had not chosen to resign. Gehin-Scott did not like the new management and the changes in policy it brought about. But these changes did not interfere with his ability to make sales. The changes in the way he had to do business were annoying to him, but I find that they did not give rise to a constructive discharge.
B. Discharge and At Will Employment
In the absence of an express agreement to the contrary, an employer is free to determine the terms and conditions of employment, and may terminate the relationship at will. Green v. Edward J. Bettinger Co., 608 F. Supp. 35, 40 (E.D. Pa 1984). By the same token, if an employee is dissatisfied with the terms offered by the employer, the employee is free to resign. Id.
In Green, a female employee sued her former employer for breach of contract and violation of anti-discrimination laws. Her employer decided to implement a new commission arrangement, because the old arrangement did not accurately reflect the relative contributions of the various employees of the company. Plaintiff's monthly commission was reduced. Plaintiff complained about the change and retained counsel to negotiate a settlement. The employer refused to alter its position and eventually the plaintiff was given a firm deadline to accept the new arrangement. Plaintiff refused to agree and resigned from the company.
Presumably, if an employee rejects changes implemented by an employer and does not resign, the employer will either terminate that employee or alter its position. This raises the question whether an employee has to complain about changes or reject those changes before resigning. In Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993), the court decided that a reasonable employee will usually explore alternative avenues before concluding that resignation is the only option. However, this is not required in all cases and an employee could show that working conditions were so intolerable that a reasonable employee would have resigned without remaining on the job long enough to complain or request changes. Id.
Plaintiff in the Green case claimed that the unilateral change in her commission schedule amounted to a breach of contract and resulted in her constructive discharge. The court found that the plaintiff was an at will employee and since the employer has the undoubted right to terminate an at will employee, the employer necessarily has a right to insist on changes in the compensation arrangement as a condition of continued employment. Green, 608 F. Supp. at 42. The court simply rejected plaintiff's constructive discharge claim without discussion or analysis. Id. In this case, there is no doubt that Newbold had every right to fire an at will employee and could terminate employees to cut costs. In addition, Newbold could impose changes on an at will employee as a condition of continued employment. However, if the changes Newbold instituted created working conditions so intolerable that a reasonable employee would resign, then Newbold would have in effect terminated the employee. In other words, an employer, who is attempting to cut costs, cannot elect to change working conditions instead of terminating employees where those working conditions are so intolerable that a reasonable employee would resign. As I have previously indicated, Newbold's changes in working conditions and procedures were not so intolerable that a reasonable employee would resign.
I find that Newbold did not constructively discharge Gehin-Scott but that he voluntarily resigned. Therefore, he forfeited all his benefits.
AND NOW, this 9th day of March, 1994, judgment is entered in favor of the defendant, Newson, Inc., formerly known as W.H. Newbold's Son & Co., Inc. and against the plaintiff Gilbert A. Gehin-Scott.
BY THE COURT:
RONALD L. BUCKWALTER, J.