Federal Circuits, 6th Cir. (February 19, 1992)
Docket number: 91-3522
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Before KENNEDY and RALPH B. GUY, Jr., Circuit Judges, and ENGEL, Senior Circuit Judge.
PER CURIAM:Plaintiff-appellant Robert Stecky appeals the decision of the District Court dismissing on summary judgment his action for constructive discharge from employment. Plaintiff alleged that the changes made to his compensation by his employer, Sears, Roebuck & Co. ("Sears), resulted in his constructive discharge. Because we do not find that the action of Sears amounted to constructive discharge, we AFFIRM the decision of the District CourtSears hired plaintiff in 1964 as a salesman. At the time he was hired, plaintiff signed an employment application which stated,In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the president or vice-president of the Company, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing.Plaintiff was promoted to the position of Manager of Contract Sales for Cleveland in 1980. In the fall of 1985, Sears decided to consolidate the Pittsburgh and Cleveland Sales offices and to eliminate the office where plaintiff was the manager. Plaintiff was offered three options: termination of employment with generous severance pay, a sales manager position in the Pittsburgh office, or a position of a commissioned sales person in Cleveland. Plaintiff claims that the last option included a promise of "wage protection" which ensured him that he would not make any less than he had as a sales manager. Plaintiff elected to remain in Cleveland and become a commissioned sales person in carpeting. Plaintiff and Sears dispute whether the wage protection promised was to be permanent. In 1985, before his management position was eliminated, plaintiff earned about $41,000.During 1986 and 1987, plaintiff performed the duties of a commissioned sales person. During this time, his compensation was based on a percentage of sales. Plaintiff earned $42,000 in 1986 and $63,000 in 1987. Sears reassigned plaintiff to the Philadelphia Retail Interior Office (RIO) in late 1987. Shortly after the reassignment, plaintiff was informed by Sears that in the future his compensation would be determined as a percentage of profits rather than sales. Sears would not continue any wage protection. These changes would have resulted in plaintiff being compensated in a manner similar to other sales persons in RIOs. Sears calculated that plaintiff could earn between $39,000 and $44,000 per year. Plaintiff believed that he would make under $30,000 per year.Three weeks after being informed of the change in the method of computing compensation, plaintiff sent Sears a letter of resignation. The letter states that under the new compensation plan it would be impossible for him to earn the income he had achieved in the previous years. Plaintiff now argues that the elimination of his wage protection constituted an actionable constructive discharge under Ohio law.The parties in this case debate whether the promised wage protection results in an at-will employment contract, as plaintiff agreed to in his original employment application, or a just-cause employment contract. Sears asserts that under Ohio law, "constructive discharge" is not a basis for an employee's claim for breach of an at-will employment contract. Because we find that plaintiff voluntarily terminated his position, we do not need to address the type of employment contract that existed between plaintiff and Sears.Plaintiff argues that he was constructively discharged from Sears and that his resignation was therefore not truly voluntary. Ohio courts have recognized the concept of constructive discharge in cases of civil rights violations and unfair labor violation. See Jacobs v. Martin Sweets Co., Inc., 550 F.2d 364, 370 (6th Cir.), cert. denied,Try vLex for FREE for 3 days
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