In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4065

Equal Employment Opportunity Commission,

Plaintiff-Appellant,

v.

University of Chicago Hospitals,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 6109--Blanche M. Manning, Judge.

Argued May 16, 2001--Decided January 2, 2002


  Before Harlington Wood, Jr., Coffey, and
Williams, Circuit Judges.

  Williams, Circuit Judge. The Equal
Employment Opportunity Commission sued
the University of Chicago Hospitals
alleging that the Chicago Hospitals had
unlawfully discriminated on the basis of
religion when it constructively
discharged Victoria Leyva. The district
court granted summary judgment to the
Chicago Hospitals, finding that the EEOC
had not demonstrated constructive
discharge nor any religious
discrimination, only voluntary
resignation. The EEOC appeals seeking
reversal of that decision, so that it can
move forward with its case. We believe
that the EEOC has adequately demonstrated
constructive discharge on the basis of
religious discrimination, as alleged, so
as to defeat summary judgment and proceed
to trial. Therefore, we reverse.

I.   BACKGROUND

A.   The Facts

  Victoria Leyva is an Evangelical
Christian Baptist. Leyva was a recruiter
in the University of Chicago Hospitals’
("Chicago Hospitals") Employment
Department between December 1990 and July
1992, and before JoAnn Shaw arrived, she
had received high marks from her
immediate supervisor, Employment
Department Manager William Thornton. For
instance, in a June 30, 1991 annual
performance evaluation, Thornton rated
her a 3+ overall on a scale of 1 to 5 (5
being the highest), where 3 was defined
as performing at "levels which should be
expected and considered acceptable" and
as "doing a good job." He praised her
abilities, describing her as an
"excellent" recruiter and team member who
achieved "excellent results and [had]
gotten many compliments from her
departments."

  JoAnn Shaw is a Roman Catholic. In May
1991, she was hired by the Chicago
Hospitals as Associate Director of the
Chicago Hospitals and Director of Human
Resources, which included the Employment
Department. One of her explicit tasks was
to improve the human resources function.
So with her arrival came changes,
particularly in evaluations of Leyva’s
performance. Leyva believed that this
change was because of her evangelical
religious beliefs.

  Before she officially began her duties,
Shaw met with Leyva in Leyva’s
office,/1 where she noticed a calendar
entitled "Treasures of Inspiration: A
Woman’s Guide to Daily Living" and a
five-inch clock inscribed with "Armitage
Baptist Church, Chicago-Illinois. Pastor
Charles Lyon." on Leyva’s desk. Concerned
that the items were too "religious in
nature," Shaw directed Thornton to have
Leyva remove the items. Thornton told
Leyva to remove the items because they
were "too religious, [and] too
denominational." Leyva removed them. Shaw
also attached a handwritten Post-It Note
to Thornton’s performance appraisal of
Leyva, which stated "Baptist church
referrals off desk."

  Before Shaw was hired, Thornton and
Leyva had recruited employees from
churches, but after she arrived, Shaw
issued a directive to all employees to
stop recruiting at churches or church job
fairs. This directive was a recurrent
source of tension between Shaw and Leyva,
as Shaw believed Leyva continued to
recruit from her church. According to the
Chicago Hospitals, however, the problems
with Leyva were much more than recruiting
from churches. Some of her supervisors
believed she recruited exclusively from
her church and hired unqualified people.
  In October 1991, Thornton resigned (at
Shaw’s request), and he was replaced by
Ralph Borkowicz. As the new middleman
between Shaw and Leyva, Borkowicz
reiterated Shaw’s directive to Leyva not
to recruit at church job fairs, and he
told her that Shaw thought she was an
"uncreative recruiter." Leyva denied
recruiting at churches since the
directive. Borkowicz and Shaw also
carpooled together, and Leyva was a
source of common discussion. According to
Borkowicz, Shaw made it "very clear that
she had a problem with [Leyva’s]
religious beliefs and bringing religion
into the workplace," calling her a
"religious fanatic." In addition, Shaw
repeatedly stated that she wanted Leyva
fired, which Borkowicz believed was
because of Leyva’s religion.

  In early May 1992, Shaw told Borkowicz
that "she was not happy--this wasn’t
working out" and that she wanted him to
fire Leyva. Borkowicz responded that he
"didn’t see any reason for terminating
[Leyva], and [that Shaw] needed to do
what she needed to do." A couple weeks
later, Shaw told Borkowicz that she was
going to start taking steps to remove him
from his position because he refused to
fire Leyva. She terminated him on May 21,
1992, and on that same day, according to
Leyva, Borkowicz told her that he was
terminated because he refused to fire
her.

  Leyva also testified that on June 6,
1992, Borkowicz warned her that Shaw said
she "wanted [her] out, but that she was
going to make it very hard for [her] so
[she] would quit, and [she] would not be
able to collect unemployment." Borkowicz
told her that Shaw was "setting [her] up
so that [she] would quit, gathering
complaints and gathering whatever she
could." Borkowicz told Leyva to "watch
[her] back." In addition, he informed her
of an example of Shaw’s hostility toward
her. Leyva had applied for a grant from
the Chicago Hospitals’ outreach program
to her church for its tutoring program in
the spring of 1992. In early May 1992,
the employee advisory committee awarded
Leyva’s church $500 (which Shaw’s
assistant Roger Bottorff had lobbied for
her to receive). Although Bottorff
prepared a May 8, 1992 letter of
congratulations signed by Shaw that
notified Leyva that the $500 check could
be picked up in a few days, at the time
of her June 6th conversation with
Borkowicz, Leyva had not received the
letter. She did not know it existed. She
stated that Borkowicz said to her, "the
awards had been made, the checks had been
cut and [Shaw] was holding it because
[she was] a Bible thumper and a goody
two-shoes, and [Shaw] was gonna make
[her] sweat."

  Borkowicz was replaced by Bottorff
(Shaw’s assistant and a project manager).
Like Borkowicz, Bottorff told Leyva that
Shaw did not want her to recruit at
church job fairs, which Leyva again
denied. He further instructed her (twice)
not to hire "church people, the needy, or
[her] friends." In June, Bottorff
evaluated Leyva for her annual
evaluation, giving her a rating of 2
overall, which is defined as performance
"at or slightly above the minimum
requirements for the job" and
"improvements are needed." During her
evaluation review, he implied that Leyva
could be terminated if she did not
improve. In preparing his evaluation,
Bottorff did not ask Borkowicz for his
input, though Bottorff had only been in
his position for a month. Instead, his
evaluation was based on Shaw’s comments
and his observations over that month.

  In June, the Chicago Hospitals hired
Lynda Cartwright as a recruiter. She had
the same job title as Leyva and assumed
part of her responsibilities. In July,
Leyva left for vacation. Bottorff called
her during that vacation to ask her about
missing applicant test scores, but Leyva
did not know their location. Bottorff
told her that "this is the last straw,
and that he told [her] three times not to
refer church friends, and that [they]
would talk about it when [she] returned,"
and that she should be "prepared."

  Leyva talked to Borkowicz before she
returned, and according to Borkowicz, she
told him that "it looked like she was
going to get fired." Leyva prepared her
resignation letter, which she had ready
when she returned to work. When she
arrived, she found her desk packed up,
her office used for storage, and boxes
piled up. Bottorff then entered her
office and said that they should talk.
After briefly talking with Bottorff,
Leyva resigned. In her resignation
letter, Leyva stated that she resigned
because she could not "continue
employment at the hospital and obey" the
directive "not to refer ’church people,
church friends or the needy’ into entry
level position[s]."

B.    District Court Proceeding

  Leyva filed a complaint with the Equal
Employment Opportunity Commission
("EEOC"), and the EEOC in turn sued the
Chicago Hospitals in the United States
District Court for the Northern District
of Illinois, under Titles I and VII of
the Civil Rights Acts of 1991 and 1964
respectively. The EEOC alleged that the
Chicago Hospitals unlawfully
discriminated against Leyva when it
constructively discharged her on the
basis of her religion./2 The Chicago
Hospitals moved for summary judgment.

  After initially struggling with the
appropriate analysis to apply to this
case (in part because the parties
disagreed), the district court decided
that this constructive discharge case
best fit the hostile-work-environment-
plus category and proceeded to analyze it
under that rubric. The district court
found that the harassment the EEOC had
alleged to support its constructive
discharge case failed to demonstrate an
intolerable work environment that would
have caused a reasonable person to
resign, and therefore failed to
demonstrate constructive discharge.
Moreover, the district court found that
none of the alleged harassment was based
on religion. Accordingly, the district
court granted summary judgment to the
Chicago Hospitals. The EEOC now appeals.

II.    ANALYSIS

  The issue presented in this appeal is
whether the EEOC has sufficiently
demonstrated constructive discharge on
the basis of religious discrimination so
as to survive summary judgment and
proceed to trial. To answer this
question, we must consider whether the
EEOC has shown that (1) Leyva was
constructively discharged by the Chicago
Hospitals, and (2) the constructive
discharge was motivated by religious
discrimination. See Simpson v. Borg-
Warner Auto., Inc., 196 F.3d 873, 877
(7th Cir. 1999). We believe the EEOC has
met its burden and that summary judgment
was inappropriate for the reasons that
follow./3

  In deciding this case, we review the
decision of the district court, granting
grant summary judgment on the question of
constructive discharge, de novo. See,
e.g., Grube v. Lau Indus., Inc., 257 F.3d
723, 727 (7th Cir. 2001). Furthermore, as
is proper for summary judgment motions,
we view the evidence in the light most
favorable to the EEOC (the nonmoving
party) and make all reasonable,
justifiable inferences in its favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

A.   Constructive Discharge

  Constructive discharge, like actual
discharge, is a materially adverse
employment action. See, e.g., Fitzgerald
v. Henderson, 251 F.3d 345, 357-58 (2d
Cir. 2001). But to demonstrate
constructive discharge, the plaintiff
must show that she was forced to resign
because her working conditions, from the
standpoint of the reasonable employee,
had become unbearable. See, e.g., Lindale
v. Tokheim Corp., 145 F.3d 953, 955 (7th
Cir. 1998). We are ordinarily faced with
a situation in which the employee only
alleges that she resigned because of
discriminatory harassment, and in such
cases, we require the plaintiff to
demonstrate a discriminatory work
environment "even more egregious than the
high standard for hostile work
environment." Tutman v. WBBM-TV, Inc.,
209 F.3d 1044, 1050 (7th Cir. 2000),
cert. denied, 531 U.S. 1078 (2001).

  But that is not the only method of
demonstrating constructive discharge.
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./4 See generally
Bragg v. Navistar Int’l Transp. Corp.,
164 F.3d 373, 377 (7th Cir. 1998)
("Constructive discharge exists to give
Title VII protection to a plaintiff who
decides to quit rather than wait around
to be fired."); see also, e.g., Burks v.
Oklahoma Publ’g Co., 81 F.3d 975, 978
(10th Cir. 1996); Lopez v. S.B. Thomas,
Inc., 831 F.2d 1184, 1188-89 (2d Cir.
1987); cf. Hunt v. City of Markham,
Illinois, 219 F.3d 649, 655 (7th Cir.
2000) ("A person who is told repeatedly
that he is not wanted, has no future, and
can’t count on ever getting another raise
would not be acting unreasonably if he
decided that to remain with this employer
would necessarily be inconsistent with
even a minimal sense of self- respect,
and therefore intolerable."); Henn v.
Nat’l Geographic Soc’y, 819 F.2d 824,
829-30 (7th Cir. 1987).

  In this case, the EEOC has met its
burden of showing constructive discharge.
It has sufficiently demonstrated that a
reasonable employee standing in Leyva’s
shoes would have believed that had she
not resigned, she would have been
terminated. Most significantly, when
Leyva arrived at work, her belongings
were packed and her office was being used
for storage. That evidence is only
underscored by the other evidence
pointing to her imminent termination,
specifically Shaw’s removal of Thornton,
then Borkowicz, combined with Borkowicz’s
warning of Shaw’s intent, plan, and
attempt to terminate her as well.
Moreover, the EEOC presented evidence
that with Shaw’s arrival came significant
changes in Leyva’s evaluations, repeated
accusations of her failure to follow
directives, and a general environment in
which Shaw was hostile to Leyva’s
religious beliefs. To complete the
picture, Bottorff called Leyva and stated
that her failure to remember the location
of several test scores was "the last
straw." This environment, 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,
Lindale, 145 F.3d at 956--could have
indeed been to a reasonable employee
unbearable.

  The Chicago Hospitals argues that the
packed-up office "event could not have
contributed to her reasons for quitting,"
citing comparatively to Mason v. Southern
Ill. Univ., 233 F.3d 1036, 1046 (7th Cir.
2000), because it occurred after she
prepared her resignation letter, and that
"nothing that happened to Leyva even
remotely suggested an imminent
discharge." We are perplexed at these
assertions. Although Leyva had prepared
her letter of resignation before arriving
at work that day, her decision to submit
that letter could have surely been based
on seeing her belongings packed up and
her office being used for storage--a
sight that signaled to Leyva that her
superiors were set to do what they had
intimated and attempted to do
earlier./5 The other conduct by Shaw
and by Bottorff point rather
convincingly, we believe, to the
conclusion that Leyva’s termination was
imminent. It is hard to believe much else
when a supervisor states, "this is the
last straw."

  The Chicago Hospitals’ arguments that
the EEOC has relied on inadmissable
hearsay evidence are also unpersuasive.
For example, the Chicago Hospitals argues
that Borkowicz’s statement that Leyva
told him that "it looked like she was
going to get fired" is inadmissable
hearsay. But the statement was not used
for the truth of the matter asserted
(i.e., that it indeed did look like Leyva
would be fired), but to show Leyva’s
state of mind at the time she returned to
work. Likewise, Leyva’s recital of
Borkowicz’s statements of what Shaw said
were used as state of mind evidence--to
demonstrate whether Leyva reasonably
believed her termination was imminent.
Such statements are expressly excluded by
Federal Rule of Evidence 803(3) from the
hearsay rule. As another example, the
Chicago Hospitals argues that Leyva’s
statement that Borkowicz told her to
"watch [her] back" is hearsay. It is not.
That statement bears on no issue of fact,
to which it is asserting a truth. Even if
we could conceive of some hearsay
violation, requiring the exclusion of
certain evidence from consideration, it
would not change our conclusion based on
the non-hearsay evidence in this case.

B. On the Basis of Religious
Discrimination

  After demonstrating constructive
discharge, the plaintiff must show that
the constructive discharge was motivated
by discriminatory intent--in this case,
religiously discriminatory intent. See
Simpson, 196 F.3d at 877. But contrary to
the Chicago Hospitals’ assertions, it is
not necessary that the incidents that
surround the constructive discharge
themselves constitute actionable
religious discrimination; instead our
focus is whether those incidents, and
other supporting evidence, could support
the reasonable inference that the alleged
constructive discharge was based on reli
gious discrimination.
  Here again, we believe the EEOC made its
case. Borkowicz testified that Shaw had
called Leyva a "religious fanatic" and
had problems with her "religious beliefs
and bringing religion into the
workplace." Furthermore, he testified
that Shaw repeatedly stated that she
wanted Leyva fired, which he believed was
because of Leyva’s religion, attempted to
have him fire Leyva, and fired him when
he refused. These statements and actions
occurred within two months of Leyva’s
constructive discharge. Adding this to
the other alleged conduct (e.g., the
calender and clock removal, the changes
in job evaluation, the repeated
accusations of hiring at churches, etc.),
we are satisfied that the evidence is
sufficient to defeat summary judgment.
Compare Hunt, 219 F.3d at 651-53.

III.   CONCLUSION

  For the foregoing reasons, the judgment
of the district court is Reversed and the
case is Remanded.

FOOTNOTES

/1 It was at this initial meeting that Leyva dis-
closed her evangelical religious beliefs to Shaw.

/2 The EEOC’s other claims of hostile work environ-
ment and failure to accommodate are not at issue
in this appeal.

/3 The Chicago Hospitals mentions the prima facie
case and framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). However, the EEOC
alleges direct evidence of discrimination, making
that framework inapposite. Even if the McDonnell
Douglas framework were applicable, the Chicago
Hospitals has proffered a legitimate, nondiscrim-
inatory reason for its actions, which would
effectively bring that framework to an end, and
the EEOC has elected to meet its burden of
proving intentional discrimination directly,
rather than by pretext.

/4 The Chicago Hospitals has incorrectly treated
this case as if it is and could only be a hos-
tile-work-environment-plus case, and as a result,
most of its analysis is irrelevant to the ques-
tions we address. It also argued that the immi-
nent-discharge argument is waived, because it was
not presented to the district court. We disagree.
The issue was adequately presented to the dis-
trict court, and therefore not waived.

/5 The Chicago Hospitals also argues that Leyva’s
statement in her resignation letter that she
resigned because she could not obey the directive
not to refer church people, church friends, or
the needy into entry level positions is evidence
against her argument that she believed that she
would be terminated (on the basis of her reli-
gious beliefs). That is, of course, now an argu-
ment for the jury.
