                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-1407
                                  ___________


Janice L. White,                       *
                                       *
           Plaintiff-Appellant,        *   Appeal from the United States
                                       *   District Court for the District
     v.                                *   of
                                       *   Minnesota.
Honeywell, Inc.,                       *
                                       *
           Defendant-Appellee.         *
                                       *

                                 ___________

                         Submitted: October 24, 1997
                                        Filed: April 20, 1998
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.
                               ___________

HANSEN, Circuit Judge.

      Janice L. White brought this racial harassment and constructive
discharge suit against her employer, Honeywell, Inc. Following trial, a
jury rendered its verdict in favor of Honeywell on each claim.      White
appeals various evidentiary rulings made by the district court during the
course of trial and challenges the jury instruction on constructive
discharge. We reverse and remand for a new trial.
                                         I.

      Janice White filed this lawsuit on November 30, 1993, alleging that
Honeywell violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a) (1994), and 42 U.S.C. § 1981 (1994), as amended by the Civil
Rights Act of 1991. Specifically, White alleged that Honeywell subjected
her to a racially hostile work environment from March 1984 through her
alleged constructive discharge on June 24, 1992, when she left work on a
medical leave of absence due to a mental breakdown.1         At trial, the
district court limited the scope of White's Title VII claim to acts
occurring after September 13, 1990. That was the date White filed her
first administrative charge with the Minneapolis Department of Civil Rights
and the Equal Employment Opportunity Commission (the EEOC), alleging racial
harassment, reprisal, and unfair job assignments. She failed, however, to
timely file suit after receiving a no probable cause finding and a right
to sue letter.       Her present lawsuit is based on two subsequent
administrative charges alleging a racially hostile work environment,
constructive discharge, and retaliation. The agencies found no probable
cause on either charge and again issued right to sue letters. The district
court determined that although White had alleged a continuing violation
since 1984, her failure to timely file suit on the first administrative
charge required it to limit the scope of her Title VII claim to acts
occurring after September 13, 1990.      The district court also limited
White's § 1981 claim of racial discrimination to acts occurring after
November 21, 1991, the effective date of the Civil Rights Act of 1991.




      1
        White's complaint also included a claim of retaliation, but the district court
granted Honeywell's motion for summary judgment on that claim, and it is not at issue
in this appeal.

                                         -2-
      The evidence presented at trial included the following.2      Janice
White, an African-American woman, began working in Honeywell's assembly
department in 1978. In 1984, she transferred to a position as one of two
factory clerks in the Minneapolis general offices, where she reported
directly to Dave Easthagen, who reported directly to Bill Megarry, who was
under Caren Olsen. White worked closely with a co-clerk, Mildred Benson,
who is a Caucasian woman. From 1984 through 1992, Benson and White worked
side by side in a large office area where White was the only African-
American worker.

      White attempted to show she suffered racial harassment from Benson,
her co-worker. White alleged that she suffered a pattern of daily verbal
abuse by Benson, who referred to White as a "colored girl," "jackass,"
"asshole," and "little black bitch," among other derogatory names.
(Appellant's App. at 210.) White said Benson would throw work at her desk
rather than hand it to her and that Benson always spoke to her in very
harsh terms, criticized her work, and accused her of being lazy and stupid.
White testified that when she asked Benson why Benson treated her so
poorly, Benson "would just tell me I could leave if I didn't like what she
was doing." (Id. at 221.) White kept a journal in which she recorded the
alleged abuse she said she endured. White believed that Benson's attitude
and behavior were motivated by prejudice on the basis of White's race.




      2
         We note that we are not reviewing the evidence on a claim of insufficient
evidence to support the verdict, a standard under which we review the facts in the light
most favorable to the verdict. See Ryther v. Kare 11, 108 F.3d 832, 836 (8th Cir.) (en
banc), cert. denied, 117 S. Ct. 2510 (1997). Instead, we are reviewing the evidence
with claims of evidentiary and instructional error in mind. For this reason, while we
respect and give great deference to a jury's fact-finding role, our concern in this case
is to recite the evidence presented by both parties in order to review the district court's
discretionary evidentiary and instructional decisions.

                                           -3-
      White said that she often complained of this alleged racial
harassment to Easthagen, her immediate supervisor, and to his immediate
supervisor, Megarry.    She complains that instead of investigating her
allegations, they made excuses for Benson and gave Benson more favorable
treatment. White said she also discussed her complaints with Caren Olsen,
who at first was Megarry's supervisor and after a company reorganization
became Easthagen's direct supervisor. Thus, according to White, Honeywell
management knew of her complaints of racial harassment yet did nothing to
change her racially hostile working environment. White testified that she
became increasingly emotionally upset over how she was being treated and
because Honeywell was doing nothing to improve the situation despite her
repeated complaints and suggestions.

      White presented the testimony of other workers who had heard Benson
raise her voice to White (Appellant's App. at 133) and who had also heard
Benson call White names such as "asshole" and "black bitch" (id. at 829).
Fred Ewing, a Honeywell manager, testified that Benson's abusive behavior
was common knowledge among the managers, including Easthagen, Megarry, and
Olsen. Ewing had heard them informally wondering how White could take the
abuse.   He said that management generally accepted Benson's behavior,
stating, "We knew how Millie was." (Id. at 134.)

      White testified that after September 13, 1990 (the date of her first
EEOC charge), the verbal abuse by Benson intensified. White began to lose
hope that she would ever see improvement in the situation, and she said she
sought counseling in 1991 when her depression over the situation caused her
to become suicidal. White also asserted that in June 1992, Benson once
again had called her a "little black bitch," and she was certain that on
this occasion, Easthagen had overheard the comment.       (Id. at 293-94.)
Easthagen denied overhearing any such remark when White complained to him,
and Benson denied making the remark when Easthagen confronted her. White
reported the incident to labor relations, but again nothing came of her
complaint. Additionally, close in time to this incident, a custodian told
White he would give her




                                    -4-
a quarter if she would bend over. When she complained of the custodian's
behavior to his supervisor, the supervisor told her it was a form of a
compliment. However, the custodian was ultimately reprimanded for his
conduct.

      On June 24, 1992, White was found in Honeywell's conference center
crying hysterically.    An employee assistance program counselor, Susan
Searle, decided White should be taken to a hospital emergency room. White
told Searle, "I just don't want to be harassed when I come to work." (Id.
at 699.) Searle said that White specifically referenced Benson's remarks
and the custodian's comment. White never returned to work. She presented
evidence that she was treated for an acute episode of depression and
anxiety with uncontrollable weeping secondary to work-related stress. She
was eventually awarded full disability benefits for major depression and
was still on an unpaid medical leave of absence from Honeywell at the time
of trial. White presented the testimony of Dr. Carol Novak, who diagnosed
White as having major depressive disorder, severe, with psychotic features.
Dr. Novak testified that White's troubles at Honeywell had contributed
significantly to this diagnosis.

      Honeywell's evidence contradicted White's testimony. Benson denied
calling White derogatory names or directing profanity at her and denied
feeling irritated or annoyed by White. Benson said she had very little to
do with White.

      Honeywell presented the testimony of managers and other employees as
well. Easthagen denied any knowledge that race was at issue in the dispute
between White and Benson until after White filed her first EEOC charge.
He testified that he understood White's complaints as amounting to nothing
more than a personality conflict between the two women. He therefore did
not investigate whether Benson's actions were racially motivated.
Easthagen testified that no practical alternative existed to the two of
them working in close proximity given their job assignments. Olsen also
denied knowledge that the problems between White and Benson involved any
racial animus.    Honeywell presented evidence that White was free to
transfer to several other available




                                    -5-
positions at the same rate of pay, yet she chose to keep working with
Benson. Honeywell presented the testimony of several co-workers who said
they never heard Benson use inappropriate language when speaking to White.
Honeywell also presented evidence that White never filed a union grievance
concerning the situation.

      Honeywell presented evidence to show that White's experience at
Honeywell was not the cause of her mental health problems.       Honeywell
demonstrated that White had a long history of depression and personal
problems, suffering several bouts of depression throughout the late 1970s
and 1980s. In 1977, White's twin brother shot White and her three-year-old
son, killing both her son and the fetus she was carrying. She also has
been a victim of domestic abuse at the hands of her husband. Additionally,
Honeywell presented evidence that White's treating physicians provided
Honeywell with several dates when White could be expected to return to
work, but White never returned. She remained on medical leave through the
time of trial.

      The jury was asked to respond to three special verdicts: (1) whether
White was subject to a racially hostile work environment between November
21, 1991, and June 24, 1992; (2) whether White was subject to a racially
hostile work environment between September 30, 1990, and June 24, 1992; and
(3) whether White was constructively discharged on the basis of her race.
After hearing all the evidence, the jury found for Honeywell on all three
claims.    White appeals, contending that the district court committed
reversible error by excluding her evidence of a racially derogatory
statement by Megarry (a now deceased former supervisor), by admitting into
evidence the EEOC no probable cause findings, and by erroneously
instructing the jury on the requirements for a constructive discharge.




                                    -6-
                                    II.
               A.   Discriminatory Statement of Supervisor

      White challenges the verdicts on her hostile environment claim,
contending first that the district court abused its discretion by excluding
from evidence a discriminatory statement allegedly made in 1988 by Bill
Megarry, when he was Easthagen's direct supervisor. The statement excluded
from evidence would have shown that when confronted with White's complaints
through a union representative in 1988, Megarry responded, "If the dumb
nigger doesn't like it she can sign out." (Appellant's App. at 59.) The
district court concluded that the prejudicial effect of this evidence
outweighed its probative value under Federal Rule of Evidence 403. We give
substantial deference to the trial court's exclusion of evidence under Rule
403, but the trial court's exercise of discretion in excluding evidence
"must not unfairly prevent a party from proving his [or her] case." Estes
v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102-03 (8th Cir. 1988).
Additionally, Rule 103 "preclude[s] a finding of reversible error unless
the trial court's evidentiary rulings have affected [a party's] substantial
rights." Id. at 1105.

      Title VII provides, in part, that it is unlawful for an employer "to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race."     42 U.S.C. § 2000e-2(a).      Consistent with this
language, courts have held that Title VII protects a worker from
discriminatory conduct that is so severe and pervasive as "to create an
objectively hostile or abusive work environment." Harris v. Forklift Sys.,
Inc. 510 U.S. 17, 21 (1993).       This occurs "[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment."       Id. (internal
quotations and citations omitted). Whether a hostile environment existed
can be determined only by looking at all the circumstances, which "include
the frequency of the discriminatory conduct; its severity; whether it is
physically




                                    -7-
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Id. at 23.
Thus, "[e]vidence of a hostile environment must not be compartmentalized,
but must instead be based on the totality of circumstances of the entire
hostile work environment." Delph v. Dr. Pepper Bottling Co. of Paragould,
Inc., 130 F.3d 349, 355 (8th Cir. 1997) (internal quotations and alteration
omitted).

      At the time Megarry allegedly made the statement, he was a supervisor
in White's chain of command and was responsible for labor relations, but
he was no longer a direct supervisor of White during the actionable period
for this suit. The district court addressed the admissibility of Megarry's
statement at three separate times during the trial. The first time was
when the court considered Honeywell's motion in limine to exclude the
statement. Assuming the statement was admissible under Rule 801(d)(2)(D)
as nonhearsay, the court expressed the view that the statement was "so
prejudicial and so inflammatory" that it had to be excluded, even though
the court also found that it was of "heavy" relevance. (Appellant's Adden.
at 18.) The court also stated that its Rule 403 balancing was influenced
by the fact that "you have so much other evidence -- if this was the only
statement or the only comment being made or if this [was] where the real
onus of your case laid -- with Mr. Megarry's statement -- I would go the
other way." (Id.) It is clear the court understood the purpose for which
the statement was being offered, i.e., "that Honeywell had either a bad
attitude about blacks or was willing to put up with harassment of blacks;
and, to me, the relevance of that [statement] then diminishes a bit."
(Id.) The court also was greatly concerned that because Mr. Megarry was
deceased, Honeywell could not put him on the stand to deny or explain the
alleged statement. It also noted that the statement was not made directly
to White and was not made during the actionable period of time. The court
ended its balancing remarks by saying: "[I]t would be unfair to let anybody
testify to what Mister Megarry said, because of the very inflammatory
words. For that very reason I am going to not allow it to come in." (Id.
at 20.) When White's counsel protested the




                                    -8-
ruling, the court returned to Megarry's unavailability saying, "If Megarry
was here, it would come in." (Id. at 22.)

      After Honeywell's counsel had told the jury in his opening statement
about Honeywell's favorable treatment of different races and Honeywell's
attitude toward black people in general, White's counsel asked the court
to revisit its decision excluding Megarry's comment.       The court again
indicated that use of the comment would be unfair because Megarry could not
defend himself and that the plaintiff had "lots of other evidence . . . to
show that attitude." (Id. at 25.)

      Later, during trial, the issue was addressed for the final time.
After hearing both counsels' renewed arguments, the court reaffirmed its
initial Rule 403 ruling while recognizing the very importance of the
statement to the plaintiff ("[B]ecause, you know, it is what is normally
called a 'smoking gun' kind of statement") (id. at 33). Concluding that
the comment was a "very, very exacerbating kind of evidence," and that it
was "very prejudicial," and that the ruling was "close," the court ruled
that basic fairness required that the comment not come in even though it
was relevant and might be admissible under Rule 801. We agree that this
statement was not hearsay and was admissible as a statement by a party's
agent made during the existence of the relationship and concerning a matter
within the scope of the employment.      See Fed. R. Evid. 801(d)(2)(D).
Additionally, the district court correctly recognized that such evidence
remains subject to Rule 403's balancing of the danger of unfair prejudicial
effect and the probative value of the statement. See Mahlandt v. Wild
Canid Survival & Research Ctr., 588 F.2d 626, 631 (8th Cir. 1978). We also
agree with the district court that Megarry's statement is not itself
actionable conduct because it falls outside the time limitations imposed
on the actionable conduct for this suit. Nevertheless, considering the
totality of the circumstances, we respectfully disagree with the court's
ultimate conclusion, find that a mistake has been made, and determine that
the court abused its discretion in excluding the proffered statement. The
statement is relevant and highly probative background material which, in
our view, should have been




                                    -9-
admitted, because its probative value was not substantially outweighed by
any danger of unfair prejudice.

      This background evidence, if believed by the jury, would have helped
White to demonstrate knowledge and an ongoing pattern of racial harassment
and discriminatory animus directly linked to the management-level at
Honeywell.     We have long held that "[e]vidence of prior acts of
discrimination is relevant to an employer's motive . . . , even where this
evidence is not extensive enough to establish discriminatory animus by
itself."   Estes, 856 F.2d at 1104. Although Megarry was no longer in
White's direct chain of command during the actionable time frame, he was
in her chain at the time the statement was allegedly made, and he remained
thereafter in the same cubicle in the same department as Easthagen's peer.
Throughout trial, Honeywell managers maintained that they did not know race
was an issue until after White filed her first EEOC charge. If believed,
the statement attributed to Megarry could be used to determine that the
acts complained of during the actionable time period were more likely to
have occurred than not. The statement, if believed, demonstrates that
management may have failed to take action on White's frequent complaints
out of a discriminatory animus, and it helps to define the general work
atmosphere, or the totality of the circumstances, so it matters little that
White did not hear Megarry's statement. The statement also could have been
used to explain why Megarry took no action on the complaints White says she
made directly to him. The statement is also relevant in resolving the
ultimate question of constructive discharge -- whether the workplace was
so racially abusive and hostile that a reasonable employee would have felt
compelled to quit. See Delph, 130 F.3d at 356. "Evidence of a general
work atmosphere [ ] - as well as evidence of specific hostility directed
toward the plaintiff - is an important factor in evaluating the claim [of
a hostile work environment]." Hicks v. Gates Rubber Co., 833 F.2d 1406,
1415 (10th Cir. 1987).

      In a case where race discrimination is the issue, the introduction
of alleged racist remarks is not to be unexpected. The possibility that
a jury might be so inflamed by




                                   -10-
the contents of the remark so as to decide the case based on passion, needs
to be balanced against the fact that such remarks are potent evidence of
attitude and environment.      Having already heard the other racially
pejorative appellations contained in the evidence, we doubt this additional
statement would have been enough to have caused the jury to decide the case
on an unfair basis. The district court said it had a lot of confidence in
the jury ("They are very sharp jurors."). (Appellant's Adden. at 36.)
Here, because such evidence is so highly probative, the potential unfair
prejudicial effect, i.e., its tendency to further inflame the jury is not
enough to substantially outweigh its probative value.

      The district court was also concerned that Megarry's unavailability
rendered the statement unfairly prejudicial because Megarry was unable to
explain or deny his statement. We respectfully disagree. This statement
was admissible under Rule 801(d)(2)(D), and although it remains subject to
the Rule 403 balancing of probative value and unfair prejudicial effect,
unavailability itself is not a factor adding to unfair prejudicial effect.
The availability of the declarant is not relevant under Rule 801(d)(2)(D)
because under the rule, the statement is not hearsay. Pappas v. Middle
Earth Condominium Ass'n, 963 F.2d 534, 538 (2d Cir. 1992). Several courts
have held that a statement by a declarant who is deceased at the time of
trial may be admissible under Rule 801(d)(2)(D). See Savarese v. Agriss,
883 F.2d 1194, 1201 (3d Cir. 1989) (citing Pino v. Protection Maritime
Ins., 599 F.2d 10, 13 (1st Cir. 1979), and Cedeck v. Hamiltonian Fed. Sav.
& Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977)). We agree with the
Third Circuit's conclusion that in this circumstance, "the fact of the
declarant's death impacts on the weight of the evidence rather than its
admissibility." Id. Megarry's statement is admissible, regardless of his
availability, as an admission by a party opponent, because the statement
was made "by the party's [Honeywell's] agent or servant concerning a matter
within the scope of the agency or employment [and was] made during the
existence of the relationship." Fed. R. Evid. 801(d)(2)(D). Megarry's
death and the inability to cross-examine him concerning the basis for the
statement go to its weight, not to its admissibility. While we understand
the normal




                                   -11-
human inclination is to look askance at those who attribute unkind or
socially unacceptable statements to a deceased person who cannot defend
himself, a plaintiff assumes the real tactical risk that a jury is very
likely to discredit the purported utterance just because it is being
offered.

      While the statement, because of its potential high probative value
(if believed),    is undoubtedly damaging and therefore in that sense
prejudicial to Honeywell's case, it is not unfairly prejudicial. It helps
to define the essential background against which White's claim arose. We
conclude that the district court's decision to preclude White from using
this highly probative piece of evidence affected her substantial rights in
this racial discrimination case and that its probative value clearly
outweighs the danger of any unfair prejudicial effect the statement may
carry with it. Thus, the district court abused its discretion by excluding
Megarry's statement and committed reversible error.

              B.   The Agencies' No Probable Cause Findings

      White's second evidentiary challenge attacks the district court's
decision to admit the outcome of White's three administrative charges. The
district court did not admit the documents themselves but allowed witnesses
to testify to the ultimate findings of the agencies. "[W]e leave questions
concerning the admission or exclusion of EEOC determinations to the sound
discretion of the trial court." Estes, 856 F.2d at 1105. "The court must
exercise its discretion, however, to ensure that unfair prejudice does not
result from a conclusion based on a cursory EEOC review of the very facts
examined in depth at trial." Id.; see also Johnson v. Yellow Freight Sys.,
Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041 (1984).

      In this case, the district court held that the sequence of White's
EEOC charges and their outcomes were relevant to the expert's diagnosis of
White's condition, the sequence of events, and White's testimony of
improper acts on behalf of the defendant. (See Appellant's Adden. at 14-
15.) Honeywell first elicited the results of the EEOC




                                   -12-
investigation from White's expert witness, Dr. Carol Novak, who testified
on cross- examination that the EEOC's failure to find probable cause for
White's charges of discrimination added additional stress and was a factor
leading to White's breakdown. Honeywell also elicited the EEOC charge
results from several Honeywell managers who testified -- Easthagen (White's
supervisor), Caren Olsen (Easthagen's immediate supervisor), George Glasser
(a labor relations manager), and Michael McEnnely (director of factory
human resources). Honeywell's counsel mentioned the agency findings in
opening and closing statements as well.

      White complains that the district court abused its discretion by
allowing Honeywell's repetitive references to the EEOC findings of no
probable cause. We disagree. Our review of the record convinces us that
the district court did not abuse its discretion by allowing witnesses to
refer to the agency findings. White was allowed to present the rebuttal
testimony of William Prock of the Minneapolis Department of Civil Rights.
Prock testified about how the administrative investigation differs from the
kind of fact-finding that occurs in a court of law, about the meaning of
a no probable cause finding, and about the charging party's options after
receiving a no probable cause determination. Furthermore, the district
court instructed the jury that it "should not consider the findings of
these other agencies to be binding upon you, but they may be considered by
you as any other evidence." (Appellant's App. at 83.) Further, the
court's instruction told the jury, "You must make your own determination
based upon your review of all the evidence presented to you." (Id.) When
the court gives a limiting instruction, we assume that the jury followed
that instruction. See United States v. Fregoso, 60 F.3d 1314, 1328 (8th
Cir. 1995).      Given White's opportunity to discredit the agency
determinations and the district court's cautionary instruction warning the
jury not to consider the agency findings as binding, we conclude that the
district court did not abuse its discretion by admitting the results of the
EEOC charges in this case.




                                   -13-
             C.   Jury Instruction on Constructive Discharge

      White contends that the district court erroneously instructed the
jury on the elements of constructive discharge. "A district court has
broad discretion in drafting jury instructions." Pittman v. Frazer, 129
F.3d 983, 987 (8th Cir. 1997). On review, we simply determine "whether the
instructions, taken as a whole and viewed in the light of the evidence and
applicable law, fairly and adequately submitted the issues in the case to
the jury." Kim v. Nash Finch Co., 123 F.3d 1046, 1057 (8th Cir. 1997)
(internal quotations omitted). "The form and language of jury instructions
are committed to the sound discretion of the district court so long as the
jury is correctly instructed on the substantive issues in the case."
Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir. 1995)
(internal quotations and alterations omitted), cert. denied, 117 S. Ct. 179
(1996). We will reverse on the basis of instructional error only if we
find that the error "affected the substantial rights of the parties." Kim,
123 F.3d at 1057 (internal quotations omitted).

      Instruction No. 20 addressed the claim of constructive discharge,
requiring proof of three elements: (1) "the defendant intentionally made
plaintiff's working conditions intolerable such that a reasonable person
would feel forced to quit;" (2) "the plaintiff's race was a determining
factor in the defendant's actions;" and (3) "the plaintiff quit her job,
which was a reasonably foreseeable result of defendant's actions."
(Appellant's Adden. at 52.) White challenges the district court's use of
the word "quit" in the instruction. The uncontroverted evidence showed
that White is on an unpaid medical leave of absence, but she is technically
still employed by Honeywell. To avoid use of the term "quit" in her given
situation, White proposed an instruction which asked the jury to determine
whether "her leaving the workplace was a reasonably foreseeable result of
defendant's actions." (Appellant's Adden. at 50 (emphasis added).) The
district court rejected White's proposed instruction and also rejected her
proposed modification of the court's instruction, in which she sought to
substitute the words "leave" or "left" for "quit" in the court's
instruction.




                                   -14-
      We have often stated that constructive discharge occurs when an
employer "deliberately renders the employee's working conditions
intolerable and thus forces [the employee] to quit his job." Johnson v.
Bunny Bread Co., 646 F. 2d 1250, 1256 (8th Cir. 1981) (internal quotations
omitted). In past cases, however, the question at issue generally has been
whether the employer deliberately rendered the working conditions
intolerable, not whether the employee actually "quit" the job.       White
claims that she should not be required to prove that she "quit" her job
where she contends that intolerable working conditions forced her to take
an unpaid medical leave of absence, required her to leave her job, and
prevent her from returning.

      We must determine whether a situation where allegedly intolerable
working conditions force an employee into an unpaid medical leave of
absence from which she is allegedly unable to return is essentially the
same as forcing an employee to "quit" for purposes of proving a
constructive discharge claim. We conclude that it is sufficient and that
the district court committed reversible error by not adjusting the language
from our cases to fit the facts and issues tried.

      While we have not specifically addressed the question of whether
forced unpaid medical leave is analogous to quitting, we have articulated
the standard of constructive discharge in terms of "leaving" the
employment. We have stated that constructive discharge occurs "when an
employer intentionally renders working conditions so intolerable that an
employee is essentially forced to leave the employment."       Bradford v.
Norfolk So. Corp., 54 F.3d 1412, 1420 (8th Cir. 1995). To be sure, this
statement of the standard is not a complete answer to our question in this
case, but our use of the word "leave" in prior cases instead of "quit"
demonstrates that, in the past, we have not been overly concerned that a
plaintiff prove she technically quit her job.

      Lacking authority on point in our own circuit, we also consider the
views of other courts. We are unable to find a circuit court opinion that
considers the exact issue before us. In a slightly different context, the
Second Circuit has stated, "A constructive




                                   -15-
discharge may be found on the basis of evidence that an employer
deliberately sought to place an employee in a position that jeopardized his
or her health." Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.
1993). In a similar vein, the First Circuit has held that a constructive
discharge may occur "when an employer effectively prevents an employee from
performing his job." Sanchez v. Puerto Rico Oil Co., 38 F.3d 712, 719 (1st
Cir. 1994).

      Some district court cases have spoken directly to the issue at hand.
In Llewellyn v. Celanese Corp., 693 F. Supp. 369, 381 (W.D.N.C. 1988), the
court stated, "Even though [the plaintiff] did not quit, her medical leave
without pay was caused by her intolerable work situation." The court held
this to be a constructive discharge for the purpose of back pay liability.
In a case from the Northern District of Texas, the court reasoned, "if
'granting leave' rises to the level of an adverse employment action, surely
forcing [an employee] to take leave does as well." Shafer v. Dallas County
Hosp. Dist., No. CA 3-96-CV-1580-R, 1997 WL 667933 at *6 (N.D. Tex. Oct.
21, 1997) (unpublished). The court concluded that constructive imposition
of medical leave should be no less actionable under Title VII than
constructive discharge; and for lack of a better term, the court called the
forced medical leave situation a constructive discharge. Id. at *6 & n.11.


      We are not prepared to say that "quit" is the magic word in a
constructive discharge instruction. A person who has suffered a forced
unpaid medical leave of absence, from which she is unable to return and
which resulted from objectively intolerable working conditions, is in no
better position than one who was forced to quit as a result of objectively
intolerable conditions.     In either case, the employer has, through
objectively intolerable conditions, forced the employee out of active
service. We believe it is sufficient for a plaintiff to prove that an
employer deliberately rendered working conditions intolerable and thus
forced the employee to permanently "leave" the employment; the employee
need not prove that she technically "quit" in every case.




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      Given the facts at issue in this case, we conclude the district
court's refusal to tailor the jury instructions to the facts of White's
case affected White's substantial rights. The jury should have been told
that it could find a constructive discharge if White proved that both her
taking of the medical leave and her failure to return from it were caused
by the alleged racially intolerable working conditions and were reasonably
foreseeable. Requiring her to prove that she "quit" her job at Honeywell,
when in fact she did not quit but contends that the abusive working
conditions forced her to take an unpaid medical leave of absence from which
she is unable to return, was tantamount to directing a verdict for
Honeywell.    Additionally, during deliberations, the jury submitted a
written question to the district court indicating that the jurors were
concerned over whether White had "quit" her job. The district court's
answer merely directed them back to the language of Instruction No. 20.
Thus, it is very likely that the inaccurate instruction affected the jury's
deliberations and the jury verdicts. For these reasons, we conclude that
the instructional error in this case is reversible error, and we remand for
a new trial.

                                   III.

      Accordingly, we conclude that the district court committed reversible
error in failing to admit the alleged statement of Bill Megarry and in
instructing the jury that White had to prove she "quit" her job.         We
reverse the judgment based on the jury verdicts and remand for a new trial
in accordance with the views expressed in this opinion.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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