COMMENT
This instruction can be used when the plaintiff was not fired, but resigned, and claims that she nonetheless suffered an adverse employment action because she was constructively discharged due to an adverse action or actions that were sanctioned by her employer. This instruction is designed for use with any of Instructions 5.1.1 through 5.1.4. If, instead, the plaintiff claims that she was constructively discharged based on a supervisor’s or co-worker’s adverse action or actions that were not sanctioned by the employer, the constructive discharge would not count as a tangible adverse employment action (for the purposes of determining whether the employer may assert an Ellerth/Faragher affirmative defense). See Comment 5.1.5. See also Pennsylvania State Police v. Suders, 542 U.S. 129, 140-41 (2004) (“[A]n employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a ‘tangible employment action,’ however, the defense is available to the employer whose supervisors are charged with harassment.”).In Suders, the Court explained that “[u]nder the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?” See also Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir. 1993) (ADEA claim) (close supervision of the employee was not enough to constitute a constructive discharge); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169-70 (3d Cir. 2013) (“In determining whether an employee was forced to resign, we consider a number of factors, including whether the employee was threatened with discharge, encouraged to resign, demoted, subject to reduced pay or benefits, involuntarily transferred to a less desirable position, subject to altered job responsibilities, or given unsatisfactory job evaluations.”); DiFiore v. CSL Behring, LLC, 879 F.3d 71, 79 (3d Cir. 2018) (False Claims Act retaliation claim and Pennsylvania wrongful discharge claim) (holding that “no reasonable jury could find” constructive discharge where plaintiff “may have been subjected to difficult or unpleasant working conditions, but these conditions [fell] well short of unbearable” and plaintiff “did not sufficiently explore alternative solutions or means of improving her situation”). Though the Instruction does not set out resignation as a stand-alone element, the claim requires that the plaintiff actually did resign. See Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) (“A claim of constructive discharge... has two basic elements. A plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign…. But he must also show that he actually resigned.”).
