TABLE OF CONTENTS

ARGUMENT. 1

CONCLUSION.. 15

CERTIFICATE OF COMPLIANCE. 17

CERTIFICATE OF SERVICE. 18

TABLE OF AUTHORITIES

FEDERAL CASES

Acrey v. Amer. Sheep Indus. Ass’n, 981 F.2d 1569 (10th Cir. 1992)................. 7

Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410 (8th Cir. 2010)............. 9

Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998)........................... 13

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)................................... 12

Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81 (2d Cir. 1996)..................... 4

Coffman v. Tracker Miner, L.P., 141 F.3d 1241 (8th Cir. 1998)................. 9, 11

Delph v. Dr. Pepper Bottling Co. of Paragould, 130 F.3d 349 (8th Cir. 1997) 14

EEOC v. Univ. of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002)................. 5

Faragher v. Boca Raton, 524 U.S. 775 (1998)................................................ 12

Faruki v. Parsons S.I.P., Inc., 123 F.3d 315 (5th Cir. 1997)............................. 7

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978)............................ 15

Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d. Cir. 1984)................... 6, 8

Hanenburg v. Principal Mutual Life Insurance Co., 118 F.3d 570 (8th Cir. 1997) 10

Howard v. Burns. Brothers Inc., 149 F.3d 835 (8th Cir. 1998)......................... 4

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568 (8th Cir.1997)........................ 14

Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987)................................ 7

Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997).................... 5, 7-8

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).............................. 15

Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000)........................ 6, 8, 14

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)............................... 12

Sanders v. Lee Co. Sch. District Number 1, 669 F.3d 888 (8th Cir. 2012)......... 4

Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23 (1st Cir. 1997)................. 8

Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467 (8th Cir. 1990)............. 11

Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490 (8th Cir. 1996)....................... 3-4

Trierweiler v. Wells Fargo Bank, 639 F.3d 456 (8th Cir. 2011)....................... 10

Welch v. University of Texas, 659 F.2d 531 (5th Cir. 1981)............................... 8

FEDERAL RULES & STATUTES

Fed. R. App. P. 35........................................................................................... iv

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................ 1

RULE 35(b) REQUIRED STATEMENT

Federal Rule of Appellate Procedure 35 permits rehearing to address decisions that conflict with this Court’s precedent for “consideration by the full court . . . to secure and maintain uniformity of the court’s decisions.” Fed. R. App. P. 35. The panel’s decision in this constructive discharge case erroneously 1) omitted analysis of critical evidence related to the plaintiff’s resignation; and 2) held that the plaintiff had failed to provide the defendant with an opportunity to remedy the problem, in reliance on inapposite precedent. These aspects of the panel’s decision conflict with the following precedent:

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

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

Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998)

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In this case, a panel of this Court affirmed a grant of summary judgment on the plaintiff’s constructive discharge claim, but without analyzing key evidence presented in support of that claim, and then applied an analytical framework inapplicable to the facts. We therefore offer our views to the Court in support of rehearing.

ARGUMENT

In analyzing plaintiff Angela Ames’s constructive discharge claim, the panel failed to consider highly probative evidence, including the totality of the circumstances leading up to Ames’s compelled departure and, most notably, the defendant’s express directive to Ames that she resign and its dictation of the words she was to use in tendering her resignation. The panel’s failure to address this evidence led it to further err by applying an analytical framework inapplicable to a case in which the plaintiff’s resignation was involuntary. This Court should grant rehearing to correct the panel’s analysis.

When Ames returned from maternity leave, she arrived to find her office occupied by another employee’s belongings. App. 515, ¶ 5. That employee, Ames learned, had been training for Ames’s position in her absence. App. 435. When Ames met with her direct supervisor, Brian Brincks (App. 426), he asked her “if working the overtime that was needed to bring me caught up would be a problem with having the new baby at home.” App. 439. Though Brincks was supposed to have taken over Ames’s work during her maternity leave, “nothing had been done.” App. 468. Instead, Brincks told Ames that she had to get caught up on all the work that had accumulated during her maternity leave—a period of approximately 8 weeks (May 18, 2010 to July 19, 2010) (App. 515 ¶¶ 4, 6)—in two weeks time. App. 468. Otherwise, he told her, she would “start receiving write-ups.” Id.

That day, Ames also sought help from her Department Supervisor, Karla Neel (App. 430), with gaining access to one of Nationwide’s lactation rooms. App. 515, ¶ 6. Neel responded by stating “it was not her job to get me set up with a room.” Id. Ames then sought assistance from the company nurse, explaining that she needed to express milk as soon as possible. App. 467. The nurse responded that Nationwide required the completion of paperwork, and a 3-day waiting period during which the paperwork was processed. Id. Though a wellness room might be available later, the nurse recommended against expressing milk there for sanitation reasons. Id. Ames again sought Neel’s help. App. 434 (“There wasn’t time to think. I just went to her desk and asked if she knew of a way I could get into another room.”). Neel saw that Ames was upset. App. 165. By this time, Ames’s medical expert explained that Ames’s physical discomfort from being unable to express milk would have become “extreme.” App. 496-97. It was at that time that Neel told Ames, “You know, I think it’s best that you just go home to be with your babies. And I just stared at her, and I was crying.” App. 437. Then, Neel took out a yellow pad of paper and told Ames, “Just write ‘As of July 19^th, I, Angela Ames, give my resignation to Nationwide’ and then sign it and date it.” App. 437.[1] When asked if Neel had asked her to quit, Ames testified, “She told me to quit. Ask me? No.” App. 439 (emphasis added).

Of the evidence discussed above, the panel’s analysis only addressed Brinck’s expectation that Ames complete the work that had accrued during her maternity leave in two weeks. Order at 8 (concluding that the expectation was not unreasonable). In so doing, the panel erred in failing to address critical facts leading up to Ames’s forced resignation in its analysis, despite precedent from this Court requiring that evidence be examined in its totality to evaluate a constructive discharge claim. See, e.g., Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 495-96 (8th Cir. 1996) (analyzing surrounding circumstances of resignation and observing that a court’s analysis “must keep in mind that each successive episode has its predecessors” and “must not concentrate on individual incidents, but on the overall scenario”) (quoting Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir.1992), and Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir.1996), respectively). See also Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996) (“Because a reasonable person encounters life’s circumstances cumulatively and not individually, it was error to treat the various conditions as separate and distinct rather than additive.”).

Nor did the panel analyze whether the evidence would allow a reasonable jury to conclude that the working conditions were sufficiently intolerable to amount to a constructive discharge. Order at 7-9. But see Tidwell, 93 F.3d at 494 (“To constitute a constructive discharge, the employer must create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit”; further explaining that a “constructive discharge arises only when a reasonable person would find the conditions of employment intolerable”).

Though this Court has previously acknowledged that it has “struggled with the question of what type of conditions are ‘intolerable’ for constructive discharge purposes,” Howard v. Burns. Bros. Inc., 149 F.3d 835, 841 (8th Cir. 1998), precedent from this Court assessing intolerability reflects that the plaintiff need not always present a litany of egregious conduct or longstanding harassment to make the requisite showing. See Sanders v. Lee Co. Sch. Dist. No. 1, 669 F.3d 888, 893-94 (8th Cir. 2012) (defendant demoted plaintiff from finance position to food services assistant, but plaintiff was on leave during that time and never worked in the reassigned role; this Court held this incident was sufficient to support the constructive discharge claim because the demotion would have been demeaning); Maschka v. Genuine Parts Co., 122 F.3d 566, 571-72 (8th Cir. 1997) (sufficient evidence to support verdict in favor of constructive discharge claim, where defendant told plaintiff his pension benefits would decline substantially in his new position, which was a threat of financial penalty for staying on that would have “naturally le[d] him to consider carefully whether he should continue in his position],” and comments from management which showed that the company wanted him to quit).

Here, evidence that Ames found her office space occupied by another employee who had been trained for her position in her absence would allow the reasonable inference that Nationwide thereby signaled to Ames that it no longer planned on retaining her. See EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002) (stating that plaintiff’s decision to submit her resignation letter “could have surely been based on seeing her belongings packed up and her office being used for storage—a sight that signaled to Leyva that her superiors were set to” end her employment). Evidence that Brincks told Ames she would be disciplined if she was unable to complete eight weeks of work in two weeks, and simultaneously questioned whether “having the new baby at home” would interfere with her ability to meet that demand, is also supportive of a constructive discharge. See Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888-89 (3d Cir. 1984) (affirming finding of constructive discharge and recounting facts including supervisor’s expression of “his doubts about [plaintiff’s] ability to combine motherhood and a career”). Neel’s order that Ames resign, after saying she thought it best that Ames “just go home to be with your babies,” also supports a constructive discharge finding, and would do so standing alone, as discussed below. The cumulative effect of these events would allow a reasonable inference that Nationwide attempted to make the situation unworkable for Ames upon her return. Certainly, Nationwide made its intent to force Ames’s resignation most explicit by Neel’s direction to Ames to write her resignation.

Of the factual omissions in the panel’s analysis, most striking is its failure to discuss the compelled nature of Ames’s resignation. That failure was error in light of the significance that this Court attaches to evidence that the employer suggested, encouraged, or as here, effectively ordered the plaintiff to resign. See Ogden v. Wax Works, Inc., 214 F.3d 999, 1007-8 (8th Cir. 2000) (sufficient evidence to support verdict in favor of plaintiff’s constructive discharge claim, including testimony that plaintiff’s manager “told her she could no longer remain with the company”; that evidence showed that the employer “either intended to force Ogden to resign or could have reasonably foreseen she would do so”); Maschka, 122 F.3d at 571-72 (affirming denial of judgment as a matter of law for defendant on plaintiff’s constructive discharge claim, in part based on evidence of management comments conveying the belief that the plaintiff “did not fit into its future plans,” which “indicat[ed] the company wanted him to quit”).

Other courts of appeals have likewise viewed an employer’s communication that it no longer wishes to employ the plaintiff as compelling evidence that a constructive discharge has occurred. See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319-20 (5th Cir. 1997) (reversing grant of summary judgment on constructive discharge claim, where district court failed to address the “most compelling evidence” that plaintiff’s supervisor told him he should find another job, and triable issue existed as to whether employer was motivated by discriminatory animus); Acrey v. Amer. Sheep Indus. Ass’n, 981 F.2d 1569, 1574 (10th Cir. 1992) (sufficient evidence to support verdict on constructive discharge claim, including evidence that plaintiff’s immediate supervisor asked her to quit); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (reversing grant of summary judgment on constructive discharge claim, where plaintiff’s supervisor told him he would be fired after his probationary period no matter what plaintiff did to improve his allegedly deficient performance; stating a “trier of fact might find that [the supervisor]’s statement alone suffices to establish a constructive discharge”); Goss, 747 F.2d at 888 (discussing evidence that plaintiff was told to accept a new sales territory or resign in affirming district court’s finding of constructive discharge); Welch v. Univ. of Texas, 659 F.2d 531, 533-34 (5th Cir. 1981) (“A reasonable person would certainly resign employment after being ordered to leave”; affirming district court’s finding that constructive discharge had occurred, where plaintiff’s supervisor told her that, as a female doctor, she would be unable to work for him). See also Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 27-28 (1st Cir. 1997) (stating that factual circumstances “tending to strengthen a case for constructive dismissal” include suggestions by management to take an early retirement).

In light of Ogden, Maschka, and precedent from other circuits, the evidence that Neel instructed Ames to resign and dictated the words she was to write supports the conclusion that a reasonable person would have felt forced to resign. The panel’s contrary conclusion that “Nationwide did not intend to force Ames to resign” is untenable and warrants review by the full Court. See Order at 8.

Because the panel improperly ignored the evidence of the compulsory nature of Ames’s resignation, it also applied the wrong legal rule when it erroneously concluded that Ames acted unreasonably by not giving Nationwide another opportunity, after her exchange with Neel, to grant her access to a lactation room. See Order at 8-9.

If Neel had not directed Ames to resign, but instead had been unresponsive or simply unhelpful, the panel’s conclusion would be consistent with this Court’s precedent requiring that a plaintiff provide the employer with a reasonable opportunity to remedy the problem before resigning. See Order at 9 (Ames acted “unreasonably and failed to provide Nationwide with the necessary opportunity to remedy the problem she was experiencing” by not attempting to see the company nurse after her exchange with Neel, or contacting human resources). Cf. Coffman v. Tracker Miner, L.P., 141 F.3d 1241, 1247 (8th Cir. 1998) (discussing “principles” that inform this Court’s resolution of constructive discharge claims, including an emphasis that “‘[t]o act reasonably, an employee has an obligation not to assume the worst and not to jump to conclusions too quickly.’ If an employee quits without giving her employer a reasonable chance to work out a problem, then she has not been constructively discharged.”) (internal citations omitted). See also Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418-19 (8th Cir. 2010) (plaintiff did not give defendant a reasonable opportunity to remedy continued harassment, where she never notified management that the harassment persisted after her earlier complaint).

But in this case, Ames did not jump to a conclusion or fail to give Nationwide a reasonable opportunity to remedy her workplace problems. Neel, the most senior management official in Ames’s department, ordered Ames to quit, then immediately handed her the pad of paper on which to write the resignation, and then dictated her resignation letter word-for-word.

Where a plaintiff’s resignation has been forcibly compelled, as here, this Court’s “reasonable opportunity” precedent is inapplicable because that case law presumes the voluntary nature of the employee’s decision to resign and analyzes the relevant facts accordingly. See, e.g., Trierweiler v. Wells Fargo Bank, 639 F.3d 456,460-461 (8th Cir. 2011) (where plaintiff “chose not to return to work after her medical leave concluded,” thereby resigning, holding that plaintiff acted unreasonably and failed to give defendant employer an opportunity to remedy the problem; plaintiff had presented “no evidence to suggest that she had made any attempt to work out her concerns” regarding maternity leave or the company’s attendance demands); Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997) (plaintiff never gave defendant reasonable opportunity to improve conditions, where plaintiff chose to resign while on leave, after making only one complaint about a harsh written warning, which defendant withdrew so it could determine whether plaintiff was singled out for unfair treatment).

Nor is the purpose of this Court’s “reasonable opportunity” inquiry served in the context of an involuntary resignation, as the policy animating that inquiry is to prevent a plaintiff from acting presumptuously, or resigning prematurely without having given the employer a chance to redress the condition causing the plaintiff to contemplate resignation. See, e.g., Coffman, 141 F.3d at 1247-48 (plaintiff failed to provide defendant reasonable opportunity in light of evidence that defendant “tried to prevent her resignation and attempted to solve the problems” when the plaintiff threatened to resign, and where defendant had taken corrective action in response to plaintiff’s earlier harassment complaint); Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 470, 472-73 (8th Cir. 1990) (plaintiff’s decision to resign rather than accept job reassignment did not amount to constructive discharge given lack of evidence of intent on defendant’s part to induce plaintiff’s resignation; also concluding that in light of defendant’s assurances that plaintiff’s reduction in base salary would be offset by commission earnings and the reassignment would not be permanent, plaintiff’s resignation was unreasonable and premature). That policy concern—to prevent the plaintiff from resigning prematurely without giving the employer a chance to resolve the underlying problem—is not served by requiring an employee to continue seeking recourse from an employer after it has ordered the plaintiff to resign. Indeed, where a resignation is compelled, the employee neither “assume[s] the worst” nor “jump[s] to conclusions too quickly.” The employer has made its intention perfectly clear that the employee is to resign.

That Neel’s directive that Ames resign was an “official act” that precipitated the constructive discharge provides further support for the inapplicability of this Court’s “reasonable opportunity” framework to this case. See Pennsylvania State Police v. Suders, 542 U.S. 129, 140-41 (2004). In Suders, the Supreme Court held that an employer may not assert as an affirmative defense that the plaintiff acted unreasonably by failing to pursue an employer-provided means of resolution where “the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation.” Id. at 134. In so holding, the Court discussed at length the rationale of its decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), which held that an employer is strictly liable for a supervisor’s conduct that culminates in a tangible employment action. Id. at 137. Absent an official act, the “uncertainty” as to whether the misconduct could be fairly attributed to the employer would justify allowing an employer to argue that it should not be held vicariously liable because a plaintiff unreasonably failed to avoid or reduce harm. Id. at 146, 148-49.

In light of Suders, Neel’s express order to Ames that she resign was an official act for which Nationwide is strictly liable, and the panel’s inquiry into whether Ames acted reasonably in pursuing remedial measures was therefore error. Indeed, the panel’s application of the “reasonable opportunity” framework was even more incongruous in light of the evidence that Ames was in the very process of pursuing various forms of recourse within Nationwide when Neel ordered her to quit. By ordering Ames’s immediate resignation, Neel short-circuited the remedial process that Ames had initiated. Where it is the employer who disrupts the remedial process and effectively forecloses it by ordering the plaintiff’s resignation, it makes little sense to then penalize the plaintiff for failing to give the employer another chance thereafter to remedy the workplace issue.

Though this Court’s “reasonable opportunity” rule is the wrong framework by which to analyze Ames’s claim, other precedent from this Court supports the conclusion that Ames acted reasonably when she resigned. For example, in Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998), this Court cited evidence reflecting the clarity of the employer’s intent to get rid of the plaintiff in concluding that the jury had a sufficient basis to find that she had given the defendant a reasonable opportunity to work out the problem by the time she resigned. Id. at 858-59. Although the district court had granted judgment as a matter of law on the verdict in favor of the constructive discharge claim because the plaintiff had not given the employer a reasonable opportunity to work out the problem, this Court reversed in light of evidence that the employer’s method for forcing an undesirable employee to quit was to reduce her hours, and at the time of the plaintiff’s resignation, she was aware of that practice and her hours had been substantially reduced. Id. Likewise, Nationwide’s intent to force Ames to quit could not have been more explicit—Neel ordered Ames to quit and gave her the very words and means by which to immediately effectuate her resignation.[2]

This Court has also observed that where the futility of complaining further can be inferred from the evidence, the employee was reasonable in resigning rather than providing the employer another opportunity to remedy the situation. See Ogden, 214 F.3d at 1007-1008 (“[W]e have held if an employee quits because she reasonably believes there is no chance for fair treatment, there has been a constructive discharge”) (citing Kimzey v. Wal–Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir.1997); Delph v. Dr. Pepper Bottling Co. of Paragould, 130 F.3d 349, 356 n. 5 (8th Cir. 1997) (as it was plaintiff’s direct supervisor and the most senior employee in the office who were engaged in discriminatory conduct, noting that plaintiff’s failure to complain to his supervisors was excusable, as “[t]here would be little point in going to one’s supervisors to challenge the [discriminatory conduct] when it is those same supervisors who are creating and perpetuating it.”). Similarly here, it was Neel, the head of Ames’s department, who dictated the resignation letter, and it makes no sense to require Ames to question Neel’s authority to do so.

Rigid application of the rule that employees must give employers a reasonable opportunity to remedy problems constitutes legal error in this case. As “facts necessarily will vary in Title VII cases,” the Supreme Court explained that the McDonnell-Douglas framework for analyzing a discrimination claim would not necessarily apply “in every respect to differing factual situations.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-76 (1978) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13 (1973). Nor was that framework ever intended to be “rigid, mechanized, or ritualistic.” Id. at 577. In this case, the panel applied a permutation of the McDonnell-Douglas framework that presumes a plaintiff’s voluntary decision to resign. Given the compelled resignation at issue here, that framework was ill-suited for analyzing Ames’s claim and yielded an illogical holding that fails to serve the purpose for which this Court’s “reasonable opportunity” rule was adopted in the first instance.

CONCLUSION

For the foregoing reasons, the Commission urges this Court to rehear the case.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

/s/ Christine J. Back

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

[1] Apart from Neel’s direction, Ames never had any intention to quit. App. 434 (“I didn’t want to stay home. Being a stay-at-home mom wasn’t my identifier. Being a working mom was.”). Brinck, Ames’s direct supervisor, was surprised when Neel showed him the resignation letter, as there had been no indication from Ames that she planned to resign. App. 446.

[2] As Neel was the head of Ames’s department, Ames was reasonable in concluding that she had to comply with Neel’s directive and that her employment had effectively ended.