# Opposition Brief — Johnson v. Shalala > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0663%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 513 U.S. 806 ## Text OCTOBER TERM, 1994 SHARON JOHNSON, PETITIONER Vv. DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION Drew S. Days, III Solicitor General FRANK W. HUNGER Assistant Attorney General ROBERT V. ZENER WILLIAM G. COLE Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 QUESTION PRESENTED Whether petitioner established a claim of construc- tive discharge under the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. (1) TABLE OF CONTENTS Page EEE RE EO smeeamicocieiossekee 1 SS a 1 Neen ee encstanuiahuperenssbecowins eons 2 Teen ne nc snmenesanoccenivcn 10 EE EE 21 TABLE OF AUTHORITIES Cases: Aviles-Martinez Vv. Monroig, 963 F.2d 2 (1st Cir. Epon) ....... oo as fe SS aa a Oe 12 Bourque V. Powell Electrical Mfg. Co., 617 F.2d 61 Se I I 12 Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986) _.7, 17, 18 Brooms V. Regal Tube Co., 881 F.2d 412 (7th Cir. An oT 12 Buckley v. Hospital Corp. of America, 758 F.2d I ce cncesecnseretuneners 12 Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981)... 15, 16 Daniels Vv. Essex Group, Inc., 937 F.2d 1264 (7th SA Fal 12 Dashnaw V. Pena, 12 F.3d 1112 (D.C. Cir. 1994), petition for cert. pending, No. 93-2073 17 Derr Vv. Gulf Oil Corp., 796 F.2d 340 (10th Cir. De 11, 14-15, 16 EEOC v. Clay Printing Co., 955 F.2d 936 (4th Cir. ORR Ge a 17 Goss V. Exxon Office Sys. Co., 747 F.2d 885 (3d a ceencesntcnees 11,18 Gray V. York Newspapers, Inc., 957 F.2d 1070 (3d Ne ee csimmueeioens 13 Greenberg V. Hilton Int’l Co., 870 F.2d 926 (2d cl Ee 12 Henry Vv. Lennox Indus., Inc., 768 F.2d 746 (6th kaa ca eerie tigee bic. 12 (IIT) IV Cases—Continued: Page Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985) 7, 12,18 Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987), rev’d, 490 U.S. 228 (1989) ee ee Hukkanen V. International Union of One ratina ! g re Local No. 101. 83 F.8d 281 (8th 93) . saint RED sss ls As Le 10 Prion V. Bunny Bread Co., 646 F.2d 1250 (&th + ee |: | aoe aaa sassy 24, 10, 27 Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825 (1975)... 15 Nolan v. Cleland, 686 F.2d 806 (9th Cir. 1982).. 12 Paroline Vv. Unisys Corp.: 879 F.2d 100 (4th Cir. 1989) 18 900 F.2d 27 (4th Cir. 1990) ......... . 18 Pittman Vv. Hattiesburg Mun. Separate School Dist., 644 F.2d 1071 (5th Cir. 1981) 11-12 Schafer Vv. Board of Pub. Educ., 903 F.2d 243 (3d Cs REE cecinsscgsances 18 Simpson V. Federal Mine Safety & Health Revi eu Comm'n, 842 F.2d 453 (D.C. Cir. 1988). 12, 16,17 Smith v. Cleburne County ay 870 F.2d 1375 (8th Cir.), cert. denied, 493 U.S. 847 (1989) 12 Watson V. Nationwide Ins. Co., 823 F.2d 360 (9th Ror WMS seascaccr tates auaateoiameneess 11 Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) 12 Statutes: Age Discrimination in Employment Act, 29 U.S.C. 4 2 11,13 Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (Supp. IV 1992) .. am 13 Civil Rights Act of 1964, Tit. VIJ, 42 U.S.C. 2000e et 8d. ......- 6,11,12,13 Rehabilitation Act of 1973 3, 29 U.S.C. 701 et seq.....6, 8, 11, 5 U.S.C. App. 10(e) . 2 42 U.S.C. 1983 .... 11 Iu the Supreme Court of the United States OCTOBER TERM, 1994 No. 93-248 SHARON JOHNSON, PETITIONER VU. DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a- lla) is reported at 991 F.2d 126. The memorandum opinion of the district court (Pet. App. 15a-44a) is unreported. JURISDICTION he judgment of the court of appeals was entered on April 20, 1993. A petition for rehearing was de- nied on May 17, 1993. Pet. App. 12a-14a. The peti- tion for a writ of certiorari was filed on August 16, 1993 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) 2 STATEMENT 1. Petitioner was employed by the National In- stitutes of Health (NIH) within the Department of Health and Human Services (HHS) from 1979 until August, 1986, when she resigned. From 1984 on, she was the Executive Secretary of the Pathobio- chemistry Study Section in NIH’s Division of Re- search Grants in Bethesda, Maryland. The Study Section is made up of scientists who review applica- tions to NIH for biomedical research grants. As Executive Secretary, petitioner was required to or- ganize and attend meetings of the Study Section, pre- pare reports of the meetings, and visit grant appli- cants. In addition, she was required to chair the Study Section meetings and be present for their en- tirety. See 5 U.S.C. App. 10(e), at 1179; Pet. App. da, 16a, 18a, 27a. During her employment at NIH, petitioner suf- fered from two health problems. She had a form of narcolepsy that caused her to be chronically sleepy. She also had cardiac arrhythmia, a condition that causes an erratic, rapid heartbeat. The heart condi- tion prevented her from taking the medications ror- mally prescribed for narcolepsy. As a result of he: narcolepsy, petitioner had to take naps during the day. On several occasions, she fell asleep during Study Section meetings. Pet. App. 3a, 17a; see also Tr. 4, 269-270. Petitioner’s health problems were made more dif- ficult by commuting problems. After moving to Annapolis, Maryland, in 1982, petitioner had an hour-long drive to Bethesda twice each day. Be- cause of her narcolepsy, petitioner often had to pull off the road during her morning commute for 15- 3 minute naps, causing her sometimes to arrive at work late. Pet. App. 3a-4a, 17a. In August, 1985, petitioner wrote to her imme- diate supervisor, Dr. Asher Hyatt, requesting two accommodations to her handicaps: first, that she be given flexible starting and ending times for work; and, second, that she be allowed to change her regu- larly scheduled working hours more frequently than the officially permitted dates of July 1 and December 1, so as to take advantage of seasonal traffic patterns. Pet. App. 4a, 18a. To support her request, petitioner gave Dr. Hyatt a letter from her physician stating that petitioner ‘“need[{ed] to have flexible working hour schedule with due regard given to possible late arrival and late departure.” Jd. at 4a. Alternatively, the doctor said that flexible hours would not be nec- essary “[i]f [petitioner] were given a regular work schedule wherein she could participate in a car pool arrangement [and] * * * would not be responsible for driving to and from work.” [bid. After consulting with his supervisor and NIH’s Occupational Medical Services (OMS), Dr. Hyatt sent petitioner a memorandum stating “[t]he only further accommodation I can make is to the hours of a carpool.” Pet. App. 4a; see id. at 20a-2la. At about the same time, petitioner and other NIH em- ployees were told that under a new “flextime” policy, they could arrive up to 15 minutes after their sched- uled starting time, if they made up the time at the end of the day. /d. at 4a-5a. In addition, petitioner was permitted to change her work schedule four times a year, even though other employees could change their schedules only twice a year. /d. at 5a, lla. 4 Petitioner joined a carpool, but it did not com- pletely solve her problems. On the days that she was responsible for driving, her commute took longer than before. In addition, she could not use the carpool every day. Petitioner did not, however, convey her dissatisfaction te Dr. Hyatt. Pet. App. 5a, 20a-22a. In February, 1986, petitioner asked Dr. Hyatt to allow her to stay at a hotel in Bethesda for two nights at government expense during a_ three-day Study Section meeting at the hotel. Dr. Hyatt denied the request, as it was contrary to NIH policy. Pet. App. 5a. On April 7, 1986, petitioner requested five weeks of leave without pay, to begin two days later, on April 9. Accompanying that request was a letter from her clinical psychologist stating that petitioner needed the time off because of physical and psycho- logical exhaustion, which the psychologist attributed to the stress of her job and her commute. The re- quest was approved by Dr. Friedman, petitioner’s second-level (and Dr. Hyatt’s immediate) supervisor, on the condition that petitioner first finish certain work left over from the most recent Study Section meeting and some other work required before the next round of meetings. Petitioner began an ex- tended period of leave without pay in late April, 1986. Pet. App. 5a-6a, 23a-24a. Four days after requesting exterded leave without pay, petitioner requested 52 hours of advance sick leave (1.e., sick leave that she had not yet accumu- lated), 29 hours of which she had already taken be- fore making the request. Dr. Hyatt authorized the leave she had already taken but told her that in the future she would have to comply with NIH rules by requesting the advance sick leave in writing before 2 she took it. When, shortly thereafter, petitioner again took advance sick leave without first requesting it in writing, the time was subtracted from her annual leave. Pet. App. 5a-6a, 23a. In May, 1986, Dr. Thomas Goldman, a psychiatrist, wrote a letter on petitioner’s behalf to the executive director of the Study Section, James Pike. Goldman said in his letter that petitioner did “not appe[a]r to have the resources to adapt effectively to the stress level in her work environment.” Pet. App. 6a. He also said that he found it “doubtful that a truly rea- sonable accommodation can be provided her.” Jd. at 7a. He said that “the best alternative from the medi- cal standpoint would be retirement.” Jbid. Later in May, 1986, petitioner asked for, and was granted, an extension of her leave without pay. /bid. On June 4, 1986, petitioner applied for a disability retirement. 991 F.2d at 130.2 On June 5, Dr. Hyatt wrote an evaluation of petitioner, backdated to Apri! 1, 1986, describing her performance as unsatisfactory. Ibid. Dr. Hyatt admitted at trial that the evaluation did not accurately reflect his views; he wrote it in the belief that petitioner’s attorney had approved the preparation of a negative evaluation for the limited purpose of supporting petitioner’s application for dis- ability retirement. See ibid.; Tr. 1131-1132, 1138, 1142, 1147 (testimony of Hyatt); see also Tr. 1222, 1242-1245 (testimony of Pike). In preparing the evaluation, Dr. Hyatt cut out petitioner’s signature from a prior evaluation form, taped it on the new 1 We cite the reported version of the court of appeals’ opin ion at this point because petitioner’s appendix omits (Pet. App. 7a) the paragraph of the opinion to which this portion of our statement relates. 6 form, and photocopied the page. The falsified signa- ture indicated that petitioner had reviewed the ex- pectations formulated for her position. (It in no way suggested that she had reviewed the adverse ap- praisal.)* The evaluation was first shown to peti- tioner during a psychiatric examination performed by CMS at NIH’s request while she was on leave. Pet. App. 7a, 26a. In early August, 1986, petitioner met with an NIH official to discuss possible reassignment. The official offered her a position at GS-13, one grade lower than her GS-14 position as Executive Secretary, which she declined. On August 20, 1986, petitioner resigned. She was later awarded disability retirement benefits. Pet. App. 7a, 26a-28a. 2. Petitioner filed this action against the Secretary of HHS in the United States District Court for the District of Maryland, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. After a bench trial, the district court re- jected her Title VII claim but entered judgment in her favor on the Rehabilitation Act claim. Pet. App. 7a-8a. In upholding the Rehabilitation Act claim, the dis- trict court first held that NIH had not provided “rea- sonable accommodation” to petitioner’s handicaps.* 2 The government acknowledged on appeal that Hyatt’s ac- tion was “wrong and a serious mistake.” 991 F.2d at 130. ’ The parties disputed whether she was offered the same salary for the GS-13 position as she was then receiving for her GS-14 position. Pet. App. 7a. *The district court had previously held in pretrial rulings that petitioner was entitied to reasonable accommodation un- 7 The court found that, although petitioner had 15 min- utes of flexibility in her arrival time for work, she had requested 30 minutes, and that it would not have been unduly burdensome for NIH to have given her 30 minutes’ leeway. Pet. App. 3la-35a. The court further found that petitioner “was not provided with reasonable accommodation with regard to her requests for leave to attend to medical problems.” Jd. at 35a. Finally, the court found that “there was some degree of coercion in [NIH’s] ‘request’ that [petitioner] be evaluated at OMS.” Id. at 36a. The court expressly declined, however, to hold that the evaluation was il- legal, as petitioner had contended. Ibid. The district court further held that petitioner had been constructively discharged. The court began by observing that under Fourth Circuit precedent “[a] constructive discharge occurs when ‘an employer de- liberately makes an employee’s working conditions intolerable and thereby forces him to quit his job.’ ” Pet. App. 36a, quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986), quoting Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). Applying that precedent, the court first determined that petitioner’s working con- ditions were intolerable, primarily because “[h]er em- ployers failed to provide her with the accommodation she required and did not seriously consider her for any alternative positions.” Pet. App. 37a. In addi- tion, the court noted that “[a]fter filing for disability, [petitioner] was pressured to submit to psychiatric der the Rehabilitation Act, because she was an “individual with handicaps” who was “otherwise qualified” for her job within the meaning of the Act. Pet. App. 30a. 8 evaluations, at which she found out that her super- visor had written an extremely negative appraisal of her.” Jbid. Under those circumstances, the court be- lieved, “‘a reasonable person * * * may well have felt compelled to resign.” Ibid. The court next determined that the evidence supported the inference that NIH intended to force her to quit. The court reasoned: “Tpetitioner’s] supervisors had ample notice over several months that she needed some changes in her working conditions; however, they failed to act to help her.” Jd. at 38a. The district court ordered that petitioner be placed in an “appropriate position” at her previous grade- level and awarded her approximately $57,000 in dam- ages. Pet. App. 41a. 3. On appeal, the government challenged only the district court’s holding that petitioner had been con- structively discharged. The Fourth Circuit reversed. Pet. App. la-1la. The Fourth Circuit held that “the district court erred as a matter of law in grounding its finding of constructive discharge upon the premise that NIH failed to afford [petitioner] reasonable accommoda- tion.” Pet. App. 10a. The Fourth Circuit concluded that, in order to prove a constructive discharge, the plaintiff in a Rehabilitation Act case must do more than show that the employer’s accommodation to the plaintiff’s handicaps “falls short of satisfying the re- quirements of the * * * Act.” Ibid. Instead, in a “case of partial or imperfect accommodation,” the plaintiff “must present some evidence that the em- ployer intentionally sought to drive her from her posi- tion.” Jd. at 10a, 1la. Such an intention, the court said, “can be demonstrated by actual evidence * * * or circumstantial evidence.” Jd. at 8a. The court 9 specified that circumstantial evidence of intent may include “a complete failure to accommodate [an em- ployee’s handicaps], in the face of repeated requests.” Id. at 11a. The Fourth Circuit held that the evidence was in- sufficient to show that NIH acted with the intention to drive petitioner from her position. The court ob- served that “NIH did not ignore [petitioner’s] re- quests [for accommodation]—NIH responded, but frequently in ways that she found unsatisfactory.” Pet. App. 10a. The court found (ibid.) : Rather than the thirty-minutes flexibility in her starting time that [petitioner] req:2sted, NIH gave her fifteen. She was authorized to join a carpool, but without the regularized hours that she wanted. NIH granted her initial request for Leave Without Pay, albeit under the condition that she complete certain necessary work before departure. NIH also offered [petitioner] a differ- ent position, but [petitioner] refused it because it was at a lower grade. In other instances, NIH complied fully with [petitioner’s] requests, per- mitting her to change duty hours four times a year instead of twice like other employees, and later granting her extended Leave Without Pay. The court further found that “[t]he evaluation falsi- fied by Hyatt, while plainly inexcusable, fails to dem- onstrate an intent by NIH to force [petitioner] from her position because the evaluation was prepared only after [petitioner] herself requested disability retire- ment.” Jd. at 1la. The court concluded that petition- er’s evidence “may well demonstrate a lack of flexi- bility or magnanimity on the part of her supervisors, but what it does not demonstrate is a deliberate intent to force [petitioner] from her job.” Ibid. 10 ARGUMENT Petitioner challenges (Pet. 4-11) the Fourth Cir- cuit’s rejection of her claim of constructive discharge under the Rehabilitation Act. We believe that the Fourth Circuit’s decision would be erroneous if read as (1) holding that, to establish such a claim, a plain- tiff must prove that her employer intended to force her to quit; or (2) suggesting that the standard for proving a constructive discharge under the Rehabili- tation Act should be more stringent than the standard applicable under other employment discrimination statutes. However, there is a narrower, valid ground for upholding the Fourth Circuit’s judgment,® and, in 5 In the court of appeals, the government primarily argued that the district court erred by holding that NIH’s failure to make a reasonable accommodation to petitioner’s handicap, standing alone, amounted to a constructive discharge. Gov’t C.A. Br. 19-20. We continue to believe that an employer’s failure to make a reasonable accommodation to an employee’s handicap (followed by the employee’s resignation) does not automatically compel the conclusion in every case that the employee has been constructively discharged. We also con- tinue to believe that the district court erred in relying upon such a per se rule. The Fourth Circuit’s decision, however, could be read to go farther than simply rejecting the per se rule upon which the district court relied. Indeed, the govern- ment argued in the Fourth Circuit that, under that court’s precedent, constructive discharges occur only when there has been a deliberate attempt to force an employee to quit. Gov’t C.A. Br. 26. The Fourth Circuit’s decision and the position that the government took below on the issue of intent have been the subject of broad consultation within the Executive 3ranch, especially in light of recent decisions rejecting an in- tent standard in other circuits, discussed pp. 14-17 infra. Asa result of this consultation, the government no longer takes the position that a finding of intent to force an employee to leave 11 addition, we believe further review is unwarranted for the reasons set forth below. 1. The Fourth Circuit’s decision does not conflict with any decision of this Court or that of any other court of appeals regarding the proper interpretation of the Rehabilitation Act. Indeed, petitioner does not cite (and we are not aware of) any other decision in which a court of appeals has even addressed the stand- ard for proving a claim of constructive discharge under that Act. The absence of a conflict among the circuits (and the absence of any other appellate case law) on the question presented here weigh heavily against further review. Petitioner asserts that “[t]here is a sharp split among the circuits as to the proper standard for es- tablishing a constructive discharge in employment discrimination cases.” Pet. 4. In support of that as- sertion, petitioner cites decisions involving claims of constructive discharge under statutes other than the Rehabilitation Act. See Pet. 4-9 & nn.2-3, 5. The overwhelming majority of those decisions arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seg. A Rehabilitation Act case is not an is required in order to support a conclusion of constructive discharge. * Of the 17 decisions cited by petitioner in support of her claim of a conflict, 14 arise under Title VII, one arises under the Age Discrimination in Employment Act, and two arise under 42 U.S.C. 1983. See Pet. 4 n.2, citing Hopkins v. Price Waterhouse, 825 F.2d 458, 472 (D.C. Cir. 1987) (Title VII), rev'd on other grounds, 490 U.S. 228 (1989); Watson Vv. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (Title VII); Derr v. Gulf Oil Corp., 796 F.2d 340, 343-344 (10th Cir. 1986) (Title VII); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3d Cir. 1984) (Title VII); Pittman v. Hatties- 12 appropriate context in which to resolve a conflict that has arisen under other employment discrimination laws, primarily Title VII. Moreover, this Rehabilitation Act case would be a particularly inappropriate vehicle for resolving the asserted conflict. In its decision, the Fourth Circuit expressly declined to follow case law involving other employment discrimination statutes. The court deter- mined that “‘[t]he traditional standard of constructive discharge,” which “has evolved in cases of age, sex and race discrimination,” does “‘not neatly translate to the context of the Rehabilitation Act.” Pet. App. 8a-9a. In light of that determination, if this Court sranted further review in this case to resolve the burg Mun. Separate School Dist., 644 F.2d 1071, 1077 (5th Cir. 1981) (Title VII); Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992) (Section 1983); Greenberg v. Hilton Int'l Co., 870 F.2d 926, 932, 935-936 (2d Cir. 1989) (Title VII); Buckley v. Hospital Corp. of America, 758 F.2d 1525 (11th Cir. 1985) (age discrimination); Brooms v. Regal Tube Co., 881 F.2d 412, 423-424 (7th Cir. 1989) (Title VII); Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991) (Title VII); Pet. 5 n.3, citing Holsey v. Armour & Co., 743 F.2d 199, 208-209 (4th Cir. 1984) (Titie VII); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981) (Title VII) Pet. 6, citing Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir 1987) (Title VII), and Henry v. Lennox Indus., Inc., 768 F.24 746, 752 (6th Cir. 1985) (Title VII); Pet. 8, citing Nolan v. Cleland, 686 F.2d 806, 812-814 (9th Cir. 1982) (Title VII), and Bourque V. Powell Electrical Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980) (Title VII); Pet. 9 n.5, citing Smith y. Cle- burne County Hosp., 870 F.2d 1375, 1380-1381 (8th Cir.) (Section 1983), cert. denied, 493 U.S. 847 (1989). See gen- erally Simpson v. Federal Mine Safety & Health Review Comm’n, 842 F.2d 453, 461-463 & nn.8-9 (D.C. Cir. 1988) (citing and discussing constructive discharge claims under Title VII and other employment discrimination statutes). 13 asserted conflict, the Court would have to address the question whether the standard for proving construc- tive discharge in cases arising under Title VII and other employment discrimination statutes should ap- ply in cases arising under the Rehabilitation Act.’ While we believe that the standard for proving a con- structive discharge under the Rehabilitation Act should not differ from the standard applicable under other employment discrimination statutes, this Court need not address that novel question, on which there is no conflict, without the benefit of any lower court decisions on the question aside from the decision below.® 2. Further review is also unwarranted because the asserted conflict among the lower courts on the stand- ard for proving a claim of constructive discharge under the employment discrimination laws has stead- 7 As noted above, the vast majority of decisions concerning the standard for proving a constructive discharge arise under Title VII. 8 Cf. Gray Vv. York Newspapers, Inc., 957 F.2d 1070, 1079 n.5 (3d Cir. 1992) (stating, without elaboration, that “the doctrine of constructive discharge is the same in all employee discrimination claims such as those under the [Age Discrimi- nation in Employment Act, 29 U.S.C. 621 et seq.]”), cited at Pet. 4n.1. Petitioner cites (Pet. 6) the recently enacted Americans with Disabilities Act, 42 U.S.C. 12101 et seg. (Supp. [IV 1992), as an example of a statute under which a claim of construc- tive discharge may be made. The enactment of that statute increases the significance of the question whether a uniform standard of proving a constructive discharge should apply under the federal employment discrimination laws, and also increases the likelihood that the lower federal courts will have opportunities to address that question before it is necessary for this Court to do so. OO A CTC 14 ily abated and may well abate entirely without the need for review by this Court. a. The Fourth Circuit is now alone among the circuits in appearing to require a plaintiff claiming constructive discharge to prove that her employer in- tended to force her to quit. That was not always the case. On the contrary, three other circuits initially appeared to require proof of intent but rejected that requirement in later decisions. As petitioners point out (Pet. 9 n.5), “the Eighth Circuit concur[red] in the Fourth Circuit’s ‘deliberate intent’ requirement” in Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981). The Eighth Circuit there stated that a constructive discharge encom- passes two requirements: (1) that “‘a reasonable per- son [in the employee’s position] would find conditions intolerable”; and (2) that “the employer’s actions must have been taken with the intention of forcing the employee to quit.” Ibid. The court held that the plaintiff had failed to meet the second requirement, because the evidence “‘rebut[ted] any inference that [the employer’s] handling of [the plaintiff] was done with the intention of forcing him to resign.” Jbid. In Hukkanen v. International Union of Operating Engineers Local No. 101, 3 F.3d 281 (1993), how- ever, the Eighth Circuit took a different view. The Eighth Circuit in that case said, “Our language in Bunny Bread does not mean constructive discharge plaintiffs must prove their employers consciously meant to force them to quit.” Hukkanen, 3 F.3d at 284. The court explained that “[w]hen an employer denies a conscious effort to force an employee to re- sign * * *, the employer must necessarily be held to intend the reasonably foreseeable consequences of its actions.” Ibid., citing Derr v. Gulf Oil Corp., 796 15 F.2d 340, 344 (10th Cir. 1986), and Clark v. Marsh, 665 F.2d 1168, 1175 n.8 (D.C. Cir. 1981). The court accordingly held that “if [the plaintiff’s] resignation was a reasonably foreseeable consequence of [her em- ployer’s sexual] harassment, [the employer’s] ‘actions [were necessarily] taken with the intention of fore- ing [the plaintiff] to quit.’” Hukkanen, 3 F.3d at 285, quoting Bunny Bread, 646 F.2d at 1256. In construing its precedent not to require proof of intent, the Eighth Circuit followed a path already traveled by the Tenth Circuit and the D.C. Circuit. In Muller vy. United States Steel Corp., 509 F.2d 923, cert. denied, 423 U.S. 825 (1975), the Tenth Circuit reversed the district court’s ruling that the plaintiff in a Title VII case had been constructively discharged, finding that the employer’s actions “were not designed to coerce [the plaintiff’s] resignation.” 509 F.2d at 929. The court thus held that “the proof of construc- tive discharge fail[ed]” as a result of the “dearth of evidence to show a deliberate effort [by the employer] to make things difficult for the employee so as to bring about his separation.” Ibid. The Tenth Circuit subsequently “clarifi[ed] * * * the standard for finding a constructive discharge” in Derr, 796 F.2d at 344, cited in Hukkanen, 3 F.3d at 284. The court in Derr recognized that “some lan- guage in Muller * * * suggests that our focus may once have been on the explicit subjective intent of the employer to force the employee to leave.” Derr, 796 F.2d at 344. The court determined, however, that the focus should be “on an objective standard.” Ibid. The court specified that the proper inquiry “is simply whether the employer by its illegal discriminatory acts has made working conditions so difficult that a 16 reasonable person in the employee’s position would feel compelled to resign.” bid. The Tenth Circuit in Derr explained that its “shift in emphasis” from a subjective, employer-focused in- quiry to an objective, employee-focused one “is con- sistent with the District of Columbia Circuit’s obser- vation that ‘[t]o the extent that [the employer] de- nies a conscious design to force [the employee] to re- sign, we note that an employer’s subjective intent is irrelevant; [the employer] must be held to have in- tended those consequences it could reasonably have foreseen.’ ”’ 796 F.2d at 344, quoting, with emphasis, Clark vy. Marsh, 665 F.2d at 1175 n.8. That is the same observation upon which the Eighth Circuit re- lied in announcing a similar “shift in emphasis” in Hukkanen, 3 F.3d at 284. Notwithstanding the observation in Clark upon which the Eighth and Tenth Circuits relied, other lan- guage in Clark suggested that proof of intent was required. See 665 F.2d at 1173 (quoting with ap- proval language from Muiler requiring proof of in- tent and stating that “a finding of constructive dis- charge depends on [whether the employer] deliber- ately made * * * working conditions intolerable and drove [the employee] into an involuntary quit’) (internal quotation marks omitted; bracketed mate- rial supplied by court in Clark). The D.C. Circuit recognized as much in later decisions. See Simpson v. Federal Mine Safety & Health Review Comm’n, 842 F.2d 453, 462 (D.C. Cir. 1988) (“selected pas- sages from Clark * * * suggest that employer inten- tion is releva:t to the constructive discharge doctrine this circuit *aploys under Title VII’); Hopkins v. Price Waterhouse, 825 F.2d 458, 472 (D.C. Cir. 1987) (district court’s “literal interpretation” of 17 language in Clark that, “taken at face value, * * * sets forth a stringent standard,” was “misplaced” in light of later decisions that “have rejected the notion that the employer must have the specific intent of forcing the employee to quit’’). Accordingly, the D.C. Circuit in later decisions has “expressly rejected a motivation test” in favor of an inquiry into “[w]hether conditions are so intolerable that a rea- sonable person would feel compelled to resign.” Simpson, 842 F.2d at 462-463; see Hopkins, 825 F.2d at 472.° b. In light of the evolution of the law of construc- tive discharge in the Eighth, Tenth, and D.C. Cir- cuits, it is by no means certain that the Fourth Cir- cuit will apply a stringent intent requirement in fu- ture employment discrimination cases. The Fourth Circuit has looked to the law of those other three circuits in prior cases involving construc- tive discharge. In the decision below, for example, the Fourth Circuit drew support for an intent require- ment from the Eighth Circuit’s decision in Bunny Bread and its own prior decisions in EEOC vy. Clay Printing Co., 955 F.2d 936 (4th Cir. 1992), and Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir. 1985). Pet. App. 8a. Clay Printing and Bristow, in turn, also cited Bunny Bread in support of an intent requirement. Clay Printing, 955 F.2d at 944; Bristow, 770 F.2d at 1255. Bristow relied (770 F.2d at 1255), in addition, on the Tenth Circuit’s decision ® Cf. Dashnaw Vv. Pena, 12 F.3d 1112, 1115 (D.C. Cir. 1994) (mere fact of intentional discrimination does not suffice to prove constructive discharge in the absence of “aggravating factors”), petition for cert. pending, No. 93-2073 (filed June 22, 1994). 18 in Muller and the D.C. Circuit’s decision in Clark. As discussed above, however, the circuits that decided Bunny Bread, Muller, and Clark have all construed those decisions not to require proof of intent. It is difficult to believe that the Fourth Circuit will not take cognizance of that fact and, having done so, either clarify that it is in accord with the other circuits or acknowledge the conflict. If it takes the latter course, review by this Court might well be appropriate. In view of the trend in other circuits, however, further review at this time would be premature.” 3. Finally, this case is also a poor factual vehicle for further review of the question presented by the 10 The rejection of an intent requirement in other circuits is not the only reason for believing that the Fourth Circuit will resolve the assented conflict itself. As petitioner observes, insofar as the decision below appears to impose a stringent intent requirement, it “departs significantly from the standard previously established by * * * the Fourth Circuit.” Pet. 10. In two prior decisions, the Fourth Circuit has stated that an employer’s intent to force an employee to quit “may be in- ferred through * * * a failure to act in the face of known intol- erable conditions.” Bristow, 770 F.2d at 1255; accord Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (‘985). That statement closely resem- bles statements by circuits that petitioner claims are in con- flict with the Fourth Circuit. See, e.g., Goss v. Exxon Office Sys. Co., 747 F.2d at 888 (Third Circuit decision stating that, to prove constructive discharge, “[t]he court need merely find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reason- able person subject to them would resign’), cited in Pet. 4 n.2; accord Hukkanen, 3 F.3d at 284-285; Schafer v. Board of Pub. Educ., 903 F.2d 243, 249 (3d Cir. 1990); but cf. Paroline v. Unisys Corp., 879 F.2d 100, 113-114 (1989) (Wilkinson, J., dissenting), dissenting opinion adopted in relevant part by en banc court, 900 F.2d 27, 28 (4th Cir. 1990). 2 19 petition. The question, as petitioner frames it, is “whether a showing of deliberate intent [on the part of an employer to force an employee to quit] is a mandatory element of a constructive discharge claim.” Pet. 8. Petitioner argues that no such showing should be required, because “an employer who creates in- tolerable working conditions which it fails to correct demonstrates that it intends to force the resignation of employees afflicted by the intolerable conditions.” Ibid. Thus, adequate consideration of the question framed by petitioner depends heavily on the existence of intolerable working conditions. Although the government did not challenge on ap- peal the district court’s holding that petitioner’s work- ing conditions were intolerable, the evidence support- ing that holding was weak. That weakness, moreover, appears to have influenced the Fourth Circuit’s analy- sis of the intent issue, as illustrated by the passage quoted in the margin.” Although we did not contend 11 Pet. App. 10a-11a: [W]e believe the district court erred as a matter of law in grounding its finding of a constructive discharge upon the premise that NIH failed to afford [petitioner] rea- sonable accommodation. The evidence here is insufficient to show a deliberate intent to discharge an employee when there has been an attempt to accommodate that same employee, even though the accommodation falls short of satisfying the requirements of the Rehabilitation Act. The plaintiff must present some evidence that the em- ployer intentionally sought to drive her from her position. In this case, [petitioner] failed to meet this burden. NIH did not ignore [petitioner’s] requests—NIH re- sponded, but frequently in ways that she found unsatis- factory. Rather than the thirty-minutes flexibility in her starting time that [petitioner] requested, NIH gave her fifteen. She was authorized to join a carpool, but without 20 in the court of appeals that the district court com- mitted clear error in finding that petitioner’s working conditions were intolerable, the existence of intoler- able working conditions is nevertheless too dubious in this case to permit adequate consideration of the ques- tion whether the existence of such conditions amounts to a constructive discharge in the absence of an intent to have the employee leave. the regularized hours that she wanted. NIH granted her initial request for Leave Without Pay, albeit under the condition that she complete certain necessary work before departure. NIH also offered [petiticner] a different posi- tion, but [petitioner] refused it because it was at a lower grade. In other instances, NIH complied fully with [peti- tioner’s] requests, permitting her to change duty hours four times a year instead of twice like other employees, and later granting her extended Leave Without Pay. NIH could have done more, and should have done more to con- form to the requirements of the Rehabilitation Act, but it did not simply turn its back on [petitioner’s] needs. Finally, once [petitioner] requested disability retirement, a solution urged by her own psychiatrist, personnel at NIH tried to help her obtain approval for her application. The evaluation falsified by Hyatt, while plainly inexcusa- ble, fails to demonstrate an intent by NIH to force [peti- tioner] from her position because the evaluation was prepared only after [petitioner] herself requested dis- ability retirement. The evidence put forth by [petitioner] may wel! demonstrate a lack of flexibility or magnanimity on the part of her supervisors, but what it does not demonstrate is a deliberate intent to force [petitioner] from her job. NIH tried, but failed, to accommodate [petitoner’s] handicaps. 21 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREw S. Days, III Solicitor General FRANK W. HUNGER Assistant Attorney General ROBERT V. ZENER WILLIAM G. COLE Attorneys AUGUST 1994 Ww U. S&S. GOVERNMENT PRINTING OFFICE; 1994 301157 86196 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0663%3A3. Public record. Not legal advice.