the employee. The severance pay program provides that eligible employees receive two weeks pay per year of service, up to a maximum of fifty-two weeks, if actual service with the company has been for six years or more. On December 2, 1977, plaintiff received $ 5.23 per hour for a thirty-five hour work week.
Plaintiff brought this action pursuant to ERISA, § 502(a)(1)(B), which provides that a civil action may be brought by an employee to recover benefits due under the terms of certain plans maintained by an employer. Defendant's severance pay program is such a plan. Defendant's program specifically provides, however, that severance pay shall not be awarded to an employee who resigns. The Court finds that plaintiff voluntarily resigned and is, therefore, not entitled to severance pay benefits.
Plaintiff contends that she did not leave voluntarily, but was forced to resign. She claims that her resignation was involuntary and was, therefore, a constructive discharge. Plaintiff cites in support of this contention cases which discuss constructive discharge under the National Labor Relations Act, 29 U.S.C. § 151 Et seq. Our findings of fact in this case do not contain the essential elements for a constructive discharge finding as enumerated in these cases.
The Fourth Circuit in J. P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972), stated that constructive discharge occurs "(w)here an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job . . . ." The Tenth Circuit followed the J. P. Stevens case. The Court found a constructive discharge from deliberate efforts by the employer to render the employee's working conditions intolerable. Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), Cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975). The District of Columbia Circuit and the Eighth Circuit have also followed the intolerable condition rule. Retail Store Employees Union Local 880 v. NLRB, 136 U.S.App.D.C. 27, 30, 419 F.2d 329, 332 (1969); Thompson v. McDonnell Douglas Corp., 552 F.2d 220, 223 (8th Cir. 1977). These cases require a finding that the employer coerced the resignation by deliberately making working conditions intolerable. There is no evidence in this record which supports such a finding. Plaintiff was considered a good employee. Her supervisors wanted her to commit herself to two years in the SAFARI unit to alleviate a work backlog caused by employee turnover. When she declined to so commit herself, her supervisors gave her the choice of either remaining in the defendant's SAFARI unit or securing another position with the defendant through the open posting program. The plaintiff was not forced to resign; the Court finds that resignation was the plaintiff's voluntary decision.
Accordingly, an Order will be entered rendering judgment in favor of defendants, Aetna Life Insurance Company and Aetna Casualty and Surety Company, and against plaintiff, Agnes Donnelly.
This memorandum is in lieu of findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).