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 _______________________________________________________ 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 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case . . . . . . . . . . . . . . . . 2 2. Course of Proceedings . . . . . . . . . . . . . . . 2 3. Statement of Facts . . . . . . . . . . . . . . . . 3 4. District Court Decision . . . . . . . . . . . . . . 9 5. Standard of Review . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. THE DISTRICT COURT ERRED BY REQUIRING THE COMMISSION TO ESTABLISH A HOSTILE WORK ENVIRONMENT,WHICH IS NOT REQUIRED TO PREVAIL ON A CONSTRUCTIVE DISCHARGE CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . 13 II. THIS COURT SHOULD REVERSE THE DISTRICT COURT BECAUSE THE COMMISSION PRESENTED EVIDENCE THAT THE HOSPITALS SUBJECTED LEYVA TO INTOLERABLE WORKING CONDITIONS THAT WOULD HAVE FORCED A REASONABLE PERSON TO RESIGN AND THAT THE CAMPAIGN TO GET RID OF LEYVA WAS BASED ON HER RELIGION. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PAGE A. A jury could find that Leyva was constructively discharged because she reasonably believed that she would be fired if she did not resign first . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. The Hospitals constructively discharged Leyva because of her religion, which is prohibited by Title VII . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE APPENDIX SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX TABLE OF AUTHORITIES CASES PAGE(S) Acrey v. American Sheep Industry Ass'n, 981 F.2d 1569 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23 Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000) . . . . . . 11, 12, 26 Bernstein v. Consolidated Foods Corp., 622 F. Supp. 1096 (N.D. Ill. 1984) 14, 26 Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993) . 19, 23, 24 Burks v. Oklahoma Publ'g Co., 81 F.3d 975 (10th Cir. 1996) . . . . . . . . . . 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . 11 Downey v. Southwestern Natural Gas Co., 649 F.2d 302 (5th Cir. Unit B June 1981) . . . . . . . . . . . . . . . . . . . . 18, 23 Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998) . . . . . 15 Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) . . .14, 15, 19, 22, 23, 26 Lindale v. Tokheim Corp., 145 F.3d 953 (7th Cir. 1998) . . . . . . . . 16, 17, 19 Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987) . . . . . . . . . . .18 Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997) . . . . . . . .19, 23 Parrett v. City of Connersville, 737 F.2d 690 (7th Cir. 1984) . . . . . . . . .15 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) . . . . . . . . . . . . . . . 14 Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044 (7th Cir. 2000) . . . . . 14, 15 Vitug v. Multistate Tax Comm'n, 88 F.3d 506 (7th Cir. 1996) . . . . 13, 14, 24 Welch v. Univ. of Tex. & Its Marine Sci. Inst., 659 F.2d 531 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 24 Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140 (5th Cir. 1975) . . . 24 CASES PAGE(S) Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276 (7th Cir. 1990) . . . 15 FEDERAL STATUTES AND RULES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq 1, 9, 13, 25 Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. . . . . . . . . 1, 9 Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 MISCELLANEOUS 1 Lex K. Larson, Employment Discrimination, § 15.07 (2d ed. 1998) . . . . . . 15 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. 0 _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable Blanche M. Manning, No. 98 C 6109 _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _______________________________________________________ STATEMENT OF JURISDICTION On September 30, 1998, the Commission brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and under Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, alleging that the University of Chicago Hospitals ("the Hospitals") discriminated against Victoria C. Leyva because of her religious beliefs. R. 1.<1> The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345. On September 25, 2000 the district court entered final judgment, disposing of all claims as to all parties. A. 2. On November 22, 2000 the Commission filed a timely notice of appeal. R. 29; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction of the district court's final order pursuant to 28 U.S.C. § 1291. There are no prior or related appellate proceedings in this case. STATEMENT OF THE ISSUE Whether the district court erred in granting summary judgment in favor of the University of Chicago Hospitals on the Commission's religious discrimination claims where the Commission raised a genuine issue of material fact with respect to whether the Hospitals constructively discharged Leyva by subjecting her to intolerable and discriminatory working conditions. STATEMENT OF THE CASE 1. Nature of the Case In this religious discrimination action, the Commission alleges that the Hospitals violated Title VII by constructively discharging Leyva because of her religious beliefs. R. 1. The Commission appeals from an order of the district court entering summary judgment in favor of the Hospitals. A. 1, 2. 2. Course of Proceedings The Commission commenced this action on September 30, 1998. R. 1. On September 20, 1999, the Hospitals filed a motion for summary judgment. R. 20. On September 25, 2000 the district court granted the Hospitals' motion and entered final judgment in favor of the Hospitals. A. 1, 2. 3. Statement of Facts Victoria Leyva, an Evangelical Christian Baptist, worked for the Hospitals as a recruiter in the employment department from December 1990 until her resignation on July 20, 1992. R. 22-¶ 2. Leyva's immediate supervisor was William Thornton, the manager of the employment department. R. 22-¶ 5. He found Leyva to be an "[a]bsolutely terrific" employee and a "very good recruiter." R. 20, Ex. E–Pg. 42. In Leyva's June 30, 1991 Non-Supervisory Employee Performance Appraisal Form, Thornton gave Leyva an overall rating of "3+" on a scale of one to five. R. 21, Ex. A–unnumbered Pg. 5. A rating of "3" meant "Fully Acceptable" and was defined as "[p]erformance which is consistently at levels which should be expected and considered acceptable. These employees are often referred to as ‘doing a good job.'" Id. at unnumbered Pg. 1. In the "Comments" section of Leyva's evaluation, Thornton wrote: Vicki is an excellent recruiter and [Human Resources Management] team member. She cares for our "Customers" and markets that image. She achieves excellent results and has gotten many compliments from her departments. She points out weaknesses in the system and is very good at recommending changes to solve the problems. She is also a very good counselor and motivator. Id. at unnumbered Pg. 5. In May 1991, the Hospitals hired JoAnn Shaw, a Roman Catholic, as associate director of the Hospitals and as director of the Hospitals' human resources department. R. 22-¶ 3; R. 20, Ex. D-Pg. 205. Shaw learned of Leyva's religious beliefs during their initial meeting when Leyva disclosed that she was evangelical. R. 20, Ex. D–Pg. 88. In late May or early June 1991, after Shaw had been hired but before she officially began working, she noticed several items on Leyva's desk that she considered to be "religious in nature." R. 22-¶ 14. These items included a calendar entitled "Treasures of Inspiration: A Woman's Guide to Daily Living" and a five-inch clock inscribed with "Armitage Baptist Church, Chicago-Illinois. Pastor Charles Lyon." R. 22- ¶¶ 15-17. Shaw, who supervised Thornton, R. 22-¶ 5, told him to direct Leyva to remove the calendar and the clock from her desk. R. 20, Ex. D-Pg. 86. Shaw attached to Thornton's performance appraisal of Leyva a handwritten post-it note stating, "Baptist church referrals off desk." R. 20, Ex. D–Pgs. 98-99. Thornton followed Shaw's instruction, telling Leyva that Shaw thought these items were "too religious, too denominational." R. 20, Ex. A-Pg. 69. Leyva put the items in her desk drawer. R. 20, Ex. A-Pg. 70. Prior to Shaw's arrival, both Thornton and Leyva had recruited at churches. R. 20, Ex. E–Pg. 35; Ex. A–Pgs. 89-90. Thornton thought that churches offered the "best source for service workers because they tend to refer[ ] the cleanest, neatest with . . . fairly decent values." R.20, Ex. E–Pg. 35. Soon after her arrival, however, Shaw issued a directive to all employees to stop recruiting at churches or church job fairs. R. 20, Ex. E–Pg. 35; Ex. A–Pg. 175. In October 1991, Thornton resigned. R. 22–¶ 5. A few weeks later, Ralph Borkowicz replaced him. R. 22-¶ 6. Borkowicz and Shaw car-pooled to work together and often discussed Leyva. R. 20, Ex. B–Pg. 62. During their discussions, Shaw called Leyva a "religious fanatic" and made it "very clear that she had a problem with [Leyva's] religious beliefs and bringing religion into the workplace." Id. at 53. In ongoing conversations from November 1991 until Borkowicz' termination in May 1992, Shaw repeatedly told Borkowicz that she wanted him to fire Leyva. Id. at 52, 62. Borkowicz believes that the reason Shaw wanted him to fire Leyva was because of Leyva's religion. Id. at 79. Although Borkowicz did not repeat Shaw's "religious fanatic" comment to Leyva until after she left the Hospitals, R. 20, Ex. B–Pg. 65, before Leyva resigned Borkowicz told her that Shaw did not want her to recruit at church job fairs. R. 20, Ex. A–Pg. 90. Leyva responded that she had not been to any church job fairs since before Shaw arrived. R. 20, Ex. A–Pg. 90.<2> In early May 1992, Shaw told Borkowicz "that she was not happy–this wasn't working out" and that she wanted him to fire Leyva. R. 20, Ex. B–Pg. 49. Borkowicz, who thought Leyva was an "above-average employee," id. at 74, told Shaw that he "didn't see any reason for terminating Victoria Leyva, and she needed to do what she needed to do." Id. at 50. After this conversation, Borkowicz went on vacation for about a week and a half. Id. When he returned, Shaw told him that "she was going to start taking steps to remove" him from his position. Id. at 51. The sole reason Shaw gave Borkowicz for wanting to terminate his employment was his refusal to fire Leyva. Id. at 50. On May 21, 1992, Shaw sent Borkowicz a letter of termination. Id. at 60-61. On the day he left, Borkowicz told Leyva that he was being fired because he had refused to fire her. R. 20, Ex. A–Pg. 105. Earlier in the spring of 1992, before Shaw fired Borkowicz, Leyva applied for a grant from the Hospitals' outreach program, which was implemented to support community charitable work such as tutoring programs and food pantries. R. 22–¶¶ 22, 26. Typically, once an application for a grant was approved by the employee advisory committee, a check request would be prepared by Shaw's secretary, signed by Shaw within twenty-fours hours, forwarded to the Hospitals' accounts payable department where it might sit for up to thirty days before a check actually issued, and then transmitted to Shaw's secretary for delivery to the grant recipient. R. 22–¶ 24. A letter of congratulations signed by Shaw would accompany the check. Id. at ¶ 25. The letter was usually prepared and dated the day the employee advisory committee rendered its decision. Id. Leyva requested the grant on behalf of her church to be used in its tutoring program. R. 22–¶ 26. In early May 1992, the employee advisory committee awarded Leyva's church $500. R. 22–¶ 28. Roger Bottorff, Shaw's assistant, R. 22–¶ 7, prepared for Shaw's signature a letter of congratulations dated May 8, 1992. R. 22–¶ 28. Shaw signed the letter, which states "[a] check payable to the Armitage Baptist Church has been requested, and is expected to be ready within the next few days. Please contact Pat Adams-Taylor [Shaw's secretary] . . . to arrange pick-up of the check on or about May 12." R. 20–attached as Ex. 3 to Ex. A. Although the letter clearly contemplates that it would be given to Leyva the day it was written–May 8, 1992–Shaw did not give it to Leyva or otherwise inform her that her church had been selected to receive an award. R. 20, Ex. A-Pg. 76. Leyva did not learn about the award or the check until June 6, 1992 when Borkowicz called her and said that "the awards had been made, the checks had been cut and JoAnn Shaw was holding it because you are a Bible thumper and a goody two-shoes, and she was gonna make you sweat." R. 20, Ex. A–Pg. 80. During this conversation Borkowicz also told Leyva that Shaw said "she wanted [her] out, but that she was going to make it very hard for [her] so [she] would quit, and [she] would not be able to collect unemployment." Id. at 134; see id. at 144-45. Borkowicz also said that Shaw was "setting [her] up so that [she] would quit, gathering complaints and gathering whatever she could." Id. at 204. Borkowicz warned Leyva that she "should watch [her] back." Id. Leyva went to Shaw's secretary and asked for the award check, which she received along with Shaw's May 8, 1992, letter of congratulations. Id. at 82. In May 1992, Bottorff replaced Borkowicz as acting manager of employment. R. 22–¶ 7. In June 1992, Bottorff gave Leyva an annual performance rating of "2" on a scale of 1 to 5, with a score of "2" defined as "Needs Improvement–Performance which is at or slightly above the minimum requirements for the job. Performance improvements are needed." R. 20, attached as Ex. 4 to Ex. A. Although Bottorff had only supervised Leyva for a month, he did not ask Borkowicz for his input in preparing Leyva's annual performance evaluation. R. 20, Ex. C–Pg. 93. Instead, Bottorff based the negative annual evaluation solely on Shaw's input and his month of experience supervising Leyva. Id. at 93-94, 98. During Bottorff's evaluation of Leyva, he "impl[ied] that if [she] didn't improve, [she] could be terminated." R. 20, Ex. A–Pg. 212. The score of "2" could have affected Leyva's pay, R. 20, Ex. D–Pg. 144, and would have resulted in more frequent performance evaluations. Id. at 145. Had Leyva remained with the Hospitals, Shaw would have recommended that her next review be in three months rather than in another year. Id. at 145-46. Leyva believed that the negative evaluation was not based on her performance, but "was based on the harassment that [she] had been receiving because of [her] religious background." R. 20, Ex. A–Pg. 103. Shaw believed that Leyva recruited from her church to the exclusion of other churches or religious organizations. R. 20, Ex. D–Pg. 107. Shaw based this belief on a complaint from a food service manager that Leyva was hiring unqualified employees from her church and on the fact that an employee in the housekeeping department said in a disciplinary hearing that he attended the same church as Leyva. Id. at 108-09. Shaw admits, however, that she does not know how many employees Leyva recruited from her church or whether Leyva even recruited the housekeeping employee. Id. at 108, 110. Like his predecessors, Bottorff told Leyva that Shaw did not want Leyva to recruit at church job fairs. R. 20, Ex. A–Pg. 89. Once again, Leyva repeated that she had not attended any church job fairs since before Shaw arrived. Id. at 92. Bottorff also instructed Leyva not to hire "church people, the needy, or [her] friends." Id. at 94. When she asked Bottorff what he meant by his directive not to hire "church people," he said that referred to people from her church.Id. at 98-99. In June 1992, the Hospitals hired Lynda Cartwright to work as a recruiter. R. 20, Ex. C–Pgs. 68-69. Cartwright held the same job title as Leyva and assumed some of her job duties. Id. at 68. Leyva went on vacation the week of July 13, 1992. R. 21, Ex. C–Pg. 2. During that week, Bottorff called Leyva while she was attending a conference.<3> R. 21, Ex. C–Pg. 2. Bottorff remembers that he asked Leyva about some missing applicant test scores and that she said she did not know where they were. Id. According to Leyva, Bottorff told her that "this is the last straw, and that he told [her] three times not to refer church friends, and that [they] would talk about it when [she] returned" and that she should "be prepared." R. 21, Ex. C–Pg. 2. On the evening of Sunday, July 19, 1992, Leyva prepared her resignation letter. R. 20, Ex. A–Pg. 234. When she returned to work on Monday, July 20, 1992, Leyva had the resignation letter with her "in anticipation." Id. She did not have any other job lined up. Id. at 235. Borkowicz remembers that right before Leyva left the Hospitals, she called him and said that "it looked like she was going to get fired." R. 20, Ex. B–Pg. 68. When she arrived at work, she found her desk packed-up, her office being used for storage, and "boxes piled up." Id. at 183; R. 21, Ex. C–Pg. 2. Before Leyva had her coat off, Bottorff came in and said that they should talk. R. 20, Ex. A–Pg. 183. Based on the religious harassment she had endured, Borkowicz' comments to her, and the fact that her office was packed, Leyva believed that she would be fired if she did not resign. Id. at 211; R. 21, Ex. C-Pg. 2. After a short discussion in which Leyva told Bottorff that "he left [her] no choice," Leyva resigned. Id. at 160, 184. Her resignation letter states that "[i]t is with deep regret that I submit my resignation effective immediately. During my recent evaluation and again on Wednesday, July 15 you stated that I was not to refer ‘church people, church friends or the needy' into entry level position[s]. I find that I cannot continue employment at the hospital and obey this directive." R. 20, Ex. 11 attached to Ex. A. On September 30, 1998 the Commission filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and under Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, alleging that the Hospitals had committed unlawful employment practices by constructively discharging Leyva because of her religion. R. 1. 4. District Court Decision On September 20, 1999, the Hospitals filed a motion for summary judgment. R. 20. The Hospitals argued that because it had not subjected Leyva to a hostile work environment, the district court should grant summary judgment in its favor on the constructive discharge claim. R. 23–Pg. 12. In its brief, the Hospitals identified six incidents of religious harassment Leyva discusses in her deposition: 1.) Shaw's directive that Leyva remove her clock and calendar from her desk area; 2.) Shaw's withholding of the $500 award check for the tutoring program at Leyva's church; 3.) Bottorff's directive not to hire "church people," "the needy" or Leyva's "friends"; 4.) Bottoff's negative performance evaluation; 5.) Shaw's derogatory comments to Borkowicz about Leyva's religious beliefs; and 6.) Shaw's repeated wrongful accusations that Leyva was continuing to recruit at church job fairs. R. 23-Pgs. 5-10. The Hospitals contended that these six incidents did not rise to the level of hostile work environment, that a hostile work environment is a prerequisite to prevailing on a constructive discharge claim, and that the district court should therefore enter summary judgment in the Hospitals' favor. R. 23-Pgs. 11-12. The Commission responded by pointing out that it had never alleged that the Hospitals subjected Leyva to a hostile work environment. R. 26–Pgs. 8-9. The Commission reiterated that "[t]his is a religious discrimination case in which JoAnn Shaw . . . constructively discharged Victoria Leyva because of her religion." Id. at 1. Pointing to evidence that Shaw fired Borkowicz because he refused to fire Leyva, the Commission contended that this case involved direct evidence of religious discrimination. Id. at 5. Noting that Borkowicz had been fired for his refusal to fire Leyva, that Leyva had received a negative evaluation from Bottorff just prior to her resignation, and that Bottorff had called Leyva on vacation and told her "this was the last straw," the Commission asserted that "[i]f she did not know that her office would be packed on the day she returned from vacation with her letter of resignation, she cannot have been surprised." Id. at 8. On September 25, 2000, the district court granted the Hospitals' motion for summary judgment. A. 1. The district court began its analysis by noting that the parties disagreed over the applicability of the "hostile work environment" analysis to this case. A. 1–Pg. 8. Agreeing with the Hospitals, the district court stated that "[t]o prevail on a ‘constructive discharge' claim, the plaintiff must show that the conditions in the work place were more than hostile. Therefore, whether the work environment was hostile is indeed relevant in a claim for constructive discharge." A. 2-Pg. 9. The district court went on to state that to prevail on a constructive discharge claim an employee must show that working conditions were intolerable and that the intolerable conditions were the result of unlawful discrimination. A. 2–Pg. 9. The court recited the test for determining whether working conditions were intolerable: "whether, given the totality of the circumstances, a reasonable person in the employee's position would have found the work environment so intolerable that they [sic] would have been compelled to resign." Id. (citations omitted). Adopting the outline of the Hospitals' brief, the district court examined each of the six incidents of harassment Leyva described in her deposition and concluded that they did not support a claim for constructive discharge. A. 2–Pgs. 11-12. 5. Standard of Review This Court reviews a district court's grant of summary judgment de novo. See Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th Cir. 2000). In doing so, this Court must determine whether there is a genuine issue of material fact, viewing the evidence and drawing all inferences in favor of the Commission. See id. at 491-92. Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This Court applies the "summary judgment standard with special scrutiny to employment discrimination cases, which often turn on the issues of intent and credibility." Bellaver, 200 F.3d at 491 (citations omitted). SUMMARY OF ARGUMENT This Court should reverse the district court's entry of summary judgment in favor of the Hospitals on the Commission's Title VII constructive discharge claim. In reaching its decision, the district court erroneously held that the establishment of a hostile work environment is a prerequisite to maintaining a constructive discharge claim. This holding runs contrary to precedent of this Court establishing that a number of intolerable working conditions–besides a hostile work environment–can lead up to an employee's constructive discharge. For example, this Court has held that an employee can maintain a claim of constructive discharge based on a demotion. This Court has also held that an employee is constructively discharged when his employer tells him he is not wanted, has no future, and could not ever count on receiving another raise. Several Circuit Courts of Appeals have also held that when an employer explicitly or implicitly threatens to fire an employee for a discriminatory reason, the employer has subjected the employee to intolerable working conditions that support an employee's claim of constructive discharge. Here, the district court erred by overlooking evidence in the record establishing a genuine issue of material fact with respect to whether a reasonable employee in Leyva's position would have felt compelled to resign knowing that her supervisor wanted to force her to quit because she disapproved of her religion; that her direct supervisor had been fired for refusing to fire her because of her religious beliefs; and that if she did not quit, she faced immediate termination. The Commission also presented ample evidence that would support a jury's conclusion that the Hospitals constructively discharged Leyva because of her religion, which is prohibited by Title VII. Consequently, this Court should reverse the district court's entry of summary judgment in favor of the Hospitals. ARGUMENT This Court should reverse the district court's entry of summary judgment in favor of the Hospitals for two principal reasons. First, the district court erred by analyzing the constructive discharge claim solely under a hostile work environment theory when proof of a hostile work environment is not required to prevail on a constructive discharge claim. Second, the district court overlooked a plethora of evidence in the record establishing a genuine issue of material fact with respect to whether a reasonable person in Leyva's position would have felt compelled to resign because of intolerable working conditions based on her religion, which is all that is necessary to establish a constructive discharge. I. THE DISTRICT COURT ERRED BY REQUIRING THE COMMISSION TO ESTABLISH A HOSTILE WORK ENVIRONMENT, WHICH IS NOT NECESSARY TO PREVAIL ON A CONSTRUCTIVE DISCHARGE CLAIM. Title VII states that "[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). Plaintiffs demonstrating that they were constructively discharged–i.e., that they were forced to resign because of intolerable discriminatory conduct–may bring a Title VII claim despite never having been formally discharged. See Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir. 1996). "To state a claim for constructive discharge, a plaintiff needs to show that his working conditions were so intolerable that a reasonable person would have been compelled to resign." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996) (citations omitted); see also Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000) ("The 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.") (citations omitted). Because "[a]pplication of this ‘reasonable person' test involves complex questions of fact, including, inter alia, the nature of the working conditions, their difficulty or unpleasantness, and what a reasonable person would or would not do under such conditions," the "issue of whether there has been a constructive discharge normally should be left to the trier of fact." Bernstein v. Consolidated Foods Corp., 622 F. Supp. 1096, 1101 (N.D. Ill. 1984) (citations omitted). "Once a plaintiff has shown that a constructive discharge occurred, he must prove, as with any other discharge claim under Title VII, that he was constructively discharged because of his membership in a protected class." Vitug, 88 F.3d at 517 (citation omitted). In accepting the Hospitals' argument that "because this is a ‘constructive discharge' case, the scrutiny of the ‘hostile work environment' analysis is applicable," A. 1--Pg. 8 (quoting the Hospitals' Reply at 1-3), the district court stated, "[t]o prevail on a ‘constructive discharge' claim, the plaintiff must show that the conditions in the work place were more than hostile. Therefore, whether the work environment was hostile is indeed relevant in a claim for constructive discharge." A. 1--Pg. 9 (emphasis added). While the district court correctly articulated the standard for establishing a constructive discharge claim based on the theory that the intolerable working condition was harassment, see, e.g., Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000), cert. denied, 121 S.Ct. 777 (2001), the district court failed to recognize that under this Court's precedent a hostile work environment is not the only kind of intolerable working condition that can compel a reasonable person to resign. This Court recently held that a plaintiff raised a genuine issue of material fact with respect to his constructive discharge claim when his employer told him he was not wanted, had no future, and could not count on ever getting another raise. See Hunt, 219 F.3d at 655 (reversing the district court's entry of summary judgment in favor of the defendant on the plaintiff's constructive discharge claim). This Court has also held that a demotion can form the basis of a constructive discharge claim, see Zabielski v. Montgomery Ward & Co., Inc., 919 F.2d 1276, 1281 (7th Cir. 1990) (holding that plaintiff's charge of age discrimination adequately raised a claim of constructive discharge based on his demotion), and that when an employee is banished to a storage closet and stripped of all job duties, he has been constructively discharged. See Parrett v. City of Connersville, 737 F.2d 690, 693-94 (7th Cir. 1984); see also 1 Lex K. Larson, Employment Discrimination, § 15.07 (2d ed. 1998) (stating that "[t]he most commonly alleged grounds for constructive discharge are that the employer has created, or allowed the creation of, an atmosphere of harassment or hostility which renders working conditions intolerable" but that "[c]onstructive discharge claims also may be based on other kinds of intolerable working conditions" such as "an involuntary transfer to a more undesirable position, or assigning an employee to extremely unattractive duties . . . especially if the surrounding circumstances demonstrate a pattern of discriminatory treatment") (footnotes omitted). This Court has further suggested that when an employer communicates to an employee that termination is imminent, the employee can maintain a constructive discharge claim. See Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998) (rejecting the plaintiff's constructive discharge claim but stating "[t]here is no indication that [the defendant] was trying to get rid of [the plaintiff] by giving her work she didn't want–no indication that the failure to promote her was the handwriting on the wall and she quit just ahead of the fall of the axe"). Thus, contrary to the district court's opinion, the Commission does not have to establish a hostile work environment to prevail on its constructive discharge claim. By requiring the Commission to do so, the district court committed reversible error and overlooked evidence in the record establishing a genuine issue of material fact with respect to whether Leyva was subjected to intolerable working conditions that would have caused a reasonable person in her position to resign. II. THE DISTRICT COURT ERRED IN REJECTING THE CONSTRUCTIVE DISCHARGE CLAIM BECAUSE THE COMMISSION PRESENTED EVIDENCE THAT THE HOSPITALS SUBJECTED LEYVA TO INTOLERABLE WORKING CONDITIONS THAT WOULD HAVE FORCED A REASONABLE PERSON TO RESIGN. In this classic constructive discharge case, the Commission presented evidence that Leyva read "the handwriting on the wall" and "quit just ahead of the fall of the axe." Lindale, 145 F.3d at 956. The district court erred in granting summary judgment in favor of the Hospitals because the record is replete with evidence from which a reasonable jury could conclude that the Hospitals subjected Leyva to intolerable and discriminatory working conditions that would have made a reasonable employee in her position resign. The record also clearly establishes that the discrimination directed at Leyva was based on her religion. Therefore, this Court should reverse the district court's entry of summary judgment in favor of the Hospitals and remand this case to the district court. A. A jury could find that Leyva was constructively discharged because she reasonably believed that she would be fired if she did not resign first It is settled law that intolerable working conditions encompass situations in which an employer's actions make an employee reasonably believe that he or she is at risk of being fired for a discriminatory reason. The most obvious situation in which an employee reasonably believes that he or she is about to be fired arises when an employer directly threatens an employee with termination. See Acrey v. American Sheep Industry 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, stripped her of long-standing job duties, 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). See also Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978 (10th Cir. 1996) (stating that under the appropriate facts a district court could properly give a jury instruction similar to one stating that "an employee is constructively discharged if the employer's actions reasonably lead the employee to conclude that, if she does not resign, she will be discharged") (internal quotations and citation omitted). Less explicit threats to terminate a plaintiff's employment have been found sufficient to cause a reasonable person to resign. See Welch v. Univ. 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). Courts have also found that it is reasonable for a person to resign after being warned that he is in danger of being fired and losing his benefits. See Downey v. Southwestern Natural Gas Co., 649 F.2d 302, 305 (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). This Court has also held that an employee may be acting reasonably in resigning if the employee believes he is no longer wanted, even if he is never explicitly told or warned that he faces termination. See Hunt, 219 F.3d at 655 (holding that "[a] person who is told repeatedly that he is not wanted, has no future, and can't count on ever getting another raise would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable"); see also Lindale, 145 F.3d at 956 (suggesting that a plaintiff may maintain a constructive discharge claim when an employer's actions indicate that termination is imminent). Other Courts of Appeals have reached the same conclusion under similar facts. See 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 Assoc., 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") (footnote omitted). Thus, under the law of this Court and other Courts of Appeals, an employee may maintain a constructive discharge claim when an employer's actions cause the employee to reasonably believe that he or she faces imminent and discriminatory termination. The Commission presented an abundance of evidence from which a jury could conclude that a reasonable person in Leyva's position would have felt compelled to resign knowing that she was no longer wanted and that she faced imminent termination. Shaw began displaying hostility towards Leyva's religious beliefs even before Shaw officially began work at the Hospitals. During their initial meeting, Leyva shared with Shaw that she was Evangelical. R. 20, Ex. D–Pg. 88. After Shaw saw Leyva's calendar and clock, which Shaw considered to be "religious in nature," she directed Leyva's direct supervisor to instruct Leyva to remove them from her desk. R. 22-¶¶ 14, 18. Leyva's supervisor followed Shaw's instruction, telling Leyva that Shaw thought these items were "too religious, too denominational," R. 20, Ex. A-Pg. 69. Leyva complied by putting the items in her desk drawer. R. 20, Ex. A-Pg. 70. After Shaw began work at the Hospitals, she continued to express animosity towards Leyva's religious beliefs. Although Shaw had already issued a directive to stop recruiting at churches or church job fairs, R. 20, Ex. E–Pg. 35; Ex. A–Pg. 175, Leyva was not recruiting at job fairs, R. 20, Ex. A–Pgs. 89-90, and Shaw had no personal knowledge that Leyva was recruiting at church job fairs, R. 20, Ex. D–Pg. 166, Shaw nevertheless continued to relay through Borkowicz and Bottorff the message that Leyva should stop recruiting at church job fairs. R. 20, Ex. A–Pgs. 89-90. A jury could reasonably infer that Leyva interpreted these directives as unfounded assumptions and accusations fueled by Shaw's disapproval of Leyva's Evangelical Christian beliefs. R. 20, Ex. A–Pgs. 63-64. On May 21, 1992 Leyva learned that this disapproval posed a direct threat to her job. On that day, Borkowicz told Leyva that Shaw had fired him because he had refused to fire her. R. 20, Ex. A–Pg. 105. Leyva also learned that Borkowicz' replacement was Bottorff, who had been Shaw's assistant. R. 22–¶ 7. Leyva could therefore reasonably believe that Bottorff would be willing to do what Borkowicz had not–to fire her–and that if he did not do it, Shaw would simply find a supervisor who would. Leyva's concern over her future at the Hospitals significantly deepened on June 6, 1992, when Borkowicz told Leyva that Shaw was withholding the $500 award check for Leyva's church because Shaw thought Leyva was "a Bible thumper and a goody two-shoes" and wanted to make her "sweat." R. 20, Ex. A–Pgs. 79-80. Borkowicz also told Leyva that Shaw wanted her to quit so she would be unable to collect unemployment, R. 20, Ex. A–Pgs. 134;144-45, implying that Shaw planned to force Leyva to resign in lieu of firing her. Borkowicz also warned Leyva that she "should watch [her] back" and told her that Shaw was "setting [her] up so that [she] would quit, gathering complaints and gathering whatever she could." R. 20, Ex. A–Pg.204. Subsequent events caused Leyva to reasonably believe that her termination was not only inevitable, but also imminent. First, in June 1992 the Hospitals hired Lynda Cartwright to work as a recruiter. R. 20, Ex. C–Pgs. 68-69. She had the same job title as Leyva and assumed some of her job duties. Id. at 68. Second, despite the fact Thornton and Borkowicz had found her to be an "[a]bsolutely terrific" employee, a "very good recruiter," R. 20, Ex. E–Pg. 42, and an "above average" employee, R. 20, Ex. B-Pg. 74, Bottorff gave Leyva an unwarranted negative performance evaluation. Third, Bottorff implied that if Leyva did not improve, she could be fired. R. 20, Ex. A–Pg. 212. Fourth, Bottorff instructed Leyva not to hire "church people, the needy, or [her] friends," R. 20, Ex. A–Pgs. 93-94. R. 20, Ex. A–Pg. 93. Leyva even expressed to Borkowicz her belief that she faced imminent termination when she called him right before she resigned and said that "it looked like she was going to get fired." R. 20, Ex. B–Pg. 68. Leyva's phone conversation with Borkowicz during the week of July 13, 1992 made her believe that she would be terminated when she returned to work on Monday, July 20. Borkowicz called her while she was attending a conference during her vacation. R. 21, Ex. C–Pg. 2. After questioning her about some missing applicant test scores, R. 20, Ex. C–Pg. 109, Borkowicz told her that "this is the last straw," that he had told her "three times not to refer church friends," that they "would talk about it when she returned," and that she should "be prepared." R. 21, Ex. C–Pg. 2. Although she did not have any other job lined up, on the evening of July 19, 1992 Leyva prepared her resignation letter. R. 20, Ex. A–Pgs. 234-35. When she returned to work on Monday, July 20, 1992, Leyva had the resignation letter with her "in anticipation." R. 20, Ex. A–Pg. 235. Believing she was about to be fired, id. at 211; R. 21, Ex. C–Pg. 2, Leyva told Borkowicz he had left her no choice but to resign. R. 20, Ex. A–Pg. 160. These facts are more than sufficient to allow a reasonable jury to conclude that Leyva faced intolerable and discriminatory working conditions that would have forced a reasonable person in her position to resign. In Hunt this Court held that it was intolerable for an employee to continue working after his employer told him he was no longer wanted, had no future, and could not count on ever getting another raise. See Hunt, 219 F.3d at 655. The facts of this case are much more egregious. Leyva's former direct supervisor told her that Shaw wanted to force her to quit because of her religious beliefs. R. 20, Ex. A–Pgs. 134, 144-45. He also told her that Shaw was plotting to get rid of her by "gathering complaints and gathering whatever she could." R. 20, Ex. A–Pg. 204. A series of events that occurred immediately preceding Leyva's resignation also signaled to her that her termination was imminent. Knowing all of this, Leyva acted reasonably in deciding that to remain with the Hospitals "would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable." Hunt, 219 F.3d at 655. The facts of this case are also similar to those cases decided by the Second, Fifth, Eighth and Tenth Circuit Courts of Appeals holding that when an employer's actions cause an employee to reasonably believe her job is in jeopardy, she has been constructively discharged. Like the plaintiffs in Maschka v. Genuine Parts Co. and Downey v. Southern Natural Gas Co., Leyva was warned that her employer wanted her to leave and that she was in danger of being fired. See Maschka, 122 F.3d at 571-72 (holding that a jury could reasonably conclude that the plaintiff was constructively discharged after being told that he did not fit into the company's future plans and that his benefits would decline if he remained in his new, lower-paying job); Downey, 649 F.2d at 305 (holding that a reasonable person might feel compelled to resign after being told that he could be fired and lose his stock benefits). Similar to the plaintiff in Brown v. East Miss. Elec. Power Assoc., 989 F.2d at 863, who reasonably believed that his demotion was a harbinger of dismissal, Leyva reasonably believed that Borkowicz' statements to her, the religious harassment she endured, and her unwarranted negative performance evaluation foreshadowed her dismissal. R. 20, Ex. A–Pg. 211; see also Acrey, 981 F.2d at 1574 (holding that a reasonable jury could find that plaintiff reasonably believed her job was in jeopardy and that she was constructively discharged after her employer negatively evaluated her, took away job duties, denied her training, asked her to resign because of her age, and threatened to fire her). Knowing that her supervisor wanted her to quit for a discriminatory reason, that her supervisor was scheming to accomplish that goal, and that she faced termination on the morning of Monday, July 20, 1992, Leyva did what any reasonable person in her position would have done–she quit. See Welch 659 F.2d at 534 (stating that "[a] reasonable person would certainly resign employment after being ordered to leave"). "Surely it would be too nice a distinction to say that [Leyva] should have borne the considerable emotional discomfort of waiting to be fired instead of immediately terminating her association with [the Hospitals]." Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975) (holding that the plaintiff's resignation constituted a constructive discharge because she "could reasonably infer that in one week, one month or two months, she would be discharged because of the conflict between her religious beliefs and company policy"). Moreover, Leyva's belief that she was about to be fired was borne out when she returned to work on Monday July 20 to find her desk cleaned out, her office being used for storage, and her supervisor waiting for her, saying that they should talk. R. 20, Ex. A–Pg. 183; R. 21, Ex. C–Pg. 2. See Brown, 989 F.2d at 863 (noting that the plaintiff's belief that his employer planned on firing him was borne out by the employer's acceptance of the plaintiff's resignation and the employer's refusal to talk about it after the plaintiff denied having resigned). B. The Hospitals constructively discharged Leyva because of her religion, which is prohibited by Title VII "Once a plaintiff has shown that a constructive discharge occurred, he must prove, as with any other discharge claim under Title VII, that he was constructively discharged because of his membership in a protected class." Vitug, 88 F.3d at 517 (citation omitted). Here, the Commission presented more than sufficient evidence to support a jury's finding that the Hospitals constructively discharged Leyva because of her Evangelical Christian beliefs, which constitutes a violation of Title VII. See 42 U.S.C. § 2000e-2(a)(1). A reasonable jury could find that the following evidence establishes that the Hospitals constructively discharged Shaw because of her membership in a protected class. Shaw directed Thornton to instruct Leyva to remove from her desk a calendar and clock that Shaw considered to be religious in nature, R. 20, Ex. D-Pg. 86; R. 22–¶¶ 15-17, and even attached to Thornton's performance appraisal of Leyva a handwritten post-it note stating, "Baptist church referrals off desk." R. 20, Ex. D–Pgs. 98-99. Shaw called Leyva a "religious fanatic" and made it "very clear that she had a problem with Vickie's religious beliefs and bringing religion into the workplace." R. 20, Ex. B–Pg. 53. It was communicated to Borkowicz that the reason Shaw wanted him to fire Leyva was because of Leyva's religion. Id. at 79. Although Shaw did not have any personal knowledge that Leyva was recruiting at church job fairs, R. 20, Ex. D–Pg. 166, Shaw relayed through Borkowicz and Bottorff the message that Leyva should stop recruiting from church job fairs. R. 20, Ex. A–Pgs. 89-90. On June 6, 1992 Borkowicz told Leyva that "the awards had been made, the checks had been cut and JoAnn Shaw was holding it because you are a Bible thumper and a goody two-shoes, and she was gonna make you sweat." R. 20, Ex. A–Pg. 80. Bottorff repeatedly told Leyva not to hire "church people," R. 20, Ex. A–Pg. 94, including when he called her at home during the week of July 13, 1992 and told her not to refer church friends. R. 21, Ex. C–Pg. 2. Based on this evidence a reasonable jury could find that the Hospitals constructively discharged Leyva because of her membership in a protected class. Therefore, this Court should reverse the district court and remand this case. CONCLUSION Because this employment discrimination case turns on the credibility of witnesses, this Court must apply the summary judgment standard with special scrutiny. See Bellaver, 200 F.3d at 491; see also Bernstein, 622 F. Supp. at 1101 (stating that whether an employer constructively discharged an employee is a question that should usually be left up to the trier of fact). "Construed as favorably to the [Commission] as the record permits, which is the proper standard when evaluating the grant of summary judgment in favor of the [Hospitals]," Hunt, 219 F.3d at 652, the facts establish that a reasonable jury could find that the Hospitals constructively discharged Leyva because of her religious beliefs. Thus, the Commission urges this Court to reverse the district court's judgment and remand the case for further proceedings. 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 February ___, 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 7,660 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 ____ day of February, 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> Citations in the form of “R*” refer to the record entry numbers listed on the district court’s docket sheet. Citations in the form “A*” refer to the documents included in the attached appendix. <2> In fact, in Leyva’s two and a half years at the Hospitals, she attended only one church job fair, which was held before Shaw arrived. R. 20, Ex. A–Pgs. 89-90. <3> It is unclear whether Bottorff called Leyva on Wednesday, July 15, 1992, R. 20, attached as Ex. 11 to Ex. A (resignation letter), or on Friday, July 17, 1992. R. 21, Ex. C–Pg. 2 (charge of discrimination). <4> Because employees are ordinarily expected to remain employed while working out problems with their employer, “[m]ore than ordinary discrimination is necessary to establish a constructive discharge claim.” Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) (citation omitted). Consequently, in Tutman, where the plaintiff brought claims of hostile work environment and constructive discharge, this Court stated that “[w]orking conditions for constructive discharge must be even more egregious than the high standard for hostile work environment.” Tutman, 209 F.3d at 1050 (citing Drake, 134 F.3d at 886).