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[Plaintiff] claims that [specify incident(s)] caused [her/his] constructive discharge. A “constructive discharge” occurs when an employer,2 such as [defendant], through illegal employment practices, imposes working conditions so intolerable3 that a reasonable person would feel compelled to leave4 [her/his] job rather than submit to them.5
1 In 2004, the Supreme Court resolved a Circuit split over whether affirmative defenses are available in a constructive discharge case:
[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.
Pa. State Police v. Suders,542 U.S. 129, 140 (2004). The decision thereby approved the approach taken in Reed v. MBNA Marketing Sys., Inc., 333 F.3d 27, 33 (1st Cir. 2003). see also Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 86 (1st Cir. 2006) (no “hard and fast per se rules”).
2 In Title VII cases, “the terms ‘employer’ and ‘employee’ are to be defined with reference to common law agency principles.” Delia v. Verizon Communications, Inc., __ F.3d __, 2011 WL 3688995, at *3 (1st Cir. Aug. 24, 2011) (internal quotes omitted). “[T]he principal guidepost” is “‘the common-law element of control [by the putative employer over the putative employee].’” Id. An instruction on this issue may be given when there is a dispute about whether the plaintiff is the defendant’s employee. see id. at *2-4; Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009).
3 To prove that he or she was constructively discharged, a plaintiff “must establish that his [or her] work environment was hostile.” Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 48 (1st Cir. 1998) (Title VII) (citing Landgraf v. USI Film Prods.,968 F.2d 427, 430 (5th Cir. 1992) (Title VII) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.”)). “[A] reduction in responsibility or a change in the way that business is done, unaccompanied by diminution of salary or some other marked lessening of the quality of working conditions, does not constitute a constructive discharge.” Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 55 (1st Cir. 2000) (ADEA); see also id. at 54 (“The workplace is not a cocoon, and those who labor in it are expected to have reasonably thick skins—thick enough, at least, to survive the ordinary slings and arrows that workers routinely encounter in a hard, cold world. Thus, the constructive discharge standard, properly applied, does not guarantee a workplace free from the usual ebb and flow of power relations and inter-office politics.” (citations omitted)).
4 “If a plaintiff does not resign within a reasonable time period after the alleged harassment, he was not constructively discharged.” Landrau-Romero v. Banco Popular de P.R.,212 F.3d 607, 613 (1st Cir. 2000) (Title VII). “The standard is an objective one.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002) (Title VII).
5 Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) (“‘[C]onstructive discharge’ is a label for treatment so hostile or degrading that no reasonable employee would tolerate continuing in the position.... Not every minor advantage or status symbol is protected by the statute—‘adverse action’ is a rule of reason concept....”); Greenberg v. Union Camp Corp.,48 F.3d 22, 27 (1st Cir. 1995) (ADEA) (citations omitted) (“It is well settled in this Circuit that, to establish a claim of constructive discharge, the evidence must support a finding that ‘the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ The legal standard to be applied is ‘objective,’ with the inquiry focused on ‘the reasonable state of mind of the putative discriminatee.’”); see also Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000) (ADEA) (“This standard cannot be triggered solely by an employee’s subjective beliefs, no matter how sincerely held. The ultimate test is one of objective reasonableness.” (citation omitted)).