I. Ames presented direct evidence of gender discrimination. 9

A. Neel’s “babies” comment is direct evidence of discrimination. 11

B. Neel and Brinck’s other pregnancy- and gender-related comments and actions also constitute direct evidence of discrimination. 19

II. Ames suffered an adverse employment action. 23

A. Ames was actually discharged. 23

B. Even if Ames was not actually discharged, she was constructively discharged. 25

C. Ames was constructively discharged even under the more rigorous hostile-work-environment constructive discharge standard. 28

CONCLUSION.. 30

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

CERTIFICATE OF SERVICE

TABLE OF AUTHORTIES

Page(s)

Cases

Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410 (8th Cir. 2010)........... 28

Arismendez v. Nightingale Home Health Care, Inc.,

.... 493 F.3d 602 (5th Cir. 2007)..................................................................... 20

Atlantic Research Corp. v. United States,

.... 459 F.3d 827 (8th Cir. 2006), aff’d, 551 U.S. 128 (2007).......................... 18

Back v. Hastings On Hudson Union Free School District,

.... 365 F.3d 107 (2d Cir. 2004)................................................................ 13, 14

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).............................. 25

Chadwick v. WellPoint, 561 F.3d 38 (1st Cir. 2009)........................... 13, 14, 16

Chertkova v. Connecticut General Life Insurance Co.,

.... 92 F.3d 81 (2d Cir. 1996).................................................................... 23, 26

Coble v. Hot Springs School District No. 6, 682 F.2d 721 (8th Cir. 1982)...... 11

EEOC v. Liberal R-II School District, 314 F.3d 920 (8th Cir. 2002)............... 10

EEOC v. Service News Co., 898 F.2d 958 (4th Cir. 1990)............................... 24

EEOC v. University of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002).. 25, 26

Faragher v. City of Boca Raton, 524 U.S. 775 (1998).................................... 25

Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004)........................... 10

Henderson v. Simmons Foods, Inc., 217 F.3d 612 (8th Cir. 2000).................. 28

Hibbs v. Nevada Department of Human Resources, 538 U.S. 721 (2003). passim

Hoyt v. Florida, 368 U.S. 57 (1961)................................................................ 15

Hukkanen v. International Union of Operating Engineers, Hoisting & Portable Local No. 101, 3 F.3d 281 (8th Cir. 1993)................................................................. 29

Lewis v. Heartland Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010) 10, 22

Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004)............................................. 16

Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc)..................... 18

Muller v. Oregon, 208 U.S. 412 (1908)........................................................... 15

NLRB v. Hale Manufacturing Co., 570 F.2d 705 (8th Cir. 1978).................... 24

NLRB v. MDI Commercial Services, 175 F.3d 621 (8th Cir. 1999).................. 24

NLRB v. Trumbull Asphalt Co., 327 F.2d 841 (8th Cir. 1964)........................ 24

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)......................... 25, 28

Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997)....... 17, 18, 19

Plaetzer v. Borton Automotive, Inc.,

.... No. Civ. 02-3089, 2004 WL 2066770 (D. Minn. Aug. 13, 2004).............. 16

Roberts v. Park Nicollet Health Services, 528 F.3d 1123 (8th Cir. 2008)......... 21

Sanders v. Lee County School District No. 1, 669 F.3d 888 (8th Cir. 2012).... 27

Santiago-Ramos v. Centennial P.R. Wireless Corp.,

.... 217 F.3d 46 (1st Cir. 2000).................................................................. 13, 15

Schneider v. Jax Shack, Inc., 794 F.2d 383 (8th Cir. 1986)....................... 23, 24

Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999)............................... 13

St. Martin v. City of St. Paul, 680 F.3d 1027 (8th Cir. 2012).......................... 10

T.L. v. United States, 443 F.3d 956 (8th Cir. 2006)......................................... 19

Tatom v. Georgia–Pacific Corp., 228 F.3d 926 (8th Cir. 2000)...................... 28

Tatum v. City of Berkeley, 408 F.3d 543 (8th Cir. 2005)................................. 20

Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc)........ 10

Walker v. Board of Regents, 410 F.3d 387 (7th Cir. 2005).............................. 20

Young v. Southwest Savings & Loan, 509 F.2d 140 (5th Cir. 1975).......... 27, 29

Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909 (8th Cir. 2011).. 23

Statutes

Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq....................... 12

Pregnancy Discrimination Act (PDA),

.... Pub. L. No. 95-555, 92 Stat. 2076 (1978).................................................. 16

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq....... passim

Rules and Regulations

Fed. R. App. 29(a)............................................................................................ 1

Sup. Ct. R. 10................................................................................................. 19

Other Authorities

124 Cong. Rec. 21,442 (1978)........................................................................ 17

Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012)....................................................................................... 15

Cathy Shuck, That’s It, I Quit: Returning to First Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab. L. 401 (2002)................................. 27

EEOC, Enforcement Guidance: Unlawful Treatment of Workers with Caregiving Responsibilities (May 23, 2007)................................................................ 16

H.R. Rep. No. 95-948 (1978).......................................................................... 16

STATEMENT OF INTEREST

Congress has charged the Equal Employment Opportunity Commission with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises an important question: whether Title VII protects women from discrimination based upon the stereotype that they would or should prefer to stay at home with their children. The district court concluded that it does not and construed Eighth Circuit precedent in a way that creates a conflict within this Circuit, and with at least three other circuit courts and the Supreme Court. Given the importance of this issue, the EEOC offers its views pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

STATEMENT OF THE ISSUE

Is Title VII violated when a new mother is discharged based upon the stereotype that she should or would prefer to stay home with her children?

STATEMENT OF FACTS

Angela Ames started at Nationwide in October 2008. App.426. Following the birth of her first child in May 2009, she took eight weeks of maternity leave. App.427, 515. In October 2009, she learned she was pregnant again. App.428. This was not planned. App.427. Because of her first pregnancy’s complications, her doctor believed that she could not get pregnant again without reconstructive uterine surgery. App.427. Her doctor was wrong.

Shortly after learning of the pregnancy, she told Jess Troendle, her then-supervisor. App.427. A day or so later, she told Karla Neel, a vice-president and the head of her department, who responded: “I was wondering when you were going to tell me.” App.427–28.

Neel then began to pressure Ames, telling her, “You’re going to need to make sure that you have as much caught up as you need before you[r pregnancy] leave,” and asking her, virtually every day, “Are you caught up on this; are you caught up on this?” App.437. Even while pregnant, Ames regularly worked overtime. App.437. She “was working as hard as [she] possibly could so [Neel] wouldn’t make those comments to [her].” App.437. Neel pressured Ames, even though as Brian Brincks, Ames’s direct supervisor, testified, Ames “was always willing to help out when needed[.] [I]f another representative needed help with something,” Ames helped. App.447.

Neel further reacted to Ames’s pregnancy. She commented on Ames’s size, telling Ames that she was carrying more than one baby “because [she] was getting so big.” App.432. She shared her attitude about breastfeeding, telling Ames that “she didn’t nurse her babies.” App.437. And she criticized Ames, in front of others, for having a baby shower, stating that she did not think that anyone should have a baby shower while pregnant because Ames’s “baby can die.” App.432, 464–65. Neel recounted a story about a friend who had to return all the baby shower gifts after the baby died. App.432. Ames did not respond to Neel’s pregnancy-related gibes because she “didn’t want to have any conflict.” App.432.

About twenty weeks into the pregnancy, Ames went into pre-term labor and her doctor ordered bed rest. App.461, 515. Ames attempted to discuss this with Neel, but she was dismissive. Neel “rolled her eyes” at the news. App.432. When Ames attempted to give Neel her doctor’s bed rest note, Neel gestured by pushing her hands away, saying “Nope, don’t give that to me; nope, I don’t want to see it; I don’t even want to look at it.” App.439. Neel told Ames that she “never had this many problems” when she was pregnant and that “[a]ll [she] needed was a pocketful of Tums and [she] was good to go.” App.432, 460.

Neel next told Ames that she would be granted little maternity leave: she could only have one week off after she delivered her second child because, Neel asserted, she had already used her eight weeks of maternity leave after her first pregnancy. App.161–62.

Ames gave birth on May 18, 2010—five weeks before the due date. App.439, 515. On June 2, after discussions with Brincks, it was agreed that Ames would be on leave until August 2. App.177, 435.

But Neel altered this arrangement. On June 16, she called Ames to tell her that she must instead return to work on July 19—two weeks earlier than the date Brincks had set. App.177. Neel told Ames that choosing to take additional unpaid time off would “cause[] red flags.” App.177. Neel warned that she “[didn’t] want there to be any problems like that,” and that she “[didn’t] want there to be any issues down the road.” App.177. As she put it, “You know, Angela, I’m not, I’m not gonna play hard[ball] . . . I just want to explain it to you. And I want it to be something that we mutually agree on[.]” App.177.

Ames told Neel that she was “overwhelmed” and “not prepared” to return to work so soon. App.177. Ames considered Neel’s warnings to be implied threats of discipline or termination. She mentioned to Neel that the Nationwide disability case manager, Somphong Baccam, had warned her that “her position could be opened up,” and Neel did not disabuse of her that. App.177. Ames made clear that she “want[ed] to go back to work” and asked if returning on the 19th would be okay. App.177. Neel indicated that it would and the two agreed that Ames would return on July 19, 2010. App.177. They later agreed that Ames would arrive later than her normal start time because she had to take the baby to his “well-baby check-up” that morning. App.463.

Ames arrived at work around 10 am on July 19. App.153. She noticed that her workspace was filled with the belongings of another employee, Angie Ebensberger. App.515. Unbeknownst to Ames, Nationwide had been training Ebensberger for Ames’s job while she was on maternity leave. App.435. Ames thought Nationwide “w[as] intending to keep [Ebensberger] on [in] a permanent position since [Ames] would no longer be there.” App.435.

Earlier that morning, Ames had breastfed the baby around 6:30 am. App.153, 443, 463. Because he was a “preemie,” he had to nurse more frequently than a full-term baby—he nursed once about every three or four hours. App.428–29. When Ames arrived at work, she had not expressed milk for nearly four hours, and her breasts were beginning to feel uncomfortable. App.428, 429.

She had assumed that she would have little trouble expressing milk at work because Nationwide had visible lactation rooms, which were “accessible on every floor.” App.429. She thought she would gain easy access to those rooms—one was right by her desk, App.431–32—and that it would be no problem to take a break to express milk—in the same way that it was no problem when other co-workers took smoke breaks, App.429. The day before she returned, she had even described the lactation rooms to her mother and “gave [her mother] the impression that the room was really nice, and . . . comfortable, there was a couch in there, and it was a relaxing atmosphere.” App.443. Had she been able to use one of the rooms when she arrived, it would have taken her about fifteen minutes to express the milk and resume her day. App.405.

But when Ames went to Neel about getting a nursing room, Neel responded “that it was not her job.” App.463, 466–68, 515. Neel claimed in her deposition that she did not even know where the rooms were, even though they were conspicuous. App.464. Ames then asked the security officer about getting a room, who directed her to the company nurse, Sara Sagers. App.430, 466–68, 515.

Sagers told Ames that she could not use a lactation room because Nationwide required her to apply to use the room and that there was a three-day waiting period to process the application. App.431. This was the first Ames had heard of this. Before returning to work, she specifically asked her disability case manager where she would be able to express milk, and she told Ames the lactation rooms. App.429. Neither the case manager, nor anyone else from Nationwide, told Ames that she had to submit forms and be subjected to a waiting period. App.429. Brincks, for example, testified that he believed that an employee “could use [the lactation room] as long as it’s not already in use.” App.445.

Sensing that Sagers failed to appreciate the urgent need, Ames asserted, “I need to pump now.” App.430, 466–68, 515. Sagers responded that she possibly could use a sick room, but that she would have to wait fifteen to twenty minutes because an ill employee was in the room and had to be roused by security before Ames could access it. App.430, 466–68, 560. Sagers warned that if she did use the sick room she should place a chair against the door and pump in that chair because the door’s lock was broken. App.467–68. Sagers next cautioned against pumping in the sick room altogether “because [Ames’s] milk could be exposed to illness.” App.166, 458. Nothing in the record, however, suggests that the lactation rooms were occupied, unsecure, or had been exposed to sick people.

Even though she was experiencing extreme discomfort, Ames decided that since she was waiting for the room anyway, she would meet with Brincks to discuss her work. App.430, 466–68, 516. Brincks told Ames that her work was behind and that she had until August 1, 2010—less than two weeks—to catch up or he would discipline her. App.430, 450, 451, 466–68. Brincks asked Ames whether the necessary overtime would be a problem “with having the new baby at home.” App.439. If she did not quickly catch up, Brincks testified, he would have written her up, App.450, even though he had assured her that her work would be done while she was out.

Because her breast pain was increasing, she again sought Neel’s help to find a place to express milk. App.434–36. Ames’s medical expert explained: “By the time [Ames] had [this] conversation with Karla Neel, . . . [she] would likely be experiencing extreme physical discomfort. Specifically, her breasts would be hot, and tender to the touch; they would feel as though they were swelling, or inflating with milk; and her nipples would be leaking.” App.496–97.

But instead of assisting Ames, Neel told her, “I think it’s best that you just go home to be with your babies.” App.437. Ames was stunned. App.437. She “just stared at [Neel], and . . . [started] crying.” App.437. Neel “got [Ames] a yellow pad” and pen, but Ames told her “I don’t know what to write.” App.434, 437. Neel responded, “Just write, ‘As of July 19th, I, Angela Ames, give my resignation to Nationwide.’” App.434. Then Neel instructed Ames to “sign and date it.” App.434. Ames testified that Neel “forced” her to quit, wanted her to quit, and “told [her] to quit.” App.434, 439. Ames was “shocked,” but complied, testifying that Neel “went and got a yellow pad and made me write [it].” App.431.

When Neel showed Brincks the resignation note, he “was surprised” because he “didn’t have any indication . . . that [Ames] was going to resign.” App.446. His perception was correct: Ames had no desire to stay at home with her kids; she wanted to work. App.434. As she testified:

I missed my job. I missed my friends I had at work. I missed talking to my customers. I missed everything about working. Working was me. I worked at a job I was good at. I worked at a job customers sent me thank yous and were grateful for what I was doing for them. So, no, I didn’t want to stay home. Being a stay-at-home mom wasn’t my identifier. Being a working mom was.

App.434.

SUMMARY OF ARGUMENT

Neel’s comment that “it’s best that you just go home to be with your babies” was direct evidence of gender discrimination because it invoked widely understood stereotypes about the role of women in the home and the workplace. Neel’s enforcement of such stereotypes, a reasonable jury could conclude, violated Title VII. This is particularly true when Neel’s comments are considered alongside Neel and Brincks’s other pregnancy-related actions, comments, and jibes. The district court erred in concluding otherwise.

The district court also erred in concluding that Ames did not suffer an adverse employment action. Ames was actually discharged, a reasonable jury could conclude, because Neel’s words and actions would lead a prudent person to believe that she had been terminated. A reasonable jury also could conclude that Ames was constructively discharged because a reasonable employee standing in her shoes would have believed that had she not resigned, she would have been terminated. Finally, a reasonable jury also could conclude that she was constructively discharged because her working conditions had become intolerable, Neel intended her to resign, and Neel had an opportunity to respond to Ames’s intolerable conditions but failed to do so.

ARGUMENT

I. Ames presented direct evidence of gender discrimination.

The district court erred when it concluded that no reasonable jury could conclude that Neel’s comment “I think it’s best that you just go home to be with your babies” reflected an unlawful motivation for Ames’s termination, particularly in light of the other gender and pregnancy animus evidence.

This Court “ha[s] long recognized . . . in applying McDonnell Douglas . . . that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of ‘direct evidence’ of discrimination.” Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011) (en banc). “A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer’s adverse action does not need the three-part McDonnell analysis to get to the jury, regardless of whether his strong evidence is circumstantial.” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). Under this Court’s law, direct “refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.” St. Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir. 2012). “The touchstone inquiry remains whether circumstances permit a reasonable inference of discrimination.” Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1040 (8th Cir. 2010).

“‘[R]emarks of the employer that reflect a discriminatory attitude’ are often sufficiently strong evidence to avoid the McDonnell Douglas framework completely.” Id. “[E]vidence of remarks of the employer that reflect a discriminatory attitude, as well as comments which demonstrate a discriminatory animus in the decisional process or those uttered by individuals closely involved in employment decisions” will suffice. EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 923 (8th Cir. 2002) (internal quotations and ellipses omitted).

Here there is evidence both of discrimination in the decisional process and additional comments uttered by the person who effected the adverse action.

A. Neel’s “babies” comment is direct evidence of discrimination.

Neel made her gender-based animus explicit when she told Ames that it was best that she go home to her babies, gave her a pad and paper, and ordered her to write a resignation.

This Court has already concluded that discrimination against a woman based on the stereotype that work and children are incompatible is gender discrimination. In Coble v. Hot Springs School District No. 6, the superintendent told a teacher that she was denied promotion because “she had a family” even though “she had qualities that [the promoted employee] did not.” 682 F.2d 721, 726 (8th Cir. 1982). The promoted employee, on the other hand, was single and had “no immediate family.” Id. at 724. During her interview, the superintendent marveled at how “energetic” the plaintiff was, given that she pursued so many activities, yet “her children had not suffered.” Id. at 726. This Court concluded that based on this a reasonable jury could conclude the school district violated Title VII, reasoning that this evidence “show[ed] that the superintendent made the employment decision largely on the basis of a sexual stereotype.” Id. at 727. This Court did not require an explicit gender reference.

Post-Coble decisions have further illuminated the discriminatory nature of the gender-based stereotype about women with family responsibilities. In Hibbs v. Nevada Department of Human Resources, the Supreme Court took judicial notice of the stereotype that women, not men, are responsible for family caregiving. Chief Justice Rehnquist’s majority opinion explained that the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., was enacted by Congress because “stereotype-based beliefs about the allocation of family duties remained firmly rooted [in society].” 538 U.S. 721, 730 (2003). Noting the “pervasive sex-role stereotype that caring for family members is women’s work,” the Court explained that Congress created the FMLA’s gender-neutral twelve-week leave program in order to “attack the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.” Id. at 731, 737. To the Court, this type of gender discrimination was so pervasive that it justified upholding the FMLA’s abrogation of state sovereign immunity in awarding both a right to men to obtain leave after the birth of a child and a right to sue a state for failing to honor that right. Id. at 737–39.

Several other circuits have specifically concluded that applying the stereotype that women could or should prefer to care for children violates Title VII. As the district court noted, the Seventh Circuit concluded that comments very similar to those in this case constituted direct evidence of discrimination. See Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir. 1999). The Sheehan court reasoned that a “reasonable jury might conclude that a supervisor’s statement to a woman known to be pregnant that she was being fired so that she could ‘spend more time at home with her children’ reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake.” Id. at 1044–45. The First Circuit has reached the same conclusion, see Chadwick v. WellPoint, 561 F.3d 38, 43–45 (1st Cir. 2009), as has the Second, see Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 117–22 (2d Cir. 2004).

In Chadwick, the First Circuit reversed summary judgment because the decisionmaker and others during the promotion process referenced the plaintiff’s role as a mother and told her that she did not get the promotion because she “ha[s] the kids and . . . just ha[s] a lot on [her] plate right now.” 561 F.3d at 42; see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (finding proof of sex-based animus where supervisor questioned “whether [the plaintiff] would be able to manage her work and family responsibilities”). The court specifically rejected the lower court’s requirement—a requirement echoed by the lower court in this case—that the words explicitly indicate that the plaintiff’s sex was the basis for the employer’s assumption about the plaintiff’s inability to balance work and home. 561 F.3d at 46. As the court put it, “To require such an explicit reference (presumably use of the phrase ‘because you are a woman,’ or something similar) to survive summary judgment would undermine the concept of proof by circumstantial evidence, and would make it exceedingly difficult to prove most sex discrimination cases today.” Id.

In Back, supervisors denied a promotion to a woman while commenting, among other things, that the “job” was not for someone who had “little ones,” and that it was “not possible for [her] to be a good mother and have th[e] job.” 365 F.3d at 115. The Back court specifically “h[eld] that stereotypical remarks about the incompatibility of motherhood and employment ‘can certainly be evidence that gender played a part’. . . [thus], stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.” Id. at 122. The court reasoned that

Hibbs makes pellucidly clear . . . that, at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based. Hibbs explicitly called the stereotype that “women’s family duties trump those of the workplace” a “gender stereotype,” and noted the “pervasive sex-role stereotype that caring for family members is women’s work.”

Id.

These courts correctly analyzed this kind of sex-based stereotype. “Historically, women’s capacity to become pregnant and their status as mothers have served as central justifications for their exclusion from the workforce.” Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1360 (2012). In the past, women were routinely denied civic and economic opportunities based on the stereotype that women’s primary role was in the home. See, e.g., Hoyt v. Florida, 368 U.S. 57, 62–63 (1961) (excusing women from jury service constitutional because a woman’s role “as the center of home and family life” is incompatible with full participation in the public sphere); Muller v. Oregon, 208 U.S. 412, 421–22 (1908) (upholding a “protective” labor law on the grounds that ensuring “the proper discharge of [women’s] maternal functions” justifies the restriction on their right to work).

This idea has manifested itself somewhat differently in recent times. Now the concern is not so much that work will interfere with a woman’s role in the home, but rather that a woman’s home role will interfere with her work responsibilities. Yet, as the Hibbs Court noted, “the faultline between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.” 538 U.S. at 738.

Title VII protects women like Ames from discrimination based on the notion that their primary function is that of a mother or a wife and from the stereotype that they would neglect work because of their motherly responsibilities. As the First Circuit noted, “In the simplest terms, these cases [Hibbs, Santiago-Ramos, and Sheehan, and others[1]], stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.” Chadwick, 561 F.3d at 44–45; see also EEOC, Enforcement Guidance: Unlawful Treatment of Workers with Caregiving Responsibilities 5–8, 11–18 (May 23, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.pdf.

When Congress enacted the Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k) (2006)), the entire point was to protect women from stereotyped assumptions about the incompatibility of work and motherhood that reinforce women’s secondary status in the workplace. To Congress, it seemed obvious that “the assumption that women will become pregnant and leave the labor force . . . is at the root of the discriminatory practices which keep women in low-paying and dead-end jobs.” H.R. Rep. No. 95-948, at 3 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4751. As then-Rep. Paul Tsongas stated, the PDA would “put an end to an unrealistic and unfair system that forces women to choose between family and career—clearly a function of sex bias in the law, which no longer reflects the conditions of women in our society.” 124 Cong. Rec. 21,442 (1978).

This case demonstrates the barrier that these stereotypes still present. Ames wanted to remain in the workplace and not retreat solely to the domestic sphere. As she testified, “Being a stay-at-home mom wasn’t my identifier. Being a working mom was.” App.434. But Neel’s notion that Ames’s new motherhood was incompatible with her work pushed her out of the workplace.

The district court recognized all this, stating that “one would be hard-pressed to argue that . . . Neel’s alleged comment d[id] not invoke . . . ‘widely understood stereotypes’ regarding women’s ability to balance work and child-rearing.” R.103, at 18. But it felt compelled by this Court’s decision in Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997), to conclude that Neel’s comments did not evince gender discrimination because, the district court asserted, the comment involved in Piantanida—the plaintiff was told that she would be transferred to a different position, one “for a new mom to handle”—also invoked widely understood stereotypes. R.103, at 18.

But Piantanida does not control this case for four reasons. First, Piantanida, by its express terms, addressed only the “the narrow question of whether being discriminated against because of one’s status as a new parent is ‘because of or on the basis of pregnancy, childbirth, or related medical conditions, and therefore violative of the PDA.’” 116 F.3d at 342. It did not address whether such a statement evinces gender discrimination because the comment reflects gender stereotypes. Coble answered that question for this Circuit, and it makes clear that taking an adverse employment action based on presumptions about a woman’s family responsibilities is a “sexual stereotype,” and hence, violates Title VII. Coble, 682 F.2d at 727. To the extent Piantanida and Coble conflict, “the earliest opinion must be followed as it should have controlled the subsequent panels that created the conflict.” Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (internal quotations and citation omitted).

Second, the district court erred in concluding that the statement in this case was gender neutral, as it arguably was in Piantanida. Neel made her comment that Ames should go home to be with her babies in the context of Ames’s seeking help to engage in a gender-specific activity—expressing milk. That context supports the inference that Neel made those comments with Ames’s gender on her mind.

Third, Piantanida should not control this case because if it is understood to conclude that limiting women’s opportunities because they are new mothers is not gender discrimination, then it cannot be reconciled with Hibbs. Therefore, while panel opinions are generally binding on future panels, “this rule is not inflexible. Where the prior decision can be distinguished, or its rationale has been undermined, a subsequent decision can depart from the prior path.” Atl. Res. Corp. v. United States, 459 F.3d 827, 830 (8th Cir. 2006), aff’d, 551 U.S. 128 (2007). “[I]t is well settled that a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent.” T.L. v. United States, 443 F.3d 956, 960 (8th Cir. 2006). For the reasons discussed, Pinatanida—should it be construed as the district court did—has been undermined by Hibbs and thus, should be abandoned.

Fourth, Piantanida should not control because if it is understood as the district court read it, and this Court reaffirms it on those grounds, this Court will acknowledge and deepen a split with at least three other Circuits, which, as discussed, have clearly held the opposite. See Sup. Ct. R. 10. Piantanida, should it be read that way, would stand alone.

B. Neel and Brinck’s other pregnancy- and gender-related comments and actions also constitute direct evidence of discrimination.

In addition to discounting the force of the stereotypes that motivated Neel to discharge Ames, the district court also failed to properly evaluate Ames’s other direct evidence of gender discrimination. Specifically, Neel made numerous pregnancy and gender-based remarks; Neel and Brincks made apparent efforts to get Ames to resign; and Neel evinced hostility or indifference to Ames’s lactation needs. The district court failed to consider this evidence together, instead disaggregating it and querying whether each piece of evidence alone would give rise to an inference of discrimination. R.103, at 35–42. That was error. “[T]he key consideration is the totality of these ‘pieces of evidence[,] none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff.’” See Walker v. Bd. of Regents, 410 F.3d 387, 394 (7th Cir. 2005) (citation omitted)); see also Tatum v. City of Berkeley, 408 F.3d 543, 553 (8th Cir. 2005) (considering the “totality of evidence[] viewed in the light most favorable” to the plaintiff).

Neel commented on Ames’s pregnancy size, shared with Ames her feelings about breastfeeding, telling Ames that “she didn’t nurse her babies,” and she criticized Ames—in front of others—for having a baby shower, stating that she did not think that anyone should have a baby shower while she is still pregnant because the baby might die. She “rolled her eyes” at Ames’s need for bed rest, refused to accept Ames’s doctor’s note, and proclaimed that she “never had this many problems” when she was pregnant and that “[a]ll [she] needed was a pocketful of Tums and [she] was good to go.”

Such comments preceding an adverse employment action can constitute direct evidence of gender or pregnancy discrimination because a jury can infer that they betray an underlying animus. See Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607–08 (5th Cir. 2007) (telling the plaintiff that the employer “had a business to run and could not handle having a pregnant woman in the office” was direct evidence). And Neel’s obvious frustration and hostility to Ames also constitutes direct evidence of gender and pregnancy discrimination. In Roberts v. Park Nicollet Health Services, for example, this Court concluded that asking an expecting mother whether she intended to keep the baby along with other more innocuous pregnancy comments constituted direct evidence of pregnancy discrimination because they “amounted to an expression of frustration” that the employee had become pregnant, “and an indication that a decision by [the employee] to continue the pregnancy would be disfavored.” 528 F.3d 1123, 1128 (8th Cir. 2008).

The district court, however, discounted Neel’s pre-termination comments, reasoning that because these comments occurred before Ames’s termination they were not in “close temporal proximity” with the termination, therefore, the court was “less inclined to find a connection between the comments and the adverse employment action.” See R.103, at 38 & n.42. But, as Roberts makes clear, this was error: comments preceding the adverse employment action can be probative.

Here Neel and Brincks’s reactions also evince a stereotype that Ames’s pregnancy and resulting motherhood would interfere with work. Neel urged Ames to work harder than ever while she was pregnant—specifically because she was pregnant. Brincks told Ames that she would have to work overtime or be disciplined, and he inquired whether the recent births would interfere. This too is direct evidence of gender and pregnancy discrimination. In Sheehan, for example, the court reasoned that the supervisor’s frustration with juggling the workload left during the plaintiff’s pregnancy leaves supported an inference that the supervisor engaged in pregnancy discrimination because he felt burdened by the plaintiff’s pregnancies and maternity leaves. 173 F.3d at 1045.

Neel and Brincks’s actions also evince a desire to push Ames out. They initially told her that she would receive virtually no maternity leave, but Brincks, after discussing the leave with Ames, relented, only to have Neel again alter the leave. Neel informed Ames directly of her shortened leave, and encouraged Ames to “think about” whether she wanted to come back early but warned that if she did not it might raise “red flags.” When Ames returned to work, her workstation was occupied and she faced recalcitrance and hostility from Neel when she sought a place to express milk—despite the fact that Nationwide had available and conspicuous lactation rooms. A reasonable jury could infer that Neel was pressuring Ames to resign.

Altogether, Ames presented abundant direct evidence of gender discrimination.[2]

II. Ames suffered an adverse employment action.

Despite abundant evidence of gender and pregnancy bias, the district court ruled that Ames’s claim also failed because she had not been subjected to an adverse action. This too was error.

A. Ames was actually discharged.

Before deciding whether Ames was constructively discharged, “the district court should have focused first on the antecedent question of whether there had been an actual discharge.” Schneider v. Jax Shack, Inc., 794 F.2d 383, 384 (8th Cir. 1986); Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909, 912 (8th Cir. 2011) (addressing sua sponte whether a plaintiff had been actually discharged); Brief for the Appellant, Young-Losee, 631 F.3d 909 (No. 10-2012) (failing to argue actual discharge); see also Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 88 (2d Cir. 1996) (addressing actual discharge on appeal even though not raised in the lower court).

“To prove a wrongful discharge, it is not essential that the employee be formally fired, but it is necessary to prove that ‘the words or action of the employer would logically lead a prudent person to believe his tenure had been terminated.’” NLRB v. MDI Commercial Servs., 175 F.3d 621, 628 (8th Cir. 1999) (quoting NLRB v. Hale Mfg. Co., 570 F.2d 705, 708 (8th Cir. 1978)). As then-Judge Blackmun noted, “[t]he fact of discharge of course does not depend on the use of formal words of firing.” NLRB v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964).

Here, Neel’s words and actions, would logically lead a prudent person—as they led Ames—to believe that her tenure had been terminated. Telling an employee “I think it’s best that you just go home to be with your babies,” handing her a pad and pen, and dictating the specific words of the resignation logically would lead a prudent person to conclude that she has been terminated. For example, in EEOC v. Service News Co., the Fourth Circuit concluded that a pregnant employee was actually discharged when she left the employer’s premises after her supervisor expressed concern that she might be injured if she continued working, told her that other pregnant employees had been injured, and discussed post-employment unemployment and health insurance options with her. 898 F.2d 958, 960 (4th Cir. 1990); cf. Schneider, 794 F.2d at 384 (forced demotion may constitute an actual discharge, particularly when the employer makes plain that it “was not committed to employing [the plaintiff]”).

B. Even if Ames was not actually discharged, she was constructively discharged.

The constructive discharge doctrine has developed in recent years in the context of determining whether someone’s resignation, after being subjected to sexual or other harassment, can constitute a tangible adverse action in order to give rise to employer liability under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See, e.g., Pa. State Police v. Suders, 542 U.S. 129, 143–45 (2004). Therefore, usually an employee must show that she resigned because of discriminatory harassment that was “even more egregious than the high standard for hostile work environment.” EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir. 2002).

“But,” as the Seventh Circuit has recognized, “that is not the only method of demonstrating constructive discharge.” Id. A plaintiff can also show a constructive discharge by “demonstrat[ing] that a reasonable employee standing in [her] shoes would have believed that had she not resigned, she would have been terminated.” Id. “When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer’s conduct may amount to constructive discharge.” Id.

Here, Ames has sufficiently demonstrated that a jury could conclude that a reasonable employee standing in her shoes would have believed that had she not resigned, she would have been terminated. She arrived at work to find another employee, whom Nationwide had been training for her job, in her cubicle. She was threatened with discipline if she did not immediately begin to work overtime. She faced nothing but hurdles in her effort to find a place to express milk, and finally her department head told her that she thought it was best that she go home to her babies.

The University of Chicago court relied on very similar evidence to conclude that a constructive discharge had occurred in that case: the plaintiff arrived to work and found her office being used for storage; she was warned that she might be fired; and she faced continued hostility based on her protected class—in that case her religion. Id. “This environment,” the court concluded, “in which her employer made reasonably clear to her that she had reached the end of the line—where the handwriting was on the wall and the axe was about to fall, could have indeed been to a reasonable employee unbearable.” Id. (internal citations, quotations, and brackets omitted); see also Chertkova, 92 F.3d at 89 (concluding that the plaintiff proved constructive discharge in a disparate treatment case where the plaintiff showed that she was “treated arbitrarily[,] severely criticized despite her strong performance” and threatened with termination).

This Court has likewise recognized, at least implicitly, that in non-harassment cases, the hostile-work-environment constructive discharge standard need not apply. In Sanders v. Lee County Sch. Dist. No. 1, 669 F.3d 888 (8th Cir. 2012), this Court concluded that a racially discriminatory reassignment from finance coordinator to food services assistant that was met with the employee’s responsive resignation constituted a constructive discharge because a “[c]onstructive discharge through placement in a job that is ‘intolerable’ may be shown by a deliberate placement in a job for which one is not qualified and that one is unable to perform, regardless of whether the environment is intolerably abusive or oppressive.” Id. at 894.

Moreover, sometimes truly blatant or unremitting disparate treatment discrimination alone, as occurred here, may be so intolerable as to constitute a constructive discharge. In one of the seminal constructive-discharge cases, for example, the Fifth Circuit concluded that an atheist who quit in response to being forced, as a condition of employment, to attend regular religious meetings at work had a claim for constructive discharge. Young v. Sw. Savings & Loan, 509 F.2d 140, 144 (5th Cir. 1975). The view is also supported by commentators. Cathy Shuck, That’s It, I Quit: Returning to First Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab. L. 401, 445–46 (2002), cited approvingly on a different point by Suders, 542 U.S. at 141–42.

C. Ames was constructively discharged even under the more rigorous hostile-work-environment constructive discharge standard.

Under that standard, “[t]o prove a constructive discharge, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing her to quit.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418 (8th Cir. 2010). An employee must give her employer a reasonable opportunity to resolve a problem before quitting. Id. The employer can render working conditions intolerable through inaction as well as action. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617 (8th Cir. 2000). “The intolerability of working conditions is judged by an objective standard, not the employee’s subjective feelings[.]” Tatom v. Ga.–Pac. Corp., 228 F.3d 926, 932 (8th Cir. 2000).

1. Ames’s working conditions had become intolerable.

A jury could conclude that a reasonable employee who had just returned from maternity leave after a difficult pregnancy; whose breasts were swollen because her employer refused to give her a place to express milk; who had already seen a new employee at her workstation; who had been told by her direct supervisor that she would have to work overtime or face discipline; and who had been told by her department head that it was best that she go home to her babies would quit as a result of this treatment.

The district court ignored the particulars of Ames’s situation, because, it asserted, that would make the standard subjective, not objective. That is wrong. The standard is what a reasonable person in the employee’s shoes would do, which means the court should consider how a reasonable employee experiencing the pain of needing to express milk along with other particular circumstances would react. In Young, for example, the court did not ask how a reasonable generic person would respond to religious meetings; it asked how a reasonable atheist would respond to forced religious meetings. 509 F.2d at 144. The plaintiff’s particular circumstances matter even if her feelings about those circumstances do not.

2. Neel intended Ames to quit.

“Constructive discharge plaintiffs . . . satisfy [the] intent requirement by showing their resignation was a reasonably foreseeable consequence of their employers’ discriminatory actions.” Hukkanen v. Int’l Union of Operating Eng’rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 285 (8th Cir. 1993). A jury could conclude that it was reasonably foreseeable that Ames would resign when Neel told her that she thought it best that she “go home,” gave her a pad and pen, and dictated her resignation. Indeed, Neel quite plainly intended Ames to resign.

Beyond that, a jury could conclude that it was reasonably foreseeable that Ames would resign after Neel commented on her size, criticized her for her complications, shamed her in front of others for having a baby shower, pressured her to work harder than ever while she was pregnant, shortened her leave, offered implied threats if she did not come back early, and then was hostile to her lactation needs.

3. Neel had an opportunity to respond but failed.

Ames went to Neel twice to get a room to express milk. The second time Neel told her to resign. Neel had an opportunity to respond, and her response was “go home to your babies.”

CONCLUSION

Ames presented sufficient evidence of gender and pregnancy discrimination to survive summary judgment. The Commission asks this Court to reverse the district court and remand for a trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel /s/ Eric A. Harrington

ERIC A. HARRINGTON

CAROLYN L. WHEELER Attorney

Acting Associate General Counsel

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4716

eric.harrington@eeoc.gov

[1] See also Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004); Plaetzer v. Borton Auto., Inc., No. Civ. 02-3089, 2004 WL 2066770, at *6 n.3 (D. Minn. Aug. 13, 2004).

[2] Even if this evidence were not viewed as direct evidence, it is more than sufficient to demonstrate that Ames was fired under circumstances that could give rise to an inference of gender discrimination. See, e.g., Lewis, 591 F.3d at 1038 (applying the indirect method of proving discrimination). In determining whether Ames was a member of a protected class, the district court focused only on whether lactation discrimination was gender or pregnancy discrimination, concluding that it was not. R.103, at 20 n.31. But Ames’s gender of course is a protected class. This Court therefore need not decide whether lactation discrimination is per se gender discrimination. To be sure, Neel’s dismissive attitude and hostility to Ames’s lactation needs provide further proof of Neel’s gender-based animus, but this Court need not decide whether that alone would support a Title VII sex discrimination claim.