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On Dec. 1, 2003, the United States Supreme Court agreed to consider whether a constructive discharge caused by a supervisor’s sexual harassment constitutes a tangible employment action that bars an employer from raising the defense that the employee unreasonably failed to employ the employer’s procedures for preventing and correcting such conduct. In granting the Pennsylvania State Police’s request for review from the 3rd U.S. Circuit Court of Appeals in Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), the Supreme Court has the opportunity to resolve a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases. Part One of this two-part article reviews the facts of Suders, the district court’s decision, and the 3rd Circuit’s decision. THE ‘ELLERTH/FARAGHER’ AFFIRMATIVE DEFENSE In the companion cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court addressed an employer’s vicarious liability for the discriminatory and harassing conduct of its supervisors under Title VII of the Civil Rights Act of 1964. The Court held that an employer is strictly liable to a victimized employee for a discriminatory and hostile work environment created by a supervisor when the harassment results in a “tangible employment action.” Generally, the Supreme Court described a “tangible employment action” as “a significant change in employment status,” often, but not always, resulting in economic injury. Additionally, the Court provided a non-exclusive list of possible specific actions that fall within this definition, including “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” In sharp contrast, when no tangible employment action results, the Supreme Court held that an employer may raise an affirmative defense to liability for the supervisor’s conduct. Specifically, an employer will not be held responsible for a supervisor’s discriminatory and harassing conduct if it can show 1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and 2) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” ‘SUDERS v. EASTON’ Nancy Drew Suders began working for the Pennsylvania State Police as a communications officer on March 23, 1998. Suders claimed that shortly after she began working at the McConnellsburg barracks, her male supervisors, Station Cmdr. and Sgt. Eric Easton, Patrol Cpl. William Baker and Cpl. Eric Prendergast, harassed her on a daily basis. The harassment included sexually explicit and age-related comments by Easton, including discussing bestiality every time Suders entered into his office, commenting to Prendergast in front of Suders that “if someone had a daughter, they should teach her how to [perform oral sex],” noting to Suders that his wife had small breasts, and observing to Suders that “it is awful getting old, isn’t it, Nancy?” and, further, that “a 25-year-old could catch on faster than [Suders] could.” In addition, Suders alleged that she was offended when Easton, wearing spandex shorts, would sit down, put his hands behind his head and spread his legs apart as well as leer at her though she acknowledged that Easton never made any overt sexual advances toward her. Likewise, Suders claimed that Prendergast called her a liar and told her that “‘the village idiot could do [her] job’” and, further, that she would be “‘the last political appointee who had a job there at the substation.’” She also testified that he would wear black gloves, and pound on the furniture where she worked to intimidate her. According to Suders, however, Baker was responsible for most of the harassment she suffered in that he would make obscene gestures to her as many as five to 10 times per night throughout her 5-month tenure at the barracks. In particular, Baker would imitate a popular wrestler’s move pictured on his desk by making obscene gestures accompanied by equally obscene comments. On the single occasion that Suders commented to Baker that he should not perform this wrestling move, he responded by pulling a chair in front of her, jumping on it and repeating the move. Suders acknowledged that initially she did not report any of these incidents to anyone else at the barracks since she did not believe there was anyone to whom she could go. By the summer of 1998, however, Suders’ relationship with these individuals had deteriorated rapidly and she sought help from Virginia Smith-Elliott, who in her capacity as Equal Employment Opportunity Officer of the Pennsylvania State Police, had taught a training class on sexual harassment that Suders attended. Specifically, following Prendergast’s accusation that Suders had taken home a missing accident file, Suders told Smith-Elliott that she might need some help without mentioning any details. Smith-Elliott gave Suders her phone number, but neither Suders nor Smith-Elliott spoke further. In July 1998, Suders received a supervisor’s notation for failing to complete an assignment given to her in May, and a reprimand for not properly disseminating information about an escaped convict from Ohio. Finally, on Aug. 18, 1998, Suders reached a breaking point and contacted Smith-Elliott. Even though Suders specifically mentioned that she was being harassed and was afraid, she contends that Smith-Elliott was insensitive and unhelpful. Smith-Elliott instructed Suders to file a complaint on a standard form without telling Suders where to locate the form. Two days after her phone conversation with Smith-Elliott, on Aug. 20, 1998, Suders tendered a resignation letter that she had been carrying with her. Her resignation was precipitated by the following events: All officers were required to take a computer skills exam, the results of which were supposed to be sent to another department. Suders took the exam several times and each time her supervisors told her she failed. She believed, however, the officers lied to her about her test scores because she found her exams in a set of drawers in the women’s locker room. The officers claimed that when they realized her test results were missing, they dusted the drawers and the files inside with a theft detection powder that reacts by turning the suspect’s hands blue. On the day that Suders sought to return the papers to the drawer, her hands turned blue and the officers apprehended her like an accused suspect. She was handcuffed, photographed, read her Miranda rights, questioned and told that she could not leave because she was a suspect. Only after Suders reiterated her intent to resign did Easton eventually permit her to leave. THE DISTRICT COURT’S DECISION Suders asserted claims of discrimination based on her sex, age and political affiliation in violation of federal and Pennsylvania law against the Pennsylvania State Police, Easton, Baker, Prendergast and Smith-Elliott. At the close of discovery, defendants moved for summary judgment and the district court granted their motion in its entirety. With respect to Suders’ claim of a sexually hostile work environment under Title VII, the district court found that Suders had marshaled enough evidence to raise a genuine issue of fact as to whether she suffered a hostile work environment. The district court determined, however, as a matter of law that Suders unreasonably failed to avail herself of the Pennsylvania State Police’s internal procedures for reporting any harassment and, based on Ellerth/Faragher, granted summary judgment on this claim. Significantly, the district court did not address whether Suders also asserted a claim of constructive discharge and, as a result, never reached the question whether a claim of constructive discharge affected the availability of the Ellerth/Faragher affirmative defense invoked by the Pennsylvania State Police. THE 3RD CIRCUIT REVERSES While the 3rd Circuit agreed with the district court’s finding that Suders raised genuine issues of material fact as to her claim of a sexually hostile work environment, it found the district court’s analysis of Suders’ claims flawed for two reasons. First, the district court ignored disputed issues of fact concerning the effectiveness of the Pennsylvania State Police’s remedial program, which precluded granting summary judgment on her hostile work environment claim. Second, and more importantly, the district court failed to consider Suders’s constructive discharge claim and the impact that claim had on the availability of the Ellerth/Faragher affirmative defense to the Pennsylvania State Police. As an initial matter, the 3rd Circuit reasoned that the district court erred to the extent it did not recognize Suders’ claim of constructive discharge from the allegations in her complaint, as buttressed by her testimony. For example, Suders alleged that “she was ‘forced to suffer a termination of employment because she would not yield to sexual suggestions, innuendoes and solicitatious [sic] behavior,’” and “felt she had no choice but to resign, and did so out of fear.” Next, the appellate court explained that to succeed on a claim of constructive discharge, a plaintiff must establish the convergence of two factors: � he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign; in that regard, although we cannot say as a matter of law that a single incident of discrimination is insufficient to show a constructive discharge, the employee has the burden of establishing that the discrimination surpassed a threshold level of intolerability; and � the employee’s reaction to the workplace situation — that is, his or her decision to resign — was reasonable given the totality of the circumstances; as to this factor, although it is relevant whether the employee explored alternative avenues to resolve the alleged discrimination before resigning, a failure to do so will not defeat a claim of constructive discharge where the working conditions were so intolerable that a reasonable person would have concluded that there was no choice but to resign. Applying these factors here, the 3rd Circuit determined that disputed issues fact would have precluded summary judgment on Suders’ constructive discharge claim. The 3rd Circuit then concluded that once this test is met, a constructive discharge operates as the functional equivalent of an actual termination. As such, a constructive discharge constitutes a tangible employment action, which renders unavailable the Ellerth/Faragher affirmative defense. The appellate court’s decision was based on the following observations: 1) recent 3rd Circuit decisions have suggested that a constructive discharge constitutes a tangible employment action; 2) the court was not persuaded by the grounds advanced by those circuit courts which have held that a constructive discharge is not a tangible employment action; and 3) holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher and to this circuit court’s Title VII jurisprudence. In Part Two of this article, we will discuss the conflict between the circuit courts regarding this issue.

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