No. 00-4065 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNIVERSITY OF CHICAGO HOSPITALS, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable Blanche M. Manning, No. 98 C 6109 _______________________________________________________ REPLY BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _______________________________________________________ GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Acrey v. American Sheep Industry Ass'n, 981 F.2d 1569 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993) . . . . 7 Burks v. Oklahoma Publ'g Co., 81 F.3d 975 (10th Cir. 1996) . . . . . . . . 6 Conley v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 2000) . . . . . . 7 Downey v. Southern Natural Gas Co., 649 F.2d 302 (5th Cir. Unit B June 1981) . . . . . . . . . . . . . . . . . . . . . 7 Hoeller v. Eaton Corp., 149 F.3d 621 (7th Cir. 1998) . . . . . . . . . . 11 Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) . . . . . . . . . . . 5 Lindale v. Tokheim Corp., 145 F.3d 953 (7th Cir. 1998) . . . . . . . . . . 13 Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987) . . . . . . . . 4, 6 Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997) . . . . . . 7, 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . 4 Miller v. American Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000) . . . 4 Neal v. Honeywell Inc., 955 F. Supp. 889 (N.D. Ill. 1998), aff'd 191 F.3d 827 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 9 Parrett v. City of Connersville, 737 F.2d 690 (7th Cir. 1984) . . . . . . . 6 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) . . . . . . . . . . . . . 13 Smith v. Great American Restaurants, Inc., 969 F.2d 430 (7th Cir. 1992) . . 9 Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873 (7th Cir. 1999) . . . . 4 Vitug v. Multistate Tax Comm'n, 88 F.3d 506 (7th Cir. 1996) . . . . . . . . 4 Welch v. Univ. of Tex. & Its Marine Sci. Inst., 659 F.2d 531 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997) . . . . . . . . . . 11 Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276 (7th Cir. 1990) . 5 MISCELLANEOUS Martin W. O'Toole, Choosing a Standard for Constructive Discharge in Title VII Litigation, 71 Cornell L. Rev. 587 (1985) . . . . . . . . . . . . . . . . 13 No. 00-4065 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNIVERSITY OF CHICAGO HOSPITALS, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable Blanche M. Manning, No. 98 C 6109 _______________________________________________________ REPLY BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _______________________________________________________ In its opening brief, the Commission argued that the district court erred in granting summary judgment for the Defendant, University of Chicago Hospitals ("Hospitals"), on the Commission's Title VII constructive discharge claim. The Commission contended that the district court erred in holding that the establishment of a hostile work environment is a prerequisite to maintaining a constructive discharge claim. Citing to cases from this Court and other courts of appeals, the Commission argued that if an employee reasonably believes that she is about to be fired for a discriminatory reason, the employee has been subjected to intolerable working conditions and may maintain a claim of constructive discharge. Based on evidence in the record, the Commission further argued that a reasonable jury could conclude that the Hospitals constructively discharged Plaintiff Victoria Leyva because she knew that her supervisor, George Ann Shaw, wanted to force her to quit because of her Evangelical Christian Baptist beliefs, that her direct supervisor, Ralph Borkowicz had been fired for refusing to fire her, and that the Hospitals was planning to fire her on Monday, July 20, 1991, when she returned from vacation. The Hospitals devotes most of its response brief to arguing that the district court properly analyzed the Commission's constructive discharge claim under a hostile work environment theory, despite the Commission's failure to allege a hostile work environment, and to making the strawman argument that the district court correctly concluded that because there was no hostile work environment, Leyva was not constructively discharged. The Hospitals concedes, however, that a hostile work environment is not the only type of intolerable working condition that can lead up to a constructive discharge but argues that in the absence of a hostile work environment a plaintiff must show that the constructive discharge was preceded by a materially adverse employment action. The law is not as restrictive as the Hospitals suggests. The Hospitals also contends that the evidence does not support the Commission's claim that a jury could find that Leyva was constructively discharged because the Hospitals wanted to get rid of her because of her religious beliefs, but there is plainly sufficient admissible evidence to raise a triable question of fact on this issue. Finally, the Hospitals argues against all reason that the Commission waived this argument by failing to present it to the district court. For the reasons discussed below and set forth in the Commission's opening brief, the Commission urges this Court to reverse the district court's entry of summary judgment in favor of the Hospitals and to remand this case to the district court for a trial on the merits. ARGUMENT 1. The Commission never argued that the Hospitals subjected Leyva to a hostile work environment Although the Hospitals argues at length that the district court properly found that the Hospitals did not constructively discharge Leyva because it did not subject her to a hostile work environment, Resp. at 17-26, this is a strawman argument. The Commission has not argued that the Hospitals subjected Leyva to a hostile work environment. Instead, the Commission argued in its opening brief that the district court erred in holding that the only type of intolerable working condition that could lead to an employee's constructive discharge was a hostile work environment. Opening Br. at 13-17. The Commission contended that intolerable working conditions that support claims of constructive discharge include those in which an employer's actions make an employee reasonably believe that she is no longer wanted or is in danger of being fired for a discriminatory reason. Id. Finally, the Commission argued that the district court erred in granting summary judgment for the Hospitals because it overlooked evidence in the record from which a reasonable jury could conclude that Leyva was constructively discharged because she reasonably believed that Shaw wanted to force her to resign and was about to fire her because of her religious beliefs. 2. Constructive discharge supplies the adverse employment action necessary to establish a prima facie case of religious discrimination The Hospitals concedes that a constructive discharge claim can be maintained in the absence of a hostile work environment. Resp. at 15. The Hospitals nevertheless asserts that the Commission "misses the point" because "[e]ach of the cases the Commission cites in support of its argument involves at least one adverse employment action which ultimately resulted in a constructive discharge." Resp. at 15. Without evidence of an adverse employment action, the Hospitals argues, the Commission's allegations "could not be considered under the generic employment discrimination paradigm, ‘for without a materially adverse job action, discrimination is not actionable.'" Resp. at 15 (quoting Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000)); see Resp. at 11-12 ("Because Leyva failed to allege that she suffered a materially adverse employment action–a necessary predicate to all employment discrimination claims except hostile work environment claims–the District Court was required to apply hostile work environment principles."). The Commission agrees that in the absence of a materially adverse job action, discrimination is not actionable under Title VII. The Commission respectfully contends, however, that it is the Hospitals that misses the point. Because a constructive discharge is an adverse employment action, it is the constructive discharge that supplies the adverse employment action needed to establish a prima facie case of discrimination.<1> See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) ("When a constructive discharge is found, an employee's resignation is treated–for the purpose of establishing a prima facie case of employment discrimination–as if the employer had actually discharged the employee.") (citation omitted), overruled on other grounds by Patterson v. McLean Credit Union, 491 U.S. 164 (1989). Thus, it is "[t]hrough this legal construct [that] a plaintiff who is forced out by discriminatory conduct may bring a successful Title VII claim even though the plaintiff was never officially dismissed by the defendant." Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir. 1996) (citation omitted). Therefore, employees do not have to show that their forced resignations (which constituted adverse employment actions in and of themselves) were preceded by separate adverse employment actions. The Hospitals asserts that the cases cited by the Commission to support its argument that a hostile work environment is not a prerequisite to establishing a constructive discharge claim "involved at least one adverse employment action which ultimately resulted in a constructive discharge." Resp. at 15 (citing Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000); Parrett v. City of Connersville, 737 F.2d 690 (7th Cir. 1984); Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276 (7th Cir. 1990)). Although Zabielski involved an employee whose constructive discharge was preceded by a demotion, nothing in this Court's opinion in that case suggests that an adverse action is the sine qua non of a constructive discharge claim. See Zabielski, 919 F.2d at 1281. Nor is there any language in this Court's opinions in Hunt and Parrett creating a rule that an adverse employment action is a prerequisite to a constructive discharge claim. In Hunt, this Court reiterated that "[t]he term ‘constructive discharge' refers to the situation in which an employer, without firing an employee, makes his working conditions so miserable that it drives him to quit." Hunt, 219 F.3d at 655 (citations omitted). This Court held in Hunt that because it would "be inconsistent with even a minimal sense of self-respect" for an employee to remain with an employer after being "told repeatedly that he is not wanted, has no future, and can't count on ever getting another raise," the plaintiff had been subjected to intolerable working conditions that would support his constructive discharge claim. Id. Contrary to the Hospitals' assertion, this Court's holding did not rest on a finding that the plaintiff's resignation had been preceded by an adverse employment action. See id. Rather, the facts suggest that the threat of future adverse actions (denial of raises) could support a constructive discharge claim. Parrett is similarly devoid of any language stating that the maintenance of a constructive discharge claim requires a showing of anything besides intolerable working conditions. In that case, which involved a Fourteenth Amendment claim of denial of property without due process of law, the employer removed plaintiff's job duties and gave him an office that had served as a storage closet.<2> Parrett, 737 F.2d at 693. This Court held that these circumstances supported the jury's finding of constructive discharge. See id. at 694. This Court's opinion focused on its determination that "anyone with some self-respect" would find it intolerable to work under the conditions imposed upon the plaintiff. See id. Thus, nothing in this Court's cases cited by the Commission suggests that the standard for a constructive discharge claim is that the plaintiff's resignation be preceded either by a hostile work environment or by an adverse employment action.<3> Therefore, it does not follow that he district court was left "with only hostile work environment as an analytic tool because it was the only paradigm capable of evaluating Leyva's claims in the aggregate." Resp. at 16. In support of its theory that the Commission was required to prove a hostile work environment, the Hospitals further argues that the "Commission's contention that the cumulative effect of the Hospitals' purported discriminatory conduct violated Leyva's civil rights and ultimately forced her to quit her job is functionally indistinguishable from plaintiff's hostile work environment claim in Conley[ v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 2000)]." Resp. at 16. Conley, however, is distinguishable from this case. In that case, the plaintiff argued that "the sum total of actions by the Village rises to the level of a statutory violation," which the court interpreted to be an ADA claim of hostile work environment. Conley, 215 F.3d at 712-13. The Commission, however, is not arguing that the sum total of the Hospitals' actions constitutes an actionable hostile work environment. Instead, the Commission contends that the Hospitals violated Title VII by effectively communicating to Leyva that it wanted her to quit and that if she did not quit she would be fired, which constituted an intolerable working condition. Opening Br. at 17-24. The Commission also contends that some of the Hospitals' other actions (Shaw's instructing Leyva to remove her clock and calendar because they were too denominational; Shaw's instructing Leyva not to recruit from her church; Shaw's calling Leyva derogatory religious names, etc.) go to show that the reason the Hospitals wanted to get rid of Leyva was because of her religion. Opening Br. at 24-25. 3. The Commission presented admissible evidence from which a reasonable jury could conclude that the Hospitals subjected Leyva to intolerable working conditions by communicating to her that if she did not quit she would be fired because of her religious beliefs The Hospitals argues that some of the evidence relied upon by the Commission constitutes inadmissible hearsay and therefore could not properly be considered on a motion for summary judgment. Resp. at 28-29. Specifically, the Hospitals contends that the following statements are hearsay: 1.) Borkowicz' statement that Leyva called and said "it looked like she was going to get fired," R.20, Ex. B-Pg. 68; 2.) Leyva's statement that Borkowicz told her that Shaw wanted her to quit so that she would be unable to collect unemployment, R. 20, Ex. A–Pgs. 134; 144-45; 3.) Leyva's statement that Borkowicz told her she "should watch [her] back" and that Shaw was "setting [her] up so that [she] would quit, gathering complaints and gathering whatever she could," R. 20, Ex. A-Pg. 204; and 4.) Leyva's statement that Borkowicz told her that Shaw fired him because he had refused to fire her, R. 20, Ex. A–Pg. 105. Resp. at 28-29. These statements do not constitute hearsay. Under the Federal Rules of Evidence, "hearsay" is defined as a statement made "other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c) (emphasis added). Thus, statements that are not offered for the truth of the matter asserted are not hearsay. See Smith v. Great American Restaurants, Inc., 969 F.2d 430, 437 (7th Cir. 1992). Here, the statements objected to by the Hospitals are not offered to prove the truth of the matter asserted but to show Leyva's state of mind, i.e., that she reasonably believed that Shaw wanted to force her to resign and that if she did not, Shaw would fire her. See Neal v. Honeywell Inc., 995 F. Supp. 889, 892-93 (N.D. Ill. 1998), aff'd 191 F.3d 827 (7th Cir. 1999). In Neal, the court considered whether the plaintiff's testimony that a co-worker told her that the company's production manager had threatened to "break the legs of the whistleblower" (who was the plaintiff) constituted hearsay. See id. at 892-93. The court stated that the plaintiff's testimony did not constitute hearsay because it had been admitted "not for its truth, but to prove, true or not, the effect it had on [plaintiff], whose state of mind was critical in determining whether there was [ ] constructive discharge." Id. at 893. As in Neal, Leyva's testimony about what Borkowicz told her about his termination and about Shaw's plans to get rid of her goes to Leyva's state of mind and whether she reasonably believed that if she did not quit, she would be fired. Borkowicz' statement that Leyva called and told him she was going to get fired also constitutes admissible non-hearsay because it is not being offered for the truth (whether Leyva really was going to get fired) but to show Leyva's state of mind with respect to her forced resignation (that she believed she was going to be fired). The Hospitals also argues that the district court's opinion should be affirmed because the record does not support the Commission's argument that Leyva quit because the Hospitals made her believe she would be fired. Resp. at 27-28. Specifically, the Hospitals points to the failure of Leyva's resignation letter to state that she was afraid she was going to be fired and argues that no "competent evidence exists in the record reasonably to infer that Leyva quit because she believed the Hospitals was about to fire her," and, finally, claims that "nothing that happened to Leyva even remotely suggested an imminent discharge." Id. at 27-28. The Commission's opening brief, however, details the factual allegations that would support the conclusion of a reasonable jury that Leyva quit because the Hospitals made her believe she would be fired because of her Evangelical Christian beliefs. Opening Br. at 20-22. At trial, the Hospitals would be free to argue that Leyva was not constructively discharged because Leyva's resignation letter did not express concern over her imminent termination, but the existence of the letter does not negate the existence of other evidence in the record from which a jury could conclude that Leyva was constructively discharged because the Hospitals made it clear that it wanted her to resign and that if she did not she would be fired. Moreover, for an employee to state in a resignation letter that she was resigning only because she knew she was going to be fired would defeat the very purpose of resigning–to quit before being fired in order to avoid having the stain of a termination on one's record. 4. The Commission did not waive its argument that the Hospitals constructively discharged Leyva by making her reasonably believe she was going to be fired because of her religious beliefs Citing Hoeller v. Eaton Corp., 149 F.3d 621, 625 (7th Cir. 1998), the Hospitals argues that by failing to present to the district court its argument that the Hospitals constructively discharged Leyva because she knew that Shaw wanted to fire her because of her religion, the Commission waived this argument. Resp. at 27. The Hospitals' argument is without merit. In Hoeller, the plaintiff claimed that the defendant violated the Americans with Disabilities Act ("ADA") by firing him. Id. at 622. On appeal, he argued that his bipolar disorder substantially limited his "thought processes" and his "communication skills and interpersonal relationships." Id. at 625 (internal quotation marks omitted). This Court held that the plaintiff waived his claim about "thought processes" by failing to argue it before the district court and that the district court had considered and rejected his argument about "communication skills and interpersonal relationships." See id. Here, in contrast, the Commission argued before the district court--as it argued to this Court--that the Hospitals constructively discharged Leyva because of her religious beliefs. Cf. Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997) (holding that the plaintiff waived her reasonable accommodation claim where she emphatically stated to the district court that she was bringing a disparate treatment claim, not a reasonable accommodation claim). The first line of the Commission's response to the Hospitals' motion for summary judgment states, "[t]his is a religious discrimination case in which JoAnn Shaw . . . constructively discharged Victoria Leyva because of her religion." R. 26, Pg.1. In that first paragraph, the Commission went on to state that Shaw told Borkowicz to fire Leyva because of her religion, that one of the reasons Shaw fired Borkowicz was his refusal to fire Leyva, and that Bottoroff "succeeded in getting rid of Leyva by first hiring her replacement, then effectively placing her on probation, ordering her not to hire persons who were members of her church, and, in case she still did not get the message, allowing her office to be packed up while she was on vacation." Id. (emphasis added). Thus, the first page of the Commission's response to the Hospitals' motion for summary judgment sets forth the theory pursued by the Commission on appeal: that Leyva reasonably believed that Shaw wanted to force her to quit or would fire her because of her religious beliefs, which amounts to a constructive discharge prohibited by Title VII. Later in its response to the Hospitals' motion for summary judgment, the Commission cited Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997) for the proposition that "a showing that the employer's actions were intended to make the employee resign remains the simplest method of proving a constructive discharge case." R. 26, Pg. 7 (footnote omitted). The Commission argued before both the district court and this Court that Maschka supported its claim of constructive discharge. See R. 26, Pg. 7 ("‘With evidence of both [Defendant's] desire to see [Plaintiff] leave and threats of financial penalties for his staying, the jury could reasonably conclude that [Defendant] intentionally made the conditions of [Plaintiff's] employment sufficiently intolerable so that he would leave.'") (quoting Maschka, 122 F.3d at 572); Opening Br. at 19 (quoting the same passage from Maschka).<4> The Commission also argued before the district court and before this Court that Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998) supports the Commission's theory that Leyva quit just ahead of the fall of the axe. See R. 26, Pg. 8 (arguing that in this case, unlike in Lindale, there were indications that the Hospitals wanted to get rid of Leyva and that she quit just ahead of the fall of the axe); Opening Br. at 16 (same). Thus, the argument presented by the Commission on appeal was one presented to the district court: that Leyva reasonably believed that because of her religious beliefs, Shaw wanted to force her to quit and was about to fire her, which constituted an intolerable working condition supporting the Commission's constructive discharge claim. Because the Commission presented to the district court its constructive discharge claim, and because the argument made on appeal to support this claim was made to the district court, this argument was not waived. CONCLUSION Because the Commission raised a genuine issue of material fact with respect to whether the Hospitals constructively discharged Leyva based on her religion, this Court should reverse the district court's erroneous decision granting summary judgment in favor of the Hospitals and dismissing the Commission's Title VII religious discrimination claim. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7030 Washington, D.C. 20507 (202) 663-4724 April 11, 2001 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. App. P. 32(a)(7)(B). The brief contains 4,124 words. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief and one copy of the foregoing brief on digital media, this 11th day of April, 2001 by first-class mail, postage pre-paid, to the following: Nina G. Stillman Vedder, Price, Kaufman & Kammholz 222 N. La Salle St. Chicago, IL 60601 (312) 609-7560 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 *********************************************************************** <> <1> To establish a prima facie case of discrimination under the burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must show: 1.) membership in a protected class; 2.) satisfactory performance of job duties; 3.) a materially adverse employment action; and 4.) that non-members of the protected class were treated more favorably. See Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir. 1999). <2> Although the plaintiff had been laterally transferred without a reduction in pay, Parrett, 737 F.2d at 693, this Court’s analysis of the constructive discharge claim did not rest on this finding. See id. at 694. <3> Indeed, no language in any of the cases cited by the Commission supports the creation of a rule that a constructive discharge claim can be maintained only when a plaintiff has been subjected to a hostile work environment or an adverse employment action. See Br. at 17-19 (citing Acrey v. American Sheep Indus. Ass’n, 981 F.2d 1569, 1574 (10th Cir. 1992) (holding that a jury could reasonably find that the plaintiff believed her job was in jeopardy and that she had therefore been constructively discharged when the defendant negatively evaluated the plaintiff, took away long-standing job responsibilities, denied her needed training, twice asked her to resign because of her age and her “image,” and threatened her with termination if she refused); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (holding that a trier of fact could conclude that the plaintiff was constructively discharged when his supervisor put him on a 90-day probationary period and told him that he would be fired at the end of the period regardless of his performance), overruled on other grounds by Patterson v. McLean Credit Union 491 U.S. 164 (1989); Burks v. Oklahoma Publ’g Co., 81 F.3d 975, 978 (10th Cir. 1996) (stating that the Tenth Circuit has “recognized that an employee can prove a constructive discharge by showing that she was faced with a choice between resigning or being fired”) (citation omitted); Welch v. University of Tex. & Its Marine Sci. Inst., 659 F.2d 531, 533-34 (5th Cir. 1981) (finding that "[a] reasonable person would certainly resign employment after being ordered to leave" when plaintiff’s supervisor warned her that he did not want a female doctor working for him and then, after she received her doctorate, demanded to know when she was leaving); Downey v. Southern Natural Gas Co., 649 F.2d 302, 303 (5th Cir. Unit B June 1981) (reversing grant of summary judgment in favor of employer on plaintiff’s constructive discharge claim when the employer’s personnel director told the plaintiff that “he was in danger of being discharged because the company did not want to keep him around until the mandatory retirement age of seventy” and warned him that if he were fired, he would lose his stock benefits); Maschka v. Genuine Parts Co., 122 F.3d 566, 572 (8th Cir. 1997) (concluding that “[w]ith evidence of both [the defendant’s] desire to see [the plaintiff] leave and threats of financial penalties for his staying, the jury could reasonably conclude that [the defendant] intentionally made the conditions of [the plaintiff’s] employment sufficiently intolerable so that he would leave”) (footnote omitted); Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 863 (5th Cir. 1993) (holding that “[a] plaintiff who resigns after demotion has been constructively discharged if a reasonable employee in the plaintiff’s position would have believed that the demotion was a harbinger of dismissal,” but stating nothing about the standard for constructive discharge requiring a showing of an adverse employment action preceding the plaintiff’s resignation) (citation omitted)). <4> The circuit courts of appeals are split with respect to what standard to use in constructive discharge cases. This Court has joined the majority of the circuits in adopting an objective standard that requires a plaintiff to show that the conditions of employment were sufficiently intolerable that a reasonable person would have resigned. See Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996); see generally Martin W. O’Toole, Choosing a Standard for Constructive Discharge in Title VII Litigation, 71 Cornell L. Rev. 587, 588 (1985) (discussing circuit split regarding standard for constructive discharge cases). Like a few other circuit courts of appeals, the Eighth Circuit holds “that in addition to demonstrating intolerable conditions, a plaintiff must show that her employer had the specific intent of coercing her resignation.” O’Toole, supra, at 587 (footnotes omitted and emphasis added). In this case, the Commission presented evidence not only that the Hospitals subjected Leyva to intolerable working conditions that would have caused a reasonable person to resign, but also that the Hospitals had the specific intent of coercing her resignation. Therefore, the Commission’s evidence would satisfy even the more stringent constructive discharge standard used by the Eighth Circuit.