasons for
placing Plaintiffs in the positions from which they were
allegedly forced to resign. Defendants argue that Plaintiffs
have failed to present evidence from which it can be
reasonably inferred that those reasons were a pretext for
discrimination, thereby entitling Defendants to summary
Plaintiffs offer the following facts, in addition to those
leading up to their resignations, to show that Defendants'
reasons were a mere pretext, and that their responsibilities
were actually taken away because of their age:
(1) A 1979 Douwe Egberts report on its
corporate plan for DESC for fiscal years 1980-83,
prepared after Beumer was brought in as
Vice-Chairman of DESC, which includes:
(i) an organization chart of DESC's top
management listing, among other things, their
(ii) a statement, under the heading "Management
Weaknesses," "Age above Average."
(2) A 1980 DESC Pension Trust study conducted
by the Human Resources Department which includes
calculations of the annual base pay earnings of
ten employees selected by the Director of Human
Resources, all over 50, all but one of whom
Bernstein and Nissenson assert were subsequently
terminated or forced to resign.
(3) Nissenson's responsibilities over the
Accounting and Management Information Services
departments were transferred to Dan Kulik. Three
months later, at Zivin's direction, Kulik was
made Executive Vice President of Administration.
A Human Resource announcement noted Kulik's age:
39 years old.
(4) Beumer told Bernstein to reduce his staff
of three regional distribution analysts to one,
and specified that the oldest one of the three,
Victor Knox, should be dropped.
Defendants basically argue that the above facts are
irrelevant because Plaintiffs must prove unlawful motivation
on the part of the specific individual whose decisions
resulted in the alleged discrimination. According to
Defendants, it was Zivin's decisions alone that created the
conditions which Plaintiffs' claim forced them to resign;
thus, evidence of discriminatory motives of some other company
officials is irrelevant.