United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 97-1407

___________

Janice L. White, *

Plaintiff-Appellant, * Appeal from the United States

v. * of
Honeywell, Inc., *

Defendant-Appellee. * *

* District Court for the District

* Minnesota.

*

*

___________ Submitted: October 24, 1997 Filed: April 20, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.

Jan ice L. White brought this racial harassment and constructiv e discharge suit against her employer, Honeywell, Inc. Following trial, a jur y rendered its verdict in favor of Honeywell on each claim. Whit e appeals various evide ntiary rulings made by the district court during the

course of trial and challenges the jury instruction on constructiv e discharge. We reverse and remand for a new trial.

## White's complaint also included a claim of retaliation, but the district cour t 1 

## granted Honeywell's motion fo r summary judgment on that claim, and it is not at issue in this appeal.
-2- I.

Janice Wh ite filed this lawsuit on November 30, 1993, alleging that Honeywell violated Ti tle VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a ) (1994), and 42 U.S.C. § 1981 (1994), as amended by the Civi l Rights Act of 1991. Specifically, White alleged that Honeywell subjected her t o a racially hostile work environment from March 1984 through he r alleged constructive discharge on June 24, 1992, when she left work on a medical leave of absence due to a mental breakdown. At trial, th e 1 district court limited the scope of White's Title VII claim to act s occurring after September 13, 1990. That was the date White filed he r first administrative charge with the Minneapolis Department of Civil Right s and the Equal Employment Opportunity Commission (the EEOC), alleging racia l harassment, reprisal, and unfair job assignments . She failed, however, to timely file suit after receiving a no probable cause finding and a right to sue letter. Her present lawsuit is based on two subsequen t ad ministrative charges alleging a racially hostile work environment , constructive discharge, and retaliation. The agencies found no probable

cause on either charge and again issued right to sue letters. The distric t court determined that although White had alleged a continuing violatio n since 1984, her failure to timely file suit on the first administrativ e charge req uired it to limit the scope of her Title VII claim to act s
occu rring after September 13, 1990. The district court also limite d White's § 1981 claim of racial discrimination to acts occurring afte r November 21, 1991, the effective date of the Civil Rights Act of 1991.

## We no te that we are not reviewing the evidence on a claim of insufficien t 2 

## evidence to support the verdict, a standard under which we review the facts in the light most favorable to the verdict. See Ryther v. Kare 11 , 108 F.3d 832, 836 (8th Cir.) (en ba nc), cert. denied , 117 S. Ct. 2510 (1997). Instead, we are reviewing the evidenc e with claims of evidentiary and instructional error in mind. For this reason, while w e respectand give great deference to a jury's fact-finding role, our concern in this case is to recite the evidence presented by b oth parties in order to review the district court's discretionary evidentiary and instructional decisions.
-3- Th e evidence presented at trial included the following. Janic e 2 White, an African-American woman, began working in Honeywell's assembl y department in 1978. In 1984, she transferred to a position as one of two factory clerks in the Minneapolis general offices, where she reporte d directly to Dave Easthagen, who reported directl y to Bill Megarry, who was under Caren Olsen. W hite worked closely with a co-clerk, Mildred Benson, who is a Caucasian woman. From 1984 through 199 2, Benson and White worked side by s ide in a large office area where White was the only African

American worker.

White att empted to show she suffered racial harassment from Benson, her co-worker. White alleged that she suffered a pattern of daily verbal abuse by Benson, who referred to White as a "colored girl," "jackass, " "asshole," and "little black bitch," among other derogatory names

. (Appellant's App. at 210.) White said Benson wo uld throw work at her desk rath er than hand it to her and that Benson always spoke to her in ver y harsh terms, criticized her work, and accused her of being lazy and stupid

. Whit e testified that when she asked Benson why Benson treated her s o poorly, Benson "would just tell me I could leave if I didn't like what she was doing." ( Id. at 221.) White kept a journal in which she recorded the alleged abuse she said she endured. White belie ved that Benson's attitude and behavior were motivated by prejudice on the basis of White's race.

## -4- White said that she often complained of this alleged racia l harass ment to Easthagen, her immediate supervisor, and to his immediat e superv isor, Megarry. She complains that instead of investigating he r allegations, they made excuses for Benson and gave Benson more favorable treatment. White said she also discussed her co mplaints with Caren Olsen, who at first was Megarry's supervisor and after a company reorganization became Easthagen's direct supervisor. Thus, acc ording to White, Honeywell management knew of he r complaints of racial harassment yet did nothing to change her racially hostile working environment. White testified that she became increasingly emotionally upset over how she was being treated and because Honeywell was doing nothing to improve the situation despite her repeated complaints and suggestions.

White pre sented the testimony of other workers who had heard Benson raise her voice to Wh ite (Appellant's App. at 133) and who had also heard Benson call White nam es such as "asshole" and "black bitch" ( id. at 829). Fred Ewing, a Honeywe ll manager, testified that Benson's abusive behavior was common knowledge among the managers, includi ng Easthagen, Megarry, and Olsen. Ewing had heard them informally wonderin g how White could take the abuse. He said that management generally accepted Benson's behavior , stating, "We knew how Millie was." ( Id. at 134.)

White testified that after September 13, 1990 (the date of her first EEOC charge), the verbal abuse by Benson intensi fied. White began to lose hope that she would ever see improvement in the situation, and she said sh e sought counseling in 1991 when her depression over the situation caused he r to become suicidal. White also asserted that in June 1992, Benson onc e again had called her a "little black bitch," and she was certain that on this oc casion, Easthagen had overheard the comment. ( Id. at 293-94. ) Easthagen denied overhearing any such remark whe n White complained to him, and Benson denied mak ing the remark when Easthagen confronted her. White reported the incident to labor relations, but again nothing came of he r complaint. Additionally, close in time to this incident, a custodian told White he would give her

## -5-

a quarter if she woul d bend over. When she complained of the custodian's behavior to his supervisor, the supervisor told her it was a form of a compli ment. However, the custodian was ultimately reprimanded for hi s conduct.

On June 24, 1992, White was found in Honeywell's conference cente r crying hysterically. An employee assistance program counselor, Susa n Searle, decided White should be taken to a hospi tal emergency room. White told Searle, "I just don't want to be harassed w hen I come to work." ( Id. at 699.) Searle said that White specifically referenced Benson's remarks and the custodian's comment. White never return ed to work. She presented evid ence that she was treated for an acute episode of depression an d anxiety with uncontrollable weeping secondary to work-related stress. She

was eventually awarded full disability benefits for major depression and was still on an unpaid medical leave of absence from Honeywell at the time of trial. White presented the testimony of Dr. Carol Novak , who diagnosed White as having major depressive disorder, severe, with psychotic features

. Dr. No vak testified that White's troubles at Honeywell had contribute d significantly to this diagnosis.

Honeywell 's evidence contradicted White's testimony. Benson denied cal ling White derogatory names or directing profanity at her and denie d feeling irritated or annoyed by White. Benson s aid she had very little to do with White.

Honeywell presented the testimony of managers and other employees as well. Easthagen denied any knowledge that race was at issue in the disput e between White and Benson until after White filed her first EEOC charge

. He testified that he understood White's complain ts as amounting to nothing more than a personali ty conflict between the two women. He therefore did not in vestigate whether Benson's actions were racially motivated

. Eas thagen testified that no practical alternative existed to the two o f themworking in close proximity given their job assignments. Olsen also denied knowledge that the problems between White and Benson involved any racial animus. Honeywell presented evidence that White was free t o transfer to several other available

## -6-

positions at the same rate of pay, yet she chose to keep working wit h Benson. Honeywell pr esented the testimony of several co-workers who said they never heard Benson use inappropriate langua ge when speaking to White. Honeywell also presented evidence that White nev er filed a union grievance concerning the situation.

Hon eywell presented evidence to show that White's experience a t Honeywell was not the cause of her mental health problems. Honeywel l demonst rated that White had a long history of depression and persona l problems, suffering s everal bouts of depression throughout the late 1970s and 1980s. In 1977, White's twin brother shot White and her three-year-ol d
son, killing both her son and the fetus she was carrying. She also ha s been a victim of domestic abuse at the hands of her husband. Additionally , Hone ywell presented evidence that White's treating physicians provide d Honey well with several dates when White could be expected to return t o work, but White never returned. She remained onmedical leave through the time of trial.

The jury was asked to respond to thr ee special verdicts: (1) whether White was subject to a racially hostile work environment between November 21, 1991, and June 24, 1992; (2) whether White was subject to a racially hostile work environment between September 30, 1990, and June 24, 1992; an d (3) whether White was constructively discharged on the basis of her race. After hearing all the evidence, the jury found for Honeywell on all three claims

. White appeals, contending that the district court committe d

revers ible error by excluding her evidence of a racially derogator y statement by Megarry (a now deceased former supe rvisor), by admitting into eviden ce the EEOC no probable cause findings, and by erroneousl y instructing the jury on the requirements for a constructive discharge.

## -7- II. A. Discriminatory Statement of Supervisor

Whi te challenges the verdicts on her hostile environment claim , contending first that the district court abused its discretion by excludin g fro mevidence a discriminatory statement allegedly made in 1988 by Bil l Megarry, when he was Easthagen's direct supervisor. The statement exclude d from evidence would have shown that when confronted with White's complaint s thr ough a union representative in 1988, Megarry responded, "If the dum b nigger doesn't like i t she can sign out." (Appellant's App. at 59.) The distri ct court concluded that the prejudicial effect of this evidenc e outweighed its probative value under Federal Rule of Evidence 403. We giv e substantial deference to the trial court's exclusion of evidence under Rul e 403 , but the trial court's exercise of discretion in excluding evidenc e "must not unfairly prevent a party from proving his [or her] case." Estes

v. Dick Smith Ford, Inc. , 856 F.2d 1097, 1102-03 (8th Cir. 1988)

. Additionally, Rule 103 "preclude[s] a finding of reversible error unless the trial court's evidentiary rulings have affected [a party's] substantia l rights." Id. at 1105.
Title VII provides, in part, that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise t o discrim inate against any individual with respect to his compensation , terms, conditions, or privileges of employment, because of suc h individu al's race." 42 U.S.C. § 2000e-2(a). Consistent with thi s la nguage, courts have held that Title VII protects a worker fro m discriminatory conduct that is so severe and pervasive as "to create a n objectively hostile or abusive work environment." Harris v. Forklift Sys. , Inc. 510 U.S. 17, 21 (1993). This occurs "[w]hen the workplace i s permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employ ment and create an abusive working environment." Id. (interna l quotations and citati ons omitted). Whether a hostile environment existed can be determined only by looking at all the cir cumstances, which "include the frequency of the discriminatory conduct; its severity; whether it is physically

## -8-

threatening or humili ating, or a mere offensive utterance; and whether it unreasonably interfer es with an employee's work performance." Id. at 23. Thus, "[e]vidence of a hostile environment must not be compartmentalized, but must instead be based on the totality of circumstances of the entire hostile work environment." Delph v. Dr. Pepper Bottling Co. of Paragould, Inc. , 130 F.3d 349, 355 (8th Cir. 1997) (internal quotations and alteratio n omitted).

At the time Megarry allegedly made the statement, he was a supe rvisor in White's chain of command and was responsible for labor relations, but he was no longer a direct supervisor of White du ring the actionable period for this suit. The district court addressed the admissibility of Megarry' s statement at three separate times during the trial. The first time wa s when th e court considered Honeywell's motion in limine to exclude th e statement. Assuming the statement was admissible under Rule 801(d)(2)(D)

as no nhearsay, the court expressed the view that the statement was "s o prejudicial and so inflammatory" that it had to be excluded, even though the court also found that it was of "heavy" relevance. (Appellant's Adden

. at 18.) The court al so stated that its Rule 403 balancing was influenced by the fact that "you have so much other evidence -- if this was the only statement or the only comment being made or if this [was] where the real

onus of your case laid -- with Mr. Megarry's statement -- I would go the other way." ( Id. ) It is clear the court unders tood the purpose for which the statement was being offered, i.e., "that Honeywell had either a ba d attitude about blacks or was willing to put up with harassment of blacks; and, to me , the relevance of that [statement] then diminishes a bit. " ( Id. ) The court also was greatly concerned that because Mr. Megarry was deceased, Honeywell c ould not put him on the stand to deny or explain the alleged statement. It also noted that the state ment was not made directly to White and was not made during the actionable period of time. The court ended its balancing remarks by saying: "[I]t would be unfair to let anybod y testify to what Mister Megarry said, because of the very inflammator y words. For that very reason I am going to not a llow it to come in." ( Id. at 20.) When White's counsel protested the

## -9-

ruling, the court returned to Megarry's unavaila bility saying, "If Megarry was here, it would come in." ( Id. at 22.)

After Honeywell's counsel had told t he jury in his opening statement about Honeywell's favorable treatment of different races and Honeywell's attitude toward black people in general, White's counsel asked the court to revi sit its decision excluding Megarry's comment. The court agai n indicated that use of the comment would be unfair because Megarry could no t defend himself and that the plaintiff had "lots of other evidence . . . to show that attitude." ( Id. at 25.)

La ter, during trial, the issue was addressed for the final time

. After hearing both counsels' renewed arguments, the court reaffirmed its init ial Rule 403 ruling while recognizing the very importance of th e statement to the plaintiff ("[B]ecause, you know, it is what is normally called a 'smoking gun' kind of statement") ( id. at 33). Concluding that the comment was a "ve ry, very exacerbating kind of evidence," and that it

was "very prejudicial," and that the ruling was "close," the court ruled that basic fairness required that the comment not come in even though it

was relevant and might be admissible under Rule 801. We agree that this statement was not hearsay and was admissible as a statement by a party's agent made during the existence of the relationship and concerning a matte r with in the scope of the employment. See Fed. R. Evid. 801(d)(2)(D)

. Additionally, the district court correctly recognized that such evidence remains subject to Rule 403's balancing of the danger of unfair prejudicia l effect and the probative value of the statement. See Mahlandt v. Wil d Canid Survival & Research Ctr. , 588 F.2d 626, 631 (8th Cir. 1978). We als o agre e with the district court that Megarry's statement is not itsel f actionable conduct because it falls outside the time limitations imposed

on the actionable conduct for this suit. Nevertheless, considering th e totality of the circumstances, we respectfully disagree with the court's ultimate conclusion, find that a mistake has bee n made, and determine that the court abused its discretion in excluding the proffered statement . The statement is relevant and highly probative background material which, in our view, should have been

## -10-

admitted, because its probative value was not substantially outweighed by any danger of unfair prejudice.

This background evidence, if believe d by the jury, would have helped White to demonstrate knowledge and an ongoing pa ttern of racial harassment

an d discriminatory animus directly linked to the management-level a t Honeywe ll. We have long held that "[e]vidence of prior acts o f discrimination is relevant to an employer's moti ve . . . , even where this eviden ce is not extensive enough to establish discriminatory animus b y itself." Estes , 856 F.2d at 1104. Although Megarry was no longer i n White's direct chain of command during the actionable time frame, he was in her chain at the time the statement was alleg edly made, and he remained thereafter in the same cubicle in the same depar tment as Easthagen's peer. Throughout trial, Honeywell managers maintained that they did not know rac e was an issue until af ter White filed her first EEOC charge. If believed, the statement attributed to Megarry could be used to determine that th e acts complained of during the actionable time period were more likely to have occurred than not. The statement, if believed, demonstrates tha t management may have failed to take action on White's frequent complaints out of a discriminatory animus, and it helps to define the general wor k atmosphere, or the totality of the circumstances, so it matters little tha t White did not hear Megarry's statement. The statement also could have bee n used to explain why Megarry took no action on the complaints White says sh e made directly to him. The statement is also relevant in resolving th e ultimate question of constructive discharge -- whether the workplace was so racially abusive and hostile that a reasonabl e employee would have felt compe lled to quit. See Delph , 130 F.3d at 356. "Evidence of a genera l work atmosphere [ ] - as well as evidence of specific hostility directed toward the plaintiff - is an important factor in evaluating the claim [of

a hostile work environment]." Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1415 (10th Cir. 1987).

In a cas e where race discrimination is the issue, the introductio n of alleged racist remarks is not to be unexpected. The possibility that a jury might be so inflamed by

## -11-

the contents of the remark so as to decide the case based on passion, need s to be balanced against the fact that such remarks are potent evidence of attitu de and environment. Having already heard the other raciall y pejorative appellations contained in the evidence, we doubt this additiona l statement would have been enough to have caused the jury to decide the cas e on an unfair basis. The district court said it had a lot of confidence in the j ury ("They are very sharp jurors."). (Appellant's Adden. at 36. ) Here, because such evidence is so highly probative, the potential unfair prejudicial effect, i .e., its tendency to further inflame the jury is not enough to substantially outweigh its probative value.

The distr ict court was also concerned that Megarry's unavailability rendered the statemen t unfairly prejudicial because Megarry was unable to explain or deny his s tatement. We respectfully disagree. This statement was admissible under Rule 801(d)(2)(D), and alth ough it remains subject to the Rule 403 balancing of probative value and unfair prejudicial effect, unavailability itself is not a factor adding to unfair prejudicial effect. The availability of t he declarant is not relevant under Rule 801(d)(2)(D) because u nder the rule, the statement is not hearsay. Pappas v. Middl e Earth Condominium Ass'n , 963 F.2d 534, 538 (2d C ir. 1992). Several courts have held that a statement by a declarant who is deceased at the time of trial may be admissib le under Rule 801(d)(2)(D). See Savarese v. Agriss , 883 F .2d 1194, 1201 (3d Cir. 1989) (citing Pino v. Protection Maritim e Ins. , 599 F.2d 10, 13 (1st Cir. 1979), and Cedec k v. Hamiltonian Fed. Sav. & Lo an Ass'n , 551 F.2d 1136, 1138 (8th Cir. 1977)). We agree with th e Third Circuit's conclusion that in this circumstance, "the fact of th e declarant's death impacts on the weight of the evidence rather than it s admissibility." Id. Megarry's statement is adm issible, regardless of his availability, as an admission by a party opponent, because the statement

was made "by the party's [Honeywell's] agent or servant concerning a matte r within the scope of the agency or employment [and was] made during th e exi stence of the relationship." Fed. R. Evid. 801(d)(2)(D). Megarry' s death and the inabili ty to cross-examine him concerning the basis for the statement go to its weight, not to its admissibi lity. While we understand the normal

## -12-

human incl ination is to look askance at those who attribute unkind o r social ly unacceptable statements to a deceased person who cannot defen d himself, a plaintiff assumes the real tactical risk that a jury is ver y like ly to discredit the purported utterance just because it is bein g offered.

While the statement, because of its potential high probative valu e (if believed), is undoubtedly damaging and therefore in that sens e prejudicial to Honeywell's case, it is not unfai rly prejudicial. It helps to define the essenti al background against which White's claim arose. We conclude that the district court's decision to preclude White from using this highly probative piece of evidence affected her substantial rights in this r acial discrimination case and that its probative value clearl y out weighs the danger of any unfair prejudicial effect the statement ma y carry with it. Thus, the district court abused its discretion by excludin g Megarry's statement and committed reversible error.

B. The Agencies' No Probable Cause Findings

Whi te's second evidentiary challenge attacks the district court' s decision to admit the outcome of White's three administrative charges. Th e district court did not admit the documents themselves but allowed witnesse s to testify to the ultimate findings of the agencies. "[W]e leave question s concerning the admiss ion or exclusion of EEOC determinations to the sound discretion of the trial court." Estes , 856 F.2d at 1105. "The court must exercise its discretion, however, to ensure that unfair prejudice does not result from a conclus ion based on a cursory EEOC review of the very facts examined in depth at trial." Id. ; see also Johnson v. Yellow Freight Sys. , Inc. , 734 F.2d 1304, 1309 (8th Cir.), cert. denied , 469 U.S. 1041 (1984).

In this case, the district court held that the sequence of White' s EEOC charges and their outcomes were relevant to the expert's diagnosis of White' s condition, the sequence of events, and White's testimony o f improper acts on beha lf of the defendant. ( See Appellant's Adden. at 14- 15.) Honeywell first elicited the results of the EEOC

## -13-

investigation from Wh ite's expert witness, Dr. Carol Novak, who testified

on cross- examination that the EEOC's failure to find probable cause for White's charges of discrimination added addition al stress and was a factor leading to White's breakdown. Honeywell also elicited the EEOC charg e results from several Honeywell managers who testified -- Easthagen (White' s supervisor), Caren Olsen (Easthagen's immediate supervisor), George Glasse r (a lab or relations manager), and Michael McEnnely (director of factor y human resources). Honeywell's counsel mentioned the agency findings i n opening and closing statements as well.

White complains that the district court abused its discretion b y allowi ng Honeywell's repetitive references to the EEOC findings of n o probable cause. We d isagree. Our review of the record convinces us that the district court did not abuse its discretion by allowing witnesses to refer to the agency findings. White was allowed to present the rebuttal testimony of William Prock of the Minneapolis Department of Civil Rights. Prock testified about how the administrative investigation differs from th e kind of fact-finding that occurs in a court of law, about the meaning of a no probable cause f inding, and about the charging party's options after receiv ing a no probable cause determination. Furthermore, the distric t court instructed the jury that it "should not consider the findings o f these other agencies to be binding upon you, but they may be considered by you as an y other evidence." (Appellant's App. at 83.) Further, th e court's instruction told the jury, "You must make your own determination based upon your review of all the evidence prese nted to you." ( Id. ) When the court gives a limiting instruction, we assume that the jury followed that instruction. See United States v. Fregoso , 60 F.3d 1314, 1328 (8th Cir. 1 995). Given White's opportunity to discredit the agenc y determinations and the district court's cautiona ry instruction warning the jury not to consider the agency findings as binding, we conclude that the district court did not abuse its discretion by admitting the results of th e EEOC charges in this case.

## -14- C. Jury Instruction on Constructive Discharge

White contends that the district court erroneously instructed th e jury on the elements of constructive discharge. "A district court ha s broad discretion in drafting jury instructions." Pittman v. Frazer , 129 F.3d 983, 987 (8th Cir. 1997). On review, we simply determine "whether th e instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairl y and adequately submitted the issues in the case to the jury." Kim v. Nash Finch Co. , 123 F.3d 1046, 1057 (8th Cir. 1997 ) (internal quotations omitted). "The form and language of jury instruction s are committed to the sound discretion of the dis trict court so long as the jury is correctly instructed on the substantive issues in the case. " Sla thar v. Sather Trucking Corp. , 78 F.3d 415, 418 (8th Cir. 1995 ) (internal quotations and alterations omitted), cert. denied , 117 S. Ct. 17 9 (1996). We will reverse on the basis of instructional error only if w e find that the error "affected the substantial rights of the parties." Kim , 123 F.3d at 1057 (internal quotations omitted).

Instr uction No. 20 addressed the claim of constructive discharge , requiring proof of three elements: (1) "the defendant intentionally made plaintiff's working conditions intolerable such that a reasonable person would feel forced to quit;" (2) "the plaintiff's race was a determinin g factor in the defendant's actions;" and (3) "the plaintiff quit her job, which was a reasonably foreseeable result of defendant's actions. " (Appellant's Adden. a t 52.) White challenges the district court's use of the word "quit" in the instruction. The uncontroverted evidence showe d that White is on an unpaid medical leave of absence, but she is technicall y still employed by Honeywell. To avoid use of th e term "quit" in her given situation, White proposed an instruction which a sked the jury to determine whether "her leaving the workplace was a reasonably foreseeable result of defendant's actions." (Appellant's Adden. at 50 (emphasis added).) The district court rejected White's proposed instruc tion and also rejected her proposed modification of the court's instruction, in which she sought to

su bstitute the words "leave" or "left" for "quit" in the court' s instruction.

## -15- We have often stated that constructive discharge occurs when a n employer "deliberately renders the employee's working condition s intolerable and thus forces [the employee] to quit his job." Johnson v. Bunny Bread Co. , 646 F. 2d 1250, 1256 (8th Cir. 1981) (internal quotations omitted). In past cases, however, the question at issue generally has bee n whethe r the employer deliberately rendered the working condition s intoler able, not whether the employee actually "quit" the job. Whit e claims that she should not be required to prove that she "quit" her jo b where she contends th at intolerable working conditions forced her to take

an unpa id medical leave of absence, required her to leave her job, an d prevent her from returning.

We mu st determine whether a situation where allegedly intolerabl e work ing conditions force an employee into an unpaid medical leave o f absence from which she is allegedly unable to return is essentially th e
same as forcing an employee to "quit" for purposes of proving a constructive discharg e claim. We conclude that it is sufficient and that the district court committed reversible error by not adjusting the languag e from our cases to fit the facts and issues tried.

While we have not specifically addressed the question of whethe r forced unpaid medical leave is analogous to quitting, we have articulated the st andard of constructive discharge in terms of "leaving" th e emp loyment. We have stated that constructive discharge occurs "when a n employer intentionally renders working conditions so intolerable that an employe e is essentially forced to leave the employment." Bradford v

. Norfolk So. Corp. , 54 F.3d 1412, 1420 (8th Cir. 1995). To be sure, this statement of the standard is not a complete answ er to our question in this
case, bu t our use of the word "leave" in prior cases instead of "quit " demonstrates that, in the past, we have not been overly concerned that a plaintiff prove she technically quit her job.

Lacking a uthority on point in our own circuit, we also consider the views of other courts. We are unable to find a circuit court opinion that considers the exact issue before us. In a sligh tly different context, the Second Circuit has stated, "A constructive

## -16-

di scharge may be found on the basis of evidence that an employe r deliberately sought to place an employee in a position that jeopardized hi s or her health." Spence v. Maryland Cas. Co. , 99 5 F.2d 1147, 1156 (2d Cir. 1993). In a similar vein, the First Circuit has held that a constructive discharge may occur "when an employer effectively prevents an employee fro m performing his job." Sanchez v. Puerto Rico Oil Co. , 38 F.3d 712, 719 (1s t Cir. 1994).

Some district court cases have spoke n directly to the issue at hand. In Llewellyn v. Celanese Corp. , 693 F. Supp. 369 , 381 (W.D.N.C. 1988), the court stated, "Even though [the plaintiff] did n ot quit, her medical leave without pay was caused by her intolerable work s ituation." The court held this to be a constructive discharge for the purp ose of back pay liability. In a case from the Northern District of Texas, the court reasoned, "i f 'granting leave' rises to the level of an adverse employment action, surel y forcing [an employee] to take leave does as well." Shafer v. Dallas Count y Hosp. Dist. , No. CA 3-96-CV-1580-R, 1997 WL 667933 at *6 (N.D. Tex. Oct. 21, 1997) (unpublished). The court concluded th at constructive imposition of medical leave should be no less actionable under Title VII tha n constructive discharge; and for lack of a better term, the court called th e forced medical leave situation a constructive discharge. Id. at *6 & n.11

.

We are not prepared to say that "quit" is the magic word in a
con structive discharge instruction. A person who has suffered a force d unpaid me dical leave of absence, from which she is unable to return an d which resulted from objectively intolerable working conditions, is in no better position than one who was forced to quit as a result of objectively intole rable conditions. In either case, the employer has, throug h objecti vely intolerable conditions, forced the employee out of activ e service. We believe it is sufficient for a plaintiff to prove that a n employer deliberately rendered working conditions intolerable and thu s forced the employee to permanently "leave" the employment; the employe e need not prove that she technically "quit" in every case.

## -17- Given the facts at issue in this case, we conclude the distric t court's refusal to tailor the jury instructions to the facts of White' s case affected White's substantial rights. The jury should have been told that it could find a constructive discharge if White proved that both her taking of the medical leave and her failure to return from it were caused by the alleged racially intolerable working cond itions and were reasonably foreseeable. Requiring her to prove that she "q uit" her job at Honeywell, when in f act she did not quit but contends that the abusive workin g conditions forced her to take an unpaid medical leave of absence from whic h she is unable to return, was tantamount to directing a verdict fo r Ho neywell. Additionally, during deliberations, the jury submitted a written question to the district court indicating that the jurors wer e
conce rned over whether White had "quit" her job. The district court' s
answer merely directed them back to the language of Instruction No. 20

. Thus, it is very likely that the inaccurate instruction affected the jury' s deliberations and the jury verdicts. For these reasons, we conclude that the instructional error in this case is reversible error, and we remand fo r a new trial.

III.
Accordingly, we conclude that the district court committed reve rsible

error in failing to admit the alleged statement of Bill Megarry and i n instructin g the jury that White had to prove she "quit" her job. W e reverse the judgment based on the jury verdicts and remand for a new trial in accordance with the views expressed in this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.