No Other Choice: the Nuances of Constructive Discharge in Violation of Title VII


The Supreme Court recognized constructive discharge in Title VII cases in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), finding that a plaintiff can establish such a violation by showing that discrimination created “conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The limits and requirements of Sudersare at issue in a petition for certiorari filed with the Supreme Court in the case of Ames v. Nationwide Mutual Ins. Co., et al., 760 F.3d 763 (8th Cir. 2014).


Angela Ames had been a loss mitigation specialist for Nationwide Insurance for several years before she became pregnant with her second child. Following her maternity leave, Ames returned to work on July 19, 2010. Within three hours, she resigned.


When Ames arrived at the office on July 19, 2010, she needed to express milk. She asked the head of her department, Associate Vice President Karla Neel, about using a lactation room. Neel responded that it was not her responsibility to provide Ames with a lactation room; Ames then sought out the company nurse, Sara Hallberg. Ames’s and Hallberg’s testimonies diverge sharply, but Ames alleged that Hallberg told her that she would have to go through a three-day processing period before she could use the lactation room, in accordance with the company’s lactation policy. Hallberg informed Ames that she could use the wellness room, which would be free in 15 minutes, but that doing so could expose herself and her milk to airborne bacteria. While waiting for the wellness room, Ames met with her direct supervisor Brian Brinks to discuss the status of her work. Brinks told her that none of her work had been completed while she was on maternity leave, that she had two weeks to complete that work, that she would have to work overtime to accomplish this, and that if she failed to catch up, she would be disciplined. At this point, Ames was in physical pain from being unable to express her milk, visibly shaken, and in tears. She once again sought help from Neel, who told her, “You know, I think it’s best that you go home to be with your babies.” Neel handed Ames a piece of paper and a pen, and dictated for Ames her resignation letter.


 As background, Ames alleged that throughout her pregnancy Neel and Brinks made numerous statements indicative of an animus towards the pregnancy. Neel would roll her eyes when Ames would attempt to discuss her medically-ordered bed rest, and say “I never had this many problems when I was pregnant. All I needed was a pocketful of Tums, and I was good to go.” When Ames exhausted her Family and Medical Leave Act leave, Neel warned Ames that “taking additional [unpaid] leave would cause red flags, and she didn’t want there to be any problems like that, and that she didn’t want there to be any issues down the road.” Brinks stated that they could not give Ames more leave because there was too much work to do.


Nevertheless, the U.S. District Court for the Southern District of Iowa granted summary judgment for Nationwide, which the U.S. Court of Appeals for the Eighth Circuit affirmed. Summary judgment, which avoids a full trial, is granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In essence, this means that there is no interpretation of the facts that would allow the losing party to win.


In doing so, the Eighth Circuit construed Sudersto mean that the plaintiff alleging constructive discharge must prove, in addition to intolerable working conditions, two more elements: (1) that the employer acted with the intent of forcing the plaintiff to resign, and (2) that before resigning the plaintiff complained sufficiently to the employer about the discrimination.


There are problems with the Eighth Circuit’s addition of the second element into Suders, as analyzed by an amicus brief from the ACLU in support of Ames. A requirement to complain “sufficiently,” meant to provide the employer with an opportunity to correct the problem, ignores an unfortunate reality that complaining is all too often futile. Suders instructs that the affirmative defense of “lack of opportunity to address and ameliorate” is not available where a supervisor’s actions show that “the supervisor had used his managerial or controlling position to the employee’s disadvantage.” This is consistent with well-established principles that where the actor is a supervisor or manager, the actions are being taken by the company itself. The company is not being denied the ability to “address and ameliorate” because the company is taking the actions. In this case, Ames was still trying to resolve her problem when Neel shut her down, handed her a pen and paper, and dictated to Ames her resignation letter. If Suders had been properly applied, Ames would have been relieved of any obligation to pursue the matter further, and the company would have been held strictly liable.


Should the Supreme Court take up her case, it should follow the path set by Congress’s passing of the Pregnancy Discrimination Act of 1978. It should recognize, once again, that this is precisely the kind of gender stereotyping that Title VII was designed to eradicate. It should examine, as the Eighth Circuit failed to do, the still present and deeply problematic assumptions about the role of women in the workplace. In particular, the battle for gender equality has now focused on pregnant women and new mothers, often involving expressed concerns for the health and safety of the pregnant woman, or with her ability to work in a competitive environment. (See, for example, Young v. United Parcel Service, recently argued before the Supreme Court.) Whether these concerns will be permitted to play any role in our society any longer remains to be seen.