Equal Employment Opportunity Commission v. University of Chicago Hospitals
 00-4065


  No. 00-4065
  _________________________________________

  IN THE UNITED STATES COURT OF APPEALS
  FOR THE SEVENTH CIRCUIT
  __________________________________________


 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

   Plaintiff-Appellant,
  v.

 UNIVERSITY OF CHICAGO HOSPITALS,

   Defendant-Appellee.

  _______________________________________________________

  On Appeal from the United States District Court for the Northern
  District
 of Illinois, Honorable Blanche M. Manning, No. 98 C 6109
  _______________________________________________________

 REPLY BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT
  _______________________________________________________

       GWENDOLYN YOUNG REAMS
       Associate General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

       ANNE NOEL OCCHIALINO
       Attorney

        EQUAL EMPLOYMENT OPPORTUNITY
        COMMISSION
       Office of General Counsel
        1801 L Street, N.W., Room 7030
       Washington, D.C. 20507
        (202) 663-4724 TABLE OF CONTENTS
             PAGE

 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 iii
 ARGUMENT . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . .
 1
 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 14
 CERTIFICATE OF COMPLIANCE
 CERTIFICATE OF SERVICE
 TABLE OF AUTHORITIES
 CASES          PAGE(S)
 Acrey v. American Sheep Industry Ass'n, 981 F.2d 1569
      (10th Cir. 1992) . . . . . . . . . . . . . . . . .  . . . . . . . . . 7

 Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993). . . . . .
 . 7

 Burks v. Oklahoma Publ'g Co., 81 F.3d 975 (10th Cir. 1996). . . . . . . . . . .
 . 6

 Conley v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 2000). . . . . . . .
 . . . . 7

 Downey v. Southern Natural Gas Co., 649 F.2d 302
   (5th Cir. Unit B June 1981). . . . . . . . . . . . . . . . . . . . . . . . .
   . . . . 7

 Hoeller v. Eaton Corp., 149 F.3d 621 (7th Cir. 1998) . . . . . . . . . . . . .
 . . . . 11

 Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) . . . . . . . . . . . . .
 . . . 5

 Lindale v. Tokheim Corp., 145 F.3d 953 (7th Cir. 1998) . . . . . . . . . . . .
 . .  13

 Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987). . . . . . . . . . . .
 . . 4, 6

 Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997). . . . . . . . . . .
 .  7, 12

 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . .
 . . 4

 Miller v. American Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000). . . . .
 . . 4

 Neal v. Honeywell Inc., 955 F. Supp. 889  (N.D. Ill. 1998),
 aff'd 191 F.3d 827 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . .9

 Parrett v. City of Connersville, 737 F.2d 690 (7th Cir. 1984). . . . . . . . .
 . . .  6

 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996). . . . . . . . . . . . . . . .
 . . .  13

 Smith v. Great American Restaurants, Inc., 969 F.2d 430 (7th Cir. 1992). . . .
 . . 9

 Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873 (7th Cir. 1999). . . . . . . .
 . . . 4

 Vitug v. Multistate Tax Comm'n, 88 F.3d 506 (7th Cir. 1996). . . . . . . . . .
 . . . .  4

 CASES          PAGE(S)

 Welch v. Univ. of Tex. & Its Marine Sci. Inst., 659 F.2d 531
  (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  6

 Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997). . . . . . . . . . . . .
 . 11

 Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276 (7th Cir. 1990). . . .
 . 5

 MISCELLANEOUS

 Martin W. O'Toole, Choosing a Standard for Constructive Discharge in
 Title VII
 Litigation, 71 Cornell L. Rev. 587 (1985) . . . . . . . . .. . . . . . . . . .
 13

 No. 00-4065
  _________________________________________

  IN THE UNITED STATES COURT OF APPEALS
  FOR THE SEVENTH CIRCUIT
  __________________________________________


 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

   Plaintiff-Appellant,
  v.

 UNIVERSITY OF CHICAGO HOSPITALS,

   Defendant-Appellee.

  _______________________________________________________

  On Appeal from the United States District Court for the Northern
  District
 of Illinois, Honorable Blanche M. Manning, No. 98 C 6109
  _______________________________________________________

  REPLY BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT
  _______________________________________________________

  In its opening brief, the Commission argued that the district court erred
  in granting summary judgment for the Defendant, University of Chicago
  Hospitals ("Hospitals"), on the Commission's Title VII constructive
  discharge claim.  The Commission contended that the district court
  erred in holding that the establishment of a hostile work environment
  is a prerequisite to maintaining a constructive discharge claim.
  Citing to cases from this Court and other courts of appeals, the
  Commission argued that if an employee reasonably believes that she
  is about to be fired for a discriminatory reason, the employee has
  been subjected to intolerable working conditions and may maintain a
  claim of constructive discharge.  Based on evidence in the record,
  the Commission further argued that a reasonable jury could conclude
  that the Hospitals constructively discharged Plaintiff Victoria Leyva
  because she knew that  her supervisor, George Ann Shaw, wanted to force
  her to quit because of her Evangelical Christian Baptist beliefs, that
  her direct supervisor, Ralph Borkowicz had been fired for refusing to
  fire her, and that the Hospitals was planning to fire her on Monday,
  July 20, 1991, when she returned from vacation.
  The Hospitals devotes most of its response brief to arguing that the
  district court properly analyzed the Commission's constructive discharge
  claim under a hostile work environment theory, despite the Commission's
  failure to allege a hostile work environment, and to making the strawman
  argument that the district court correctly concluded that because there
  was no hostile work environment, Leyva was not constructively discharged.
  The Hospitals concedes, however, that a hostile work environment is
  not the only type of intolerable working condition that can lead up to
  a constructive discharge but argues that in the absence of a hostile
  work environment a plaintiff must show that the constructive discharge
  was preceded by a materially adverse employment action.  The law is not
  as restrictive as the Hospitals suggests.  The Hospitals also contends
  that the evidence does not support the Commission's claim that a jury
  could find that Leyva was constructively discharged because the Hospitals
  wanted to get rid of her because of her religious beliefs, but there is
  plainly sufficient admissible evidence to raise a triable question of
  fact on this issue.  Finally, the Hospitals argues against all reason
  that the Commission waived this argument by failing to present it to
  the district court.
  For the reasons discussed below and set forth in the Commission's opening
  brief, the Commission urges this Court to reverse the district court's
  entry of summary judgment in favor of the Hospitals and to remand this
  case to the district court for a trial on the merits.

 ARGUMENT

 The Commission never argued that the Hospitals subjected Leyva to a
 hostile work environment

  Although the Hospitals argues at length that the district court properly
  found that the Hospitals did not constructively discharge Leyva because
  it did not subject her to a hostile work environment, Resp. at 17-26,
  this is a strawman argument.  The Commission has not argued that the
  Hospitals subjected Leyva to a hostile work environment.  Instead,
  the Commission argued in its opening brief that the district court
  erred in holding that the only type of intolerable working condition
  that could lead to an employee's constructive discharge was a hostile
  work environment.  Opening Br. at 13-17.  The Commission contended
  that intolerable working conditions that support claims of constructive
  discharge include those in which an employer's actions make an employee
  reasonably believe that she is no longer wanted or is in danger of
  being fired for a discriminatory reason.  Id.  Finally, the Commission
  argued that the district court erred in granting summary judgment for
  the Hospitals because it overlooked evidence in the record from which a
  reasonable jury could conclude that Leyva was constructively discharged
  because she reasonably believed that Shaw wanted to force her to resign
  and was about to fire her because of her religious beliefs.
 Constructive discharge supplies the adverse employment action necessary
 to establish a prima facie case of religious discrimination

  The Hospitals concedes that a constructive discharge claim can be
  maintained in the absence of a hostile work environment.  Resp. at 15.
  The Hospitals nevertheless asserts that the Commission "misses the
  point" because "[e]ach of the cases the Commission cites in support of
  its argument involves at least one adverse employment action which
  ultimately resulted in a constructive discharge."  Resp. at 15.
  Without evidence of an adverse employment action, the Hospitals
  argues, the Commission's allegations "could not be considered under the
  generic employment discrimination paradigm, 'for without a materially
  adverse job action, discrimination is not actionable.'" Resp. at 15
  (quoting Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1006
  (7th Cir. 2000)); see Resp. at 11-12 ("Because Leyva failed to allege
  that she suffered a materially adverse employment action-a necessary
  predicate to all employment discrimination claims except hostile work
  environment claims-the District Court was required to apply hostile
  work environment principles.").
  The Commission agrees that in the absence of a materially adverse job
  action, discrimination is not actionable under Title VII.  The Commission
  respectfully contends, however, that it is the Hospitals that misses the
  point.  Because a constructive discharge is an adverse employment action,
  it is the constructive discharge that supplies the adverse employment
  action needed to establish a prima facie case of discrimination.<1>
  See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)
  ("When a constructive discharge is found, an employee's resignation is
  treated-for the purpose of establishing a prima facie case of employment
  discrimination-as if the employer had actually discharged the employee.")
  (citation omitted), overruled on other grounds by Patterson v. McLean
  Credit Union, 491 U.S. 164 (1989).  Thus, it is "[t]hrough this legal
  construct [that] a plaintiff who is forced out by discriminatory conduct
  may bring a successful Title VII claim even though the plaintiff was
  never officially dismissed by the defendant."  Vitug v. Multistate
  Tax Comm'n, 88 F.3d 506, 517 (7th Cir. 1996) (citation omitted).
  Therefore, employees do not have to show that their forced resignations
  (which constituted adverse employment actions in and of themselves)
  were preceded by separate adverse employment actions.
  The Hospitals asserts that the cases cited by the Commission to support
  its argument that a hostile work environment is not a prerequisite
  to establishing a constructive discharge claim "involved at least one
  adverse employment action which ultimately resulted in a constructive
  discharge." Resp. at 15 (citing Hunt v. City of Markham, 219 F.3d 649
  (7th Cir. 2000); Parrett v. City of Connersville, 737 F.2d 690 (7th
  Cir. 1984); Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276 (7th
  Cir. 1990)).  Although Zabielski involved an employee whose constructive
  discharge was preceded by a demotion, nothing in this Court's opinion
  in that case suggests that an adverse action is the sine qua non of
  a constructive discharge claim.  See Zabielski, 919 F.2d at 1281.
  Nor is there any language in this Court's opinions in Hunt and Parrett
  creating a rule that an adverse employment action is a prerequisite to
  a constructive discharge claim.
  In Hunt, this Court reiterated that "[t]he term 'constructive discharge'
  refers to the situation in which an employer, without firing an employee,
  makes his working conditions so miserable that it drives him to quit."
  Hunt, 219 F.3d at 655 (citations omitted).  This Court held in Hunt
  that because it would "be inconsistent with even a minimal sense of
  self-respect" for an employee to remain with an employer after being
  "told repeatedly that he is not wanted, has no future, and can't count
  on ever getting another raise," the plaintiff had been subjected to
  intolerable working conditions that would support his constructive
  discharge claim.  Id.  Contrary to the Hospitals' assertion, this Court's
  holding did not rest on a finding that the plaintiff's resignation
  had been preceded by an adverse employment action.  See id.  Rather,
  the facts suggest that the threat of future adverse actions (denial of
  raises) could support a constructive discharge claim.
  Parrett is similarly devoid of any language stating that the maintenance
  of a constructive discharge claim requires a showing of anything
  besides intolerable working conditions.  In that case, which involved
  a Fourteenth Amendment claim of denial of property without due process
  of law, the employer removed plaintiff's job duties and gave him an
  office that had served as a storage closet.<2>  Parrett, 737 F.2d at 693.
  This Court held that these circumstances supported the jury's finding of
  constructive discharge.  See id. at 694.  This Court's opinion focused
  on its determination that "anyone with some self-respect" would find
  it intolerable to work under the conditions imposed upon the plaintiff.
  See id.
  Thus, nothing in this Court's cases cited by the Commission suggests that
  the standard for a constructive discharge claim is that the plaintiff's
  resignation be preceded either by a hostile work environment or by
  an adverse employment action.<3>  Therefore, it does not follow that
  the district court was left "with only hostile work environment as an
  analytic tool because it was the only paradigm capable of evaluating
  Leyva's claims in the aggregate."  Resp. at 16.
  In support of its theory that the Commission was required to prove
  a hostile work environment, the Hospitals further argues that the
  "Commission's contention that the cumulative effect of the Hospitals'
  purported discriminatory conduct violated Leyva's civil rights and
  ultimately forced her to quit her job is functionally indistinguishable
  from plaintiff's hostile work environment claim in Conley[ v. Village
  of Bedford Park, 215 F.3d 703 (7th Cir. 2000)]." Resp. at 16.  Conley,
  however, is distinguishable from this case.  In that case, the plaintiff
  argued that "the sum total of actions by the Village rises to the
  level of a statutory violation," which the court interpreted to be an
  ADA claim of hostile work environment.  Conley, 215 F.3d at 712-13.
  The Commission, however, is not arguing that the sum total of the
  Hospitals' actions constitutes an actionable hostile work environment.
  Instead, the Commission contends that the Hospitals violated Title VII
  by effectively communicating to Leyva that it wanted her to quit and that
  if she did not quit she would be fired, which constituted an intolerable
  working condition.  Opening Br. at 17-24.  The Commission also contends
  that some of the Hospitals' other actions (Shaw's instructing Leyva
  to remove her clock and calendar because they were too denominational;
  Shaw's instructing Leyva not to recruit from her church; Shaw's calling
  Leyva derogatory religious names, etc.) go to show that the reason
  the Hospitals wanted to get rid of Leyva was because of her religion.
  Opening Br. at 24-25.
 The Commission presented admissible evidence from which a reasonable
 jury could conclude that the Hospitals subjected Leyva to intolerable
 working conditions by communicating to her that if she did not quit she
 would be fired because of her religious beliefs

  The Hospitals argues that some of the evidence relied upon by the
  Commission constitutes inadmissible hearsay and therefore could not
  properly be considered on a motion for summary judgment.  Resp. at 28-29.
  Specifically, the Hospitals contends that the following statements
  are hearsay: 1.) Borkowicz' statement that Leyva called and said "it
  looked like she was going to get fired," R.20, Ex. B-Pg. 68; 2.) Leyva's
  statement that Borkowicz told her that Shaw wanted her to quit so that
  she would be unable to collect unemployment, R. 20, Ex. A-Pgs. 134;
  144-45; 3.) Leyva's statement that Borkowicz told her she "should watch
  [her] back" and that Shaw was "setting [her] up so that [she] would
  quit, gathering complaints and gathering whatever she could," R. 20,
  Ex. A-Pg. 204; and 4.) Leyva's statement that Borkowicz told her that
  Shaw fired him because he had refused to fire her, R. 20, Ex. A-Pg. 105.
  Resp. at 28-29.
  These statements do not constitute hearsay.  Under the Federal Rules of
  Evidence, "hearsay" is defined as a statement made "other than one made
  by the declarant while testifying at the trial or hearing, offered in
  evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c)
  (emphasis added).  Thus, statements that are not offered for the truth
  of the matter asserted are not hearsay.  See Smith v. Great American
  Restaurants, Inc., 969 F.2d 430, 437 (7th Cir. 1992).
  Here, the statements objected to by the Hospitals are not offered
  to prove the truth of the matter asserted but to show Leyva's state
  of mind, i.e., that she reasonably believed that Shaw wanted to
  force her to resign and that if she did not, Shaw would fire her.
  See Neal v. Honeywell Inc., 995 F. Supp. 889, 892-93 (N.D. Ill. 1998),
  aff'd 191 F.3d 827 (7th Cir. 1999).  In Neal, the court considered
  whether the plaintiff's testimony that a co-worker told her that
  the company's production manager had threatened to "break the legs
  of the whistleblower" (who was the plaintiff) constituted hearsay.
  See id. at 892-93.  The court stated that the plaintiff's testimony
  did not constitute hearsay because it had been admitted "not for its
  truth, but to prove, true or not, the effect it had on [plaintiff],
  whose state of mind was critical in determining whether there was [ ]
  constructive discharge."  Id. at 893.
  As in Neal, Leyva's testimony about what Borkowicz told her about his
  termination and about Shaw's plans to get rid of her goes to Leyva's
  state of mind and whether she reasonably believed that if she did
  not quit, she would be fired.  Borkowicz' statement that Leyva called
  and told him she was going to get fired also constitutes admissible
  non-hearsay because it is not being offered for the truth (whether Leyva
  really was going to get fired) but to show Leyva's state of mind with
  respect to her forced resignation (that she believed she was going to
  be fired).
  The Hospitals also argues that the district court's opinion should be
  affirmed because the record does not support the Commission's argument
  that Leyva quit because the Hospitals made her believe she would
  be fired.  Resp. at 27-28.  Specifically, the Hospitals points to the
  failure of Leyva's resignation letter to state that she was afraid she
  was going to be fired and argues that no "competent evidence exists in
  the record reasonably to infer that Leyva quit because she believed the
  Hospitals was about to fire her," and, finally, claims that "nothing
  that happened to Leyva even remotely suggested an imminent discharge."
  Id. at 27-28.
  The Commission's opening brief, however, details the factual allegations
  that would support the conclusion of a reasonable jury that Leyva quit
  because the Hospitals made her believe she would be fired because of
  her Evangelical Christian beliefs.  Opening Br. at 20-22.  At trial,
  the Hospitals would be free to argue that Leyva was not constructively
  discharged because Leyva's resignation letter did not express concern
  over her imminent termination, but the existence of the letter does
  not negate the existence of other evidence in the record from which a
  jury could conclude that Leyva was constructively discharged because
  the Hospitals made it clear that it wanted her to resign and that if
  she did not she would be fired.  Moreover, for an employee to state in
  a resignation letter that she was resigning only because she knew she
  was going to be fired would defeat the very purpose of resigning-to quit
  before being fired in order to avoid having the stain of a termination
  on one's record.
 The Commission did not waive its argument that the Hospitals
 constructively discharged Leyva by making her reasonably believe she
 was going to be fired because of her religious beliefs

  Citing Hoeller v. Eaton Corp., 149 F.3d 621, 625 (7th Cir. 1998), the
  Hospitals argues that by failing to present to the district court its
  argument that the Hospitals constructively discharged Leyva because she
  knew that Shaw wanted to fire her because of her religion, the Commission
  waived this argument.  Resp. at 27.  The Hospitals' argument is without
  merit.
  In Hoeller, the plaintiff claimed that the defendant violated the
  Americans with Disabilities Act ("ADA") by firing him.  Id. at 622.
  On appeal, he argued that his bipolar disorder substantially limited his
  "thought processes" and his "communication skills and interpersonal
  relationships."  Id. at 625 (internal quotation marks omitted).
  This Court held that the plaintiff waived his claim about "thought
  processes" by failing to argue it before the district court and that
  the district court had considered and rejected his argument about
  "communication skills and interpersonal relationships."  See id.
  Here, in contrast, the Commission argued before the district court--as
  it argued to this Court--that the Hospitals constructively discharged
  Leyva because of her religious beliefs.  Cf. Weigel v. Target Stores,
  122 F.3d 461, 464 (7th Cir. 1997) (holding that the plaintiff waived
  her reasonable accommodation claim where she emphatically stated
  to the district court that she was bringing a disparate treatment
  claim, not a reasonable accommodation claim).  The first line of the
  Commission's response to the Hospitals' motion for summary judgment
  states, "[t]his is a religious discrimination case in which JoAnn Shaw
  . . . constructively discharged Victoria Leyva because of her religion."
  R. 26, Pg.1.  In that first paragraph, the Commission went on to state
  that Shaw told Borkowicz to fire Leyva because of her religion, that
  one of the reasons Shaw fired Borkowicz was his refusal to fire Leyva,
  and that Bottoroff "succeeded in getting rid of Leyva by first hiring
  her replacement, then effectively placing her on probation, ordering
  her not to hire persons who were members of her church, and, in case
  she still did not get the message, allowing her office to be packed
  up while she was on vacation."  Id. (emphasis added).  Thus, the first
  page of the Commission's response to the Hospitals' motion for summary
  judgment sets forth the theory pursued by the Commission on appeal:
  that Leyva reasonably believed that Shaw wanted to force her to quit
  or would fire her because of her religious beliefs, which amounts to
  a constructive discharge prohibited by Title VII.
  Later in its response to the Hospitals' motion for summary judgment,
  the Commission cited Maschka v. Genuine Parts Co., 122 F.3d 566 (8th
  Cir. 1997) for the proposition that "a showing that the employer's
  actions were intended to make the employee resign remains the simplest
  method of proving a constructive discharge case."  R. 26, Pg. 7 (footnote
  omitted).  The Commission argued before both the district court and
  this Court that Maschka supported its claim of constructive discharge.
  See R. 26, Pg. 7 ("'With evidence of both [Defendant's] desire to see
  [Plaintiff] leave and threats of financial penalties for his staying,
  the jury could reasonably conclude that [Defendant] intentionally made
  the conditions of [Plaintiff's] employment sufficiently intolerable
  so that he would leave.'") (quoting Maschka, 122 F.3d at 572); Opening
  Br. at 19 (quoting the same passage from Maschka).<4>
  The Commission also argued before the district court and before this
  Court that Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998)
  supports the Commission's theory that Leyva quit just ahead of the
  fall of the axe.  See R. 26, Pg. 8 (arguing that in this case, unlike
  in Lindale, there were indications that the Hospitals wanted to get
  rid of Leyva and that she quit just ahead of the fall of the axe);
  Opening Br. at 16 (same).
  Thus, the argument presented by the Commission on appeal was one
  presented to the district court: that Leyva reasonably believed that
  because of her religious beliefs, Shaw wanted to force her to quit
  and was about to fire her, which constituted an intolerable working
  condition supporting the Commission's constructive discharge claim.
  Because the Commission presented to the district court its constructive
  discharge claim, and because the argument made on appeal to support
  this claim was made to the district court, this argument was not waived.

 CONCLUSION

  Because the Commission raised a genuine issue of material fact with
  respect to whether the Hospitals constructively discharged Leyva based on
  her religion, this Court should reverse the district court's erroneous
  decision granting summary judgment in favor of the Hospitals and
  dismissing the Commission's Title VII religious discrimination claim.

  Respectfully submitted,

 GWENDOLYN YOUNG REAMS
 Associate General Counsel

  PHILIP B. SKLOVER
 Associate General Counsel

 CAROLYN L. WHEELER
 Assistant General Counsel

 ________________________
 ANNE NOEL OCCHIALINO
 Attorney
 U.S. EQUAL EMPLOYMENT COMMISSION
 Office of General Counsel
 1801 L Street, N.W., Rm. 7030
 Washington, D.C. 20507
 (202) 663-4724

 April 11, 2001
 CERTIFICATE OF COMPLIANCE

  I, Anne Noel Occhialino, hereby certify that this brief complies with
  the type-volume

 limitations imposed under Fed. R. App. P. 32(a)(7)(B).  The brief contains
 4,124 words.



        _______________________
        Anne Noel OcchialinoCERTIFICATE OF SERVICE

       I, Anne Noel Occhialino, hereby certify that I served two copies
       of the foregoing brief and one copy of the foregoing brief on
       digital media, this 11th day of April, 2001 by first-class mail,
       postage pre-paid, to the following:

 Nina G. Stillman
 Vedder, Price, Kaufman & Kammholz
 222 N. La Salle St.
 Chicago, IL 60601
 (312) 609-7560

 _____________________
 Anne Noel Occhialino
 Attorney
 U.S. EQUAL EMPLOYMENT COMMISSION
 Office of General Counsel
 1801 L Street, N.W., Room 7030
 Washington, D.C. 20507
 (202) 663-4724




 1 To establish a prima facie case of discrimination under the
 burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411
 U.S. 792 (1973), a plaintiff must show: 1.) membership in a protected
 class; 2.) satisfactory performance of job duties; 3.) a materially
 adverse employment action; and 4.) that non-members of the protected
 class were treated more favorably.  See Simpson v. Borg-Warner Auto.,
 Inc., 196 F.3d 873, 876 (7th Cir. 1999).

 2 Although the plaintiff had been laterally transferred without a
 reduction in pay, Parrett, 737 F.2d at 693, this Court's analysis of the
 constructive discharge claim did not rest on this finding.  See id. at
 694.

 3 Indeed, no language in any of the cases cited by the Commission
 supports the creation of a rule that a constructive discharge claim can
 be maintained only when a plaintiff has been subjected to a hostile
 work environment or an adverse employment action.  See Br. at 17-19
 (citing Acrey v. American Sheep Indus. Ass'n, 981 F.2d 1569, 1574
 (10th Cir. 1992) (holding that a jury could reasonably find that the
 plaintiff believed her job was in jeopardy and that she had therefore
 been constructively discharged when the defendant negatively evaluated
 the plaintiff, took away long-standing job responsibilities, denied
 her needed training, twice asked her to resign because of her age and
 her "image," and threatened her with termination if she refused); Lopez
 v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (holding that
 a trier of fact could conclude that the plaintiff was constructively
 discharged when his supervisor put him on a 90-day probationary period
 and told him that he would be fired at the end of the period regardless
 of his performance), overruled on other grounds by Patterson v. McLean
 Credit Union 491 U.S. 164 (1989); Burks v. Oklahoma Publ'g Co., 81 F.3d
 975, 978 (10th Cir. 1996) (stating that the Tenth Circuit has "recognized
 that an employee can prove a constructive discharge by showing that she
 was faced with a choice between resigning or being fired") (citation
 omitted); Welch v. University of Tex. & Its Marine Sci. Inst., 659 F.2d
 531, 533-34 (5th Cir. 1981) (finding that "[a] reasonable person would
 certainly resign employment after being ordered to leave" when plaintiff's
 supervisor warned her that he did not want a female doctor working for
 him and then, after she received her doctorate, demanded to know when
 she was leaving); Downey v. Southern Natural Gas Co., 649 F.2d 302,
 303 (5th Cir. Unit B June 1981) (reversing grant of summary judgment in
 favor of employer on plaintiff's constructive discharge claim when the
 employer's personnel director told the plaintiff that "he was in danger
 of being discharged because the company did not want to keep him around
 until the mandatory retirement age of seventy" and warned him that if
 he were fired, he would lose his stock benefits); Maschka v. Genuine
 Parts Co., 122 F.3d 566, 572 (8th Cir. 1997) (concluding that "[w]ith
 evidence of both [the defendant's] desire to see [the plaintiff] leave and
 threats of financial penalties for his staying, the jury could reasonably
 conclude that [the defendant] intentionally made the conditions of [the
 plaintiff's] employment sufficiently intolerable so that he would leave")
 (footnote omitted); Brown v. East Miss. Elec. Power Ass'n, 989 F.2d
 858, 863 (5th Cir. 1993) (holding that "[a] plaintiff who resigns after
 demotion has been constructively discharged if a reasonable employee
 in the plaintiff's position would have believed that the demotion was
 a harbinger of dismissal," but stating nothing about the standard for
 constructive discharge requiring a showing of an adverse employment
 action preceding the plaintiff's resignation) (citation omitted)).

 4 The circuit courts of appeals are split with respect to what standard
 to use in constructive discharge cases.  This Court has joined the
 majority of the circuits in adopting an objective standard that
 requires a plaintiff to show that the conditions of employment were
 sufficiently intolerable that a reasonable person would have resigned.
 See Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996); see generally
 Martin W. O'Toole, Choosing a Standard for Constructive Discharge in
 Title VII Litigation, 71 Cornell L. Rev. 587, 588 (1985) (discussing
 circuit split regarding standard for constructive discharge cases).
 Like a few other circuit courts of appeals, the Eighth Circuit holds
 "that in addition to demonstrating intolerable conditions, a plaintiff
 must show that her employer had the specific intent of coercing her
 resignation."  O'Toole, supra, at 587 (footnotes omitted and emphasis
 added).  In this case, the Commission presented evidence not only that the
 Hospitals subjected Leyva to intolerable working conditions that would
 have caused a reasonable person to resign, but also that the Hospitals
 had the specific intent of coercing her resignation.  Therefore, the
 Commission's evidence would satisfy even the more stringent constructive
 discharge standard used by the Eighth Circuit.