COMMENT
In ADEA cases (as in Title VII cases, see Comment 5.2.2), courts in the Third Circuit “employ an objective test to determine whether an employee can recover on a claim of constructive discharge.... Specifically, a court must determine ‘whether a reasonable jury could find that the [employer] permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.’” Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). Instruction 8.2.2 is substantively identical to the constructive discharge instruction for Title VII actions. See Instruction 5.2.2.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 either Instruction 8.1.1 or Instruction 8.1.2. Assuming that the Title VII framework concerning employer liability for harassment applies to ADEA actions, the employer’s ability to assert an Ellerth/Faragher affirmative defense in a constructive discharge case will depend on whether the constructive discharge resulted from actions that were sanctioned by the employer. See 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.”); see also Comment 5.1.5.
