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.

Janice L. White brought this racial harassment and constructive

discharge suit against her employer, Honeywell, Inc. Following trial, a

jury rendered its verdict in favor of Honeywell on each claim. White

appeals various evidentiary rulings made by the district court during the

course of trial and challenges the jury instruction on constructive

discharge. We reverse and remand for a new trial.
White's complaint also included a claim of retaliation, but the district court

1

granted Honeywell's motion for summary judgment on that claim, and it is not at issue

in this appeal.

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I.

Janice White filed this lawsuit on November 30, 1993, alleging that

Honeywell violated Title 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 Civil

Rights Act of 1991. Specifically, White alleged that Honeywell subjected

her to a racially hostile work environment from March 1984 through her

alleged constructive discharge on June 24, 1992, when she left work on a

medical leave of absence due to a mental breakdown. At trial, the

1

district court limited the scope of White's Title VII claim to acts

occurring after September 13, 1990. That was the date White filed her

first administrative charge with the Minneapolis Department of Civil Rights

and the Equal Employment Opportunity Commission (the EEOC), alleging racial

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 subsequent

administrative 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 district

court determined that although White had alleged a continuing violation

since 1984, her failure to timely file suit on the first administrative

charge required it to limit the scope of her Title VII claim to acts

occurring after September 13, 1990. The district court also limited

White's § 1981 claim of racial discrimination to acts occurring after

November 21, 1991, the effective date of the Civil Rights Act of 1991.
We note that we are not reviewing the evidence on a claim of insufficient

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

banc), cert. denied, 117 S. Ct. 2510 (1997). Instead, we are reviewing the evidence

with claims of evidentiary and instructional error in mind. For this reason, while we

respect and give great deference to a jury's fact-finding role, our concern in this case

is to recite the evidence presented by both parties in order to review the district court's

discretionary evidentiary and instructional decisions.

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The evidence presented at trial included the following. Janice

2

White, an African-American woman, began working in Honeywell's assembly

department in 1978. In 1984, she transferred to a position as one of two

factory clerks in the Minneapolis general offices, where she reported

directly to Dave Easthagen, who reported directly to Bill Megarry, who was

under Caren Olsen. White worked closely with a co-clerk, Mildred Benson,

who is a Caucasian woman. From 1984 through 1992, Benson and White worked

side by side in a large office area where White was the only AfricanAmerican worker.

White attempted 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 would throw work at her desk

rather than hand it to her and that Benson always spoke to her in very

harsh terms, criticized her work, and accused her of being lazy and stupid.

White testified that when she asked Benson why Benson treated her so

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 believed that Benson's attitude

and behavior were motivated by prejudice on the basis of White's race.
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White said that she often complained of this alleged racial

harassment to Easthagen, her immediate supervisor, and to his immediate

supervisor, Megarry. She complains that instead of investigating her

allegations, they made excuses for Benson and gave Benson more favorable

treatment. White said she also discussed her complaints with Caren Olsen,

who at first was Megarry's supervisor and after a company reorganization

became Easthagen's direct supervisor. Thus, according to White, Honeywell

management knew of her 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 presented the testimony of other workers who had heard Benson

raise her voice to White (Appellant's App. at 133) and who had also heard

Benson call White names such as "asshole" and "black bitch" (id. at 829).

Fred Ewing, a Honeywell manager, testified that Benson's abusive behavior

was common knowledge among the managers, including Easthagen, Megarry, and

Olsen. Ewing had heard them informally wondering 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 intensified. White began to lose

hope that she would ever see improvement in the situation, and she said she

sought counseling in 1991 when her depression over the situation caused her

to become suicidal. White also asserted that in June 1992, Benson once

again had called her a "little black bitch," and she was certain that on

this occasion, Easthagen had overheard the comment. (Id. at 293-94.)

Easthagen denied overhearing any such remark when White complained to him,

and Benson denied making the remark when Easthagen confronted her. White

reported the incident to labor relations, but again nothing came of her

complaint. Additionally, close in time to this incident, a custodian told

White he would give her
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a quarter if she would bend over. When she complained of the custodian's

behavior to his supervisor, the supervisor told her it was a form of a

compliment. However, the custodian was ultimately reprimanded for his

conduct. 

On June 24, 1992, White was found in Honeywell's conference center

crying hysterically. An employee assistance program counselor, Susan

Searle, decided White should be taken to a hospital emergency room. White

told Searle, "I just don't want to be harassed when I come to work." (Id.

at 699.) Searle said that White specifically referenced Benson's remarks

and the custodian's comment. White never returned to work. She presented

evidence that she was treated for an acute episode of depression and

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. Novak testified that White's troubles at Honeywell had contributed

significantly to this diagnosis. 

Honeywell's evidence contradicted White's testimony. Benson denied

calling White derogatory names or directing profanity at her and denied

feeling irritated or annoyed by White. Benson said 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 dispute

between White and Benson until after White filed her first EEOC charge.

He testified that he understood White's complaints as amounting to nothing

more than a personality conflict between the two women. He therefore did

not investigate whether Benson's actions were racially motivated.

Easthagen testified that no practical alternative existed to the two of

them working 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 to

transfer to several other available
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positions at the same rate of pay, yet she chose to keep working with

Benson. Honeywell presented the testimony of several co-workers who said

they never heard Benson use inappropriate language when speaking to White.

Honeywell also presented evidence that White never filed a union grievance

concerning the situation. 

Honeywell presented evidence to show that White's experience at

Honeywell was not the cause of her mental health problems. Honeywell

demonstrated that White had a long history of depression and personal

problems, suffering several bouts of depression throughout the late 1970s

and 1980s. In 1977, White's twin brother shot White and her three-year-old

son, killing both her son and the fetus she was carrying. She also has

been a victim of domestic abuse at the hands of her husband. Additionally,

Honeywell presented evidence that White's treating physicians provided

Honeywell with several dates when White could be expected to return to

work, but White never returned. She remained on medical leave through the

time of trial. 

The jury was asked to respond to three 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; and

(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 committed

reversible error by excluding her evidence of a racially derogatory

statement by Megarry (a now deceased former supervisor), by admitting into

evidence the EEOC no probable cause findings, and by erroneously

instructing the jury on the requirements for a constructive discharge.
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II.

A. Discriminatory Statement of Supervisor

White challenges the verdicts on her hostile environment claim,

contending first that the district court abused its discretion by excluding

from evidence a discriminatory statement allegedly made in 1988 by Bill

Megarry, when he was Easthagen's direct supervisor. The statement excluded

from evidence would have shown that when confronted with White's complaints

through a union representative in 1988, Megarry responded, "If the dumb

nigger doesn't like it she can sign out." (Appellant's App. at 59.) The

district court concluded that the prejudicial effect of this evidence

outweighed its probative value under Federal Rule of Evidence 403. We give

substantial deference to the trial court's exclusion of evidence under Rule

403, but the trial court's exercise of discretion in excluding evidence

"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] substantial

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 to

discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such

individual's race." 42 U.S.C. § 2000e-2(a). Consistent with this

language, courts have held that Title VII protects a worker from

discriminatory conduct that is so severe and pervasive as "to create an

objectively hostile or abusive work environment." Harris v. Forklift Sys.,

Inc. 510 U.S. 17, 21 (1993). This occurs "[w]hen the workplace is

permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment." Id. (internal

quotations and citations omitted). Whether a hostile environment existed

can be determined only by looking at all the circumstances, which "include

the frequency of the discriminatory conduct; its severity; whether it is

physically
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threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes 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 alteration

omitted). 

At the time Megarry allegedly made the statement, he was a supervisor

in White's chain of command and was responsible for labor relations, but

he was no longer a direct supervisor of White during 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 was

when the court considered Honeywell's motion in limine to exclude the

statement. Assuming the statement was admissible under Rule 801(d)(2)(D)

as nonhearsay, the court expressed the view that the statement was "so

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 also 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 understood the purpose for which

the statement was being offered, i.e., "that Honeywell had either a bad

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 could not put him on the stand to deny or explain the

alleged statement. It also noted that the statement 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 anybody

testify to what Mister Megarry said, because of the very inflammatory

words. For that very reason I am going to not allow it to come in." (Id.

at 20.) When White's counsel protested the
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ruling, the court returned to Megarry's unavailability saying, "If Megarry

was here, it would come in." (Id. at 22.) 

After Honeywell's counsel had told the 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 revisit its decision excluding Megarry's comment. The court again

indicated that use of the comment would be unfair because Megarry could not

defend himself and that the plaintiff had "lots of other evidence . . . to

show that attitude." (Id. at 25.) 

Later, during trial, the issue was addressed for the final time.

After hearing both counsels' renewed arguments, the court reaffirmed its

initial Rule 403 ruling while recognizing the very importance of the

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 "very, 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 matter

within 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 prejudicial

effect and the probative value of the statement. See Mahlandt v. Wild

Canid Survival & Research Ctr., 588 F.2d 626, 631 (8th Cir. 1978). We also

agree with the district court that Megarry's statement is not itself

actionable conduct because it falls outside the time limitations imposed

on the actionable conduct for this suit. Nevertheless, considering the

totality of the circumstances, we respectfully disagree with the court's

ultimate conclusion, find that a mistake has been 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
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admitted, because its probative value was not substantially outweighed by

any danger of unfair prejudice. 

This background evidence, if believed by the jury, would have helped

White to demonstrate knowledge and an ongoing pattern of racial harassment

and discriminatory animus directly linked to the management-level at

Honeywell. We have long held that "[e]vidence of prior acts of

discrimination is relevant to an employer's motive . . . , even where this

evidence is not extensive enough to establish discriminatory animus by

itself." Estes, 856 F.2d at 1104. Although Megarry was no longer in

White's direct chain of command during the actionable time frame, he was

in her chain at the time the statement was allegedly made, and he remained

thereafter in the same cubicle in the same department as Easthagen's peer.

Throughout trial, Honeywell managers maintained that they did not know race

was an issue until after White filed her first EEOC charge. If believed,

the statement attributed to Megarry could be used to determine that the

acts complained of during the actionable time period were more likely to

have occurred than not. The statement, if believed, demonstrates that

management may have failed to take action on White's frequent complaints

out of a discriminatory animus, and it helps to define the general work

atmosphere, or the totality of the circumstances, so it matters little that

White did not hear Megarry's statement. The statement also could have been

used to explain why Megarry took no action on the complaints White says she

made directly to him. The statement is also relevant in resolving the

ultimate question of constructive discharge -- whether the workplace was

so racially abusive and hostile that a reasonable employee would have felt

compelled to quit. See Delph, 130 F.3d at 356. "Evidence of a general

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 case where race discrimination is the issue, the introduction

of alleged racist remarks is not to be unexpected. The possibility that

a jury might be so inflamed by
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the contents of the remark so as to decide the case based on passion, needs

to be balanced against the fact that such remarks are potent evidence of

attitude and environment. Having already heard the other racially

pejorative appellations contained in the evidence, we doubt this additional

statement would have been enough to have caused the jury to decide the case

on an unfair basis. The district court said it had a lot of confidence in

the jury ("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 district court was also concerned that Megarry's unavailability

rendered the statement unfairly prejudicial because Megarry was unable to

explain or deny his statement. We respectfully disagree. This statement

was admissible under Rule 801(d)(2)(D), and although 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 the declarant is not relevant under Rule 801(d)(2)(D)

because under the rule, the statement is not hearsay. Pappas v. Middle

Earth Condominium Ass'n, 963 F.2d 534, 538 (2d Cir. 1992). Several courts

have held that a statement by a declarant who is deceased at the time of

trial may be admissible under Rule 801(d)(2)(D). See Savarese v. Agriss,

883 F.2d 1194, 1201 (3d Cir. 1989) (citing Pino v. Protection Maritime

Ins., 599 F.2d 10, 13 (1st Cir. 1979), and Cedeck v. Hamiltonian Fed. Sav.

& Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977)). We agree with the

Third Circuit's conclusion that in this circumstance, "the fact of the

declarant's death impacts on the weight of the evidence rather than its

admissibility." Id. Megarry's statement is admissible, 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 matter

within the scope of the agency or employment [and was] made during the

existence of the relationship." Fed. R. Evid. 801(d)(2)(D). Megarry's

death and the inability to cross-examine him concerning the basis for the

statement go to its weight, not to its admissibility. While we understand

the normal
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human inclination is to look askance at those who attribute unkind or

socially unacceptable statements to a deceased person who cannot defend

himself, a plaintiff assumes the real tactical risk that a jury is very

likely to discredit the purported utterance just because it is being

offered. 

While the statement, because of its potential high probative value

(if believed), is undoubtedly damaging and therefore in that sense

prejudicial to Honeywell's case, it is not unfairly prejudicial. It helps

to define the essential 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 racial discrimination case and that its probative value clearly

outweighs the danger of any unfair prejudicial effect the statement may

carry with it. Thus, the district court abused its discretion by excluding

Megarry's statement and committed reversible error. 

B. The Agencies' No Probable Cause Findings

White's second evidentiary challenge attacks the district court's

decision to admit the outcome of White's three administrative charges. The

district court did not admit the documents themselves but allowed witnesses

to testify to the ultimate findings of the agencies. "[W]e leave questions

concerning the admission 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 conclusion 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 of

improper acts on behalf of the defendant. (See Appellant's Adden. at 14-

15.) Honeywell first elicited the results of the EEOC
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investigation from White'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 additional stress and was a factor

leading to White's breakdown. Honeywell also elicited the EEOC charge

results from several Honeywell managers who testified -- Easthagen (White's

supervisor), Caren Olsen (Easthagen's immediate supervisor), George Glasser

(a labor relations manager), and Michael McEnnely (director of factory

human resources). Honeywell's counsel mentioned the agency findings in

opening and closing statements as well. 

White complains that the district court abused its discretion by

allowing Honeywell's repetitive references to the EEOC findings of no

probable cause. We disagree. 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 the

kind of fact-finding that occurs in a court of law, about the meaning of

a no probable cause finding, and about the charging party's options after

receiving a no probable cause determination. Furthermore, the district

court instructed the jury that it "should not consider the findings of

these other agencies to be binding upon you, but they may be considered by

you as any other evidence." (Appellant's App. at 83.) Further, the

court's instruction told the jury, "You must make your own determination

based upon your review of all the evidence presented 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. 1995). Given White's opportunity to discredit the agency

determinations and the district court's cautionary 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 the

EEOC charges in this case.
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C. Jury Instruction on Constructive Discharge

White contends that the district court erroneously instructed the

jury on the elements of constructive discharge. "A district court has

broad discretion in drafting jury instructions." Pittman v. Frazer, 129

F.3d 983, 987 (8th Cir. 1997). On review, we simply determine "whether the

instructions, taken as a whole and viewed in the light of the evidence and

applicable law, fairly 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 instructions

are committed to the sound discretion of the district court so long as the

jury is correctly instructed on the substantive issues in the case."

Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir. 1995)

(internal quotations and alterations omitted), cert. denied, 117 S. Ct. 179

(1996). We will reverse on the basis of instructional error only if we

find that the error "affected the substantial rights of the parties." Kim,

123 F.3d at 1057 (internal quotations omitted). 

Instruction 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 determining

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. at 52.) White challenges the district court's use of

the word "quit" in the instruction. The uncontroverted evidence showed

that White is on an unpaid medical leave of absence, but she is technically

still employed by Honeywell. To avoid use of the term "quit" in her given

situation, White proposed an instruction which asked 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 instruction and also rejected her

proposed modification of the court's instruction, in which she sought to

substitute the words "leave" or "left" for "quit" in the court's

instruction.
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We have often stated that constructive discharge occurs when an

employer "deliberately renders the employee's working conditions

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 been

whether the employer deliberately rendered the working conditions

intolerable, not whether the employee actually "quit" the job. White

claims that she should not be required to prove that she "quit" her job

where she contends that intolerable working conditions forced her to take

an unpaid medical leave of absence, required her to leave her job, and

prevent her from returning. 

We must determine whether a situation where allegedly intolerable

working conditions force an employee into an unpaid medical leave of

absence from which she is allegedly unable to return is essentially the

same as forcing an employee to "quit" for purposes of proving a

constructive discharge claim. We conclude that it is sufficient and that

the district court committed reversible error by not adjusting the language

from our cases to fit the facts and issues tried. 

While we have not specifically addressed the question of whether

forced unpaid medical leave is analogous to quitting, we have articulated

the standard of constructive discharge in terms of "leaving" the

employment. We have stated that constructive discharge occurs "when an

employer intentionally renders working conditions so intolerable that an

employee 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 answer to our question in this

case, but 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 authority 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 slightly different context, the

Second Circuit has stated, "A constructive
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discharge may be found on the basis of evidence that an employer

deliberately sought to place an employee in a position that jeopardized his

or her health." Spence v. Maryland Cas. Co., 995 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 from

performing his job." Sanchez v. Puerto Rico Oil Co., 38 F.3d 712, 719 (1st

Cir. 1994). 

Some district court cases have spoken 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 not quit, her medical leave

without pay was caused by her intolerable work situation." The court held

this to be a constructive discharge for the purpose of back pay liability.

In a case from the Northern District of Texas, the court reasoned, "if

'granting leave' rises to the level of an adverse employment action, surely

forcing [an employee] to take leave does as well." Shafer v. Dallas County

Hosp. Dist., No. CA 3-96-CV-1580-R, 1997 WL 667933 at *6 (N.D. Tex. Oct.

21, 1997) (unpublished). The court concluded that constructive imposition

of medical leave should be no less actionable under Title VII than

constructive discharge; and for lack of a better term, the court called the

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

constructive discharge instruction. A person who has suffered a forced

unpaid medical leave of absence, from which she is unable to return and

which resulted from objectively intolerable working conditions, is in no

better position than one who was forced to quit as a result of objectively

intolerable conditions. In either case, the employer has, through

objectively intolerable conditions, forced the employee out of active

service. We believe it is sufficient for a plaintiff to prove that an

employer deliberately rendered working conditions intolerable and thus

forced the employee to permanently "leave" the employment; the employee

need not prove that she technically "quit" in every case.
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Given the facts at issue in this case, we conclude the district

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 conditions and were reasonably

foreseeable. Requiring her to prove that she "quit" her job at Honeywell,

when in fact she did not quit but contends that the abusive working

conditions forced her to take an unpaid medical leave of absence from which

she is unable to return, was tantamount to directing a verdict for

Honeywell. Additionally, during deliberations, the jury submitted a

written question to the district court indicating that the jurors were

concerned 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 for

a new trial. 

III.

Accordingly, we conclude that the district court committed reversible

error in failing to admit the alleged statement of Bill Megarry and in

instructing the jury that White had to prove she "quit" her job. We

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.