5th Cir. Pattern Jury Instr. (Civil) 11.6

A. Committee Notes

This charge is for cases in which the plaintiff

resigned from his or her employment and was not

discharged but alleges that the resignation was a

“constructive discharge.”

1

In a Title VII discrimination,

harassment, or retaliation case, proof of constructive

discharge may satisfy the element of an adverse

employment action. Constructive discharge can also be

the tangible employment action that a quid-pro-quo

sexual-harassment claim requires. A constructive discharge finding may preclude an employer from the benefit of the Ellerth/Faragher defense to vicarious

liability.

2

B. Charge

Plaintiff [name] claims that although Defendant

[name] did not fire [him/her], [he/she] was constructively

discharged.

To prove constructive discharge, Plaintiff [name]

must prove by a preponderance of the evidence that

1Wyatt v. Hunt Plywood , 297 F .3d 405, 410 n.15 (5th Cir. 2002) (a

constructive discharge constitutes a “tangible employment action”). See

also Green v. Brennan , 136 S. Ct. 1769, 1776–77 (2016) (“The constructive-discharge doctrine contemplates a situation in which an employer

discriminates against an employee to the point such that his ‘working

conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.’ . . . When the employee

resigns in the face of such circumstances, Title VII treats that resignation

as tantamount to an actual discharge.”) (quotation omitted).

2The Fifth Circuit has stated that “[i]n certain circumstances, a

constructive discharge can be considered a tangible employment action

that precludes an employer from asserting the Ellerth/Faragher defense

to vicarious liability .” See Aryain v. Wal-Mart Stores Tex. LP , 534 F .3d 473,

480 (5th Cir. 2008).

11.6EMPLOYMENT CLAIMS

161

[his/her] working conditions were so intolerable that a

reasonable employee would feel compelled to resign.

3

“Intolerable working conditions” means more than

conditions that are uncomfortable or worse than an employee might prefer. Teasing, making offhand comments, using offensive language, or making [protected

trait]-related jokes generally do not make working

conditions so intolerable that a reasonable person would

feel compelled to resign. Isolated incidents (unless

extremely serious) generally do not make working

conditions so intolerable that a reasonable person would

feel compelled to resign.

In determining whether Plaintiff [name] was

constructively discharged, you must consider the evidence from both Plaintiff [name]’s perspective and the

perspective of a reasonable person.

4

First, you must

look at the evidence from Plaintiff [name]’s perspective

and determine whether [he/she] actually felt compelled

to resign. Second, you must look at the evidence from

the perspective of a reasonable person’s reaction to a

similar environment under similar circumstances and

determine whether an objectively reasonable person

similarly situated would have felt compelled to resign.

You cannot view the evidence from the perspective of

an overly sensitive person. Nor can you view the evidence from the perspective of someone who is never

offended. Rather, you must find that Plaintiff [name] in

fact found [his/her] working conditions intolerable and

also that a reasonable person in the same or similar

circumstances as Plaintiff [name] would find those

working conditions intolerable.

3Dediol v. Best Chevrolet, Inc. , 655 F .3d 435, 444 (5th Cir. 2011); see

also Brown v. Kinney Shoe Corp. , 237 F .3d 556, 566 (5th Cir. 2001).

4Guthrie v. J.C. Penney Co. , 803 F .2d 202, 207 (5th Cir. 1986) (the inquiry in a constructive-discharge case focuses on both the employee’s state

of mind and the reaction of a reasonable employee in the employee’s

position).