text:
The Complainant is Société Air France of Paris, France represented by Meyer & Partenaires, France.
The Respondents are Casa Del Turismo and Travel Del Sol (hereinafter referred to collectively as “the Respondent”) of Cali, Valle, Colombia and El Paso, Texas, United States of America, respectively.
The disputed domain names <airfranceholidaysreservations.com>, <promocionesairfrance.com> and <reservasairfrance.com> are registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on April 27, 2011. On April 28, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On April 29, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 2, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 3, 2011. The Complainant filed a request to suspend the proceedings on May 4, 2011. The proceedings were suspended on May 5, 2011 until June 5, 2011. The Complainant requested to re-institute and commence the proceedings on June 3, 2011. The Center re-instituted the proceedings on June 6, 2011.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 8, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 28, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s of its default on June 28, 2011.
The Center appointed Dennis A. Foster as the sole panelist in this matter on July 6, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant, a French Company, operates one of the largest airline services in the world. Its well known trademark, AIR FRANCE, is registered with numerous authorities, including the Institut National de la Propriété Industrielle (“INPI”) (Registration No. 414038; issued March 21, 1975), Office of Harmonization for the Internal Market (“OHIM”) (Registration No. 002528461; issued January 9, 2002) and the United States Patent and Trademark Office (“USPTO”) (Registration No. 0610072; issued August 2, 1955).
The Respondent is the registered owner of the disputed domain names, <airfranceholidaysreservations.com>, <promocionesairfrance.com> and <reservasairfrance.com>. The dates of registration are July 3, 2010 for the first domain name, and August 29, 2010 for the latter two domain names. The disputed domain names host websites that provide links to third party websites, some of which are operated by direct competitors of the Complainant.
The Complainant, Société Air France, was formed in 1933 and is the French flag air carrier. As of 2004, it was the largest European airline with a 25.5% market share. The Complainant provided services to 43.3 million passengers and earned Euro 12.53 Billion from April 2001 to March 2002.
The Complainant has registered its AIR FRANCE trademark in multiple jurisdictions around the world, including with the appropriate French, European Union and United States of America authorities. The Complainant has also registered many domain names that incorporate its mark, including <airfrance.com>.
The disputed domain names are confusingly similar to the Complainant’s AIR FRANCE mark. Each of them incorporates the mark in full, combined with descriptive terms in either Spanish (i.e., “promociones” and “reservas”) or English (“holiday reservations”). These additional terms do not reduce the risk of confusion between the domain names and the Complainant’s famous mark; in fact they increase the likelihood of that confusion.
The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent is in no way related to the Complainant, and does not serve as the Complainant’s agent. Moreover, the Complainant has granted the Respondent no authorization or license to use the Complainant’s mark in any domain name.
The Respondent has not been commonly known as any of the disputed domain names. Also, the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services. The disputed domain names are instead being used by the Respondent to divert Internet users to a website that features pay-per-click links to third party websites, some of which are owned and operated by direct competitors of the Complainant. Such use also fails to constitute legitimate noncommercial or fair use of the disputed domain names.
The Respondent registered and is using the disputed domain names in bad faith. The Respondent must have been aware of the Complainant’s famous mark when the disputed domain names were registered. Ergo, the Respondent must have registered the domain names to derive some sort of commercial benefit through confusion with that mark.
By using the disputed domain names to furnish links to services that compete with those offered by the Complainant, the Respondent is making bad faith use those domain names.
The Complainant has presented the Panel with sufficient evidence (Annexes E1 – E3) of registration of the Complainant’s well known mark, AIR FRANCE, with several jurisdictional authorities, including the INPI, OHIM and USPTO, for the Panel to conclude that the Complainant possesses the requisite rights in that mark. That conclusion has also been reached by several prior UDRP panels. See, for example, Société Air France v. Spiral Matrix, WIPO Case No. D2005-1337; Société Air France v. Alvaro Collazo, WIPO Case No. D2004-0446; and Air France v. Kitchkulture, WIPO Case No. D2002-0158.
All the disputed domain names, <airfranceholidaysreservations.com>, <promocionesairfrance.com> and <reservasairfrance.com>, incorporate the Complainant’s AIR FRANCE mark in full. In each case, either common Spanish language terms (i.e., “promociones” or “reservas”) or English language terms (i.e., “holidays reservations”) have been added to the mark to fill out the name. Numerous prior UDRP decisions have held that the mere addition of generic or common terms to an established trademark or service mark do not serve to distinguish the domain names from the mark. In this case, the Panel believes that the additional common terms actually add to the confusion because those terms are readily applicable to the Complainant’s business relative to that mark. As a result, the Panel finds the disputed domain names to be confusingly similar to the Complainant’s mark. For supporting cases see, Société Air France v. Pawan S. Jain, Airtickets India (P) Ltd., WIPO Case No. D2008-0853 (finding <airtickets-airfrance.com> to be confusingly similar to the AIR FRANCE mark); Société Air France v. Ahmetovnuri, Ahmet Nuri, WIPO Case No. D2006-1527 (finding <airfrancereservation.info> to be confusingly similar to the AIR FRANCE mark, while stating: “The use of the generic term ‘reservation’ is rather [more] suitable to reinforce the association of the Domain Name with the Complainant’s trademark than to create a distinction.”); and American Express Company v. MustNeed.com, NAF Claim No. FA257901 (finding <amextravel.com> to be confusingly similar to the AMEX mark.).
In the Panel’s opinion, the Complainant has proved that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant contends that the Respondent is not related in any way to the Complainant’s business, and that the Respondent has not been authorized, licensed or otherwise allowed to make use of the disputed domain names and/or the AIR FRANCE mark. Given this prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, the Respondent has to come forward with clear evidence that it does possess such rights or interests. See, AOL LLC v. Jordan Gerberg, NAF Claim No. FA780200; and Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624.
As the Respondent has failed to file a Response in these proceedings, the Panel concludes that, in answer to the Complainant’s prima facie case, the Respondent has provided neither evidence of circumstances of the type specified in paragraph 4(c) of the Policy, nor of any other circumstances giving rise to a right or legitimate interest in the disputed domain names. Upon examination, the Panel finds no reason to believe that Respondent (as either “Casa Del Turismo” or “Travel Del Sol”) has been commonly known as any of the disputed domain names or as “Air France”, making paragraph 4(c)(ii) inapplicable to this case.
Moreover, the Panel accepts the Complainant’s uncontested contention that the Respondent is using the domain names only to furnish links to third party websites – some sponsored by direct competitors of the Complainant – which fails to constitute “a bona fide offering of goods or services” per paragraph 4(c)(i) of the UDRP, or “legitimate noncommercial or fair use” of the names per paragraph 4(c)(iii). See, for example, MasterCard International Incorporated v. Eric Hochberger, WIPO Case No. D2006-1050; and Mattel, Inc. v. Domain Park Limited, NAF Claim No. FA1164348 (“Respondent is using the [disputed] domain name to display hyperlinks to a parked page with a list of third-party websites, some of which are in direct competition with Complainant. The Panel infers that Respondent is using the disputed domain name to earn click-through fees, and thus finds that Respondent has not made a bona fide offering of goods or services under Policy [paragraph] 4(c)(i) or a legitimate noncommercial or fair use under Policy [paragraph] 4(c)(iii).”).
Accordingly, the Panel rules that the Complainant has succeeded in proving that the Respondent has no rights or legitimate interests in the disputed domain names.
Due to the Complainant’s extensive international operations and fame, the Panel has independent knowledge of the Complainant and its business and is in agreement with the Complainant’s contentions that AIR FRANCE is a well-known and even famous mark. Thus, the Panel is convinced that the Respondent was also well aware of the Complainant’s mark when the Respondent registered the disputed domain names.
Moreover, as noted above, the Panel accepts the Complainant’s uncontested contention that the disputed domain names are used to host websites that offer links to the websites of third parties, some of which are the Complainant’s direct competitors. The Panel realizes that this is a common practice whereby a domain name owner will be compensated via a small fee each time an Internet user “clicks on” any of these links. This realization compels the Panel to the conclude that the Respondent has likely intentionally chosen and used the disputed domain names to attract, for commercial gain, Internet users to its website and, thusly, that the disputed domain names have been registered and used by the Respondent in bad faith per paragraph 4(b)(iv) of the Policy. See, Overstock.com, Inc. v. Metro Media, WIPO Case No. DME2009-0001 (“Respondent’s website not only incorporates the dominant part of Complainant’s service mark, but, also, the content on Respondent’s website refers to and links to third parties offering services and goods competitive with those of Complainant. Respondent is presumably receiving some form of compensation for click-throughs to such third party competitors. This use of the disputed domain name constitutes bad faith within the meaning of paragraph 4(b)(iv) of the Policy.”); and Lyonnaise de Banque v. Richard J., WIPO Case No. D2006-0142.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <airfranceholidaysreservations.com>, <promocionesairfrance.com> and <reservasairfrance.com> be transferred to the Complainant.

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§15-7-4. Designation of emergency interim successors to legislators.
§15-7-5. Status, qualifications and term of emergency interim successors.
§15-7-6. Contingent method of designating emergency interim successors.
§15-7-7. Recording and publication of successor's name.
§15-7-8. Oath of emergency interim successors.
§15-7-9. Duty of emergency interim successors.
§15-7-10. Place of legislative session in event of attack, etc.
§15-7-11. Assumption of powers and duties of legislator by emergency interim successor.
§15-7-12. Privileges, immunities and compensation of emergency interim successors.
This article shall be known as the "Emergency Interim Legislative Succession Act."
The Legislature declares: (1) That recent technological developments make possible an enemy attack of unprecedented destructiveness, which may result in the death of inability to act of a large proportion of the membership of the Legislature; (2) that to conform in time of attack to existing legal requirements pertaining to the Legislature would be impracticable, would admit of undue delay, and would jeopardize continuity of operation of a legally constituted Legislature; and (3) that it is therefore necessary to adopt special provisions as hereinafter set out for the effective operation of the Legislature.
(a) "Attack" means any action or series of actions taken by an enemy of the United States resulting in substantial damage or injury to persons or property in this state whether through sabotage, bombs, missiles, shellfire, or atomic, radiological, chemical, bacteriological, or biological means or other weapons or methods.
(b) "Unavailable" means absent from the place of session (other than on official business of the Legislature), or unable, for physical, mental or legal reasons, to exercise the powers and discharge the duties of a legislator, whether or not such absence or inability would give rise to a vacancy under existing Constitutional or statutory provisions.
Each legislator shall designate not fewer than three nor more than seven emergency interim successors to his powers and duties and specify their order of succession. Each legislator shall review and, as necessary, promptly revise the designations of emergency interim successors to his powers and duties to insure that at all times there are at least three such qualified emergency interim successors.
An emergency interim successor is one who is designated for possible temporary succession to the powers and duties, but not the office, of a legislator. No person shall be designated or serve as an emergency interim successor unless he may under the Constitution and statutes hold the office of the legislator to whose powers and duties he is designated to succeed, but no Constitutional or statutory provision prohibiting a legislator from holding another office or prohibiting the holder of another office from being a legislator shall be applicable to an emergency interim successor. An emergency interim successor shall serve at the pleasure of the legislator designating him or of any subsequent incumbent of the legislative office.
Prior to an attack, if a legislator fails to designate the required minimum number of emergency interim successors within thirty days following the effective date of this article or, after such period, if for any reason the number of emergency interim successors for any legislator falls below the required minimum and remains below such minimum for a period of thirty days, then the floor leader of the same political party in the same house as such legislator shall promptly designate as many emergency interim successors as are required to achieve such minimum number, but the emergency interim successors so designated shall not have a rank in order of succession higher than that of any remaining emergency interim successor previously designated by a legislator for succession to his own powers and duties. Each emergency interim successor designated by the respective floor leaders shall serve at the pleasure of the person designating him but the legislator for whom the emergency interim successor is designated or any subsequent incumbent of his office may change the rank in order of succession or replace at his pleasure any emergency interim successor so designated.
Each designation of an emergency interim successor shall become effective when the legislator or floor leader authorized by section six of this article to make such designation files with the Secretary of State the successor's name, address and rank in order of succession. The removal of an emergency interim successor or change in order of succession shall become effective when the legislator or floor leader authorized by section six of this article to do so, files this information with the Secretary of State. All such data shall be open to public inspection. The Secretary of State shall inform the Governor, the director of the Office of Emergency Services, the clerk of the house concerned and all emergency interim successors of all such designations, removals and changes in order of succession. The clerk of each house shall enter all information regarding emergency interim successors for the house in its public journal at the beginning of each legislative session and shall enter all changes in membership or order of succession as soon as possible after their occurrence.
Promptly after designation each emergency interim successor shall take the oath required for the legislator to whose powers and duties he is designated to succeed. No other oath shall be required.
Each emergency interim successor shall keep himself generally informed as to the duties, procedures, practices and current business of the Legislature, and each legislator shall assist his emergency interim successors to keep themselves so informed.
Whenever in the event of an attack, or upon findings that an attack may be imminent, the Governor deems the place of session then prescribed to be unsafe, he may change it to any place within or without the state which he deems safer and convenient.
If in the event of an attack a legislator is unavailable, his emergency interim successor highest in order of succession who is not unavailable shall, except for the power and duty to appoint emergency interim successors, exercise the powers and assume the duties of such legislator. An emergency interim successor shall exercise these powers and assume these duties until the incumbent legislator, and emergency interim successor higher in order of succession, or a legislator appointed or elected and legally qualified can act. Each house of the Legislature shall, in accordance with its own rules, determine who is entitled under the provisions of this article to exercise the powers and assume the duties of its members. All Constitutional and statutory provisions pertaining to ouster of a legislator shall be applicable to an emergency interim successor who is exercising the powers and assuming the duties of a legislator.
The various provisions of this article shall be construed as separable and severable, and should any of the provisions or parts thereof be construed or held unconstitutional or for any reason be invalid, the remaining provisions of this article shall not be thereby affected.


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Lipsyte, Robert. Idols of the Game. A Sporting History of the American Century. Atlanta. Turner Publishing. 1995. 368 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Little, John (ed). Ultimate Guide to Paintball. Lincolnwood. Contemporary. 2001. 4to. Soft cover. First edition. Illustrated. Fine copy.
Long, John. Advanced Rock Climbing. Conifer. Chockstone. 1997. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Long, John. Climbing Anchors. A Falcon Guide. Helena. Falcon. 1993. Octavo. Soft cover. Reprint. Illustrated. Fine (owner name on end paper) copy.
Long, John. How to Rock Climb Big Walls. Photo available. Evergreen. Chockstone Press. 1994. Octavo. Soft cover. First edition. Illustrated. Fine copy (ink mark inside front cover).
Long, John. How to Rock Climb. Evergreen. Chockstone. 1993. Octavo. Soft cover. Second edition. Illustrated. Near fine copy (very light shelf wear).
Long, John. Sport Climbing. A Falcon Guide. Helena. Falcon. 1997. Octavo. Soft cover. Third edition. Illustrated. Fine copy.
Longacre, John. Backgammon of Today. Photo available. New York. Bell. 1980. Octavo. Hard cover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Longrigg, Roger. The History of Foxhunting. Photo available. New York. Clarkson N. Potter. 1975. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Loughman, Michael. Learning to Rock Climb. San Francisco. Sierra Club. 1981. 141 pps. 4to. Soft cover. Reprint. Illustrated. Fine copy.
Ludlum, Stuart D. (ed). Great Shooting Stories. Photo available. Garden City. Doubleday. 1947. Octavo. Hard cover. First edition. Illustrated by Ted Placek. Near fine copy (lacks front end papers).
Lundy, Derek. Godforsaken Sea. Racing the World's Most Dangerous Waters. Chapel Hill. Algonquin Books. 1999. 272 pps. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Lusch, Ed. Comprehensive Guide to Western Gamefish. np. np. 1985. 126 pps. 4to. Soft cover. First edition. Illustrated. Fine copy.
Lusch, Ed. Comprehensive Guide to Western Gamefish. Photo available. np. Self published. 1985. 125 pps. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Lyle, Sandy. Learning Golf: The Lyle Way. The Sure and Simple Way to Play the Game. New York. Harper & Row. 1986. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Lyon, John. John Lyons' The Making of a Perfect Horse. Raising and Feeding the Perfect Horse. Photo available. Greenwich. Belcour. 1999. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Lyons, John. Private Lessons. The Making of the Perfect Horse. John Lyons Answers Your Questions on Care and Feeding. Greenwich. Belvoir. 2000. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Lyons, Paul (ed). The Greatest Gambling Stories Ever Told. Thirty-One Unforgettable Tales of Risk and Reward. Guilford. Lyons Press. 2002. Octavo. Hard cover. First edition. Fine copy in fine dust jacket (in mylar).
MacDonald, Charles Blair & Herbert Warren Wind. Scotland's Gift - Golf. Reminiscences, 1872 - 1927. Photo available. Stamford. The Classics of Golf. 2003. 344 pps. Octavo. Gilt decorated hard cover. First edition thus. Illustrated in black, white and color. Important reference work. Folding map. Fine copy in glassine wrapper.
MacFarlen, Allan. Modern Hunting with Indian Secrets. Basic, Old-new Skills for Observing and Matching Wits with Nature. Photo available. Harrisburg. Stackpole. 1971. Octavo. Hard cover. First edition. Illustrated. Fine copy in very good (light shelf wear) dust jacket (in mylar).

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text:
“In l991, the Supreme court in Kentucky Association of Realtors v. Musselman, upheld nominating commissions. But that decision was contingent on a Governor’s power to reject the proposed names and ask for a new list.�?
That conclusion by the Courier Journal is clearly incorrect and misstates the clear meaning of Musselman.
In the Musselman case, the trial judge had held a portion of KRS 324.281 unconstitutional. That ruling was overruled by the Supreme Court and the concept of nominating committees was upheld. That statute is clearly distinquished from the statute applying to the appointment of University Regents.
The last phrase of KRS 324.281 allows the Governor to appoint from the list of nominees submitted to him by the Ky. Association of Realtors, “OR FROM A NEW LIST SUPPLIED BY THE ASSOCIATION.�?
“The Governor shall select the appointees from among the nominees.�?
We must conclude that the statement of the Courier Journal is incorrect. The Supreme Court in Musselman upheld the concept of nominating commissions submitting a list of nominees to the Governor. The reference to the right of the Governor to reject the list is based solely on the wording of KRS 324.281 which arguably allows the Governor to demand a new list, and that wording is not found in KRS 164.005, in fact KRS 164.005 has wording directly contrary to the right of the Governor to reject the initial list of nominees.
The implication in the Courier Journal article that the Musselman decision applied to KRS 164.005 by creating or recognizing the right of the Governor to reject the original list of nominees is just incorrect. The Musselman decision only applied to the wording of KRS 324.281.
Further we should point out that the Musselman case was decided by the Ky. Supreme Court in l991. The legislative history of KRS 164.005 shows that it was adopted subsequent to the Musselman decision and one must conclude that the legislature was aware of the Musselman decision when it adopted the current version of KRS 164.005. The courts have long held that deference must be given to the legislature when interperting the wording of statutes they enact. Therefore, one is required to assume that the legislature knew what they were doing when they adopted KRS 164.005, and that they intended the language used to be strictly followed. The statute regarding the appointment of Regents was enacted in the next session of the General Assembly after the Musselman decision.
The rules of statutory construction force one to conclude that the legislature was aware of the Musselman decision and intentionally deleted the option of the Governor to reject the list of nominees and demand another list.
ch. 91, sec. 1, effective March 22, 1994; and ch. 447, sec. 3, effective April 11, 1994.
– Created 1992 Ky. Acts ch. 10, sec. 3, effective February 20, 1992, effective February 20, 1992.�?
Commonwealth of Kentucky; and Kentucky Real Estate Commission, Appellees.
Nos. 90-SC-664-TG, 90-SC-665-TG. Supreme Court of Kentucky.
Aug. 29, 1991. Rehearing Denied Nov. 21, 1991.
Fred E. Fugazzi, Jr., W. Terry McBrayer, Lexington, for Kentucky Assoc. of Realtors.
Peter L. Ostermiller, Robert G. Stallings, Louisville, for Musselman.
Kevin J. Hable, William H. Hollander, Sheryl G. Snyder, Louisville, for Wilkinson.
T. Kennedy Helm, III, Judith A. Villines, Frankfort, for amicus curiae.
John L. Ackman, Jr., Louisville, for Kentucky Real Estate.
Frederic J. Cowan, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, Kelly Mark Easton, Louisville, for Cowan.
(4) The Attorney General of Kentucky.
The appellee seeks to have a portion of KRS 324.281 declared unconstitutional. The statute provides the statutory structure for the Real Estate Commission, and specifically limits the Governor’s power of appointment of real estate agents to serve as members of the Commission to a list supplied by the Association. The Complaint alleges “there are approximately 24,000 real estate licensees in the Commonwealth of Kentucky, of which approximately one-third are members of the KAR [the Association],” that the statute is arbitrary and in violation of Section 2 of the Kentucky Constitution, and that it violates the separation of powers principle in Sections 27 and 28 of the Kentucky Constitution, thus also infringing on Section 69, which vests the “supreme executive power of the Commonwealth” in the Governor.
We have granted transfer, and for reasons that follow we hold the statute in question does not violate the sections of the Kentucky Constitution in question. Thus we reverse the trial court’s decision.
The statute limits the power of the Governor to appoint two names on a list provided by the Association, but it neither limits appointees to members of the Association nor does it compel the Governor to appoint someone on the list. Strictly speaking, the Association may nominate any licensed real estate agent who meets the qualifications in Subsection (1) of KRS 324.281, without regard to membership in the Association, and the Governor may reject all the names on the list provided by the Association and forego making an appointment until provided with a list that includes a person whom the Governor deems suitable for appointment to the office.
The Commission consists of five persons, four of whom are selected in this manner, and a fifth who “shall be a citizen at large who is not associated with or financially interested in the practice or business regulated.” KRS 324.281(1). No governmental or regulatory authority is delegated to the Association unless the power to “supply a list” as specified in KRS 324.281(3), quoted above, should be classified as a grant of such power. We have not been presented with any valid reason why it should be so construed.
The appellee concedes the creation of a regulatory commission such as the one in question is a proper exercise of legislative power. So is the designation of qualifications or criteria for persons who shall serve on such a Commission, so long as such qualifications or criteria are not impermissibly “arbitrary” within the context of Ky.Const. Section 2. The primary question in this case is whether the General Assembly has encroached upon the exclusive power of the executive by delegating to the Association responsibility to “supply a list” from which the Governor shall choose his appointee. The almost identical question was first addressed by this Court in Elrod v. Willis, 305 Ky. 225, 203 S.W.2d 18 (1947), which now has been the controlling precedent on this point for almost 45 years.
In Elrod we held constitutional a section of the statute creating the Kentucky Disabled Ex-Servicemen’s Board, a state agency with “full executive powers” to administer a claims program for disabled veterans, which specified that “all appointments to the Board shall be made by the Governor from a list of five (5) names … submitted by” the Kentucky branch of the American Legion. The Legion was, and is, a private, voluntary organization, in the same sense as is the Kentucky Real Estate Association in the present case, and the function designated to it by statute was substantially identical to the same function provided for by KRS 324.281(3), with which we are now concerned.
Now no less than twelve other state regulatory Boards and agencies utilize a similar method in an effort to insure the appointment of qualified individuals. 2 Thus a large body of statutory law has developed since 1947 in reliance on Elrod v. Willis.
Although we would not hesitate in overruling a longstanding precedent if presented with compelling and specific reasons why such precedent is clearly erroneous despite the unsettling nature of such a decision, no such specific and compelling reasons for overruling Elrod have been presented here. On the contrary, the appellee’s argument against the Elrod case is limited to appellee’s claim that Elrod has lost its vitality because of our decision in Legislative Research Com’n. (LRC) v. Brown, Ky., 664 S.W.2d 907 (1984).
The appellee argues that, while Elrod v. Willis was not overruled in LRC v. Brown, it did not survive it. But there are sharp factual differences, which we will later address, between the statutory structure declared unconstitutional in LRC v. Brown and the structure validated in Elrod v. Willis.
In analyzing the function delegated by statute to the American Legion in Elrod, we stated “the legislature has not attempted to appoint administrative officers, nor has it completely denied the appointive function of the executive.” 203 S.W.2d at 20. It has “simply limited the Governor’s selection to a list of men named by an organization which is not affected by the limitation of Section 27.” Id.
Utilizing a private, voluntary organization of this nature is “a recognition that organizations whose objectives coincide with the objectives of the law creating the agency, may render a material service to the Governor by nominating men to staff that agency who are qualified by interest, experience, and background.” Id.
“… an Employment Service Commission composed of a Director of Employment Service and two members, one representing labor and the other management, to be appointed by the Commissioner of Industrial Relations, with the approval of the Governor, from lists of names submitted to him by representatives of labor and management.” 202 S.W.2d at 379.
It also provided certain criteria or qualifications for the Director, including “at least four years’ full time paid experience in the administration and supervision of a statewide system of public employment service offices,” 202 S.W.2d at 380, which substantially narrowed the Governor’s choice for this position.
Discussing first the constitutionality of the limitations on the Governor’s appointive powers imposed by the statutory qualifications for the office, we said “it is only where the classifications are arbitrary and unreasonable, so as to exclude one or more of a class without a reasonable basis, that the Act is void.” 202 S.W.2d at 381.
“Nor is it unusual in this jurisdiction for the Governor to be required to make appointments from lists submitted to him. It is provided in KRS 116.010 that the Governor shall appoint two members of the State Board of Elections Commissioners from a list of names if submitted to him by each major political party.” Id.
“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution,….” 664 S.W.2d at 913.
We “conclude that any statute subject to the scrutiny of Sections 27-28 of the Kentucky Constitution should be judged by a strict construction of those time-tested provisions.” 664 S.W.2d at 914.
We do not now retreat from our decision in LRC v. Brown one iota. Nevertheless, there is a fundamental and critical difference between the statutes held constitutionally flawed in LRC v. Brown and the statutes proved as constitutionally valid in Elrod v. Willis and Fraysure v. Ky. Unemployment Comp. Com’n.
of those departments, shall exercise any power properly belonging to either of the others.” But the statute presently in question, as in the Elrod and Fraysure cases, gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position through participation of an organization, the Kentucky Association of Realtors, which is independent of legislative control.
Conceivably, there are circumstances in which designating an organization by statute to participate in the nominating process could raise questions regarding the exercise of “arbitrary power” under Ky.Const. Section 2, or perhaps of unauthorized grant of “separate public … privileges” under Ky.Const. Section 3. But this would be only if there was some substantial, demonstrable defect in the organization selected exposing the legislative choice as unreasonable and inappropriate for obtaining a valid legislative objective. There is nothing in the present fact situation suggesting a case for unconstitutionality on such grounds.
Therefore, for the reasons stated herein, we reverse and vacate the judgment of the trial court and remand the case with directions to enter a new judgment upholding the constitutionality of the statute and dismissing the Complaint.
STEPHENS, LEIBSON, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur.
LAMBERT, J., dissents by separate opinion in which COMBS, J., joins.
In my view, the statute under consideration is in clear violation of Sections 27, 28 and 69 of the Constitution of Kentucky. Despite the valiant attempt of the majority to say otherwise, the Legislature has in effect appropriated executive prerogative by conferring upon a trade association the arbitrary power, in violation of Sections 2 and 3 of our Constitution, to limit the pool of persons from which the governor may make his appointment. While it may be unimportant for purposes of constitutional analysis, it should not go unnoticed that only approximately one-third of Kentucky’s licensed real estate agents are members of the trade association to which the Legislature has granted such power.
In defense of its position, the majority observes that the association has a right to include on its list of possible appointees persons who are not its members, and it is noted that the governor would be entitled to refrain from making any appointment until the list submitted included the names of persons whom he believed to be suitable. While such facts may provide enough breathing space to prevent a stalemate, if a test of wills should develop between the executive and the association, the executive would have to yield or have his power of appointment thwarted. As the governor can appoint only from the list submitted, the entity which controls the list controls who shall be appointed.
act. LRC v. Brown, at 920-924. As such and in view of the importance we have ascribed to the principle involved, we should not countenance an evasion or circumvention of the rule established.
The majority has emphatically declared, “We do not now retreat from our decision in LRC v. Brown one iota.” Despite such protestation, there is a great similarity between the statutes held unconstitutional in LRC v. Brown and the statute upheld in this case. The majority attempts to distinguish this case from LRC v. Brown on the grounds that “the General Assembly [has] no voice in the selection of committee members; its reach extends solely to providing a method of selection … which is independent of legislative control.” Said otherwise, the majority has the view that the General Assembly may, by delegation of authority to a trade association, do what it cannot do directly. Such a distinction is without a difference.
COMBS, J., joins in this dissent.
1 One of those groups, the Kentucky Society of CPAs, by leave of court, has filed an Amicus Curiae Brief herein.
2 KRS 325.230(1)–Accountancy; KRS 330.050(2)–Auctioneers; KRS 316.180(1)–Embalmers and Funeral Directors; KRS 311.530–Medical Licensure; KRS 314.121(1)–Nursing; KRS 320.230(1)–Optometric Examiners; KRS 217B.505(2)–Pest Control; KRS 315.150(2)–Pharmacy; KRS 327.030–Physical Therapy; KRS 311.410(1)–Podiatry; KRS 165A.340–Proprietary Education; KRS 319.020(2)–Examiners of Psychology.

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This article discusses the principles and concept formation program of training and education of specialists for the technological modernization of the country, which allows to determine the vector of development, and a system of measures for the training of specialists with harmonious development of competencies.
1. Zubarev A.S., Emeliyanov S.G., Borisoglebskaya L.N. Creation of regional innovative system - an indicator of a sustainable development of economy of the region.Innovations. 2007, No. 7, pp. 59-63.
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3. Korshunova E.D., Bichkova N.A. Adaptation of programs of training of specialists to requirements of labor market on the basis of use of modern organizational and technological tools.Messenger of MSTU Stankin. 2008, No. 4, pp. 193-198.
4. Chervyakov L.M., Bichkova N.A., Eliseeva N.V. System of an independent assessment of quality of educational services. News of Southwest state university. No. 2(35). Kursk. 2011.
The questions related to the necessity of effective development, and introductions of innovative decisions, possible directions of perfection of innovative activity of industrial enterprises, are considered in the article.
1. Shitikov A.N., Artemiev G.V., Puzanov V.E. Machine-building branch – object of introduction of innovations. New materials and technologies in mechanical engineering: The collection of scientific works following the results of the international scientific and technical conference. Release 11. – Bryansk: BGITA. 2010, pp. 123-127.
2. Shitikov A.N., Artemiev G.V., Puzanov V.E. Innovative activity: world practice. Innovatika – 2010: The collection of materials of the VI All-Russian scientific and practical conference of students, graduate students and young scientists with elements school of sciences. Tomsk: TML-Press. 2010. V. 1. pp. 328-333.
3. Shitikov A.N., Artemiev G.V., Puzanov V.E. Innovative activity: China and Russia. Innovatika – 2010: The collection of materials of the VI All-Russian scientific and practical conference of students, graduate students and young scientists with elements school of sciences. Tomsk: TML-Press. 2010, V. 1. pp. 334-338.
4. Shapar E.V., Shitikov A.N. Motivation – the instrument of improvement of quality of work. The Higher school and students today: materials of the ALL-Russian scientific conference, Kursk. JSC Mechta. 2012, pp. 370-374.
The article deals with the practical aspects of the implementation of the concept of risk management on the example of LLC «Sportèks». The quality management program for LLC "Sportèks", consisting of a motivational vision for plant personnel and activities aimed at preventing the release of defective products.
1. The official site of JSC Sporteks. Available at http://sportax.ru/.
2. Menshikova O.G., Lisovitskaya I.O., Ukolov D.N., Zotov I.V., Pogonin A.A., Peredelskiy G.I. Practical approaches to implementation of the concept of risk management taking into account dynamics of changes of requirements to quality of production and SQM for increase of efficiency of activity of the industrial enterprises. News of Southwest state university. The equipment series and technologies. 2013, No. 1, pp. 156-166.
The article discusses the use of value stream map as a tool for lean manufacturing in the production of dry-cell batteries. The maps of the current and future state of the process and assess the effectiveness of production.
1. Roter M., Shuk D. Learn to see business processes. Practice of creation of cards of streams of creation of value. Translation from English. Moscow: Alpina Business Books: CBSD, Center of development of business skills. 2005, 144 p.
2. Hodirevskaya S.V. Card of a stream of creation of value: practical use. Standards and quality. – M.: RIA "Standards and Quality". 2015, No. 3, pp. 88-89.
3. Laushkina E.A., Hodirevskaya S.V. Map development of a stream of creation of value of process of production of accumulators of "easy group". The Collection of scientific works of the 2nd International scientific and technical conference "Quality in Production and Social and Economic Systems" devoted to the 50 anniversary of Southwest state university in 2 volumes. Kursk: YuZGU. 2014, V. 1, pp. 168-172.
4. Hodirevskaya S.V. Economical production of accumulators. Collection of scientific works of the International youth scientific and practical conference "Quality of production: control, management, increase, planning. Kursk: SWSU. 2014, pp. 542-545.
5. Hodirevskaya S.V., Laushkina E.A. Analysis and improvement of the organization of production of "easy" accumulators. Materials of the international scientific and practical conference "Topical Issues of Science and Equipment". Voronezh: Voronezh branch of MIIT. 2014. pp. 221-225.
6. Hodirevskaya S.V., Laushkina E.A. Optimization of process of production of accumulators of easy group on JSC ISTOK. Materials of the International scientific and technical conference "The capacity of Russia in 21 century. Development vectors". Nizhni Tagil: UIEUiP. 2014. pp. 238-243.
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8. Boeva O.N., Hodirevskaya S.V. The analysis of the reasons of emergence of defective production in the course of molding of conductor cables on JSC KZA. Materials of the International youth scientific conference "Generation of the future: Look of young scientists": in 3 volumes. Kursk: YuZGU. 2012. V. 3. pp. 188-191.
9. Hodirevskaya S.V., Laushkina E.A. The improvement of the production process of the chilly charged accumulators from the map development of a stream of value creation. The collection of scientific works of the 2nd International scientific and technical conference "Quality in Production and Social and Economic Systems" devoted to the 50 anniversary of Southwest state university in 2 volumes. Kursk: YuZGU. 2014. V. 1. pp. 312-317.
10. Laushkina E.A., Hodirevskaya S.V. Construction and improvement of the card of a stream of value creation of production process of accumulators. Materials of the IV All-Russian scientific and practical student's conference "Problems of Certification, Quality Management and Office-work". Krasnoyarsk: SibGTU. 2013. pp. 157-162.
11. Levinson U., Rerik R. Economical production: synergetic approach to reduction of losses. Translation from English A.L. Raskina. M.: RIA "Standards and Quality". 2007. 272 p.
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The article deals with the quality of life in a new direction of philosophy - the philosophy of quality. The author reveals the essence of the category of quality of life, its characteristics, goals and features. The article argues the thesis of the dualism of opinions in the context of assessing the quality of life through the work of Marco Negri, I.V. Bestuzhev-Lada, V.N. Bobkov, A.A. Davydov and other scientists dealing with the problem of quality of life in the modern philosophy. Author's hierarchy of objectives categories of quality of life in terms of quality philosophy.
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This paper considers the spiritual basis of the quality of life, given the materials describing the creation, formation and development of the Kurskaya Korennaya pustyn' as one of the centers of formation of spiritual values in Russia.
1. Boytsov B.V., Kuznetsov M.A., Elkin G.I. Concept of quality of life: problems in global and regional measurements. Academy of problems of quality. Moscow. 2012, 200 p.
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This paper is devoted to the reconstruction of the pedagogical views of St Apostle Paul. It analyzes the main notions important for the spiritual and moral formation of a person, such as Christocentrism, the true understanding of human freedom, obedience, and above all love.
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This paper presents a positive experience for the development of the youth movement of experts in the field of quality management. Considered the event conducted by the All-Russian student competition on quality management named V.V. Boytsov.
1. Boytsov B.V., Kryanev Yu.V. The anthology of Russian quality. Academy of quality problems. Moscow. 2007, 580 p.
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In article approaches to development of systems of quality management at the region enterprises are considered. Regional features which are necessary for considering at creation of quality management system for the regional enterprises are allocated. The conceptual scheme of integration of systems of management in the general quality management system for the regional enterprises is presented.
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At management of processes of the systems of management need of an assessment of their flexibility on time, as one of the parameters providing controllability of processes is specified. Dependences for an assessment of degree of flexibility of processes of the systems of management on time taking into account availability of resources of processes are presented.
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In article the theoretical and methodical ideas constructed on studying of functions of the person in labor process, a tendency of development of production, social and labor experimenting are considered and the huge innovative capacity of this direction which can be admitted to the organizations of modern innovative productions is shown. The conceptual model at the present stage of innovative development of the industry which sets a task of creation of the new innovative pedagogics directed on education of professionally directed personality, development and education of motivation to work, formation of new approaches in technologies and the organization of production, the sociotechniques principles of the organization of work is offered.
1. Gastev A.K. Labor installation. Publishing "LIBROKOM". Moscow. 2011.
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This article describes the principles of innovative development of systems of control and supervision of aviation security at different levels , taking into account the risk - oriented models.
1. Makhutov N.A., Balanovsky L.V., Balanovsky V.L., Gabur S.P., Karabanov I.I. Risk Monitoring and forecasting systems for integrated security of transport infrastructure objects and means of transport. Quality of life. 2014. No. 3.
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4. Chechevatova O.Yu., Grevtsov O.V. Information technology BREFs as an element of state regulation on the basis of the best available technologies. The World of standards. 2015. No 4(95).
In this paper problems of safety and electromagnetic are considered. Researches of electromagnetic compatibility enable to improve quality electronic equipment and reliability of the complex objects, atomic industry.
1. Balanovskiy L.V., Golovin D.L., Sarilov O.V. Creation of system of electromagnetic safety of technical systems for space complexes of the Russian Federation. Quality and life. 2010. No 4.
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3. Balanovskiy L.V., Golovin D.L., Sarilov O.V. Creation of system of electromagnetic safety of technical systems for space complexes of the Russian Federation. Quality and life. 2010. No 4.
1. Balanovsky L.V., Balanovsky, V.L., Kalmikov V.M. Foresight and roadmap: the solution of problems of electromagnetic safety. Quality of life. 2011.
2. Bogachev Yu.S., Oktyabrsky A.M., Rubvalter D.A. Mechanisms of development of innovative economy in modern conditions. Economic science of modern Russia. 2009, No. 2 (45).
Insafing, the technique of the new organizational activity game is developed. It is shown how the interdisciplinary scientific theory of dynamic information systems forms base of the innovative technology of the interactive intellectual capacious communications while receiving the appendix in Insafing. The Insafing technique is described with an example of its carrying out in the trailering development project.
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The article describes the various classifications of radar stations and characteristics of their structure. The paper presents the main trends in the radar. The increased role of digital devices and the development of microelectronics and their impact on the construction of the radar are noted.
2. Druzin S.V. Main directions of development of radar-tracking systems. Messenger "Almaz-Antey air defense Concern". 2012, No. 2, pp. 4-6.
3. Shirman Ya.D. Radio-electronic systems: bases of construction and theory. Reference book. Radio engineering. Moscow. 2007.
This article proposes an approach to systemize problems of designing tolerances of machine parameters values. The basis of this systematization is considering machine quality indicators as functions of dimensional chains and relations of material properties. Considering well-known and newly formulated problems of tolerance design, particular attention is paid to the variational principles.
1. Horoshev A.N. Introduction to management of design of mechanical systems. Belgorod. 1999. 372 p.
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3. Genichi Taguchi, Subir Chowdhury, Yuin Wu. Taguchi's Quality Engineering Handbook. Wiley-Interscience. 2004. 1696 p.
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8. Kuzmin A.V., Chernin I. M., Kozintsov B.S. Calculations of details of cars: Handbook. The higher school. 1986. 400 pp.
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11. Akatov E.S. Modificating of homo- and copolymers ethylene by carbon nanomaterials for the purpose of management of properties of composites and products on their basis. Abstract of the thesis ... c.t.s.: 05.17.06, 05.02.23. Voronezh. 2013, 18 p.
12. Ivakhnenko A.A., Chervyakov L.M. Planning of quality of products of mechanical engineering on the basis of robast design. Fundamental and applied problems of equipment and technology. 2013, No. 4(300), pp. 131-135.
The article discusses the standardization of the parameters of the geometric accuracy of small-sized metal-working equipment.
1. Ilyinskiy D. Ya., Ippolitov A.V. Bases of calculation and design of technological machines and lines of light industry. Legprombytizdat. Moscow. 1989, 220 p.
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5. Kryukov D.N. Bases of creation of norms of accuracy for the small-sized metalworking equipment. Engineering bulletin of Don. No. 1 (2015). Available at: ivdon.ru/ru/magazine/archive/n1y2015/2769.
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7. Kryukov D.N., Ivakhnenko A.G. Development of norms of accuracy on the small-sized and tiny metalworking equipment. News of Southwest state university. 2014, No. 1, P.1. pp. 16-21.
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9. Ivakhnenko A.G. Conceptual design of metal-cutting systems. Structural synthesis of [Text]. HGTU publishing house. Khabarovsk. 1998, 124 page.
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The article describes the assessment of the performance of process equipment based on machine tools with numerical software. The possible ways to reduce the loss of working time and overhead, designed maps daily inspection of a number machine tools with numerical software.
1. Menshikova O.G., Chervyakov L.M., Verevkina K.O. Optimization of process of readjustment of machines with numerical program control on the basis of SMED. News of Southwest state university. 2012, No. 1(40), P.1, pp. 155-163.
2. Solovey R.E. Verevkina K.O., Menshikova O.G. Management of the production equipment of the industrial enterprises. Innovations, quality and service in equipment and technologies: materials of the II international scientific and practical conference. YuZGU. Kursk. 2011, pp. 352-356.
3. Solovey R.E., Verevkina K.O., Menshikova O.G. The analysis of losses in work of the production equipment of the JSC SATAL-Pribor Plant. Innovation, quality and service in equipment and technologies: materials of the II international scientific and practical conference. YuZGU. Kursk. 2011, pp. 349-352.

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When Can an Employee Quit and Still Sue for Wrongful Discharge?
In the at-will employment context, an employee is ordinarily held to his or her decision to resign. But what if the employer, seeking to skirt liability for discharging the employee for an unlawful reason, prods and goads the employee along the path to resignation? In the 1930s, the National Labor Relations Board was faced with employers coercing resignations from employees to avoid liability under the National Labor Relations Act. In response, it created the constructive-discharge doctrine. That is, the employer did not issue the employee a discharge, but the working conditions deteriorated such that it became as if there had been a discharge.
Since then, state and federal courts have recognized that employers used similar arguments when faced with liability under Title VII of the Civil Rights Act, other employment statutes, and various state torts for wrongful discharge. These courts adopted the constructive-discharge doctrine as an element of proof in place of actual discharge.
In 2004, the U.S. Supreme Court, in Pennsylvania State Police v. Suders, explained that the constructive-discharge doctrine referring to “an employee’s reasonable decision to resign because of unendurable conditions is assimilated to a formal discharge for remedial purposes.” It noted that the question to be answered is: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?
When Are Conditions Sufficiently Intolerable?
Courts look to all kinds of factors, including whether the employee was demoted; received a reduction in salary; received a reduction in job duties; was reassigned or transferred; and was badgered, harassed, or humiliated. Sometimes one factor is so egregious that it is sufficient to show that the working conditions were intolerable. Other times an employee must show a multiplicity of factors.
The First Circuit, in Vieques Air Link, Inc. v. U.S. Department of Labor, found sufficient evidence for a constructive-discharge argument where an employee was transferred, requested assistance to meet new work hours without response, and made efforts to comply with new work hours. The court cited case law that “a drastic increase in commuting time and reimbursed costs” supported an employee’s decision to resign. Specifically, a pilot blew the whistle to his company and the Federal Aviation Administration. The company responded by requiring him to report at 6:00 a.m. at a new terminal on a different island from where he lived and had been reporting. The new terminal was on another island without access to any transportation allowing him to arrive prior to the reporting time, and the cost of staying overnight when the pilot was making $330 weekly salary was not economically viable.
In Zabielski v. Montgomery Ward & Co., Inc., the Seventh Circuit found constructive discharge when an employee’s income was reduced from $26,000 to less than $10,000 per year and the position was set to disappear in three months. Similarly, in Neal v. Honeywell, Inc., the Seventh Circuit found a constructive discharge where a highly educated employee had her high-level duties reduced to nothing but the occasional training duty. The whittling away of duties from an employee with a Ph.D. in organizational behavior—who had previously coordinated training, resolved disputes and systemic morale problems, evaluated employee productivity, written a plant-wide newsletter, written management communications, and conducted surveys—to the occasional training duty was enough to find constructive discharge.
These cases illustrate a few of the ways in which an employee’s work conditions can be made intolerable. And, of course, multiplying any of the above factors will serve to strengthen an employee’s claim for constructive discharge. For example, in Edgewood Management Corp. v. Jackson, the Maryland Court of Special Appeals determined that the fact that a 50-year employee who had never been disciplined was suddenly issued a final warning and relocated 30 miles away, along with evidence that his managers had his salary reduced and desired his resignation, was sufficient to support a showing of constructive discharge when the employee did resign as a result of the changed working conditions.
When Are Conditions Not Sufficiently Intolerable?
Courts have cautioned that constructive discharge is not about workplace decisions that are simply unfair. These courts, such as the First Circuit in Suarez v. Pueblo International, Inc., have warned that suffering “the ordinary slings and arrows that workers routinely encounter in a hard, cold world” is not enough, nor is dissatisfaction or the feeling of unfair criticism. There are gradients on the scale where unpleasantness does not reach the requisite intolerability.
For example, in Poland v. Chertoff, the Ninth Circuit held that there was not a constructive discharge where the facts showed that even though the employee alleged poor working conditions resulting from a transfer, the employee continued working for three months after his decision to retire. The court added that subjective preferences are not enough to show intolerable working conditions, and the decision to keep working in this case showed that even that preference was not particularly strong.
Similarly, in Suarez v. Pueblo International, Inc., from the First Circuit, the employee complained that his working conditions deteriorated—including that he was being pushed too hard, excluded from meetings, having staff relocated—such that there was a constructive discharge. The court stated that the fact that the employee’s salary, benefits, and job title stayed the same and his duties were appropriate to his position were significant evidence that there was not constructive discharge.
In Williams v. Giant Food Inc., from the Fourth Circuit, the employee’s complaints of supervisors yelling at her, telling her she was a poor manager, chastising her in front of customers, and requiring her to work once with an injured back were not enough to prove a constructive discharge. The court categorized these complaints as dissatisfaction and unpleasantness, not intolerability.
What Is an Employee to Do?
An employee needing to benefit from the principle of constructive discharge is in one of two situations. Either the employee is still employed and determining whether the conditions are intolerable, or the employee has resigned his or her employment and must decide whether to base a legal claim on a constructive discharge. In both instances, it is important to highlight that the constructive-discharge theory is a substitute for proof of an adverse employment action. For example, if an employee is seeking to prove a claim of discrimination, the employee can show that there was an adverse employment action by proving a constructive discharge. In other words, there is no claim of “constructive discharge.” It is a method for proving an adverse employment action or supporting a wrongful-discharge action. This is why the Supreme Court referred to the doctrine being used for remedial purposes.
If an employee is still employed, he or she should compare his or her conditions to those that courts have found sufficient to support a finding of constructive discharge. Employees should keep in mind the counsel from the Eighth Circuit Court of Appeals: “[T]o act reasonably, an employee has an obligation not to assume the worst and jump to conclusions too quickly.” Sometimes the employer will present the employee with a legitimate option for continued employment in another position. Continuing its counsel, the court said, “An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.” In short, employees should not weigh too lightly the decision to resign and should deliberate when presented with an offer of continued employment.
If an employee has already resigned, he or she should undertake the same task of comparing his or her working conditions to those where the courts have found intolerable conditions supporting a finding of constructive discharge. If the conditions were not intolerable, he or she will need to look closely at the statute or tort related to the adverse employment action. Inability to prove constructive discharge is not the death knell to all employment actions; instead, it translates to a reduction of potential remedies. Where a constructive discharge can lead to a full recovery of back pay, an employee will likely only be able to prove an adverse employment action under a retaliation statute (because that standard is lower than discrimination or wrongful-discharge claims).
Employers should keep a pulse on their managers to ensure that working conditions are not deteriorating to the point of intolerability for any of their employees. If they are not wary, they are inviting claims, if not liability. In today’s legal landscape, there are numerous statutes and torts at an employee’s disposal. And those employees who resign because they believe conditions have become unendurable are the likeliest to bring a lawsuit against the employer. Employers should also conduct exit interviews of resigning employees to gauge any such intolerability.
The constructive-discharge doctrine has been a boon to employees, helping to keep employers honest. But it is not a panacea. Employees and employers alike should be prepared to examine whether working conditions truly have become intolerable or unendurable.
R. Scott Oswald is the managing principal and Nicholas Woodfield is a principal of The Employment Law Group, PC, in Washington, D.C.

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1. Ye, C.; Nikolov, S. V., Geryak, R. D.; Calabrese, R.; Ankner, J. F.; Alexeev, A.; Kaplan, D. L.; Tsukruk, V. V. Silk Microsheet with Controlled Actuating Behavior: Experimental Analysis and Computer Simulations. ACS Appl. Mater. Interfaces 2016, 8, 17694-17706.
2. Ye, C.; Tsukruk, V. V. Designing Two-Dimensional Materials That Spring Rapidly into Three-Dimensional Shapes. Science 2015, 347, 130-131.
3. Ye, C.; Malak, S. T.; Hu, K. S.; Wu, W. B.; Tsukruk, V. V. Cellulose Nanocrystal Microcapsules as Tunable Cages for Nano-and Microparticles. ACS nano 2015, 9, 10887-10895.
4. Ye, C.; Nikolov, S. V.; Calabrese, R.; Dindar, A.; Alexeev, A.; Kippelen, B.; Kaplan, D. L.; Tsukruk, V. V. Self-(Un)rolling Biopolymer Microstructures: Rings, Tubules, and Helical Tubules from the Same Material. Angew. Chem. Int. Ed. 2015, 54, 8490-8493.
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The article determines the essential difference between human development, human capital and fake human capital. The characteristics of human capital associated with the profit, forms the basis for determining the fake human capital. The author represents the features of investment in human capital, distinguishes the levels of human capital: physiological, intellectual and spiritual, and calculates the average return of higher economic education. The article illustrates the features of the tangible and intangible alienation of human capital at different levels.
Keywords: intangible property, human capital, fake human capital, tangible and intangible alienation.
Julia S. Kolesnikova, Associate Professor. - Kazan (Volga) Federal University.
Guskova N.D., Salimova T.A., Gorin I.A.
The authors analyze the works of foreign scientists in the field of import substitution, and justify the necessity to target the import substitution to the foreign market. The authors study the commodity structure of export and import of the Russian Federation and elaborate recommendations to implement the import substitution policy.
Keywords: import, export, import substitution, innovation.
Nadezhda D. Guskova, Doctor of Economics, Professor, Head of Management Department; Tatiana A. Salimova, Doctor of Economics, Professor, Dean of Economics Faculty, Head of Quality Control Department; Ivan A. Gorin, Candidate of Economics, Associate Professor – Ogarev Mordovia State University.
The article illustrates different points of view on the definition of the concept of bancassurance. It is noted that the integration of the insurance and banking activities can vary from a simple distribution agreement with certain types of capital links between the two activities to the integrated structure where all economic activities of financial institutions can intertwine. The author conducts a retrospective analysis of the interaction between the two financial institutions in the bancassurance market in Russia, and highlights the prospects for its development.
Keywords: bancassurance, commercial bank, insurance company, financial services, coordination of sales, joint product, captive insurers, investment life insurance.
Alexander V. Ekimov, a post-graduate student. - Ogarev Mordovia State University.
The authors suggest a method of assessing the level of regional development in the country in the context of the social and economic functioning safety distinguishing the direction of rational import substitution. The authors perform accounting based on developed tools, and these findings are interpreted in terms of the research.
Keywords: functional safety, social and economic development, import substitution, regional development, methodological tools.
Vladimir V. Klimuk, a senior lecturer; Eugene V. Klimchuk, a senior lecturer. - Baranovichi State University (Belarus).
The article illustrates the features of the priority directions of machine-building complex development in the Russian Federation. Based on the analysis of statistical data on the state of the productive capacity of the Russian machine-building complex the author designs the strategic scenario of the production potential of the Russian engineering industry for the period up to 2025 : inertia, modernization, partnership; and justifies the choice of a partner development scenario as the target one. It is found that the Russian economy has the necessary conditions and opportunities to solve the problems of complex modernization and to provide the pace of the advanced development of domestic machine-building enterprises. It is proved that the effective state import substitution program can be the foundation to realize these goals corresponding to modern requirements and capable of ensuring the integrity and diversity of the process of transformation.
Keywords: engineering, production potential, forecast model, scenarios, strategies, multiplier effect.
Olga V. Karsuntseva, Doctor of Economics, Associate Professor. - Samara State Technical University.
The author defines the role and importance of financial risk management of the economic entity, in accordance with the intended purpose of financial manage-ment. The author suggests the algorithm of financial risk management of the economic entity characterized by the use of special approaches to the management of foreign exchange, interest rate risks and liquidity risks.
Keywords: financial risk, currency risk, interest rate risk, liquidity risk, financial risk management.
Catherine G. Shatkovskaya, Doctor of Economics, Associate Professor, Head of Accounting and Audit Department. - Ural State Mining University; Nadia S. Piontkevich, Candidate of Economics, Associate Professor. - Ural State Eco-nomic University.
The article represents the role and importance of customs regulation, its economic essence and content. With the use of economic-mathematical methods the authors analyze the regional market services of customs registration of foreign economic activity, its dynamics and structure, the internal interconnection and interdependence.
Keywords: foreign economic activity, customs servicing, customs representative, services in the field of customs.
Roman V. Fedorenko, Candidate of Economics, Associate Professor; Natalia P. Persteneva, Candidate of Economics, Associate Professor - Samara State University of Economics.
Fishman L.I., Ivanov M.Y., Grabozdin Y.P.
The article illustrates the features of delivery of cultural sector services, and clarifies their position in the system of social services. The authors represent the comparative analysis of different approaches to the understanding of cultural sector services and offer the authors` characterization of this type of activity.
Keywords: social services, culture, services producer.
Lev I. Fishman, Doctor of Economics, Doctor of Pedagogical Sciences, Pro-fessor, Head of Social Management and Management Education Department; Mikhail Y. Ivanov, Doctor of Economics; Yuri P. Grabozdin, Candidate of Economics - Samara State Social and Pedagogical University.
Stefanenko M.N., Amet-ustaeva D.M., Mamutova S.A.
The author analyze the actual problems of measures development to minimize the hazards and risks of various companies, the need for integration of national risk management systems in the world structure in terms of the business growth. Risk management is defined as a mandatory element of business management.
Keywords: risk management, corporate management system, corporate risk management, risk factors, risk management strategy.
Margarita N. Stefanenko, Doctor of Economics, Professor, Head of Management and Public Administration Department; Dilara M. Amet-ustaeva, a lecturer; Saide A. Mamutova, a post-graduate student. Crimean Engineer and Pedagogical University.
The article analyzes the issues of value-oriented system of corporate management, its main theoretical and practical aspects, and studies the experience of Russian companies on the use of the value-conscious approach to corporate management. The author suggests the methods to implement the value-oriented system of corporate management into the practice of Russian companies.
Keywords: corporate management, value-oriented corporate management, corporate culture, business ethics, corporate management code, code of corporate values, owner, the board of directors, top management.
Khvicha P. Kharchilava, Candidate of Economics, Associate Professor. - Finance University under the Government of the Russian Federation.
FLEXIBLE EMPLOYMENT AS A FORM OF IMPLEMENTING ABILITY TO WORK "INFORMATION MAN"
The article illustrates the modern characteristics of employment - its flexibility, and the notion of "information man". The author highlights the distinctive characteristics of "information man" from the perspective of labour formation. The paper represents the hypothesis of flexible employment priority for "information man" and the prospects of using it to solve the problems of regional labor markets.
Keywords: flexible (unstable) employment, "information man", information space, information technology, labor of "Information man”.
Irina V. Novikova, Candidate of Economics, Associate Professor, Head of World and Regional Economies Department, a branch of Moscow Academy of Entrepreneurship under the Government of Moscow.
The article analyzes the processes of latent labor migration, including seasonal, temporary or pendulum labor migration using the example of the Arkhangelsk region in a historical perspective and current conditions. The author illustrates the examples of using the pendulum labor migration in the region`s companies, and justifies the local migration policy and regulation.
Keywords: latent labor migration, temporary or pendulum labor migration.
Dmitry V. Jurkov, Candidate of Economics, Associate Professor - Northern (Arctic) Federal University named after M. V. Lomonosov.
The author analyzes the approach to assessing the effectiveness of the bank`s activities and the structure of assets and liabilities, its connection with the banking liquidity using the example of the regional bank. The article illustrates the correlation analysis that demonstrates the relationship between the considered indicators.
Keywords: commercial bank, efficiency, liquidity, assets, liabilities, correlation matrix.
Elena A. Trofimova, a senior lecturer. - Ural Federal University named after the First President of Russia B. N. Yeltsen.
Alexander V. Ekimov, a post-graduate student - Ogarev Mordovia State University.


Oba CHANDLER, Petitioner-Appellant, v. James McDONOUGH, Charlie Crist, Respondents-Appellees.
Before ANDERSON, CARNES and BARKETT, Circuit Judges. Gary Lee Printy (Court-Appointed), Tallahassee, FL, for Chandler. Candance M. Sabella, Tampa, FL, for Respondents-Appellees.
Oba Chandler was convicted of capital murder and sentenced to death in the State of Florida on November 4, 1994. After his conviction and sentence were affirmed on direct appeal, Chandler v. State, 702 So.2d 186 (Fla.1997), state collateral relief was also denied and that denial was affirmed, Chandler v. State, 848 So.2d 1031 (Fla.2003). Chandler then filed a 28 U.S.C. § 2254 petition in the United States District Court for the Middle District of Florida. That petition was denied, Chandler v. Crosby, 454 F.Supp.2d 1137 (M.D.Fla.2006), and Chandler has appealed that denial.
The only issue on which Chandler was granted a certificate of appealability involves his claim that his trial counsel rendered ineffective assistance by failing to move a second time for a change of venue. The facts and procedural history relating to this claim are set out in the district court's opinion. Id. at 1151-55. To the extent Chandler contends that, given the evidence that was before the state courts, their decision regarding this claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or that it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2), we reject that contention for the reasons set out in the district court's thorough treatment of the subject. Chandler, 454 F.Supp.2d at 1156-67. We add to that treatment only these additional thoughts. First, the fact that any non-ineffective assistance claim relating to change of venue and pretrial publicity may be procedurally barred does not, in turn, bar consideration of the claim that counsel was ineffective for failing to pursue that claim at trial and on appeal. Those are two different claims. We have the ineffective assistance claim before us now, and it is not procedurally barred.
Second, since the district court denied the petition in this case, we have issued our en banc decision in United States v. Campa, 459 F.3d 1121 (11th Cir.2006) (en banc). The Campa decision underscores the fact that the burden a defendant bears when attempting to establish presumed prejudice is “an extremely heavy one,” and reiterates that “[t]he presumed prejudice principle is rarely applicable and is reserved for an extreme situation.” Id. at 1143 (internal quotation marks and citations omitted). Those principles make it difficult for a petitioner claiming his counsel was ineffective for failing to move for a change of venue to establish the requisite prejudice, which necessitates a showing that, at a minimum, “there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [petitioner's] counsel had presented such a motion to the court,” Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000). As the district court concluded, “Chandler has not even come close to the sort of evidentiary showing necessary to establish that his defense was prejudiced by [trial counsel's] failure to file a second change of venue motion.” Chandler, 454 F.Supp.2d at 1166.
We turn now to Chandler's contention that the district court erred by not granting him an evidentiary hearing at which he could present evidence on this claim. He was given an evidentiary hearing on the claim in state court to the extent that trial counsel and petitioner himself testified about this claim and their pretrial reasoning and strategy concerning it. See id. at 1163 (recounting some of their testimony); Chandler, 848 So.2d at 1037. Chandler also proffered in the state collateral proceeding a 195-page report in two parts by his expert on the issue, media consultant Paul Wilson. That report not only contained Wilson's opinions but also detailed descriptions of the media coverage, including excerpts from a large number of the stories about the case that were printed or broadcast. Chandler, 454 F.Supp.2d at 1157-62.
The state courts accepted as true the factual content of the Wilson report and its attachments, insofar as they described the media coverage of the case. See Chandler, 848 So.2d at 1038 n.8 (noting that supplemental record contains the Wilson report “regarding the extent and nature of pretrial publicity” and “we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record”); State v. Chandler, No. CRC92-17438CFANO (Fla. Cir. Ct. June 28, 2001) (state trial court order denying collateral relief) (“[T]he defendant was permitted to supplement the record with the publicity he believed existed in Orange County.”). So did the district court, which discussed the report's contents in considerable detail. Chandler, 454 F.Supp.2d at 1157-62.
Because Chandler cannot show that “the facts underlying his claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense,” he cannot fit within the exceptions to § 2254(e)(2). As a result, that provision bars his contention that the district court should have conducted an evidentiary hearing, if we find that he “failed to develop the factual basis of a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2); see Holland v. Jackson, 542 U.S. 649, 652-53, 124 S.Ct. 2736, 2738, 159 L.Ed.2d 683 (2004) (“Under the habeas statute, [the petitioner's] statement could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met.”); Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). To the extent that there is any factual basis for his claim other than that covered in the Wilson report, Chandler did fail to exercise due diligence in developing it. In the state courts, Chandler never pointed to any other evidence that he would attempt to introduce if given the chance. He never specified what additional evidence he might have.
There is another reason why the district court did not err in failing to conduct an evidentiary hearing on this claim. Except for the Wilson report, the factual aspects of which the state courts and the district court took as true for purposes of this claim, Chandler made no proffer to the district court of any evidence that he would seek to introduce at a hearing. The failure to proffer any additional evidence defeats Wilson's argument that he was entitled to an additional evidentiary hearing in federal court. See Drew v. Dept. of Corrections, 297 F.3d 1278, 1293 (11th Cir.2002) (referring to “our clear precedent establishing that such allegations are not enough to warrant an evidentiary hearing in the absence of any specific factual proffer or evidentiary support”); Hill v. Moore, 175 F.3d 915, 922 (11th Cir.1999) ( “To be entitled to an evidentiary hearing on this matter [an ineffective assistance of counsel claim], petitioner must proffer evidence that, if true, would entitle him to relief.”); see also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (“A petitioner is not entitled to an evidentiary hearing, however, when his claims are merely conclusory allegations unsupported by specifics.” (internal marks and citation omitted)).
For these reasons, we affirm the district court's denial of Chandler's petition for a writ of habeas corpus.