                               In the

     United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
Nos. 13-1552 & 13-1553
MARGARET WRIGHT,
                                Plaintiff-Appellant, Cross-Appellee,

                                  v.

ILLINOIS DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
                        Defendant-Appellee, Cross-Appellant.
                      ____________________

        Appeals from the United States District Court for the
                      Central District of Illinois.
      No. 1:09-cv-01085-MMM-JAG — Michael M. Mihm, Judge.
                      ____________________

    ARGUED JANUARY 20, 2015 — DECIDED AUGUST 14, 2015
                 ____________________

   Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY,
District Judge.
   RIPPLE, Circuit Judge. Margaret Wright retired from her
position as a caseworker at the Peoria Field Office of the

The Honorable Matthew F. Kennelly of the United States District Court
for the Northern District of Illinois, sitting by designation.
2                                      Nos. 13-1552 & 13-1553

Illinois Department of Children and Family Services (“the
Department”) after the Department ordered her to undergo
a fitness-for-duty evaluation. Ms. Wright then filed this
action alleging, among other claims, that the Department
had violated the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12112(d)(4)(A), by ordering her to undergo the
evaluation and by causing her subsequent constructive
discharge. The case was tried before a jury (“Wright I”),
which found in favor of Ms. Wright on the ADA claim but
awarded no compensatory damages. The Department filed a
motion for judgment as a matter of law or, alternatively, for
a new trial, contending that Ms. Wright had failed to
establish an ADA violation and that the jury had been
instructed improperly. The district court granted the
Department’s motion for a new trial.
    During the second trial (“Wright II”), after Ms. Wright
rested her case, the Department moved for judgment as a
matter of law on the ground that Ms. Wright had failed to
establish that she had been constructively discharged. The
court granted the motion and entered judgment for the
Department. Ms. Wright now appeals the district court’s
order granting a new trial in Wright I and its order granting
the Department’s motion for judgment as a matter of law in
Wright II. The Department appeals the court’s order denying
its motion for judgment as a matter of law on the ADA claim
in Wright I.
   We hold that the district court did not err in denying the
Department’s motion for judgment as a matter of law in
Wright I. On the record before it, there was a genuine issue of
material fact as to whether the Department’s fitness-for-duty
evaluation order was consistent with business necessity. The
Nos. 13-1552 & 13-1553                                       3

district court did not err in granting a new trial in Wright I.
The initial constructive discharge jury instruction failed to
reference the Department’s conduct. Finally, the court did
not err in granting the Department’s motion for judgment as
a matter of law in Wright II. Ms. Wright did not establish that
the Department’s conduct communicated that her
termination was imminent. Accordingly, we affirm the
judgment of the district court.


                               I
                      BACKGROUND
                              A.
   From 1982 to 2007, Ms. Wright worked for the Illinois
Department of Children and Family Services, primarily as a
caseworker.
   In 2005, Ms. Wright became the caseworker for CPL, a
then-ten-year-old ward of the Department. CPL resided at
the Rice Child and Family Center (“Rice”). Having
experienced physical and sexual abuse, CPL suffered from
post-traumatic stress disorder and was highly medicated.
She had undergone several hospitalizations for psychiatric
problems and had been placed in multiple homes.
    Following an incident at Rice on April 19, 2007,
Dr. Petronilo Costa interviewed CPL. According to Dr.
Costa, Ms. Wright threw CPL into a “manicking frenzy” by
telling her that there were four foster families available for
her, even though CPL was not yet on the Department’s
4                                    Nos. 13-1552 & 13-1553

                                            1
foster-care list due to her emotional issues. In response to
Ms. Wright’s comments, CPL began saying that, because she
was leaving Rice, she no longer had to listen to anyone and
did not have to take her medication. CPL’s frenzy incited a
riot in her unit at Rice during which the children threw and
broke furniture and attempted to attack the staff. Dr. Costa,
who described Ms. Wright’s conduct as “unheard of,”
                                                2
concluded that Ms. Wright posed a risk to CPL.
    Following up on his conclusion, Dr. Costa issued a
medical order to the Department barring Ms. Wright from
having further contact with CPL. After receiving Dr. Costa’s
order, Mary Bullock, the Department’s assistant
administrator for the central region, contacted a Rice staff
member, Jill Foster (Ms. Wright’s supervisor), and Foster’s
supervisor. Bullock then directed that Ms. Wright have no
further contact with CPL. Ms. Wright made several inquiries
to Bullock and Foster about why she was ordered to have no
contact with CPL, but the Department did not provide her
with any additional information.
    On May 2, 2007, Bullock removed Ms. Wright from CPL’s
case. Ms. Wright, who as a member of a union was covered
by a collective bargaining agreement (“CBA”), filed a
grievance in response to her removal. The next day, Bullock
and Foster met with Dr. Costa and others at Rice to discuss
the situation. Dr. Costa told Bullock and Foster that
Ms. Wright “runs her own shop” and “that she tries to


1   R.279 at 177–78.
2   Id. at 141.
Nos. 13-1552 & 13-1553                                    5

                       3
terrorize folks.” At that same meeting, either Bullock or
Foster told Dr. Costa that Ms. Wright was “unsupervisable,”
“[t]hat she would not get along with any supervisor,” and
that her failure to follow orders once resulted in a lasting
                           4
injury to a child. They also told him that she “did not get
along with anybody in the office, that she would not do
what she was assigned to,” “[a]nd that she had had plenty of
                                              5
grievances and lawsuits against everyone.” They stated
“that they had been concerned about her for a long time and
that at this time they were going to ask her to go for an
                                                           6
assessment to see if she was fit to have that type of work.”
Dr. Costa “backed up” their decision to ask for an
                   7
assessment. At the end of the meeting, Dr. Costa agreed to
put this recommendation in writing. Thereafter, Dr. Costa
wrote a letter, dated May 15, 2007, which stated that he
“believe[d] that there [was] enough clinical data to wonder
about Ms. Maggie Wright’s ability to work with children”
                                                  8
and that “her mental health needs to be assessed.”
   Following the meeting, Bullock talked with Larry
Chasey, an associate deputy director of the Department and
Bullock’s supervisor, and David Hoover, a labor relations


3   Id. at 147.
4   Id. at 149.
5   Id. at 150.
6   Id.
7   Id.
8   R.126 at 31.
6                                        Nos. 13-1552 & 13-1553

specialist and supervisor. These discussions focused on
whether to discipline Ms. Wright or to order a fitness-for-
duty evaluation. Relying in part on Dr. Costa’s letter,
Bullock then ordered that Ms. Wright undergo an
evaluation. Ms. Wright was notified of the evaluation order
on June 4, 2007, and her evaluation was scheduled for June
20 in Chicago. The notice informed Ms. Wright that she had
“exhibited behavior that put[] into question [her] personal
                                                9
safety and that of others in the workplace.” In the medical
examination recommendation, Bullock provided the
following description of Ms. Wright’s “behavior/illness”:
           Ms. Wright has a history of defiance to all
           levels of management, she does not trust
           management and fails to provide any
           information that she feels would not reflect
           well on her. She has failed to see risk to
           children in foster care and to report incidents
           of unexplained injury. Many cases have had to
           be removed from her caseload and she refused
           to accept agency decisions or she was verbally
           abusive and had an abrasive manner with
           foster parents and they requested a change in
           caseworker or they would ask for child’s
           removal from their home. She has consistently
           refused to follow her management chain of
           supervision by contacting Deputy Directors.
           Ms. Wright is demanding in her demeanor, she
           has a demanding presence to her voice,


9   R.279 at 37.
Nos. 13-1552 & 13-1553                                                 7

           appears to physically be very stressed, her face
           is flushed, she fans herself as if very flushed.
           She has blatant disregard for any rules or
           procedures both inside the agency and outside
           the agency whether it is the residential
           schedule or a school schedule. She demands
           attention immediately. She makes derogatory
           remarks about anyone who makes a clerical
           mistake, clerical do not want to do work for
           her a[s] they fear her rath [sic] and disdain.[10]
Ms. Wright filed a grievance protesting the evaluation order.
After a meeting with Ms. Wright and her union
representative on June 7, 2007, the Department cancelled the
order because it had cited the wrong CBA section and
                                                                11
because the doctor’s office was located too far away.

10   R.150-1 at 31.
11The CBA provided that the Department would serve written charges
on an employee when it had good cause to believe that the employee
had engaged in workplace misconduct. The employee, her union
representative, and a Department manager then would attend a
predisciplinary hearing where the employee could offer a rebuttal to the
charges. After the rebuttal, the Department had forty-five days to decide
whether to discipline the employee.
     The CBA also authorized the Department to order an employee to
undergo a fitness-for-duty evaluation when there was good cause to
believe that she may be unable to perform the essential functions of her
position. The evaluation request had to be approved at all levels of the
Department’s management and by its labor relations office. If an
employee refused to be evaluated, the Department could charge her with
insubordination and impose discipline. The continued refusal to submit
to the evaluation could result in discharge.
                                                           (continued…)
8                                           Nos. 13-1552 & 13-1553

    On July 9, 2007, Pete Wessel, another labor relations
specialist at the Department, sent Ms. Wright a
memorandum informing her that she was required to
undergo a fitness-for-duty evaluation on July 16, 2007, at the
office of Dr. R. Patil. Ms. Wright again refused to be
evaluated and filed a grievance. The Department then
charged Ms. Wright with insubordination for not attending
the evaluation. After a predisciplinary hearing, Ms. Wright
received a fifteen-day suspension.
   On July 30, 2007, Ms. Wright was placed on desk duty.
While on desk duty, she could not oversee any cases. During
her time on desk duty, she was given no new work duties.
    On August 2, 2007, Ms. Wright received a “second and
final” order to undergo an evaluation with Dr. Patil,
                                12
scheduled for August 22. Ms. Wright then served her
fifteen-day suspension from August 5 to August 20. On
August 22, Ms. Wright went to Dr. Patil’s office but did not
submit to an evaluation. Instead, she questioned Dr. Patil



(…continued)
    The Illinois Department of Central Management Services (“CMS”),
which provides management services for over sixty Illinois agencies, was
responsible for overseeing the disciplinary actions brought against
Department employees. Within a twelve-month period, the Department,
acting on its own, could discipline an employee with a thirty-day
suspension. CMS had to approve any other or additional discipline. If
the Department determined that an employee should be discharged, it
would place her on a thirty-day suspension pending discharge, and CMS
would make the final discharge decision.
12   R.281 at 109.
Nos. 13-1552 & 13-1553                                     9

about why an evaluation was ordered and what he knew
about her work status.
   Ms. Wright received her second insubordination charge
for refusing to be evaluated on September 4, 2007. Ms.
Wright did not attend the predisciplinary hearing on
September 5. Instead, her union representative gave a
rebuttal to the charges. Ms. Wright then used her vacation
time and was away from work between September 7 and
September 17.
    On September 7, 2007, Ms. Wright received in the mail a
bill for health insurance premiums from CMS. Her health
insurance premiums ordinarily were deducted from her
paycheck, but because she was not paid during her fifteen-
day suspension, she had no paycheck from which to deduct
the premiums and owed that portion of her premiums. The
bill also stated that payment was due for the period between
September 1 and September 30. The second page of the bill
stated: “ENROLLMENT INFORMATION—Effective 09 06
                                                           13
2007”; “LEAVE OF ABSENCE DOCK/SUSP > 30 Days.”
Ms. Wright called CMS to ask about the bill and, as a follow-
up to that call, only paid the premiums that were owed on
account of her fifteen-day suspension. At no point during
this period did Ms. Wright receive any notice from the
Department informing her that she had received an
additional suspension, including a suspension pending
discharge.
   On September 13, 2007, while she was on vacation,
Ms. Wright contacted the State Employees’ Retirement

13   R.150-2 at 17; accord R.275 at 89.
10                                             Nos. 13-1552 & 13-1553

System of Illinois to determine the impact that quitting or
being discharged would have on her pension. She learned
that she was eligible to retire with a reduced pension.
Although Ms. Wright and her husband, who also worked for
the Department, had planned on retiring in December of
2008 when they were eligible to receive full pensions, they
decided to retire early because Ms. Wright believed that she
eventually would be discharged. Ms. Wright returned to
work after her ten-day vacation period on September 17,
2007, and submitted her paperwork for retirement, effective
September 30, 2007.
    Prior to her retirement, the Department had not decided
what discipline to impose on Ms. Wright. Department
officials testified that they were contemplating issuing a
third evaluation order with the hope that Ms. Wright could
be convinced to comply. After Ms. Wright retired, the
Department abandoned its efforts to discipline her, and the
union withdrew Ms. Wright’s grievances.


                                    B.
     On March 10, 2009, Ms. Wright filed this action alleging
                                                   14
twelve counts against seven defendants. For the purposes

14 Specifically, Ms. Wright alleged that Bullock, Foster, Wessel, Dr. Costa,
and Cindy Petty invaded her Fourth and Fourteenth Amendment
privacy rights by ordering her to undergo a fitness-for-duty evaluation
(Counts I–V); that Dr. Costa, Petty, the Children’s Home and Aid
Society, and Foster interfered with her employment relationship with the
Department (Counts VI–IX); that Foster and Bullock intentionally
inflicted emotional distress on her (Counts X and XI); and that the
Department violated the ADA (Count XII).
Nos. 13-1552 & 13-1553                                          11

of this appeal, she contested only the disposition of the ADA
claim (Count XII), which alleged that the Department
violated 42 U.S.C. § 12112(d)(4)(A) by ordering her to
undergo a fitness-for-duty evaluation, resulting in her
constructive discharge. At the first trial (Wright I), the district
court instructed the jury that the Department had to prove
by a preponderance of the evidence that the order for Ms.
Wright to undergo a fitness-for-duty evaluation was job-
related and consistent with business necessity. If the jury
found for Ms. Wright on that issue, it then had to decide
whether her retirement “was voluntary or constituted a
                           15
constructive discharge.” The jury returned a verdict for
Ms. Wright. It concluded that Ms. Wright was constructively
discharged from her employment, but awarded her no
compensatory damages.
   Following the jury’s verdict, the Department filed a
renewed motion for judgment as a matter of law or for a
new trial under Federal Rules of Civil Procedure 50 and 59.
The Department contended that, as a matter of law, it had
not constructively discharged Ms. Wright. In the alternative,
it maintained that a new trial was warranted because the
court incorrectly had instructed the jury on the elements of
constructive discharge.
   The district court denied the Department’s motion for
judgment as a matter of law; it concluded that a reasonable
jury could find that ordering the evaluation was not
consistent with business necessity. The court granted,
however, the Department’s motion for a new trial; it

15   R.218 at 37.
12                                     Nos. 13-1552 & 13-1553

concluded that the jury instruction, as given, focused too
much on the employee’s subjective belief rather than on the
employer’s conduct.
    The second trial (Wright II), focused solely on the
constructive discharge issue. Ms. Wright presented
essentially the same evidence as that presented in Wright I.
After the close of Ms. Wright’s case, the Department moved
for judgment as a matter of law, contending that Ms. Wright
did not establish that her discharge was involuntary or that
her termination would occur immediately. The district court
granted the Department’s motion, concluding that
Ms. Wright did not establish that her working conditions
were intolerable. In its memorandum opinion, the court
explained that, in order to prevail on a constructive
discharge claim under the theory relied upon by Ms. Wright,
a plaintiff must demonstrate that the Department had taken
actions that would communicate to a reasonable employee
that she would be terminated and also must show that her
working conditions had become intolerable. Although the
district court was willing to say that a jury could determine
that Ms. Wright reasonably could conclude that her
employment was about to be terminated, there was
insufficient evidence to permit the jury to conclude that the
conditions of her employment had become unbearable.
    As this case comes to us, both parties ask us to review the
district court’s decisions. Ms. Wright challenges the district
court’s order granting a new trial in Wright I and, of course,
the court’s order in Wright II, granting the Department’s
motion for judgment as a matter of law because she had not
produced sufficient evidence of a constructive discharge. For
its part, the Department challenges the court’s order denying
Nos. 13-1552 & 13-1553                                                13

the Department’s motion for judgment as a matter of law in
                                                          16
Wright I concerning the fitness-for-duty evaluation.




                                 II
                          DISCUSSION
                                 A.
    We first address the Department’s contention that it was
entitled to judgment as a matter of law in Wright I. The
district court decided “that the jury could have concluded
that the fitness-for-duty request was not based on business
                  17
necessity.” The court noted that the Department had
“presented the jury with evidence that showed that it was in
receipt of a letter from the ward’s psychiatrist indicating
                                                                 18
Wright’s conduct interfered with the ward’s therapy.” It
also recognized, however, that “other evidence presented
could certainly lead a jury to the conclusion that this was not
an unsolicited letter, but rather one her supervisors sought
           19
out.” The court further noted that “the evidence presented
showed that the normal practice of [the Department was] to
place an employee subject to a fitness for duty evaluation on
administrative leave or give the person restricted duties;

16 The district court had jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction over this appeal under 28 U.S.C. § 1291.
17   R.235 at 12.
18   Id. at 11.
19   Id.
14                                           Nos. 13-1552 & 13-1553

however, Wright continued her day-to-day duties after the
                                                               20
decision to subject her to an [evaluation] was made.”
    The Department contends that “no reasonable jury could
find that the Department did not perceive that Wright’s
ability to perform the duties of a caseworker was impaired,
and that ordering an evaluation to discover whether and to
what extent she was impaired in performing those duties
                                                      21
was not consistent with business necessity.” It submits that
Ms. Wright exhibited inappropriate behavior between 2004
and 2007, displayed boundary issues with CPL, undermined
CPL’s treatment team, and acted aggressively toward the
staff at Rice. The Department relies, in part, on two
communications from Dr. Costa to support its order that
Ms. Wright undergo a fitness-for-duty evaluation. First, on
April 20, 2007, Dr. Costa issued an order that barred
Ms. Wright from having further contact with CPL. Second,
on May 15, 2007, Dr. Costa wrote Bullock a letter suggesting
“that there is enough clinical data to wonder about
Ms. Maggie Wright’s ability to work with children and
                                                                        22
families in the capacity with which she is working now.”
He stated that Ms. Wright’s “mental health needs to be
assessed to help to determine what type of work she will be
                                                     23
able to effectively do for [the Department].”


20   Id.
21Appellee’s Br. 35–36. Citations to the Appellant’s or Appellee’s Briefs,
unless otherwise indicated, are to their initial brief on appeal.
22   R.126 at 31.
23   Id.
Nos. 13-1552 & 13-1553                                                       15

    We review a district court’s decision denying judgment
as a matter of law de novo and will “reverse the verdict only
if no rational jury could have found for the prevailing
party.” EEOC v. AutoZone, Inc., 707 F.3d 824, 834–35 (7th Cir.
2013). The ADA provides, in relevant part:
            A covered entity shall not require a medical
        examination and shall not make inquiries of an
        employee as to whether such employee is an
        individual with a disability or as to the nature
        or severity of the disability, unless such
        examination or inquiry is shown to be job-
        related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A). All employees, regardless of
whether they have a qualifying disability under the ADA,
                                              24
are protected under this subsection.
   According to the enforcement guidance provided by the
EEOC, an “examination is job-related and consistent with
business necessity when an employer has a reasonable belief
based on objective evidence that a medical condition will


24 See Murdock v. Washington, 193 F.3d 510, 512 (7th Cir. 1999) (per curi-
am); see also Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 573 (6th Cir. 2014);
Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1310–11 (11th Cir. 2013);
U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance: Disability-
Related Inquiries and Medical Examinations of Employees Under the Ameri-
cans     with      Disabilities   Act       (ADA)       (July     27,     2000),
http://www.eeoc.gov/policy/docs/guidance-inquiries.html            [hereinafter
“EEOC Guidance”] (noting that “the use of the term ‘employee’ in this
provision reflects Congress’s intent to cover a broader class of individu-
als and to prevent employers from asking questions and conducting
medical examinations that serve no legitimate purpose”).
16                                             Nos. 13-1552 & 13-1553

impair an employee’s ability to perform essential job
functions or that the employee will pose a threat due to a
                         25
medical condition.” Coffman v. Indianapolis Fire Dep’t, 578
F.3d 559, 565 (7th Cir. 2009). The employer’s reasonable
belief “must be based on objective evidence obtained, or
reasonably available to the employer, prior to making a
disability-related inquiry or requiring a medical
examination. Such a belief requires an assessment of the
employee and his/her position and cannot be based on
general assumptions.” EEOC Guidance (emphasis in
original); accord Tice v. Centre Area Transp. Auth., 247 F.3d
506, 518 (3d Cir. 2001) (noting that “[t]he ADA’s requirement
that [a fitness-for-duty examination] be consistent with
business necessity is an objective one”).
    An employer bears the burden of establishing that an
examination is consistent with business necessity, see Thomas
v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007), and that burden
is “quite high,” Conroy v. New York State Dep’t of Corr. Servs.,
333 F.3d 88, 97 (2d Cir. 2003) (internal quotation marks
omitted). An employer must “show that the asserted
‘business necessity’ is vital to the business,” as opposed to a
“mere expediency.” Id.; accord Kroll v. White Lake Ambulance
Auth., 763 F.3d 619, 623 (6th Cir. 2014) (noting that an


25 We previously have recognized that, “[a]lthough not binding on this
court, such administrative interpretations do constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance.” O’Neal v. City of New Albany, 293 F.3d 998,
1009 (7th Cir. 2002) (internal quotation marks omitted); see also Coffman v.
Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009) (relying on the
EEOC enforcement guidance).
Nos. 13-1552 & 13-1553                                                    17

employer cannot rely on a “bare assertion that a medical
examination was merely convenient or expedient”). In
addition, the examination must “genuinely serve[] the
asserted business necessity and … must be a reasonably
effective method of achieving the employer’s goal.” Conroy,
333 F.3d at 98. An employer “cannot merely rely on reasons
that have been found valid in other cases but must actually
show that the … requirement contributes to the achievement
                                     26
of those business necessities.” Id. at 101.
    Courts consequently require that an employer provide
“significant evidence that could cause a reasonable person to
inquire as to whether an employee is still capable of
performing his job.” Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 811 (6th Cir. 1999); see also Conroy, 333 F.3d at 98


26 The statute expresses Congress’s desire to prohibit an employer from
harassing, or otherwise discriminating against, employees who are able
to perform efficiently the essential functions of their jobs. See S. Rep. No.
101-116, at 39 (1989) (noting that “[a]n inquiry or medical examination
that is not job-related serves no legitimate employer purpose, but simply
serves to stigmatize the person with a disability,” and that “the actual
performance on the job is, of course, the best measure of ability to do the
job”); EEOC Guidance (“The ADA’s provisions concerning disability-
related inquiries and medical examinations reflect Congress’s intent to
protect the rights of applicants and employees to be assessed on merit
alone, while protecting the rights of employers to ensure that individuals
in the workplace can efficiently perform the essential functions of their
jobs.”); see also Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir.
2010) (noting that the statute “prohibits employers from using medical
exams as a pretext to harass employees or to fish for nonwork-related
medical issues and the attendant unwanted exposure of the employee’s
disability and the stigma it may carry” (internal quotation marks
omitted)).
18                                     Nos. 13-1552 & 13-1553

(noting “that courts will readily find a business
necessity … when the employer can identify legitimate, non-
discriminatory reasons to doubt the employee’s capacity to
perform his or her duties”). That an employee’s behavior
could be described as “annoying or inefficient [does not]
justify an examination; rather, there must be genuine reason
to doubt whether that employee can perform job-related
functions.” Sullivan, 197 F.3d at 811 (internal quotation
marks omitted). In contrast, “[w]e have acknowledged that
inquiries into an employee’s psychiatric health may be
permissible when they reflect concern for the safety of
employees and the ‘public at large.’” Coffman, 578 F.3d at 565
(quoting Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir.
2000)). In undertaking this analysis, “an employer’s standard
practice with regard to medical examinations is certainly
relevant evidence of what is ‘necessary,’” as is “an
employer’s differential application of a medical examination
requirement.” Tice, 247 F.3d at 518.
   Accordingly, we must determine here whether, based on
the evidence presented, a reasonable jury could find (1) that
the Department did not have a reasonable belief based on
objective evidence that Ms. Wright was unable to perform
the essential functions of her job or that she posed a threat to
herself or to others based on a medical condition; or (2) that
Ms. Wright’s examination did not genuinely serve the
Department’s asserted business necessity.
    In our view, the district court correctly determined that
the evidence submitted at trial was insufficient to establish,
as a matter of law, that requiring Ms. Wright to undergo a
fitness-for-duty evaluation was consistent with business
necessity. Several Department employees testified that it was
Nos. 13-1552 & 13-1553                                     19

the Department’s common practice to place a caseworker on
desk duty when she was ordered to undergo an evaluation.
Specifically, Wessel, a labor relations specialist at the
Department, testified that “for employees who are field
workers that go out into the field, … I don’t recall any where
they were not placed on desk duty” following a request for
                      27
an evaluation. He also testified that, during his time with
the Department, all employees who worked in the field and
who were asked to undergo a fitness-for-duty evaluation
                                   28
were placed on desk duty. Chasey, an associate deputy
director of the Department, testified that “typically when
someone is sitting for an [evaluation] or going for an
[evaluation], we put them on some sort of administrative
restriction—desk duty, something like that—and we should
                                        29
have done that in this situation.” He was not aware of any
caseworker who ever had been ordered to undergo a
psychiatric evaluation without also having been placed on
desk duty or administrative leave.
   In contrast to the Department’s customary practice,
Ms. Wright was not placed on desk duty when she was
ordered to undergo a fitness-for-duty evaluation on June 4.
Instead, for almost two months, she continued to oversee her
normal case load, which included approximately twenty-
two cases. The Department’s inconsistent application of its
evaluation procedures provided objective evidence that the


27   R.278 at 59.
28   See id. at 81; R.282 at 71.
29   R.279 at 88.
20                                              Nos. 13-1552 & 13-1553

evaluation order was not consistent with business necessity,
                                                                       30
creating a genuine issue of material fact for the jury.                     Cf.


30 The cases on which the Department relies underscore the peculiarity
of the Department’s decision to order that Ms. Wright undergo an
evaluation without placing her on desk duty. In none of those cases did
an employee who was thought to be unable to perform her job remain
active in her position. Instead, the employees were placed on some form
of administrative leave at the time the evaluation was ordered. See
Owusu-Ansah, 715 F.3d at 1309 (noting that Owusu-Ansah was “placed
on paid leave to allow for further evaluation”); Brownfield, 612 F.3d at
1143 (noting that Brownfield’s supervisor placed him on administrative
leave when he ordered him to undergo a fitness-for-duty examination);
Coffman, 578 F.3d at 562 (noting that a supervisor “recommended that
Coffman be transferred immediately from firefighting and EMS duties to
‘limited duty status’” when he recommended that she undergo an
examination); Thomas v. Corwin, 483 F.3d 516, 523 (8th Cir. 2007) (noting
that Thomas was placed in a “sick leave pool” pending her fitness-for-
duty evaluation); Lanman v. Johnson Cty., 393 F.3d 1151, 1154 (10th Cir.
2004) (noting that “Lanman was placed on administrative leave on May
9, pending the results of a psychological fitness for duty exam”); Sullivan
v. River Valley Sch. Dist., 197 F.3d 804, 809 (6th Cir. 1999) (noting that the
school district suspended Sullivan with pay pending its decision
concerning whether to require that he undergo a fitness-for-duty
examination); Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595, 597
(8th Cir. 1998) (noting that the employer “offer[ed] Cody a paid leave of
absence with her return contingent upon undergoing a psychiatric
evaluation”); cf. Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th
Cir. 2006) (noting that after the examination revealed that he was unfit to
work, “Timmons was put on disability leave that day”); Tice v. Centre
Area Transp. Auth., 247 F.3d 506, 510 (3d Cir. 2001) (noting that the
employer required that Tice submit to an examination before he would
be allowed to return to work). Although an employer’s decision to place,
or not to place, an employee on administrative leave is not
determinative, it is evidence that the jury can consider in determining
whether the evaluation truly served a business necessity.
Nos. 13-1552 & 13-1553                                      21

Tice, 247 F.3d at 518 (noting that Tice did not “produce[]
evidence sufficient to create a genuine issue of fact as to the
necessity of the” examination because he did not establish
that other similarly situated employees were treated
differently).
   In addition, in early July, Ms. Wright was assigned a new
case. Indeed, Bullock recognized that it was a “sensitive
case” and testified that, although she had requested that Ms.
Wright undergo the evaluation, she never considered taking
                         31
the case away from her. Significantly, Bullock admitted at
trial that she had thought it “somewhat contradictory to
send a caseworker in to a fitness-for-duty evaluation because
she may be a risk to children and at the same time continue
                          32
to assign cases to her.” She further testified that if she
“sincerely believed that [Ms.] Wright was a risk to children,”
she would have removed her from those cases and “would
not have assigned her a new case where she might go to the
                                             33
state of Mississippi and pick up a child.”
   Further undermining the Department’s position are
emails between Foster and Hoover that indicate that the
examination was unrelated to the Department’s concerns
about Ms. Wright’s ability to perform her job. Cf. Coffman,
578 F.3d at 566 (noting that the employer’s “e-mails paint a
consistent picture of genuine concern that Coffman’s
behavior was uncharacteristic and was adversely impacting


31   R.279 at 48.
32   Id. at 50.
33   Id. at 51.
22                                         Nos. 13-1552 & 13-1553

her ability to perform her job” (emphasis added)). Foster
emailed Hoover stating that placing Ms. Wright on desk
                                     34
duty would “serve no purpose.” The email continued:
           Putting her on desk duty would mean what?
           She can’t go and see her clients in-person?
           She’s a placement worker and has to travel to
           see folks. She’s done most of that for the month
           already. For those that haven’t been seen, that
           then puts the responsibility on other team
           members or myself.[35]
Hoover replied:
           The point is that if we believe that she is so
           incapable of doing her work that we’re sending
           her to be checked out....why in the world
           would we continue to send her out to see kids
           and put them in danger.......It’s not meant to
           get anything done....but to protect kids and our
           position.
           If on the other hand, you’re saying she doesn’t
           have any problems, then why am I wasting the
           agencies [sic] time, resources, and money?[36]
Foster responded that she “underst[ood] the complexity of it
all,” and stated that it was her opinion that Ms. Wright
“shouldn’t have been allowed to work for a number of years

34   R.150-2 at 4.
35   Id.
36   Id. (ellipses in original).
Nos. 13-1552 & 13-1553                                       23

           37
now.” Foster, however, did not recommend that Ms.
Wright be placed on desk duty. It was not until Chasey, who
had not been involved in the decision to order Ms. Wright to
undergo an evaluation, discovered that Ms. Wright had not
been placed on desk duty that Ms. Wright finally was
relieved of her case work.
    The evidence presented at trial supports a finding that
the Department did not believe that Ms. Wright posed a
safety risk to the children with whom she worked and,
instead, that it considered her competent to continue
working with approximately two-dozen children. Given this
evidence, a reasonable jury could determine that Ms.
Wright’s fitness-for-duty examination was not, in fact,
consistent with business necessity. The district court
therefore did not err in denying the Department’s motion for
judgment as a matter of law.


                                 B.
   We turn next to Ms. Wright’s claim that the district court
erred in granting a new trial after Wright I. During Wright I,
the district court provided the jury with the following
constructive discharge instruction:
              A constructive discharge occurs when an
           employee resigns or retires from employment,
           but the resignation or retirement was not truly
           voluntary.



37   Id.
24                                        Nos. 13-1552 & 13-1553

               A constructive discharge can occur in either
           of two ways.
               The first is when an employer makes the
           working condition sufficiently intolerable so
           that a reasonable person standing in the
           position of the employee would have resigned
           or retired.
              The second is when, at the time the
           employee resigns or retires, the employee
           reasonably believes that, had he not resigned
           or retired, he would have been immediately
           fired.[38]
    The district court concluded that this instruction did not
sufficiently explain the second type of constructive
discharge, the one upon which Ms. Wright had premised her
case. More precisely, the court believed that the instruction
had unduly focused on the employee’s subjective perception
of the employer’s actions that allegedly communicated to the
employee that dismissal was inevitable. The focus, the court
concluded, should be on the nature of the employer’s actions
and whether those actions were so intolerable as to
communicate to a reasonable employee that her discharge
was inevitable. In the district court’s view, giving the
instruction resulted in prejudicial error because it did not
focus on an objective assessment of the employer’s acts, an
assessment reached through an evaluation of the totality of
the circumstances surrounding the employer’s treatment of
the employee.

38   R.218 at 38.
Nos. 13-1552 & 13-1553                                                      25

      As a general proposition, we review a district court’s
                                                                             39
decision to grant a new trial for an abuse of discretion.
However, when the motion for a new trial presents a purely
legal issue, our review is de novo. See United States v. Cotton,
101 F.3d 52, 54 (7th Cir. 1996); see also Cotts v. Osafo, 692 F.3d
564, 567 (7th Cir. 2012) (noting that whether a jury
instruction provided a fair and accurate statement of the
governing law is a legal question reviewed de novo). Here,
the district court determined that a new trial was warranted
after concluding that “[t]he jury instruction [did] not
                                   40
accurately reflect the law.” Accordingly, our review is de
novo. Cf. Cotton, 101 F.3d at 57 (holding that the district
court’s decision granting a new trial based on a faulty jury
instruction was an incorrect determination of law). To
determine whether a jury instruction accurately stated the
law, we “examin[e] the instructions as a whole, in a common
sense manner, avoiding nitpicking.” Lewis v. City of Chicago
Police Dep’t, 590 F.3d 427, 433 (7th Cir. 2009).
   The principles governing our review are well settled. An
employee is constructively discharged when, from the
standpoint of a reasonable employee, the working
conditions become unbearable. See Chapin v. Fort-Rohr
Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). An employee’s
constructive discharge can come in two forms. See id.


39 See Vojdani v. Pharmsan Labs, Inc., 741 F.3d 777, 781 (7th Cir. 2013); Lati-
no v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995) (noting that, “[b]ecause the
trial judge is uniquely situated to rule on such a motion, the district court
has great discretion in determining whether to grant a new trial”).
40   R.235 at 7.
26                                       Nos. 13-1552 & 13-1553

              In the first form, an employee resigns due
          to alleged discriminatory harassment. Such
          cases require a plaintiff to show working
          conditions even more egregious than that
          required for a hostile work environment claim
          because employees are generally expected to
          remain employed while seeking redress,
          thereby allowing an employer to address a
          situation before it causes the employee to quit.
Id. (citation omitted). The second form of constructive
discharge “occurs ‘[w]hen an employer acts in a manner so
as to have communicated to a reasonable employee that she
will be terminated.’” Id. (alteration in original) (quoting
EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir.
2002)).
   The district court was on solid ground in deciding that its
jury instruction incorrectly emphasized the employee’s
subjective belief. See id. at 679–80 (focusing on whether the
employer acted in a manner that would have communicated
to a reasonable employee that she will be terminated).
Ms. Wright asserts that the initial instruction accurately
conveyed the governing law because it used the phrase
“reasonably believes.” She submits that “a reasonable belief
could only come from the actions of the Department in
                                                             41
communicating to Wright that she was about to be fired.”
But, contrary to Ms. Wright’s assertion, the use of the term
“reasonable” is insufficient to cure the deficiency in the
initial jury instruction. A finding that Ms. Wright reasonably

41   Appellant’s Br. 43.
Nos. 13-1552 & 13-1553                                        27

believed that she would be fired is not the same as a finding
that a reasonable employee in Ms. Wright’s position would
believe, based on the Department’s actions, that she imminently
and inevitably would be terminated. Under the instruction
originally provided, a jury could have premised liability on a
determination that Ms. Wright had been constructively
discharged because, after having performed her job poorly
or otherwise acted improperly, she “reasonably believe[d]
that” she “would have been immediately fired” “had [s]he
                          42
not resigned or retired.” More specifically, the jury could
have found that it was reasonable for Ms. Wright to believe
that she would be fired solely because she failed to attend
the second evaluation, which often results in an employee’s
termination. Our case law requires, however, that the jury
consider whether a reasonable person would believe that her
employer had acted in a manner that communicated that the
employee would be terminated imminently, not simply
whether the employee reasonably thought she would be
terminated. The absence of any reference to the conduct of
the employer was, as the district court concluded, reversible
error.
   Because the district court correctly concluded that the
constructive discharge jury instruction did not fairly and
accurately state the law, it did not err in granting a new trial.




42   R.218 at 38.
28                                      Nos. 13-1552 & 13-1553

                               C.
    Finally, we address whether the district court erred in
granting the Department’s motion for judgment as a matter
of law in Wright II. We review de novo a district court’s
decision granting judgment as a matter of law. Estate of
Escobedo v. Martin, 702 F.3d 388, 403 (7th Cir. 2012).
“Judgment as a matter of law is appropriate when there is
‘no legally sufficient evidentiary basis for a reasonable jury’
to find for the nonmoving party.” Id. (quoting Zimmermann
v. Chicago Bd. of Trade, 360 F.3d 612, 623 (7th Cir. 2004)).
    In granting the Department’s motion, the district court
concluded that, while “the prospect of discharge[] was
certainly lurking,” Ms. Wright’s conditions of employment
at the time she chose to retire voluntarily could not be
                                                  43
characterized as intolerable or unbearable. Therefore her
departure could not be characterized as a constructive
discharge. In the court’s view, Ms. Wright simply “decided
to unilaterally end the [disciplinary] process by retiring
                                                  44
instead of allowing it to play out to its end.”
   The district court was correct in its understanding that,
under the second form of constructive discharge, an
employee must prove that her working conditions had
become intolerable. See Chapin, 621 F.3d at 679. In our prior
cases, we have centered our inquiry on whether the
employee’s working conditions had become intolerable
because the employer had conducted itself in a manner that


43   R.260 at 4.
44   Id.
Nos. 13-1552 & 13-1553                                                 29

made it objectively clear that the employee’s discharge was
imminent and inevitable. See, e.g., id. at 679 (noting that “a
working condition does not become intolerable or
unbearable merely because a ‘prospect of discharge lurks in
the background’” (quoting Cigan v. Chippewa Falls Sch. Dist.,
388 F.3d 331, 333 (7th Cir. 2004))). An employee’s work
environment thus becomes intolerable under the second
form of constructive discharge when the employer’s actions
communicate to the employee that she immediately and
unavoidably will be terminated. Requiring that an employee
demonstrate that she immediately will be discharged
comports with the rationale underlying the constructive-
discharge doctrine. We require that an employee’s working
conditions become intolerable before finding a constructive
discharge “because employees are generally expected to
remain employed while seeking redress.” See id.
     The parties really do not dispute the appropriate
         45
inquiry. Their dispute is over whether Ms. Wright
presented sufficient evidence to permit a jury to find that her
discharge from the Department was certain and imminent
when she announced her retirement. On this question, the

45 Ms. Wright submits that “[t]he thread common to all of [our] cases is
that the focus, in determining whether a plaintiff’s working conditions
were intolerable in a Type II constructive discharge situation, turns upon
whether the employer’s conduct would convey to a reasonable employee
that he is about to be terminated.” Appellant’s Br. 37. The Department
provides a similar formulation, stating that “intolerable” under the
second form of constructive discharge “means the employee’s working
conditions are such that his opportunities with his employer are at an
end.” Appellee’s Br. 48; see also Appellant’s Second Br. 47 (noting that
“[t]he Department apparently agrees with Wright’s contention”).
30                                      Nos. 13-1552 & 13-1553

decision of the district court rests comfortably within our
case law.
    In University of Chicago Hospitals, we held that the EEOC
had “demonstrated that a reasonable employee standing in
[the employee’s] shoes would have believed that had she not
resigned, she would have been terminated.” 276 F.3d at 332.
In that case, the employee arrived at work to find that “her
belongings were packed and her office was being used for
storage.” Id. The employee also knew of her supervisor’s
“intent, plan, and attempt to terminate her.” Id. We
concluded that “[t]his environment, in which her employer
made reasonably clear to her that she had reached the end of
the line … [,] could have indeed been to a reasonable
employee unbearable.” Id. Similarly, in Kodish v. Oakbrook
Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 2010), we
held that an employee had been constructively discharged
because it was clear that “had [the employee] not resigned
he would have been terminated immediately.” Id. at 502. We
relied on the evidence that the employee’s supervisor had
“handed [him] a letter of resignation and informed him that
he could resign or be terminated immediately.” Id. at 494.
    In contrast to those cases, we have held that an employee
did not demonstrate that she was discharged constructively
when she received notice of her employer’s intent to
commence a process that could lead to her discharge and
“the employer [did] not undermine the employee’s position,
perquisites, or dignity in the interim.” Cigan, 388 F.3d at 333.
We noted that to hold otherwise “would take us a long
distance indeed from ‘unendurable working conditions’ and
require courts to engage in speculation.” Id. We questioned
how “a judge or jury [could] be confident that the
Nos. 13-1552 & 13-1553                                              31

superintendent would not have changed his mind” and
noted that “arrangements and assurances satisfactory to
                                           46
both sides may have been possible.” Id. “The only way to
know how matters will turn out,” we explained, “is to let the
process run its course.” Id. “Litigation to determine what
would have happened, had the employee contested the
recommendation, is a poor substitute for the actual results of
real deliberation within the employer’s hierarchy.” Id. at
333–34 (emphasis in original). Simply put, “the prospect of
being fired at the conclusion of an extended process is not
itself a constructive discharge.” Id. at 334; see also Levenstein
v. Salafsky, 414 F.3d 767, 774–75 (7th Cir. 2005) (holding that
the employee was not constructively discharged by being
“put in a state of enforced idleness for almost a year” in part
because the employer’s investigation was still pending).
    Most recently, in Chapin, we held that, “even construing
all the evidence in Chapin’s favor, no reasonable employee
standing in Chapin’s shoes would believe that had he not
resigned, he would have been immediately fired.” 621 F.3d
at 680. We explained that “Chapin may have had ample
reason to believe his termination to be imminent” when his
employer had “threatened to fire him and very clearly tied
that threat to his EEOC complaint”; however, after the
employer retracted the threat, he “had no reason to continue
to believe that.” Id. Thus, “[u]nlike in University of Chicago
Hospitals, there [was] nothing to indicate that a firing … was

46We also noted that the employee was not “given tasks demeaning to
her education and accomplishments” and that “she held the same post
and duties that she had found satisfactory for three decades.” Cigan v.
Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004).
32                                      Nos. 13-1552 & 13-1553

an imminent and inevitable event.” Id. It was “not a situation
where the ‘handwriting was on the wall’ and the plaintiff
quit ‘just ahead of [the] fall of the axe.’” Id. (quoting Lindale
v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998)). We noted
that, had Chapin “returned to work, without having
withdrawn the EEOC charge, perhaps [his employer] would
have fired him,” or “his supervisors or coworkers may have
constantly harassed him to the point where his safety was at
risk.” Id. We repeated, however, “that it is not a court’s
position to speculate on ‘what ifs.’” Id. “This is particularly
true,” we explained, “in the constructive discharge context,
where we recognize that the burden remains on the
employee to show why he would have had to ‘quit
immediately, before he found the other job; why, in other
words, his duty to mitigate damages did not require him to
remain.’” Id. at 680–81 (quoting Lindale, 145 F.3d at 956).
    This case law makes clear that the district court correctly
concluded that Ms. Wright had failed to demonstrate that
she was constructively discharged. There is no evidence that
the Department had decided to terminate Ms. Wright. It
certainly had not told Ms. Wright that she would be fired,
nor did her supervisors’ conduct suggest such a result was a
certainty. Cf. Kodish, 604 F.3d at 502; Univ. of Chicago Hosps.,
276 F.3d at 332. Given the possibility of harm to the children
with whom she inevitably would come in contact had she
performed her regular duties, the Department quite
reasonably assigned her to desk duty until the result of her
fitness-for-duty examination could be evaluated. Moreover,
while on desk duty, Ms. Wright had ample time to work on
her grievance and, as far as the record discloses, to assist, if
Nos. 13-1552 & 13-1553                                                33

                                      47
she chose, other case workers. Once she refused to submit
to the examination, the Department initiated disciplinary
proceedings against her. While those proceedings were
pending, Ms. Wright chose to use her vacation time and
remove herself from the office. Upon her return, she elected
to submit her retirement paperwork.
   Ms. Wright attempts to show that her termination was
imminent by suggesting that employees who fail to undergo
multiple fitness-for-duty evaluations typically are
discharged. But, as we have noted, “[l]itigation to determine
what would have happened … is a poor substitute for the
actual results of real deliberation within the employer’s


47   During her testimony, Ms. Wright stated:
               Well, the workers who—on my team who got my
          cases already had full caseloads of their own, and I
          could have helped them. I could have—I could have
          staffed with them and told them what I knew and knew
          to be the status of their work or lack of work they would
          have. Oriented them to my cases.
              I could have helped them with those cases and other
          cases by pulling documents out of the file as needed for
          court reports, for administrative case reviews, staffings
          on children in residential care. There are a number of
          things that we do that require piles of documents pulled
          from the file in chronological order, and those are done
          by the caseworkers. I could have done that for them.
R.275 at 58–59. She then acknowledged that this type of work normally
was done by caseworkers and that those were tasks that she “could have
done and done within the restrictions” of her desk duty. Id. at 59. There
is no evidence in the record that she was precluded from engaging in this
type of work.
34                                            Nos. 13-1552 & 13-1553

hierarchy.” Cigan, 388 F.3d at 333–34 (emphasis in original);
accord Chapin, 621 F.3d at 680 (refusing to speculate about
what would have happened had the employee not given up
his position). Like the employee in Cigan, Ms. Wright
refused to wait for her employer’s discharge process to run
its course. That Ms. Wright may have been discharged at the
conclusion of the disciplinary proceeding does not amount
to a constructive discharge. See Cigan, 388 F.3d at 333–34.
   Ms. Wright also relies on the insurance bill that she
received from CMS, which contained a bureaucratic notation
that she was suspended pending discharge. She admitted,
however, that, had she actually been suspended pending
discharge, she would have received a “notice in writing”
from the Department and that the Department would have
                              48
had “to hand-deliver it.”
    The record is clear that Ms. Wright simply made the
personal assessment that it was time to retire. She had
contacted the State Employees’ Retirement System, which
told her that she and her husband “had enough credits and
accumulated vacation and all to take an early retirement
                                   49
with a reduced pension.” When Ms. Wright “found out
that [they] could take an early retirement, [she] called [her
husband] at work, and it took seconds to make that


48Id. at 96. She further stated that she “didn’t assume [that she had] been
suspended” because the insurance bill was “not a formal notice from the
Department.” Id. at 98.
49 Id. at 91. Specifically, she was told that they “had enough credits to
retire under a different rule because [they] were 55 or older and [they]
had 25 years of service.” Id.
Nos. 13-1552 & 13-1553                                                35

           50
decision.” Her testimony makes clear that she had not
contemplated leaving the Department until she learned that
she could retire immediately and collect a reduced pension.
Thus, it was not the Department’s conduct or her belief that
she immediately would be terminated that led to her
retirement, but her realization that she could retire earlier
than she initially had believed.
    In sum, the evidence presented at trial demonstrates that
the Department did not act in a manner that would
communicate to a reasonable employee in Ms. Wright’s
position that the termination of her employment was
imminent. Instead, the Department initiated a disciplinary
proceeding against Ms. Wright and, while the Department’s
decision was pending, Ms. Wright elected to retire. The
district court’s decision falls within the heartland of our case
law; the district court correctly granted the Department’s
motion for judgment as a matter of law.


                             Conclusion
     The judgment of the district court is affirmed.
                                                          AFFIRMED




50 Id. at 91–92. Ms. Wright testified that it was “absolutely true” that,
prior to her speaking with the State Employees’ Retirement System, she
did not “plan on retiring when [she] did.” Id. at 107. Instead, she had
planned “to stick it out until this was over”; she was going to let the
disciplinary process “run its course.” Id. at 101–02.
