This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Ann M. Soltis,



Metropolitan Training and Consulting,


Commissioner of the Department of Human Rights,


Filed June 24, 1997


Schultz, Judge


Minnesota Department of Human Rights

File No. RP 19940055

J. Thomas Church, 133 West Baker Street, St. Paul, MN 55107 (for respondent Soltis)

Jerome B. Simon, Harold LeVander, Jr., Ruth S. Marcott, Maun & Simon, PLC, 2300 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4904 (for relator)

Richard L. Varco, Jr., Assistant Attorney General, Human Rights Division, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Human Rights)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Schultz, Judge.



Relator Metropolitan Training and Consulting (MT&C) appeals the administrative law judge's decision in favor of respondent Ann M. Soltis, arguing that (1) Soltis was not constructively discharged, (2) the evidence does not support Soltis's claim of emotional distress, (3) the award of punitive damages and civil penalties was erroneous, and (4) the award of attorney fees and litigation costs was erroneous. We reverse.


This court may reverse or modify administrative agency decisions when the administrative findings are unsupported by substantial evidence, arbitrary or capricious, or in error as a matter of law. Minn. Stat. § 14.69 (1996). In considering questions of law, reviewing courts are not bound by the decision of the agency and need not defer to their expertise. St. Otto's Home v. Minnesota Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989). However, agency decisions are presumed to be correct and the party appealing the decision of an administrative agency has the burden of proving that the agency violated one or more of the provisions of Minn. Stat. § 14.69. See Crookston Cattle Co. v. Minnesota Dep't of Natural Resources, 300 N.W.2d 769, 777 (Minn. 1980). The findings must be viewed in the light most favorable to the decision and cannot be disturbed where the evidence reasonably supports them. Booher v. Transport Clearings, 260 N.W.2d 181, 183 (Minn. 1977). A reviewing court must not substitute its view of the evidence for that of the ALJ, if the record supports the ALJ's decision. Dakota County Abstract Co. v. Richardson, 312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977).

MT&C argues that the ALJ's findings of constructive discharge and retaliatory transfer are erroneous as a matter of law. It contends the ALJ ignored the fact that Soltis voluntarily tendered her resignation to accept new employment. It also contends that Soltis failed to establish that the working conditions were so intolerable that she had no alternative but to quit. Furthermore, MT&C asserts that a mere dissatisfaction with work assignments, as in this case, will not support such a claim. Soltis was transferred to a different supervisor, but at the same pay and benefits. MT&C claims that an adverse employment action requires more than a mere inconvenience or alteration of job responsibilities. Therefore, MT&C argues the decision of the ALJ must be reversed.

Minn. Stat. § 363.03, subd. 1(2)(c) (1996) prohibits an employer

because of race, color, creed, religion, national origin, [or] sex * * * to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.

In evaluating such claims, the Minnesota Supreme Court has adopted the three-part test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to analyze claims under the Minnesota Human Rights Act. Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978); see also Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986). This three-step analysis requires (1) the employee to establish a prima facie case of discrimination; (2) the employer to articulate a legitimate nondiscriminatory reason for the employee's treatment; and (3) rebuttal of the employer's reasons showing them to be mere pretext for illegal discrimination. Danz, 263 N.W.2d at 399 (citing McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25). In establishing a prima facie case, plaintiff must show proof of a discriminatory motive. Sigurdson, 386 N.W.2d at 720. Where direct evidence is not available, a discriminatory motive may be indirectly inferred under McDonnell Douglas. Id. If the plaintiff establishes a prima facie case, the second part of the McDonnell Douglas test "creates a presumption that the employer unlawfully discriminated against the employee." Id. If the defendant produces a legitimate reason, however, the presumption is rebutted and the plaintiff must prove it is more likely than not that the proffered reason is (1) a pretext for discrimination or (2) not worthy of belief. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981). A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions caused by illegal discrimination. Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980). If the employee cannot prove her employer consciously intended to force her to quit, she must instead prove that the resignation was a reasonably foreseeable consequence of the employer's actions. Hukkanen v. Int'l Union of Operating Eng'rs, 3 F.3d 281, 284-85 (8th Cir. 1993). A reasonable person standard is used to judge whether the working conditions are intolerable. West v. Marion Merrell Dow, Inc. 54 F.3d 493, 497 (8th Cir. 1995). The employee has the burden of proving constructive discharge. Jurgens v. Equal Employment Opportunity Comm'n, 903 F.2d 386, 390 (5th Cir. 1990).

Applying the McDonnell Douglas test, the ALJ determined that Soltis established a prima facie case of discrimination. The ALJ found that MT&C's explanation of its treatment of Soltis (the reorganization plan in place well before the complaint) was pretextual and inconsistent with the reason it gave in response to Soltis's initial charge of discrimination (the reassignment was necessary to provide her with an adequate workload and more consistent supervision).

Both parties agree the facts are not in dispute. As a matter of law, we believe the determination of the ALJ is unsupported by the evidence. Soltis admitted in her testimony that it was well known that she did not like Hoeschen's demeanor. The record here indicates that Soltis held a clerical position with MT&C and nearly all of Grossman's clerical employees were reassigned to work under Hoeschen in Grossman's new subsidiary company. Soltis was reassigned on June 21, 1993, to report to Hoeschen. Although the reassignment came after Soltis raised the issue of discrimination on behalf of another employee, we are not directed to any evidence to show that her reassignment constituted an intolerable working condition caused by illegal discrimination. Soltis's primary job duties and salary remained the same. Furthermore, Soltis voluntarily tendered her resignation on June 23, 1993, and accepted new employment on June 23, 1993, without ever working for Hoeschen. On June 21, 1994, Soltis filed a discrimination charge with the Minnesota Department of Human Rights against MT&C.

We conclude, therefore, that Soltis quit because she did not want to report to Hoeschen. Thus, we cannot say that Soltis was constructively discharged. Based on this determination, we need not reach the other issues raised in this matter.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.