work performed by men in EFCS. See Note, supra, 90 Yale L.J. at 657 n.5. It is clear after the Supreme Court's decision in County of Washington v. Gunther, supra, that such claims are cognizable under Title VII. See also I.U.E. v. Westinghouse Electric Corp., supra. The elements of such comparable work claims have yet to be defined, however, and we need not undertake this task in the case before us. For the reasons given in our discussion of her equal work claims, Bay simply has not proffered evidence from which we might infer with any confidence that her work was comparable or equally valuable to that of any male in EFCS other than Hyde.
C. The Constructive Discharge Claim
The doctrine of constructive discharge was first developed in cases under the National Labor Relations Act. In recent years, the doctrine has been incorporated in Title VII law to protect employees who are compelled to resign because of working conditions made intolerable by discrimination. To the best of our knowledge the Third Circuit has not addressed constructive discharge in the context of either labor relations or civil rights, so we turn to cases in other circuits for guidance.
The courts that have considered constructive discharge claims under Title VII agree that the plaintiff must show that her employer deliberately made working conditions so intolerable that a reasonable person would have been forced to resign. E.g., Welch v. University of Texas, 659 F.2d 531, 533 (5th Cir. 1981); Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1173 (D.C. Cir. 1981); Heagney v. University of Washington, 642 F.2d 1157, 1166 (9th Cir. 1981); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977). The requisite intent, in the majority view, involves the deliberate creation of intolerable conditions or purposeful discrimination, rather than an intent to get rid of the plaintiff. See Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980) (plaintiff need not show purpose to compel resignation but must show aggravating circumstances); Clark v. Marsh, supra, 665 F.2d at 1173-74 & n. 5 (adopting Bourque standard); Alicea Rosada v. Garcia Santiago, supra, 562 F.2d 114, 119 (plaintiff must show that employer created conditions "so difficult or unpleasant" that reasonable person would resign). But see Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 46 L. Ed. 2d 41, 96 S. Ct. 39 (1975) (plaintiff must show "a deliberate effort to make things difficult . . . so as to bring about his separation.").
At the same time, the fact of purposeful discrimination alone does not suffice to prove constructive discharge. The policy of nondiscrimination embodied in Title VII is best served when it is possible to attack discrimination "within the context of existing employment relationships," Bourque v. Powell Electrical Manufacturing Co., supra, 617 F.2d at 66. But recognizing that working conditions may be made so bad by discrimination that departure is an employee's only realistic choice, courts have found constructive discharges when the plaintiff was able to prove discrimination and the existence of aggravating circumstances.
In Clark v. Marsh, supra, the plaintiff resigned from her position as temporary Director of the Army Office of Employment Policy and Grievance Review after a recent law school graduate with no supervisory experience was permanently appointed to that position. In the preceding five years, the plaintiff had actively sought various promotions and lateral transfers, for which she was qualified, but had received only one permanent promotion. The district court found that these events were the result of sex discrimination. The District of Columbia Circuit held that the plaintiff had been constructively discharged, because she experienced "a continuous pattern of discriminatory treatment encompassing deprivation of opportunities for promotion, lateral transfer, and increased education training, existing over a period of several years," 665 F.2d at 1174. In this pattern, said the court, were found the necessary aggravating circumstances: the "historic discrimination" against the plaintiff; her repeated, ineffective formal and informal attempts to obtain relief; and "the predictable humiliation and loss of prestige accompanying her failure to obtain [the Director's] position." Id. at 1175-76.
Our review of the cases shows that the First, Fifth, Sixth, Ninth, and District of Columbia Circuits have announced essentially the same standards for deciding constructive discharge cases. We predict that the Third Circuit would adopt them as well. Applying these standards, we find Clark v. Marsh most like the case before us. Bay has established a prima facie case that she was constructively discharged by showing that Campbell in particular deliberately created intolerable working conditions, within the meaning of the cases, as a result of sex bias. We already have held that Hay, acting through Campbell, discriminated against Bay with respect to her opportunities for advancement continuously from the spring of 1975 and with respect to her compensation in the spring of 1977. We find ample evidence of aggravating circumstances in the pattern of obstacles to Bay's advancement that Campbell created and which are detailed in our findings. Among other things, we note the following. Twice, in 1974 and again in 1976, Bay had to threaten resignation to obtain advancement in salary or title. In 1975, Bay had to go to Campbell's superior, Van Horn, to attain consultant status. Even after she spoke to Van Horn, who assured her that she would be promoted, Campbell created the new, inferior position of "consultant-trainee." In 1976, Campbell misrepresented her status to her during the "phantom promotion" episode. In late 1976 or early 1977, Campbell and Roark told Bay that an additional person was being hired to perform the same job as she, at the same salary and title, and she was advised not to apply for the position; when Don Hyde joined EFCS on April 1, 1977, however, Campbell made him a senior associate consultant and gave him a base salary of $26,000. In March and April 1977, during the course of Campbell's "career path" discussions with Bay, he informed her that she could advance only if she participated significantly in EFCS seminars; at the same time, he continued to deny her the opportunity to participate. Moreover, when Hyde proved his inability to present at seminars, Campbell sent Hyde to seminars as an observer, which we had never done for Bay. When Hyde had to learn report-writing, Bay was asked to train him, and to give him some of the reports she was doing in her own name. With respect to her own report-writing, Bay suffered the frustration of ghost-writing a significant number of them so that the client thought that she was a "second reader" or never knew of her work.
Throughout, Bay was aware of Campbell's discriminatory attitudes and conduct. She tried going to his superiors, who, we have found, generally took a "hands off" approach which did nothing to better her work conditions. She also broached the subject with Campbell, in her March 21, 1977, memorandum, mentioning his phone calls to the Western Electric executives, but Campbell did not respond. We credit her claims that she felt hypocritical, in view of the fact that Hay advertised its expertise in the area of equal employment opportunity. We conclude, in light of the foregoing, that by June 1977 Bay was "locked into a position from which she could apparently obtain no relief," Clark v. Marsh, supra, 665 F.2d at 1174.
Hay is entitled to rebut Bay's prima facie case by showing that her resignation was attributable to nondiscriminatory factors, see Meyer v. Brown & Root Construction Co., supra, 661 F.2d at 372. Hay contends that Bay has not shown that her working conditions were intolerable, because she testified that Campbell treated her in a civil, businesslike, gentlemanly fashion. We reject this proffered defense because verbal or physical harassment is not a necessary element of proof of constructive discharge. We stress that what is at issue is not Campbell's personal relationship with Bay but his professional relationship with her. Campbell deliberately thwarted Bay's advancement, however courteously he treated her. By June 1977, when Bay submitted her resignation, he had made it plain by his conduct that Bay could not expect further promotion and had to accept a subordinate role of writing and ghost-writing reports.
We find that under these circumstances any reasonable person would have been compelled to resign. Accordingly, we hold that Bay was constructively discharged because of her sex, in violation of Title VII, 42 U.S.C. § 2000e-2(a) (1976).
In sum, we hold that Hay violated Title VII deliberately and continuously from 1975 by delaying Bay's promotion to associate consultant and by failing to promote her to senior associate consultant on February 1, 1977. We further hold that Hay willfully violated Title VII and the Equal Pay Act during the spring of 1977 by failing to pay Bay and Don Hyde equal salaries for equal work; our determination of the precise dates of the violation will await a hearing on damages. Finally, we hold that Hay violated Title VII by constructively discharging Bay because of her sex.
We deny Hay's post-trial motion to amend its answer to assert a defense based on the Title VII statute of limitations. We make no findings on damages at this time, but await the parties' presentation of evidence at the second phase of the trial.
An appropriate order follows.
AND NOW, this 20th day of August 1982, after trial and after consideration of the parties' post-trial submissions, and for the reasons set forth in the foregoing Opinion, it is hereby ORDERED
(1) that the Clerk enter of record that findings in favor of the plaintiff and plaintiff-intervenor are made on the following claims:
(a) that between December 9, 1975, and July 4, 1977, the defendant unlawfully refused to promote the plaintiff-intervenor because of her sex, in violation of 42 U.S.C. § 2000e-2(a) (1976);
(b) that during 1977, between dates to be determined at a later hearing, the defendant unlawfully paid unequal wages to the plaintiff-intervenor and a male employee, Hyde, performing equal work, in violation of 29 U.S.C. § 206(d) (1976) and 42 U.S.C. § 2000e-2(a) (1976); and
(c) that the defendant unlawfully constructively discharged the plaintiff-intervenor because of her sex, in violation of 42 U.S.C. § 2000e-2(a) (1976);
(2) that the clerk enter of record that findings in favor of the defendant are made on all other claims relating to issues of liability;
(3) that the defendant's motion for leave to amend its answer to the amended complaint is DENIED; and
(4) that a pre-hearing conference on the remedy issues left open by this Opinion and Order will be held at 3:00 p.m. on Wednesday, September 22, 1982.