Pennsylvania State Police v. Suders - Letoyia C. Brooks

• Citation: Vol. 57 No. 3
• Publication year: 2006

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Pennsylvania State Police v. Suders

In Pennsylvania State Police v. Suders,¹ the United States Supreme Court reached two conclusions. First, the Court wrote that an employee who resigns as a result of sexual harassment may assert a Title VII² constructive discharge claim where the employee can show that the "working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign."³ Second, the Court held that an employer may assert the affirmative defense established in Burlington Industries, Inc. v. Ellerth⁴ and Faragher v. City of Boca Raton? ("Ellerth/Faragher") in a situation where an employee resigns due to a sexually hostile work environment, alleging constructive discharge, when a supervisor does not impose a tangible employment detriment, such as discharge, demotion, or undesirable reassignment.⁶ Suders is the Court's first decision approving a Title VII constructive discharge claim, but it also allows the employer an affirmative defense to constructive discharges brought about by the most common type of actionable workplace harassment, "hostile environment" discrimination.

I. Factual Background

Nancy Suders began working at the Office of the Pennsylvania State Police ("PSP") in March 1998 as a police communications operator. Shortly thereafter, Suders alleged that her three supervisors sexually harassed her by making repeated obscene gestures and lewd sexual comments. In June 1998 one of the supervisors accused Suders of taking an accident file home. This incident prompted Suders to contact the PSP's Equal Employment Opportunity Officer, Virginia Smith-Elliot. Although Suders did not file a complaint at that time, she indicated to Smith-Elliot that "she was being harassed and was afraid."⁷ Smith-Elliott advised Suders to file a complaint. However, Smith-Elliott did not tell Suders how to obtain the necessary form. Two days following her conversation with Smith-Elliott, the supervisors arrested Suders for theft.⁸ Shortly after her arrest and interrogation, Suders expressed a desire to resign.⁹

In September 2000 Suders filed suit in federal district court against the three supervisors and the PSP, alleging that she had been sexually harassed and constructively discharged in violation of Title VII of the Civil Rights Act of 1964.¹⁰ During the course of the proceedings, the defendant, PSP, filed a motion for summary judgment asserting the Ellerth/Faragher defense. That defense enables an employer to defeat liability for a supervisor's creation of a hostile work environment — but not for "tangible terms" harassment — by showing (1) that "[it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) that the plaintiff employee unreasonably failed to take advantage of any of the employer's adequate preventive or corrective opportunities, or that the employee unreasonably failed to avoid harm otherwise.¹¹ The district court granted the defendant's motion. Although Suders presented sufficient evidence to show that the supervisors had created a hostile work environment, the evidence showed beyond any genuine issue of fact that she failed to utilize the employer's adequate internal procedures for reporting sexual harass- ment. On Suders' appeal, the Third Circuit reversed and remanded, reasoning that any constructive discharge resulting from a supervisor's harassment constitutes a tangible employment action that accordingly renders the Ellerth/Faragher affirmative defense unavailable and the employer, therefore, strictly liable.¹² On the defendant's petition, the United States Supreme Court granted certiorari.¹³

II. Legal Background

A. Constructive Discharge

1. The Development of the Constructive Discharge Doctrine. The National Labor Review Board ("Board") developed the constructive discharge doctrine under the National Labor Relations Act ("NLRA").¹⁴ The NLRA serves to protect employees' right to organize and to engage in collective bargaining activities.¹⁵ The doctrine addresses situations where employers sought to compel their employees, who were exercising their right to organize and engage in collective bargaining activities, to resign.¹⁶ If the employee shows that she resigned due to unbearable working conditions, the constructive discharge doctrine treats the resignation as a formal discharge, which, in turn, allows the employee to seek back-pay and other equitable remedies.¹⁷

The constructive discharge doctrine was first recognized by the Board in the Matter of Sterling Corset Co.¹⁸ Initially, the courts were reluctant to acknowledge the doctrine; however, it eventually gained wide acceptance. The First Circuit was the first to uphold a Board's finding of constructive discharge in 1953 in NLRB v. Saxe-GlassmanShoe.¹⁹ The U.S. Supreme Court officially recognized the constructive discharge doctrine in 1984 in Sure-Tan, Inc. v. NLRB.²⁰

2. Application of the Constructive Discharge Doctrine to Title VII Cases. Title VII, enacted in 1964, prohibits discrimination in the workplace based on race, national origin, sex, or religion.²¹ Allegations of constructive discharge began to appear in Title VII cases during the mid-1970s,²² and the doctrine eventually gained acceptance in a wide variety of Title VII cases. In Robinson v. Sappington,²³ the Seventh Circuit held that, viewed in a light most favorable to the plaintiff, a jury could find that the plaintiff had been subjected to sexually offensive behavior and that the supervisor's proposed transfer would subject the plaintiff to an equally cruel working situation.²⁴ Therefore, a jury could conclude that the plaintiff was constructively discharged.²⁵

Similarly, the Sixth Circuit, in Moore v. Kuka Welding Systems & Robot Corp.,²⁶ held that a jury could find that the plaintiff-employee, a black man, had been constructively discharged after he was subjected to racial slurs and after he spent over a year in complete isolation due to having filed a charge with the Equal Employment Opportunity Commission ("EEOC").²⁷ Reversing the district court, the Fifth Circuit concluded that the plaintiff in Young v. Southwestern Savings & Loan Ass'n²⁸ was constructively discharged when her employer required her to attend business meetings that began with a short religious talk and a prayer.²⁹ Finally, in Amirmokri v. Baltimore Gas & Electric Co.,³⁰ the Fourth Circuit reversed the district court's grant of summary judgment on the plaintiff's constructive discharge claim,³¹ determining that the plaintiff's supervisor exhibited discriminatory behavior by making derogatory references to the employee's Iranian national origin and by withholding company benefits.³² However, although courts have unanimously acknowledged the validity of constructive discharge and its applicability to Title VII cases, the circuits have split over the elements that plaintiffs were required to prove to sustain a constructive discharge claim.

3. The Circuit Split over the Subjective Specific Intent Element. The basic, invariable, and objective element of the constructive discharge claim is that "if the employer makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has [in effect chosen] a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee."³³ Whether the plaintiff must also prove that the employer created the intolerable work environment with the specific intent of causing the employee to quit is an issue that divided the circuits. The First,³⁴ Third,³⁵ Seventh,³⁶ Ninth,³⁷ Tenth,³⁸ and Eleventh³⁹ Circuits applied the objective standard alone, which requires the plaintiff to prove that "'a reasonable person in the employee's shoes would have felt compelled to resign.'"⁴⁰ The First Circuit reasons that an additional requirement of specific employer intent to create intolerable conditions that would cause a reasonable person to resign would defeat the purpose of the doctrine, which is to deter employers from creating or tolerating such a work environment regardless of their motive.⁴¹ "The doctrine reflects the sensible judgment that employers charged with employment discrimination ought to be accountable for creating working conditions that are so intolerable to a reasonable employee as to compel that person to resign."⁴²

In contrast, the Second,⁴³ Fourth,⁴⁴ Fifth,⁴⁵ Sixth,⁴⁶ Eighth,⁴⁷ and D.C.⁴⁸ Circuits require that the plaintiff prove that an employer had the specific intent to sexually harass an employee. In other words, they interpret the constructive doctrine to require a two-part inquiry: 1) were the working conditions created by the employer so intolerable that a reasonable person would resign (objective standard), and 2) did the employer act with the intention of forcing the employee to resign (subjective standard).⁴⁹ However, it is important to note that the nature of the intent element is unsettled within these circuits.⁵⁰

Although no circuit has explicitly stated its policy rationale for adopting the specific intent required, it can be inferred that these courts are attempting to encourage employees to remain on the job while protesting alleged harassment or, possibly, to discourage frivolous lawsuits.⁵¹ One could also argue that the specific intent requirement also advances the underlying policy of Title VII, which is to encourage the implementation and use of grievance procedures and prevent litigation.⁵² These policy concerns were reflected earlier in the Supreme Court's implementation of the Ellerth/Faragher affirmative defense.⁵³

B. The Creation of the Ellerth/Faragher Affirmative Defense

Title VII of the Civil Rights Act of 1964 provides that it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of...