COMMENT
This instruction is substantively identical to the constructive discharge instruction for Title VII actions. See Instruction 5.2.2. See also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 & n.4 (3d Cir. 2006) (discussing constructive discharge in the context of ADA claims).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 9.1.1, 9.1.2, or 9.1.4. 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 9.1.5. 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.”).
