Amicus Curiae Brief — Green v. Donahoe, 135 S. Ct. 1892 (2015) (No. 14-613)

No. 14-613

—— —_ —_--- ——— yy —-~y y-~-y yy- .,---

In The

Supreme Court of the Anited States

°

MARVIN GREEN,

Petitioner,

v.

MEGAN J. BRENNAN,

Postmaster General, United States Postal Service,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

+

BRIEF AMICUS CURIAE FOR THE

NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

S

ROBERTA L. STEELE ERIC SCHNAPPER

National Employment Counsel of Record

Lawyers Association University of Washington

2201 Broadway, Suite 402 School of Law

Oakland, CA 94610 P.O. Box 353020

(415) 296-7629 Seattle, WA 98195

rsteele@nelahq.org (206) 616-3167

schnapp@uw.edu

Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225 6964

WWW COCKLELEGALBRIEFS COM

i

TABLE OF CONTENTS

Page

I GPT CIP cticccicsncescsccccsencssnccscsvesesess 1

SUMMARY OF ARGUMENT ........................00:.20e I

initial tnnsiniitcniniininiindiindievenéaiamiininneans 2

I. THE LIMITATIONS PERIOD FOR A CON-

Il.

IIT.

STRUCTIVE DISCHARGE CLAIM DOES

NOT BEGIN TO RUN UNTIL THE

Sy CIE eeicsenscusessscccnssdinsisesaunse

THE COURT SHOULD NOT RESOLVE

THE CIRCUIT CONFLICT REGARDING

WHETHER IN A CONSTRUCTIVE DIS-

CHARGE CASE THE PLAINTIFF MUST

PROVE THAT THE EMPLOYER IN-

TENDED TO FORCE THE WORKER TO

THE COURT SHOULD NOT RESOLVE

THE CIRCUIT CONFLICT REGARDING

WHETHER IN A CONSTRUCTIVE DIS-

CHARGE CASE THE WORKER MUST

COMPLAIN TO HIGHER MANAGE-

MENT PRIOR TO RESIGNING .................

NI deniticisectsianicipsninensnsntininiansingninnannrsionnindens

il

TABLE OF AUTHORITIES

Page

CASES

Alliance Metals, Inc. v. Hinely Industries, Inc.,

223 F.3d SOG (Lith Cir. BOOO)..........cccsccccsscccscesccecesees 8

Alvarez v. Des Moines Bolt Supply, Inc., 626

Sr UP I 11

Anda v. Wickes Furniture Co., 517 F.3d 526

I a 12

Aubucon v. Geithner, 734 F.3d 638 (8th Cir.

SERRE ERAS SES SO ee SLO cee ee: 12

Bourque v. Powell Electrical Mfg. Co., 617 F.2d

I Ds 7, 8,9, 10

Boze v. Branstetter, 912 F.2d 801 (4th Cir. 1990)......... 8

Brady v. Elixir Industries, 196 Cal. App. 3d

CLM Reem ee Ore 14

Breeding v. Arthur J. Gallagher and Co., 164

Le a 12

Burlington Industries, Inc. v. Ellerth, 524 U.S.

REE SEE REIS REN eee. a Ok eee 16, 17

Calhoun v. Acme Cleveland Corp., 798 F.2d 559

SET OEM, SEES A EE EAD, Ee 6

Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981)......... 10

Clowes v. Allegheny Valley Hospital, 991 F.2d

RRR eee 18, 19

Coffman v. Tracker Marine, L.P., 141 F.3d 1241

I lal 22

in

TABLE OF AUTHORITIES — Continued

Page

Cole v. May Dept. Stores Co., 109 Fed.Appx.

EEE IP Re atte cea Nene nee 11

Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir.

ERE ESS ERO Ne Sos ek Onn aD 10, 17

Devin v. Schwan’s Home Service, Inc., 491 F.3d

IEEE ra ne aie reer 12

EEO v. City of Independence, 471 F.3d 891

FE Enea a en 12

EEOC v. Commercial Office Products Co., 486

I a clseabaitisioisiciad 4

EEOC v. Delight Wholesale Co., 973 F.2d 664

I a eee 11

EEOC v. Federal Reserve Bank of Richmond,

698 F.2d 633 (4th Cir. 1983) ....................0000..0000020. 12

Ejikeme v. Violet, 307 Fed.Appx. 944 (6th Cir.

SE iianinhedichaaieabeitienieadiaiddecadibaihioltitucinadatnasiabtindaieetisiestisian 14

Elnashar v. Speedway Superamerica, LLC, 484

Pe I IIIS TID cirdcinccsivssneseiicsesisncesiannssecnnesen 12

Federal Exp. Corp. v. Holowecki, 552 U.S. 389

STITT icisitsieeiacnsdeiesitielicesiedadionscdalabaendiedpealaaananaslbineniiaadsieat 4

Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th

RRS ET eee On Om ey eT 12

Goldfaden v. Wyeth Laboratories, Inc., 482

Pod.Appm. 44 (Gta Cir. B012).........000...ccccccescosccscoccese 13

Goss v. Exxon Office Systems Co., 747 F.2d 885

I eel 6, 7,9, 10

iv

TABLE OF AUTHORITIES — Continued

Page

Hana Financial, Inc. v. Hana Bank, 135 S.Ct.

REE RS a RE RelA eS SDN ES ee 25

Hervey v. City of Little Rock, 787 F.2d 1223 (8th

SERPS PU RUNGE SERS Oe See Ses ake 11

Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d

ERSTE Se eat a are 12

Hopkins v. Price Waterhouse, 825 F.2d 458

I I ciel 10

Jackson v. Arkansas Dep't of Educ., 272 F.3d

EET RT eC ee 23

Jeffries v. Kansas, 147 F.3d 1220 (10th Cir.

RRS ARES 2 a BN De OR ee oT 10

Johnson v. Bunny Bread, Co., 646 F.2d 1250

| __s_ RRSEREE restnCoRete en Dne e rEC 7,11

Johnson v. Rumsfeld, 238 Fed.Appx. 105 (6th

SE EU adddnibahddnieneidisicnsineinbiiéliniaibiataibiudidnenineinass 14

Junior v. Texaco, Inc., 688 F.2d 377 (5th Cir.

i alessbihsiiedchedbeldladiadiiibeabdeiiaa miaddimisamameiniaiiaibciinaneninbinangel 8

Keller v. Crown Cork & Seal USA, Inc., 491

Fed.Appx. 908 (10th Cir. 2012)...............ccceeeceeeeeeee 10

Knowles v. Citicorp Mortgage, Inc., 142 F.3d

ge SERENE Rn ro a 21

Lamb v. City of Sweetwater Housing Authority,

1993 WL 3471999 (5th Cir. Aug. 19, 1993).............. 7

Lauture v. Saint Agnes Hospital, 429 Fed.Appx.

I i sbsaialaubiaineisd 13

Vv

TABLE OF AUTHORITIES — Continued

Page

Levendos v. Stern Entertainment, Inc., 860 F.2d

Ee GG i tnctsicotatnstesiccsevisinaniaianamnen 6, 7

Levendos v. Stern Entertainment, Inc., 909 F.3d

Fe te a ee cciisisninictanatantndiiniiteienbbaideceieiana 6

Lewis v. Oregon Beauty Supply Co., 714 P.2d

RP LAI, IE ccsivocciccocscesicsistinensbidenauaeennuannan 14

Lindale v. Tokheim Corp., 145 F.3d 953 (7th

RINE RU si nisdtsesinniiesnsinhiactecinkeseiadesmiianenepiiaenehtiaie as ene 20

Logan v. Denny’s, Inc., 259 F.3d 558 (6th Cir.

ITIL? sscssnsiiacenmsnscbianbematinsaiaiibianisesiiaaaac 14

Lojek v. Thomas, 716 F.2d 675 (9th Cir. 1983) ............ 8

Mac’s Shell Service, Inc. v. Shell Oil Products

Ca, GE EE Baie Ge cccccsnissnessessecnteninaaneedaieanla 3

Martin v. Cavalier Hotel Corp., 48 F.3d 1343

SRN ERE: BUTI bisicicctinanidescciicenaedeseninacinanaie canna an 13

Matvia v. Bald Head Island Mgmt., Inc., 259

Fe Cs EE GE BD vetcnssettnnicrccinsccinieeeaa 12

Meyers v. Nebraska Health and Human Ser-

vices, 324 F.3d 655 (8th Cir. 2003)... 11

Moisant v. Air Midwest, Inc., 291 F.3d 1028

GED UE GUID sc rcicnvesnnaniéstesisemsenesinseiiioniiieiameainiane 11

Moore v. Kuka Welding Systems, 171 F.3d 1073

Ge CH BRIE licctnenscessoccicsnicndisisieebicddeuianmeiiemaanal 13

Nolan v. Cleland, 686 F.2d 806 (9th Cir. 1982)....... 8,9

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.

DIED ic cceensnupessinncoveienssanibinasaneuniaiaiadini naan nnan 13

vi

TABLE OF AUTHORITIES ~— Continued

Page

Pennsylvania State Police v. Suders, 542 U.S.

EEE eee passim

Pittman v. Hattiesburg Municipal Separate

School Dist., 644 F.2d 1071 (5th Cir. 1981).............. 8

Poland v. Chertoff, 494 F.3d 1174 (9th Cir.

EES SETTER 9

Pribil v. Archdiocese of St. Paul and Minneapolis,

533 N.W.2d 410 (Ct.App.Minn. 1995)..................... 14

Price Waterhouse v. Hopkins, 490 U.S. 228

ESS EEE SESE TEE 10

Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed.

ESE ESAS LL 25

Ramos v. Davis & Geck, 167 F.3d 759 (1st Cir.

ELL LES EEE TR 5, 6

Sanders v. Lee Cnty. Sch. Dist., 669 F.3d 888

EE 12

Satterwhite v. Smith, 744 F.2d 1380 (9th Cir.

EE ELE 8

Savage v. Gee, 665 F.3d 732 (6th Cir. 2012)............... 13

Schwago v. Spradlin, 701 F.2d 470 (5th Cir.

EEE ESE ESSE TO 7

Simpson v. Federal Mine Safety and Health

Review Commission, 842 F.2d 453 (D.C. Cir.

Smith v. Goodyear Tire & Rubber Co., 895 F.2d

SN 11

vii

TABLE OF AUTHORITIES — Continued

Sowell v. Alumina Ceramics, Inc., 251 F.3d 678

SI 23

Spears v. Missouri Dept. of Corrections and

Human Resources, 210 F.3d 850 (8th Cir.

ie cctecininanencenninhaniedptdatcitiaaiaiai leah eat eaiiaecentiacinaal, 11

Suders v. Easton, 325 F.3d 432 (3d Cir. 2003)............ 6, 18

Tatom v. Georgia-Pacific Corp., 228 F.3d 926

SE CI tat iniiintrceeiestnitattintieaicliieriaibintatiesisiabaitnmieidieimacisiel 12

Tatum v. City of Berkeley, 408 F.3d 543 (8th

Irs STII scthiiarsdeaeindeteataieeptteteniadeanenteenttelie Rieeliameidianiatahiemeett 12

Taylor v. Cheney, 1990 WL 1112830 (Office of

SPU CUI oesntuteidetsinannihiciintiieniniuatietaiieeimesaneetanbeden 14

Taylor v. Virginia Union University, 193 F.3d

I elias aimee 13

Tepper v. Potter, 505 F.3d 508 (6th Cir. 2007)............ 14

Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490

I 21

Tork v. St. Luke’s Hospital, 181 F.3d 918 (8th

ITU Tata accaialstsciiecitacstisianenaasthasbuiananaiiaadiehdatciinctaakes 22, 23

Tran v. Trustees of the State Colleges of Colorado,

355 F.3d 1263 (10th Cir. 2004).............c cece eens 10

TSC Industries, Inc. v. Northway, Inc., 426 U.S.

ERI TRRRSREaE AOD SE Ensen Sera e end fc TEW DE SERN 25

United States v. Gaudin, 515 U.S. 506 (1995)........... 25

Vallecillo v. U.S. Dep't of Housing and Urban

Dev., 154 Fed.Appx. 764 (5th Cir. 2005)................... 7

Vili

TABLE OF AUTHORITIES — Continued

Page

Watson v. City of Cleveland, 220 Fed.Appx. 844

Sey CINE IIIT siteceenteaisinananincinnemntaindedsndeaimiusndinaabdinssii 14

Watson v. Nationwide Ins. Co., 823 F.2d 360

SE EEEEE TITIIIE cndsrnctnmpnetncdnnndisntdtaatdiiemesiicumbbeiatenitenl 8

Wilkie v. Dept. of Health and Human Servs.,

638 F.3d 944 (8th Cir. 2011)................cccseseserrsocsesees 12

Young v. Southwestern Savings and Loan

Ass’n, 509 F.2d 140 (5th Cir. 1975).............2..ccceeeeee 19

STATUTES AND OTHER AUTHORITIES

ee cc cietitenhinctcsincinnaiiineiciciceiiinabineabaaitin 16

as Ue aces habeicistiiiniainstitiiacriciniteithaniitegiainsaiiciaaaiaenin 15

ie Oe ee Riccinivnttinisctsnnsiintnsinnisinasetaatonss 15

es I isch cincicinsiientceictiiisnininestibananiiianenitieastl 24

ee eID sininsesiiinctinitrincuiicisciilinindaenipnaiinnnainga 24

le ee iicnticecinnacipenissannininnnintdenss 24

1 Barbara T. Lindemann et al., Employment

Discrimination Law 21-33 (5th ed. 2012) ................ 5

Brief for the United States as Amicus Curiae,

14, in Pennsylvania State Police v. Suders,

I I lias 14

Cathy Shuck, Comment, “That’s It, I Quit” Re-

turning to First Principles in Constructive Dis-

charge Doctrine, 23 Berkeley J.Emp.&Lab.L.

ig es a intechesinininhetscrecstenaiitetdettneadunitelnidieemaneiniia 15

ix

TABLE OF AUTHORITIES -— Continued

Page

Martha Chamallas, Title VII's Midlife Crisis:

The Case of Constructive Discharge, 77

S.Cal. L. Rev. 307, S73 (BOOS).........cesceccropscscccceseccesess 17

Sheila Finnegan, Comment, Constructive Dis-

charge Under Title VII and the ADEA, 53

U.Chi.L. Rev. 561, 562 (1986) ...............cccccccscseeseeees 15

1

INTEREST OF AMICUS

The National Employment Lawyers Association

(NELA) is the largest professional membership or-

ganization in the country comprised of lawyers who

represent workers in labor, employment and civil

rights disputes. Founded in 1985, NELA advances

employee rights and serves lawyers who advocate

for equality and justice in the American workplace.

NELA and its 69 circuit, state, and local affiliates

have a membership of over 4,000 attorneys who are

committed to working on behalf of those who have

been illegally treated in the workplace. NELA’s mem-

bers litigate daily in every circuit, affording NELA a

unique perspective on how the principles announced

by the courts in employment cases actually play

out on the ground. NELA strives to protect the

rights of its members’ clients, and regularly supports

precedent-setting litigation affecting the rights of

individuals in the workplace.’

*

SUMMARY OF ARGUMENT

The court of appeals acknowledged that a resig-

nation by the plaintiff is an element of a constructive

discharge claim. That is largely dispositive of the

' Counsel for petitioner and respondent have consented to

the filing of this brief. Copies of their letters of consent are being

filed with the Court. Neither party authored the brief in whole

or in part or made any monetary contribution to fund the prep-

aration or submission of the brief.

2

issue before the Court. Absent unusual circum-

stances, the limitations period for a claim does not

begin to run until all the elements of the claim exist.

There is no persuasive reason for departing in this

case from that normal rule.

There are a number of important circuit conflicts

regarding the other elements of a constructive dis-

charge claim. The courts of appeals disagree about

whether in such a case the plaintiff must prove that

the employer intended to force the worker to resign.

Those courts differ as well regarding whether a plain-

tiff is required, prior to resigning, to complain to some

higher company official — other than that particular

official who violated Title VII — about the violation

triggering his or her resignation.

Those issues, however, are not presented by this

appeal. The Court in resolving the instant case

should avoid language which the lower courts might

misunderstand as addressing either of those circuit

conflicts.

°

ARGUMENT

I. THE LIMITATIONS PERIOD FOR A CON-

STRUCTIVE DISCHARGE CLAIM DOES

NOT BEGIN TO RUN UNTIL THE WORKER

RESIGNS

The court of appeals erred in holding that the

statute of limitations for a constructive discharge ac-

tion begins to run, and can even expire, before the

3

worker has resigned. See Mac’s Shell Service, Inc. v.

Shell Oil Products Co., 559 U.S. 175, 184 (2010)

(“To recover for constructive discharge, however, an

employee generally is required to quit his or her

job.”). The court below correctly acknowledged that a

worker’s resignation is an element of a constructive

discharge claim. Pet.App. 22a. As petitioner explains,

under ordinary circumstances a limitations period for

a cause of action does not begin to run until all el-

ements of that claim exist. Pet.Br. 14-17 Nothing

about the statute or regulation at issue in this case

warrants a departure from that general rule.

Interpreting Title VII and the applicable regula-

tion in this manner is strong!y supported by the very

nature of a constructive discharge claim. The touch-

stone of such a claim is the manner in which a rea-

sonable person in the circumstances of the plaintiff

would respond to the employer’s unlawful actions. An

employee who resigned was constructively discharged

if a reasonable person would quit.’ The governing

limitations standard should be consistent with the

expectations of a reasonable employee. Most workers

would think that the time to complain about being

forced to resign is after they have actually resigned,

not weeks or months earlier when they are trying to

decide whether or not to do so. The standard adopted

* Reasonable workers might, of course, respond differently

to the same unlawful actions; some workers may be so fiercely

determined that they will put up with treatment that would

cause most other employees to resign.

4

by the Tenth Circuit is one which, even if endorsed by

this Court, will necessarily remain unknown to em-

ployees, who at the charge-filing stage will almost

never be represented by counsel. Such an early lim-

itations period will not shape the actions of unin-

formed claimants — although it might of course affect

the tactics used by employers. Particularly in this

context, plaintiffs should not be penalized for acting

in the manner that would be typical of a reasonable

person in their circumstances.”

Il. THE COURT SHOULD NOT RESOLVE

THE CIRCUIT CONFLICT REGARDING

WHETHER IN A CONSTRUCTIVE DIS-

CHARGE CASE THE PLAINTIFF MUST

PROVE THAT THE EMPLOYER INTENDED

TO FORCE THE WORKER TO RESIGN

There is a longstanding circuit conflict regarding

whether the plaintiff in a constructive discharge case

must prove that the employer specifically intended its

* See Federal Exp. Corp. v. Holowecki, 552 U.S. 389, 402-03

(2008):

In the administrative context...it appears pro se fil-

ings are the rule, not the exception. The ADEA, like

Title VII, sets up a “remedial scheme in which layper-

sous, rather than lawyers, are expected to initiate the

process.” EEOC v. Commercial Office Products Co.,

486 U.S. 107, 124 (1998)....The systems must be ac-

cessible to individuals who have no detailed know!l-

edge of the relevant statutory mechanisms and agency

processes.

5

discriminatory or retaliatory actions to force the

worker to resign. The court of appeals below de-

scribed constructive discharge claims in terms that

implied that such claims are recognized to prevent,

and thus might be limited to, instances in which an

employer seeks to force a worker to resign in order to

evade the prohibition against unlawful dismissals.*

This Court should avoid such characterizations, and

leave this issue for resolution in another case.

1. The First, Third, Fifth, Ninth, Tenth, Elev-

enth and District of Columbia Circuits reject this

specific intent requirement.

The First Circuit rejected the requirement in

Ramos v. Davis & Geck, 167 F.3d 759, 732 (1st Cir.

1999). “[Defendant] argues that the imposition of ob-

jectively oppressive work conditions should not suffice

to establish a constructive discharge without proof

that the employer created the intolerable work condi-

tions with the specific intent of forcing the employee

to resign. Such a requirement of proof of employer

intent would plainly be at odds with our settled

precedent....". Ramos explained that this intent

* “But employers should not be able to escape...remedies

{for discriminatory dismissal] simply by making the job so intol-

erable that the employee resigns, making it unnecessary to fire

him. See 1 Barbara T. Lindemann et al., Employment Discrimi-

nation Law 21-33 (5th ed. 2012) (‘An employer...should not be

able to accomplish indirectly what the law prohibits being done

directly.’). To deal with that circumstance, various tribunals

have embraced the concept of constructive discharge.” Pet.App.

16a-17a.

6

requirement had originally been disapproved in

Calhoun v. Acme Cleveland Corp., 798 F.2d 559 (1st

Cir. 1986). “The test is whether ‘a reasonable person

in the em»loyee’s shoes would have felt compelled to

resign,’ Calhoun, 798 F.2d at 561 (emphasis added),

irrespective of employer intent.” Ramos, 167 F.3d at

732 (footnote omitted). Then-Judge Breyer joined the

decision in Calhoun. Ramos recognized that the

courts of appeals are divided about this issue. “Most

circuits employ an objective standard for constructive

discharge....A minority requires proof of the em-

ployer’s subjective intent to establish constructive

discharge.” Id. at 732 n.4.

The Third Circuit long ago held “that no finding

of a specific intent on the part of the employer to

bring about a discharge is required for the application

of the constructive discharge doctrine.” Goss v. Exxon

Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984).°

Goss acknowledged that “there is a divergence of

opinion as to whether...to...require[] a finding that

the discrimination complained of amounted to an

* See Suders v. Easton, 325 F.3d 432, 444 (3d Cir. 2003)

(quoting Goss), vacated on other grounds sub nom. Pennsylvania

State Police v. Suders, 542 U.S. 129 (2004); Levendos v. Stern

Entertainment, Inc., 909 F.3d 747, 753 (3d Cir. 1990) (quoting

Goss); Levendos v. Stern Entertainment, Inc., 860 F.2d 1227,

1230 (3d Cir. 1988) (quoting Goss).

7

intentional course of conduct calculated to force the

victim’s resignation.” 747 F.2d at 887 °

One of the earliest decisions rejecting the special

intent requirement is in the Fifth Circuit.

Defendant urges, with some supporting au-

thority, that in order to constitute a construc-

tive discharge, the imposition of intolerable

working conditions must be with the purpose

of forcing the employee to resign....{S]uch a

rule is inconsistent with authority in this

Circuit and, we believe, with the realities of

modern employment.

Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65

(5th Cir. 1980). That circuit in subsequent cases has

consistently rejected that special intent standard.’

* Levendos recognized that “at least two...different legal

standards have emerged....Some courts have adopted a test

based on an inquiry into the motive of the employer, holding, for

example, that ‘the employer’s actions must have been taken with

the intention of forcing the employee to quit.’ Johnson v. Bunny

Bread, Co., 646 F.2d 1250, 1256 (8th Cir. 1981)....Other courts,

such as ours, have adopted a reasonable person test, which is

focused on the impact of an employer’s actions, whether deliber-

ate or not, upon a ‘reasonable’ employee.” 860 F.2d at 1230.

* See Vallecillo v. U.S. Dep't of Housing and Urban Dev., 154

Fed.Appx. 764, 768 (5th Cir. 2005) (“proof that the employer

imposed the intolerable conditions with the specific intent to

force the employee is not required”); Lamb v. City of Sweetwater

Housing Authority, 1993 WL 3471999 at *6 (5th Cir. Aug. 19,

1993); Schwago v. Spradlin, 701 F.2d 470, 481 n.12 (5th Cir.

1983) (“the employee need not prove it was the employer's

purpose to force the employee to resign, but rather only that the

employer made conditions intolerable”) (emphasis in original);

(Continued on following page)

8

The Fifth Circuit has repeatedly acknowledged that

other courts of appeals do apply that standard.

“(Slome other circuits have endorsed such a strict

standard.” Boze v. Branstetter, 912 F.2d 801, 804 (4th

Cir. 1990). The Eleventh Circuit, which follows Fifth

Circuit precedents established prior to the creation of

the Eleventh Circuit, applies the rule in Bourque. See

Alliance Metals, Inc. v. Hinely Industries, Inc., 222

F.3d 895, 902-03 (11th Cir. 2000).

In Nolan v. Cleland, 686 F.2d 806 (9th Cir.

1982), in an opinion joined by then-Judge Kennedy,

the Ninth Circuit adopted the Fifth Circuit rule in

Bourque, “reject[ing] arguments that an employee has

to prove it was the employer’s intent to force the

employee to resign.” 686 F.3d at 813. “In Nolan...we

adopted the Fifth Circuit’s formulation of constructive

discharge [as] later clarified in Bourque....” Lojek v.

Thomas, 716 F.2d 675, 681 (9th Cir. 1983). “The test

establishes an objective standard: the plaintiff need

not show that the employer subjectively intended to

force the employee to resign. See...Nolan, 686 F.2d at

814 n.17.” Watson v. Nationwide Ins. Co., 823 F.2d

360, 361 (9th Cir. 1987). Satterwhite v. Smith, 744

F.2d 1380, 1383 (9th Cir. 1984), rejected decisions

Junior v. Texaco, Inc., 688 F.2d 377, 379 (5th Cir. 1982) (“it is not

necessary to show that the employer subjectively intended to

force a resignation”); Pittman v. Hattiesburg Municipal Separate

School Dist., 644 F.2d 1071, 1077 (5th Cir. 1981) (“[t]he employ-

ee...does not have to prove it was the employer’s purpose to force

the employee to resign”).

9

from another circuit that “use language that focuses

on the employer’s subjective intent, rather than on

the reasonable employee’s perspective....This view is

out of step with both the weight of authority and the

law of our Circuit. See Nolan, 686 F.2d at 814 n.17.”

Poland v. Chertoff, 494 F.3d 1174, 1184 n.7 (9th Cir.

2007), noted that the requirement had also been re-

jected by the First, Third, Fifth and Tenth Circuits,

but was applied by the Fourth, Sixth and Eighth

Circuits.

The Tenth Circuit also rejects any requirement of

proof that an employer intended to force a worker to

resign, expressly noting the circuit conflict on that

issue.

There is...a divergence of opinion among the

circuits as to the findings necessary to apply

the [constructive discharge] doctrine. While

some courts required the employee to prove

the employer’s specific intent to force him to

leave, Bristow v. Daily Press, Inc.,..., others

have adopted a less stringent objective stan-

dard requiring the employee to prove that

the employer has made working conditions

so difficult that a reasonable person in the

employee’s shoes would feel forced to resign.

Goss v. Exxon Office Systems Co....In...our

most recent pronouncement in this area, we...

adopti[ed] the standard set out in [the Fifth

Circuit decision in] Bourque....“[A|Jn employ-

er’s subjective intent is irrelevant....”

10

Derr v. Gulf Oil Corp., 796 F.2d 340, 343-44 (10th Cir.

1986) (quoting Clark v. Marsh, 665 F.2d 1168, 1175

n.8 (D.C. Cir. 1981)).”

In the District of Columbia Circuit, Clark uv.

Marsh, 665 F.2d 1168, 1175 n.8 (D.C. Cir. 1981), held

that in a constructive discharge case “an employer’s

subjective intent is irrelevant....” In Hopkins v. Price

Waterhouse, 825 F.2d 458 (D.C. Cir. 1987), rev'd on

other grounds sub nom. Price Waterhouse v. Hopkins,

490 U.S. 228 (1989), the District of Columbia Circuit

overturned a district court opinion that had required

proof an employer subjectively intended to force a

worker to resign. 825 F.2d at 427 (citing Bourque and

Goss). Simpson v. Federal Mine Safety and Health

Review Commission, 842 F.2d 453, 462 (D.C. Cir.

1988), in an opinion for the court by then-Judge

Ginsburg, stated that “Clark...rejected a motivation

test....". Simpson noted that “the predominan|t)...

standard” disapproves such a requirement, citing

decisions in the First, Second, Third, Fifth, Ninth

and Tenth Circuits. 842 F.3d at 462 n.8. Then-

Judge Ginsburg noted, however, the existence of

* The Tenth Circuit has consistently applied that rule for

more than three decades. E.g., Jeffries v. Kansas, 147 F.3d 1220,

1233 (10th Cir. 1998) (“the employer’s subjective intent...[is] ir-

relevant”); Tran v. Trustees of the State Colleges of Colorado, 355

F.3d 1263, 1270 (10th Cir. 2004) (“we apply an objective test

under which neither the employee’s subjective views of the situ-

ation, nor her employer’s subjective intent with regard to dis-

charging her, are relevant”); Keller v. Crown Cork & Seal USA,

Inc., 491 Fed.Appx. 908, 915 (10th Cir. 2012) (quoting Tran).

11

the contrary rule in several “federal circuits in which

the subjective constructive discharge analysis per-

sist[s],” 842 F.3d at 462 and n.8, citing decisions in

the Sixth and Eighth Circuits.

2. The Fourth, Sixth and Eighth Circuits hold

that in a constructive discharge case the plaintiff

must prove that the employer intended to force the

worker to resign.

Eighth Circuit precedent requires that, “[tlo

prove a constructive discharge, an employee must

show that the employer deliberately created intolera-

ble working conditions with the intention of forcing

her to quit.” Alvarez v. Des Moines Bolt Supply, Inc.,

626 F.3d 410, 418 (8th Cir. 2010). That Eighth Circuit

requirement derives from that Circuit’s key holding

in Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256

(8th Cir. 1981), that “[tlo constitute a constructive

discharge, the employer’s actions must have been

taken with the intention of forcing the employee to

quit.” The Eighth Circuit has repeatedly applied that

specific intent requirement over the decades since

Burny Bread.”

* E.g., Hervey v. City of Little Rock, 787 F.2d 1223, 1331 (8th

Cir. 1986); Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467,

472 (8th Cir. 1990); EEOC v. Delight Wholesale Co., 973 F.2d

664, 669 (8th Cir. 1992); Spears v. Missouri Dept. of Corrections

and Human Resources, 210 F.3d 850, 854 (8th Cir. 2000); Meyers

v. Nebraska Health and Human Services, 324 F.3d 655, 660 (8th

Cir. 2003); Moisant v. Air Midwest, Inc., 291 F.3d 1028, 1031

(8th Cir. 2002); Cole v. May Dept. Stores Co., 109 Fed.Appx. 839,

(Continued on following page)

12

For more than thirty years, the Fourth Circuit

has also required a plaintiff in a constructive dis-

charge case to show the actions complained of “were

intended by the employer as an effort to force the

employee to quit.” EEOC v. Federal Reserve Bank of

Richmond, 698 F.2d 633, 672 (4th Cir. 1983), rev'd on

other grounds, 467 U.S. 867 (1984). The Fourth Cir-

cuit applied the standard most recently in Freeman v.

Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014).”

841-42 (8th Cir. 2004) (“[tjo prevail om her constructive dis-

charge claim, Cole had to show that May deliberately created

intolerable working conditions with the intention of forcing her

to quit....”); Tatum v. City of Berkeley, 408 F.3d 543, 552 (8th Cir.

2005) (plaintiff required to adduce evidence that the City took

action “with the intent to create an intolerable working envi-

ronment, in order to compe! [plaintiff] to resign”); EEOC v. City

of Independence, 471 F.3d 891, 896 (8th Cir. 2006) (“‘The em-

ployer’s actions must have been intended to force the employee

to quit.’”) (quoting Tatom v. Georgia-Pacific Corp., 228 F.3d 926,

932 (8th Cir. 2000)); Elnashar v. Speedway Superamerica, LLC,

484 F.3d 1046, 1058 (8th Cir. 2007) (“{clonstructive discharge

occurs when an employer deliberately creates ‘intolerable work-

ing conditions with the intention of forcing the employee to

quit’”) (quoting Breeding v. Arthur J. Gallagher and Co., 164

F.3d 1151, 1159 (8th Cir. 1999)); Devin v. Schwan’s Home Ser-

vice, Inc., 491 F.3d 778, 790 (8th Cir. 2007) (plaintiff must show

that “her employer intended to force her to quit”); Anda v.

Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008) (“Anda’s

constructive discharge claim fails because Anda provided no

evidence that Wickes intended to force Anda to quit.”); Wilkie v.

Dept. of Health and Human Servs., 638 F.3d 944, 954 (8th Cir.

2011) (quoting Anda); Aubucon v. Geithner, 734 F.3d 638, 645

(8th Cir. 2014) (quoting Sanders v. Lee Cnty. Sch. Dist., 669 F.3d

888, 893 (8th Cir. 2012)).

See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180,

186-97 (4th Cir. 2004); Matvia v. Bald Head Island Mgmt., Inc.,

(Continued on following page)

13

The Fourth Circuit candidly acknowledged that most

circuits have rejected this requirement:

The circuits are divided as to what a plaintiff

must show....The majority of the circuits...rely

on an objective standard of whether a “rea-

sonable person” in the employee's position

would have felt compelled to resign. The mi-

nority view, to which we subscribe, is that a

plaintiff must also prove that “the actions

complained of were intended by the employer

as an effort to force the employee to quit.”

Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354

(4th Cir. 1995) (quoting Paroline v. Unisys Corp., 879

F.2d 100, 114 (4th Cir. 1989) (Wilkinson, J., dissent-

ing)). Justice O’Connor, sitting on a case in the

Fourth Circuit, was constrained to apply that minor-

ity standard in her opinion for the court in Lauture

v. Saint Agnes Hospital, 429 Fed.Appx. 300, 307 (4th

Cir. 2011).

Since 1999 the Sixth Circuit rule has been that a

constructive discharge claim requires proof that the

employer acted “with the intention of forcing the

employee to quit.” Moore v. Kuka Welding Systems,

171 F.3d 1073, 1080 (6th Cir. 1999)."

259 F.3d 261, 272 (4th Cir. 2001); Taylor v. Virginia Union

University, 193 F.3d 219, 237 (4th Cir. 1999) (en banc) (“Deliber-

ateness exists only if the actions complained of were intended by

the employer as an effort to force the plaintiff to quit.”).

" See Goldfaden v. Wyeth Laboratories, Inc., 482 Fed.Appx.

44, 48 (6th Cir. 2012); Savage v. Gee, 665 F.3d 732, 739 (6th Cir.

(Continued on following page)

14

3. The existence of this circuit split has been

acknowledged by the First, Third, Fourth, Fifth,

Seventh, Ninth and District of Columbia Circuits.

The United States noted in its brief in Pennsylvania

State Police v. Suders, 542 U.S. 129, 141 (2004), that

“(t]he courts of appeals are divided on whether an

employee must make an additional showing that the

employer intended to cause the employee to resign.”

Brief for the United States as Amicus Curiae, 14. The

EEOC recognizes the existence of this circuit split.

Taylor v. Cheney, 1990 WL 1112830 (Office of Fed.

Ops.) (contrasting “majority view” and “minority

viewpoint”; citing Eighth Circuit precedent). In Suders

Justice Thomas observed that “a majority of Courts of

Appeals have declined to impose a specific intent or

reasonable foreseeability requirement.” Suders, 542

U.S. at 152 (Thomas, J., dissenting). Several state

courts have also recognized the division among the

federal appellate courts.” Commentators have re-

peatedly described this circuit conflict.

2012); Ejikeme v. Violet, 307 Fed.Appx. 944, 950 (6th Cir. 2009);

Tepper v. Potter, 505 F.3d 508, 514-15 (6th Cir. 2007); Johnson v.

Rumsfeld, 238 Fed.Appx. 105, 109 (6th Cir. 2007); Watson v. City

of Cleveland, 220 Fed.Appx. 844, 856 (6th Cir. 2006); Logan v.

Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001).

" Pribil v. Archdiocese of St. Paul and Minneapolis, 533

N.W.2d 410, 413 (Ct.App.Minn. 1995); Brady v. Elixir Industries,

196 Cal. App. 3d 1299, 1305 (4th Dist. 1987); Lewis v. Oregon

Beauty Supply Co., 714 P-2d 618, 621 (Or.App. 1986).

* “Most circuits...do not require the plaintiff to show [that]

the employer specifically intended to force her to quit...{but] a

minority of circuits...require that the plaintiff show that the

(Continued on following page)

15

4. The requirement that a plaintiff prove the

employer acted with a specific intent to force his or

her resignation is inconsistent with the text of Title VII

and with this Court’s decision in Suders.* That issue,

employer subjectively intended to force [the plaintiff] to quit.”

Cathy Shuck, Comment, “That's It, 1 Quit” Returning to First

Principles in Constructive Discharge Doctrine, 23 Berkeley

J.Emp.&Lab.L. 401, 413, 415 (2002); see Sheila Finnegan, Com-

ment, Constructive Discharge Under Title VII and the ADEA, 53

U.Chi.L.Rev. 561, 562 (1986) (“The circuit courts split over whether

(and to what degree) specific employer intent is a required el-

ement of constructive discharge[.) Most circuits...do not require

the plaintiff to show the employer specifically intended to force

her to quit....Under the minority view, the plaintiff must show

not only that conditions were intolerable, but also that the em-

ployer created those conditions with the specific intent of forcing

her to resign.”) (emphasis and capitalization omitted).

* In Suders, this Court set out a single, straightforward

standard for determining when discrimination (or retaliation)

would give rise to a constructive discharge claim. “The inquiry is

objective: Did working conditions become so intolerable that a

reasonable person in the employee's position would have felt

compelled to resign?” 542 U.S. at 141. The Suders standard is

expressly “objective”; neither the subjective state of mind of the

employee nor that of the employer (other than an intent to

discriminate or retaliate) is relevant.

The specific intent requirement utilized by the Fourth,

Sixth and Eighth Circuits engrafts onto Title VII an additional

motivation element that goes beyond the very specific language

of the statute. The general anti-discrimination in section 703(a)

forbids without limitations actions taken “because of such

individual’s...sex.” 42 U.S.C. § 2000e-2(aX1). Similarly, section

701 provides that the discrimination forbidden by Title VII

includes adverse action taken “because of or on the basis of

pregnancy, childbirth or related medical conditions.” 42 U.S.C.

§ 2000e. An adverse action taken for any of these forbidden

purposes is unlawful, regardless of what consequences the

(Continued on following page)

16

of course, is not before the Court. But some lower

court opinions analyzing the limitations question

presented by this case have characterized construc-

tive discharge claims in terms which imply or assume

that such intent is required. We urge this Court to

avoid such characterizations.

Ill. THE COURT SHOULD NOT RESOLVE

THE CIRCUIT CONFLICT REGARDING

WHETHER IN A CONSTRUCTIVE DIS-

CHARGE CASE THE WORKER MUST

COMPLAIN TO HIGHER MANAGEMENT

PRIOR TO RESIGNING

The circuit courts are divided about whether in

a constructive discharge case the employee is re-

quired, prior to resigning, to go over the head of the

company official who has engaged in unlawful dis-

crimination or retaliation, and complain to someone

else.’ “(W]hether the employee’s duty to report ought

discriminatory employer might have hoped would ensue. Section

1981a establishes an additional mental state requirement for

punitive damages, requiring proof that an employer acted “with

malice or with reckless indifference to the federally protected

rights of an aggrieved individual.” 42 U.S.C. § 1981la(b\(1). Even

punitive damages can be awarded without the necd for proof

that an employer intended any specific harm, or any harm at all.

'* Employers ordinarily are strictly liable for unlawful dis-

crimination or retaliation by their agents. In certain instances of

sexual or racial harassment, an employer might be able to avoid

liability by showing, inter alia, that the victim unreasonably

failed to invoke the employer's own corrective mechanisms. Bur-

lington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But that

(Continued on following page)

17

to be extended to cover cases of constructive dis-

charge is the most critical policy question that the

courts must confront...[TJhe current debate over the

proper classification of constructive discharge masks

an important difference of opinion over the legal sig-

nificance of a plaintiff’s use of, or failure to use, an

employer’s internal grievance procedure.” Martha

Chamallas, Title VII’s Midlife Crisis: The Case of

Constructive Discharge, 77 S.Cal.L.Rev. 307, 373

(2004).

The court of appeals below described constructive

discharge claims in terms that suggest that workers

are required to complain to higher management.”

This Court should avoid such characterizations, and

should leave this issue for resolution in another case.

1. Several circuits have rejected this require-

ment. In the Third Circuit, whether a worker com-

plained to other officials is just one of several factors

that bear on whether a reasonable person would have

resigned when the plaintiff did. The Third Circuit

rule does not apply to non-harassment cases, or to harassment

cases in which the harassment culminated in a tangible em-

ployment action, in which the harasser was an alter-ego of the

company, in which the harasser expressly relied on his supervi-

sory authority, in which the employer lacked a sufficient practice

to prevent and correct harassment, or in which some other em-

ployee had complained about the harasser. /d.

‘* “(SJociety and the policies underlying Title VII will be

best served if, wherever possible, unlawful discrimination is at-

tacked within the context of existing employment relationships.”

Pet.App. 21a (quoting Derr, 796 F.2d at 342).

18

subsequently reiterated that there is no “quasi ex-

haustion requirement” that plaintiffs in constructive

discharge cases must file some sort of internal com-

plaint or protest before resigning. Suders v. Easton,

325 F.3d 432, 445 (3d Cir. 2003), vacated on other

grounds sub nom. Pennsylvania State Police v.

Suders, 542 U.S. 129 (2004). Whether a worker first

pursued such an internal complaint is only

another important consideration...that re-

lates to the inquiry of whether a reasonable

person would have felt compelled to re-

sign....[I]t is relevant to a claim of construc-

tive discharge whether a plaintiff explored

alternative avenues to resolve the alleged

discrimination, but the plaintiff’s actions

must be considered in light of the totality of

circumstances. Clowes [v. Allegheny Valley

Hospital, 991 F.2d 1159, 1162 n.6 (3d Cir.

1993)] simply recognizes that, in many cases,

a reasonable person will not react to minor

harassment or workplace disturbances by

heading straight for the exit and that, in oth-

ers, the harassment or discrimination may be

so severe that any reasonable person would

feel compelled to walk out immediately....[A]

failure to [explore alternative avenues] will

not defeat a claim of constructive discharge

where the working conditions were so intol-

erable that a reasonable person would have

concluded that there was no other choice but

to resign.

325 F.3d at 445-46. “We do not require that such steps

be taken in all cases. An employee may be able to

19

show working conditions were so intolerable that a

reasonable employee would feel forced to resign

without remaining on the job for the period necessary

to take those steps.” Clowes (opinion by Alito, J.).

Young v. Southwestern Savings and Loan Ass’n,

509 F.2d 140 (5th Cir. 1975) rejected this type of

exhaustion requirement. In Young, the plaintiff was

told by the manager of the office where she worked

that she was required to attend morning meetings

that were commenced with a prayer and religious

talk by a local minister, despite her religious objec-

tions. She resigned the same day without attempting

to complain about that directive to higher ranking

officials. 509 F.3d at 142. The court rejected defen-

dant’s argument that it was not liable because “the

manner of Mrs. Young’s leaving was so precipitous as

to give Southwestern no opportunity to accommodate

her beliefs....Southwestern urges that if only plaintiff

had contacted a high-ranking officer before leaving,

the entire matter would have been quickly resolved in

a mutually agreeable fashion.” 509 F.2d at 144-45.

The majority also rejected the suggestion of a dis-

senter that it allow “an employee to claim construc-

tive discharge only after requesting an authoritative

ruling from the company management [in order to}

encourage private settlement of employment dis-

putes.” 509 F.2d at 146 (Thornberry, J., dissenting).

The Seventh Circuit takes a quite different ap-

proach. In that circuit there is no requirement that

workers utilize internal complaint processes in every

constructive discharge case; rather, a failure to

20

complain may be evidence that the discriminatory

conditions were not that serious.

In some situations, the standard of reason-

ableness will require the employee who

wants to make a successful claim of con-

structive discharge to do something before

walking off the job. The reason is not that

there is a doctrine of exhaustion of reme-

dies....The reason, rather, is that passivity in

the face of working conditions alleged to be

intolerable is often inconsistent with the al-

legation....The significance of passivity is

thus evidentiary.

Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir.

1998). Here, as in the Third but not the Eighth Cir-

cuit, a jury would assess the significance of a failure

to complain, weighing it against other evidence. But

the absence of a complaint is relevant in the Seventh

Circuit for a reason and in a way entirely different

than in the Third or Eighth Circuit. The failure to

complain, if coupled with a delay in resigning, would

in the Seventh Circuit be evidence that the working

conditions were not really all that bad; but if the

worker resigned promptly, the failure to complain

would not affect a plaintiff’s claim.

2. The Eighth Circuit has held repeatedly that

the absence of a sufficient number of internal com-

plaints bars a constructive discharge claim. The

range of circumstances in which the Eighth Circuit

has held that complaints are required demonstrate

the exceptional consequences of such an internal

21

exhaustion requirement. The Eighth Circuit first

applied its internal-complaint requirement in 7Jidwell

v. Meyer’s Bakeries, Inc., 93 F.3d 490 (8th Cir. 1996).

The plaintiff

had made earlier complaints about Meyers’

racially discriminatory scheduling practices

to the...production manager and the assis-

tant production superintendent....Tidwell

and four other African-American [employees

had earlier] filed a race discrimination

charge against Meyer’s with the Equal Em-

ployment Opportunity Commission, claiming

that the...shift assignments were determined

in a racially discriminatory manner.

93 F.3d at 493 n.4. When the company again gave a

favored shift assignment to a less experienced white

worker, Tidwell resigned. The Eighth Circuit dis-

missed his constructive discharge claim on the

ground that — despite the prior complaints and EEOC

charge — he had failed to “give [the employer] an

opportunity to explain the situation or remedy it.” 93

F.3d at 496.

Knowles v. Citicorp Mortgage, Inc., 142 F.3d

1082, 1086 (8th Cir. 1998), rejected the plaintiff’s

constructive discharge claim because “[a]lthough

Knowles argued that he exhausted al/ avenues of

relief in seeking a solution to his problems at Cit-

icorp, the record reveals that, aside from discussing

[his supervisor’s biased] comments with [the supervi-

sor’s superior], he took few, if any, steps toward this

end. Knowles neglected to so much as mention his

22

concerns to anyone in Citicorp’s human resources

department or to any of his co-workers. Furthermore,

he made no attempt to utilize Citicorp’s internal

grievance procedures or even to inquire about the

possibility of doing so.” (Emphasis added). Similarly,

in Coffman v. Tracker Marine, L.P, 141 F.3d 1241

(8th Cir. 1998), the plaintiff had complained about

retaliation both to the plant personnel representative

and to a manager; the court of appeals dismissed her

constructive discharge claim because she had failed to

also pursue those allegations “up the chain of com-

mand to [the vice-president for human resources].”

141 F.3d at 1247

Repeated internal complaints were also deemed

insufficient in Tork v. St. Luke’s Hospital, 181 F.3d

918 (8th Cir. 1999).

[The worker] attempted to protest the first

[disputed action] by speaking with someone

in the...human resources department, but

was denied the opportunity to do so,

and...intended to exercise her right to file a

formal complaint with the employee assis-

tance program, but was told by her supervi-

sor that it was too late to do so. With respect

to the second [disputed action]...she tried to

speak to her supervisor about it, but was ig-

nored.

181 F.3d at 919-20. The Eighth Circuit rejected the

plaintiff’s constructive discharge claim on the ground

that she should have done even more. “Ms. Tork

sought review beyond her direct supervisor...for only

23

one incident....She failed to seek review of her super-

visor’s action through either the human resources

department or the employee assistance program....”

181 F.3d at 920. Sowell v. Alumina Ceramics, Inc.,

251 F.3d 678 (8th Cir. 2001), held that it is not suffi-

cient that a worker complained about a discriminato-

ry practice to his or her supervisor; if the supervisor

is unresponsive, the worker must then appeal that

supervisor’s decision to higher officials or forfeit his

or her constructive discharge claim. In Sowell, the

plaintiff had earlier complained about a discrimina-

tory manager “to officials from [the company’s] local

and Colorado human resources offices.” 251 F.3d at

681, and again complained to her direct supervisor

when that official adopted a disputed policy. The

court rejected her constructive discharge claim be-

cause she had not complained enough. “Sowell com-

plained to [her supervisor] regarding the policy, but

she took no further steps to exempt herself from its

requirements, such as...approaching human resources

about the policy itself...” 251 F.3d at 685 (emphasis

added).

The Eighth Circuit has explained that this require-

ment is a judicially fashioned per se rule applying the

holding in Suders that a constructive discharge claim

requires proof that a reasonable person in the same

circumstances would have resigned. “To be reason-

able, an employee must give her employer a reason-

able opportunity to correct the problem.” Jackson v.

Arkansas Dep’t of Educ., 272 F.3d 1020, 1027 (8th Cir.

2001).

24

3. A requirement that a plaintiff complain to

some other, higher official prior to resigning is incon-

sistent with the text of Title VII and with this Court’s

decision in Suders.'' That issue, of course, is not

" The requirement that a discrimination victim afford to a

discriminatory employer a “reasonable opportunity” to correct

its violation is, as the Third Circuit recognized, a judicially

created exhaustion requirement. But the exhaustion require-

ments in Title VII itself are quite specific and limited, and the

courts have no authority to require more than Congress saw fit

to mandate. Under section 706(c), the entity to which a discrim-

ination victim must complain is the EEOC or a state or local

anti-discrimination agency, not to the victim’s employer. 42

U.S.C. § 2000e-5(c). Congress contemplated that under the

statutory exhaustion scheme, employers would learn of discrim-

ination charges through the EEOC, which is directed to notify

the employer within 10 days of the receipt of a charge. 42 U.S.C.

§ 2000e-5(b). The statutory deadline for complaints by private

employees is 180 or 300 days, not prior to resigning. 42 U.S.C.

§ 2000e-5(cX1). The Eighth Circuit may believe it would be

better if employees complained to their employers directly,

rather than through the EEOC, or if managers did not have to

wait 180 to 310 days to learn about discriminatory practices by

other company officials. But that is not the exhaustion scheme

which Congress chose to enact.

This Court’s decision in Suders explained that a worker

could establish a constructive discharge by showing that a

reasonable person would have resigned in response to the

unlawful employer action at issue. The Eighth Circuit rule is

based in part on the court’s view that it would be per se unrea-

sonable for an employee to resign without complaining up the

chain of command. But this Court has made clear that the

assessment of what a reasonable person would do is an issue for

the trier of fact, not a question of law.

When the relevant question is how an ordinary person or

community would make an assessment, the jury is generally the

decisionmaker that ought to provide the fact-intensive answer.

(Continued on following page)

25

before the Court. But some lower court opinions

analyzing the limitations question presented by this

case have characterized constructive discharge claims

in terms which imply or assume that workers are

required to exhaust any employer-created channels

for complaint. We urge this Court to avoid such

characterizations.

See, e.g., United States v. Gaudin, 515 U.S. 506, 512 (1995)

(recognizing that “delicate assessments of the inferences a “rea-

sonable [decisionmaker]” would draw...{[are] peculiarly one[s) for

the trier of fact....’” (quoting TSC Industries, Inc. v. Northway,

Inc., 426 U.S. 438, 450 (1946); first alteration in original)); id., at

450, n.12 (observing that the jury has a “unique competence in

applying the ‘reasonable man’ standard”); Hamling v. United

States, 418 U.S. 87, 104-05 (1974) (emphasizing “the ability of

the juror to ascertain the sense of the ‘average person’” by

drawing upon “his own knowledge —f the views of the average

person in the community or vicinage from which he comes” and

his “knowledge of the propensities of a ‘reasonable’ person”);

Railroad Co. v. Stout, 17 Wall. 657, 664, 21 L.Ed. 745 (1874) (“It

is assumed that twelve men know more of the common affairs of

life than does one man, [and] that they can draw wiser and safer

conclusions from admitted facts thus occurring than can a single

judge.”). See Hana Financial, Inc. v. Hana Bank, 135 S.Ct. 907,

911 (2015) (because constructive discharge is a preeminent

instance of the reasonable person standard under Suders it

ought to be routinely a jury issue).

26

CONCLUSION

For the above reasons, the decision of the Tenth

Circuit should be reversed.

Respectfully submitted,

ROBERTA L. STEELE ERIC SCHNAPPER

National Employment Counsel of Record

Lawyers Association University of Washington

2201 Broadway, Suite 402 School of Law

Oakland, CA 94610 0. Box 353020

(415) 296-7629 Seattle, WA 98195

rsteele@nelahq.org (206) 616-3167

schnapp@uw.edu

Counsel for Amicus Curiae