Clowes v. Allegheny Valley Hospital Petition for Writ of Certiorari to the US Court of Appeals for the Third Circuit

    No.

IN THE

Supreme (E o x x v t of tip jMmieit J^teies

October Term, 1993

J anet G. Clowes, 

v.
Petitioner,

Allegheny Valley Hospital,
Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

Richard T. Seymour 
Sharon R. Vinick 
Lawyers Committee for Civil 

Rights Under Law 
1450 G Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8600

Helen R. Kotler 
475 Union Trust Building 
501 Grant Street 
Pittsburgh, PA 15219 
(412) 281-6538

Alan E. Kraus*
David P. Arciszewski 
Deborah J. Fennelly 
Riker, Danzig, Scherer, 

Hyland & Perretti 
Headquarters Plaza 
One Speedwell Avenue 
Morristown, NJ 07962-1981 
(201)538-0800

Attorneys for Petitioner 
^Counsel of Record



1

QUESTIONS PRESENTED

1. Did the Third Circuit Court of Appeals err when it, in effect, 
applied a de novo standard of review to a jury’s finding that petitioner 
was constructively discharged because of her age in violation of the 
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 
U.S.C. § 621-34?

2. Does the Third Circuit’s decision conflict with this Court’s 
holding in Pullman-Standard v. Swint, 456 U.S. 273 (1982)?

3. Did the Third Circuit Court of Appeals err in failing to give 
proper deference to the jury’s verdict in petitioner’s favor as required 
by the Seventh Amendment and this Court’s precedents?



ii

Page
TABLE OF CONTENTS

QUESTIONS PRESENTED . ...........................   i
OPINIONS B ELO W ..................   1
JURISDICTION .........................................   2
STATUTE AND RULE INVOLVED .............. .............. .. 2
STATEMENT OF THE CASE ...................................   3
REASONS FOR GRANTING THE W RIT.......................  8

I. THE DE NOVO STANDARD OF REVIEW 
APPLIED BY THE COURT BELOW IS 
CONTRARY TO THE HOLDINGS OF EVERY 
CIRCUIT BUT THE SIXTH AND TO THE 
PRECEDENTS OF THIS COURT ..................... .. 10

H. THE GUIDANCE OF THIS COURT IS
NECESSARY TO CURB THE DISTURBING 
WILLINGNESS OF CIRCUIT COURTS —
EXEMPLIFIED BY THE DECISION BELOW —
TO RE-EXAMINE JURY FINDINGS IN VIOLA­
TION OF THE SEVENTH AMENDMENT . . . . . .  13

CONCLUSION........................................... ......................  15
APPENDIX

Slip Opinion of the Court of Appeals for the 
Third Circuit ................................. ..................... . . .  la

Order Amending Slip Opinion of the Court of Appeals 
for the Third Circuit....................................................  7a

Published Opinion of the Court of Appeals for the
Third Circuit ..............................................................  9a

Judgment of the United States District Court ..............  15a
Order of the United States District Court denying 

the Motion for Judgment Notwithstanding the 
Verdict or, in the alternative, for a New Trial ..........  16a

Jury Verdict .............................................    17a
Order of the Court of Appeals for the Third Circuit

denying the Petition for Rehearing ...........................  20a



Ill

Page
CASES
Acrey v. American Sheep Industry Ass’n, 981 F.2d 1569

(10th Cir. (1992) .................................... .............. 8
Basham v. Pennsylvania Railroad Co.,

372 U.S. 699 (1963) ........ ...................... .. 14
Bose Corp. v. Consumers Union o f U.S., Inc.,

466 U.S. 485 (1984)....................................... .. 13
Bristow v. Daily Press, Inc., 770 F.2d 1251

(4th Cir. 1985), cert, denied, 475 U.S. 1082 (1986) . . . .  12
Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53

(1st Cir. 1984) .................................... ..............................  8, 12
Cortes v. Maxus Exploration Corporation, 977 F.2d 195

(5th Cir. 1992) ....................... ...................... ....................  11
Dennis v. Denver & Rio Grande Western Railroad Co.,

375 U.S. 208 (1963)..........................................................  14
E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664

(8th Cir. 1992) ........................................................ .. 11
Goss v. Exxon Office Systems Co., 747 F.2d 885

(3d Cir. 1984) ............... .......................... .. 8
Herdman v. Pennsylvania Railroad Co.,

352 U.S. 518 (1957)............................. .................. .. 14
Hirschfeld v. New Mexico Corrections Dep’t.,

916 F.2d 572 (10th Cir. 1990) ................... .............. .. 11
International Terminal Operating Co. v. N. V. Nederl

Amerik Stoomu Moats, 393 U.S. 74 (1968)..................... 14
Lavender v. Kurn, 327 U.S. 645 (1946) ................................ 14
Link v. Mercedes-Benz o f North America, Inc.

788 F.2d 918 (3d Cir. 1986)............................. ................  8
Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830)................. 14
Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir. 1983) . . 8, 12
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ...............passim
St. Mary’s Honor Center v. Hicks,__U.S.

113 S. Ct. 2742(1993)............ ............

TABLE OF AUTHORITIES

12



IV

Stamey v. Southern Bell Tel. & Tel. Co., 859 F.2d 855
(11th Cir. 1988), cert, denied, 490 U.S. 1116 (1989) . . .  8

Stephens v. The C.I.T. Group/Equipment Financing, Inc.
955 F.2d 1023 (5th Cir. 1992) ..........................................  8

Swint v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1981) . . 12
United States v. McKines, 933 F.2d 1412 (8th Cir. 1991) . . 8
Wardwell v. School Bd., 786 F.2d 1554 (11th Cir. 1986) . . .  12
Watson v. Nationwide Insurance Co., 823 F.2d 360

(9th Cir. 1987) .............................................................. .... 12
Wheeler v. Southland Corp., 875, F.2d 1246

(6th Cir. 1989) ..................................................................  11
Yates v. Avco. Corp., 819 F.2d 630 (6th Cir. 1987) .............  11

STATUTES AND RULES
28 U.S.C. § 1254(1) ..............................................................  2
28U.S.C. § 1331 ..................... .............................................  2
Age Discrimination in Employment Act of 1967

(“ADEA” ), 29 U.S.C. § 621-34 . . . . . . . . . . . . . . . . . . .  passim
Fed. R. App. P. 40 ............................... .. 7
Fed. R. Civ. P. 50(a)........ ................ ..................................... 3
Fed. R. Civ. P. 52(a)..............................................................  12

MISCELLANEOUS
Eric Schnapper, Judges Against Juries—Appellate 

Review of Federal Civil Jury Verdicts, 1989 Wise.
L. Rev. 237 (1989)............................... ............................  15

TABLE OF AUTHORITIES (Continued)



In the

nyxzmt (Emtri of tip Ptttieir J it&tzz
October Term 1993

Janet G. Clowes,

Petitioner,

v.

Allegheny Valley Hospital,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

The petitioner Janet G. Clowes respectfully prays that a wri t of cer­
tiorari issue to review the judgment and opinion and amended opinion 
of the United States Court of Appeals for the Third Circuit, entered 
in the above-entitled proceeding on April 23,1993 and May 27,1993, 
respectively.

OPINIONS BELOW

The opinion of the Court of Appeals for the Third Circuit issued on 
April 23,1993 and amended by Order Amending Slip Opinion dated 
May 27, 1993, is reported at 991 F.2d 1159 (3d Cir. 1993), and is 
reprinted in the appendix attached hereto at 9a, infra. On May 27, 
1993, the opinion was amended by the unpublished Order Amending 
Slip Opinion, reprinted in the appendix attached hereto at 7a, infra.

The unpublished, unamended slip opinion of the Court of Appeals 
for the Third Circuit issued on April 23, 1993, is reprinted in the 
appendix attached hereto at la, infra.



2

JURISDICTION

Federal jurisdiction in the trial court was invoked under 28 U.S.C.
§ 1331 and 29 U.S.C. § 626. The decision of the Court of Appeals 
sought to be reviewed was issued on April 23,1993. A timely petition 
for rehearing was filed on May 5, 1993. The April 23, 1993 opinion 
was amended by order dated May 17,1993. The petition for rehearing 
was denied by order of the Court of Appeals on June 16,1993. Juris­
diction in this Court is invoked under 28 U.S.C. § 1254(1).

PERTINENT STATUTE AND RULE

Plaintiff’s claim arises under the Age Discrimination in Employ­
ment Act of 1967 (“ADEA”), 29 U.S.C. § 621-34:

§ 621. Congressional statement of findings and purpose

(a) The Congress hereby finds and declares that—

(1) in the face of rising productivity and affluence, older work­
ers find themselves disadvantaged in their efforts to retain employ­
ment, and especially to regain employment when displaced from 
jobs;

(2) the setting of arbitrary age limits regardless of potential for 
job performance has become a common practice, and certain other­
wise desirable practices may work to the disadvantage of older per­
sons;

(3) the incidence of unemployment, especially long-term unem­
ployment with resultant deterioration of skill, morale, and 
employer acceptability is, relative to the younger ages, high among 
older workers; their numbers are great and growing; and their 
employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary 
discrimination in employment because of age, burdens commerce 
and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employ­
ment of older persons based on their ability rather than age; to prohibit 
arbitrary age discrimination in employment; to help employers and 
workers find ways of meeting problems arising from the impact of age 
on employment.



3

§ 623. Prohibition of age discrimination

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or 
otherwise discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, 
because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way 
which would deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his status as an 
employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply 
with this chapter.

Fed. R. Civ. P. 50(a) provides in pertinent part:

(a) Judgment as a Matter o f Law.

(1) If during a trial by jury a party has been fully heard with respect 
to an issue and there is no legally sufficient evidentiary basis for a rea­
sonable jury to have found for that party with respect to that issue, the 
court may grant a motion for judgment as a matter of law against that 
party on any claim, counterclaim, cross-claim, or third party claim 
that cannot under the controlling law be maintained without a favor­
able finding on that issue.

(2) Motions for judgment as a matter of law may be made at any 
time before submission of the case to the jury. Such a motion shall 
specify the judgment sought and the law and the facts on which the 
moving party is entitled to the judgment.

STATEMENT OF THE CASE

Petitioner Janet Clowes is a sixty year old nurse. She worked for the 
respondent in both part-time and full-time positions for thirty years, 
from 1957 until 1987. In 1989, she instituted this action seeking 
redress under the Age Discrimination in Employment Act of 1967 
(“ADEA”), 29 U.S.C. § 621-34, alleging that she was constructively



4

discharged because of her age. The complaint also included a pendent 
claim under the Pennsylvania Human Relations Act, 43 P.S. § 962, 
and a common law claim for the intentional infliction of emotional 
distress.

Ms. Clowes was hired by respondent Allegheny Valley Hospital 
(“Allegheny Hospital” ) on July 5, 1957. (46A).1 She held several 
nursing related positions with the respondent over the course of her 
employment. (141A-152A). In each of these positions, prior to early 
1987, Ms. Clowes received satisfactory performance evaluations and 
normal salary increases. (191A; 5Q2-503A; 791A; 829A). She was 
well regarded by her co-workers. (542A; 405A).

On March 31,1987, petitioner became a member of the Allegheny 
Hospital’s IV team. (47A). The IV team is a unit of registered nurses 
who are responsible for the administration and monitoring of patient 
intake of intravenous solutions. (483A). Ms. Clowes was 53 years old 
at the time. (48A).

Ms. Clowes’ supervisor was thirty-four year old Diana Bennett 
Malloy. (47-48A). Ms. Clowes was the oldest member of Malloy ’ s TV 
team. (48A). In addition, she was one of only two nurses on the team 
over fifty years of age. (48A).

Shortly after Ms. Clowes joined the IV team, Malloy commenced 
an intense campaign of close and harsh supervision of Ms. Clowes. 
Malloy’s attitude towards petitioner was excessively critical, hostile 
and oppressive. (189A). That treatment was in sharp contrast from 
that accorded other team members. (188A; 391A; 395A). Malloy fol­
lowed petitioner on her rounds and obtrusively noted the number of 
times it took her to start an IV. (198 A). Malloy kept a detailed account 
of petitioner’s performance by recording “every little thing” about her 
performance in an obvious attempt to build a record to discipline 
and/or discharge Ms. Clowes. (187A; 240A). In addition, Malloy rou­
tinely remained at the hospital at the conclusion of the day shift in 
order to examine petitioner’s patient files and discover any alleged 
“mistakes.” (187A). No other member of the IV team was subjected 
to this sort of excessive, unfair “supervision.” (189A; 870-871 A).

Moreover, Malloy sharply criticized and demeaned Ms. Clowes in 
the presence of her co-workers. (394-398A). Most often, Malloy

1 “ A” citations are to the appendix in the Third Circuit. “ a” citations are
to the appendix attached to this Petition.



5

harshly criticized her in front of other members of the IV team for 
making numerous multiple needle injections in a patient even though 
multiple needle injections were not uncommon depending on the age 
and condition of the patient. (196-197A; 376-377A; 923A; 393A). No 
other member of the IV team was subjected to such scrutiny or criti­
cism, no matter how many times they had to “stick” patients.

As would be expected, Malloy’s excessive supervision and harsh 
public criticism caused Ms. Clowes to become severely depressed. 
Indeed, Ms. Clowes consulted a psychiatrist, Dr. Louis Haber, for the 
growing depression resulting from Malloy’s treatment of her. (293A). 
Dr. Haber diagnosed Ms. Clowes’ condition as a “major depressive 
disorder, single episode”. (585-586A). Dr. Haber based his diagnosis, 
in part, upon Ms. Clowes’ description of her problems with Malloy 
and her perception that she was being unfairly harassed. (58I-582A; 
597-598A).

In July 1987, Malloy completed an evaluation of petitioner’s per­
formance. (1059A). Allegheny Hospital’s evaluation form required a 
supervisor to grade performance on a scale of one to four—one being 
the poorest and four being the highest. Malloy rated Malloy’s perfor­
mance as a substandard “two” in seven out of thirty-five performance 
categories. (1059-1063A). In her more than 20 years of being 
reviewed, petitioner had never before received a rating lower than 
three. (191 A; 829A).

In accordance with hospital procedure, Ms. Clowes was required 
to meet with Malloy to discuss her performance in those categories 
because she had received a rating of “two”. (1059A). On September 
7, 1987, petitioner and Malloy met for that purpose. (344A; 844A) 
Malloy noted that there had been some improvement in Ms. Clowes’ 
performance. (844-847A; 1064-1065A). Nevertheless, Malloy 
informed Clowes that continued close supervision would be required. 
(847A).

Subsequently, Malloy asked petitioner to meet with her on Novem­
ber 5,1987 to discuss petitioner’s performance. Between the Septem­
ber 5, 1987 and November 5, 1987 conferences, Malloy’s excessive 
supervision of Ms. Clowes’ performance continued and Malloy com­
piled a lengthy list of petitioner’s alleged shortcomings. (1067A).



6

At the November 5, 1987 conference, Malloy and Patricia Coff­
man, a Nursing Department Supervisor, met with Ms. Clowes. 
(1066A). Malloy provided petitioner with a list of matters that she 
supposedly needed to correct. (1067-1071 A). Ms. Clowes was 
directed to submit by November 11, 1987 a list of her improvement 
“goals” to Malloy. (1066A). She was also advised that a weekly con­
ference with Malloy would be required. (1066A). This weekly confer­
ence was designed to discuss any continuing performance problems. 
(1066A). Another evaluation was scheduled for December 18,1993. 
(1066A). Petitioner was advised that, if there was no improvement in 
her job performance, “further disciplinary action” would be taken 
against her. (1066A; 1071 A). It was apparent after the November 5, 
1987 conference—if not long before—that nothing Ms. Clowes did 
would satisfy Malloy and Malloy was bound and determined to build 
a record to discipline and eventually discharge Ms. Clowes. Follow­
ing the November 5,1987, conference, Ms. Clowes was so upset that 
she took a sick day for the remainder of the day. (1066A).

In response to Malloy’s critical review at the November confer­
ence, petitioner submitted a written response to both Malloy and hos­
pital administrators, because petitioner felt that she was being unfairly 
treated. (217-221A). Following the November 5, 1987 conference, 
petitioner carried out her duties as an IV nurse for only a few days. 
Petitioner submitted her performance “goals” to Malloy on Novem­
ber 11, 1987. (804A; 1072A). After November 12, 1987, petitioner 
did not return to work at Allegheny Hospital. (293-294A). She was 
convinced that Malloy intended to discharge her and she could do 
nothing to stop that result.

Petitioner used her accumulated vacation and sick leave from 
November 20, 1987 through December 22, 1987. (294A). She was 
later transferred to temporary, part-time status, effective December 
22,1987. (294A). Petitioner commenced working at Concordia Nurs­
ing Home. (295A). There, Ms. Clowes satisfactorily carried out her 
job responsibilities which included in part the starting of patient IVs. 
(294-295A).

Shortly thereafter, Ms. Clowes relocated to Texas and began 
employment with another hospital. (310A). She was hired as the sole 
night supervisor of the hospital and held that position up until and dur­
ing the time of trial. (311-315A).



7

Petitioner’s claims were tried before a jury. At the close of plain­
tiff’s case, the district court entered a directed verdict in favor of 
respondent on petitioner’s claim for the intentional infliction of emo­
tional distress. (456A). At the close of all the evidence, the district 
court declined to entertain the pendent claim under the Pennsylvania 
Human Relations Act. (950A).

On October 30, 1991, the jury returned a verdict in favor of peti­
tioner. (17- 19a). The jury found that (1) Ms. Clowes was construc­
tively discharged from the employment of the respondent and (2) 
“plaintiff’s age was a determinative factor in [her] constructive dis­
charge”. (17-18a).

On November 8,1991, respondent filed amotion seeking judgment 
notwithstanding the verdict or, alternatively, for a new trial. The dis­
trict court denied both motions on the same day. (16a).

Respondent timely filed an appeal to the Third Circuit. Respondent 
argued principally that there was insufficient evidence to support a 
claim for constructive discharge as a matter of law and that the district 
court’s order denying its motion for judgment notwithstanding the 
verdict should be reversed.

On April 23, 1993, the Third Circuit issued an opinion, reversing 
the jury verdict and granting judgment for respondent, (la). The Third 
Circuit held that whether a particular set of facts constituted a 
constructive discharge “is a question of law and therefore this ques­
tion is subject to plenary review.” (4a). Based on a de novo review of 
the evidence, the Circuit Court found that petitioner had fallen “well 
short” of satisfying her burden of showing that “the conduct com­
plained of would have the foreseeable result that working conditions 
would be so unpleasant or difficult that a reasonable person in the 
employee’s shoes would resign.” (3-4a). The Third Circuit never 
reached the issue of whether petitioner’s discharge was due to age dis­
crimination.

On May 5,1993, petitioner filed a timely petition seeking a rehear­
ing of the appeal pursuant to Fed. R. App. P. 40. The petition noted that 
the Circuit Court had erroneously applied a “plenary” standard of 
review to a factual finding made by the jury. Petitioner argued that 
both of these inquiries were “heavily fact driven determinations.”



8

In apparent recognition of its error, and prior to a ruling on the peti­
tion for rehearing, the Third Circuit entered an order amending its 
opinion. (7a). The Circuit Court attempted to correct its error by sub­
stituting a single paragraph. The amending order provided that:

Because this is an appeal from a judgment entered after trial, 
we must view the historical facts in the light most favorable to 
the judgment. See, e.g., Linkv. Mercedes-Benz o f North America, 
Inc., 788 F.2d 918, 921 (3d Cir. 1986). Whether a reasonable 
employee would resign when confronted with a particular set of 
circumstances is not, however, a pure question of historical fact, 
and the appropriate standard of review for such questions of rea­
sonableness is subject to dispute. See United States v. McKines, 
933 F.2d 1412,1424-26 (8th Cir. 1991) (en banc); id. at 1419-22 
(Beam, J., dissenting). We need not resolve this question in the 
present case. Even if subject to review only for clear error, the 
district court’s holding that Clowes was constructively dis­
charged cannot be sustained.

(7-8a). The balance of the opinion—and its holding—remained 
unchanged.

The petition for rehearing was thereafter denied by order of the 
Third Circuit on June 16, 1993. (20a).

REASONS FOR GRANTING THE WRIT
Constructive discharge is a critical issue in employment discrimi­

nation law. Rather than simply firing an older worker, or a black or 
female employee, many employers instead decide to make that 
employee’s working conditions so oppressive and intolerable that the 
employee simply quits. Such an employer can then argue—as Alle­
gheny Hospital has done successfully to date in this case—that the 
court should never reach the issue of discrimination because the 
employee was never discharged; he or she voluntarily “resigned”.

The constructive discharge issue has arisen repeatedly in employ­
ment discrimination cases.2 It is a dispositive issue in many such 
cases. And there is a continuing split among the Circuits as to the

2 E.g., Stephens v. The C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023 (5th Cir. 
1992); Acrey v. American Sheep Indus. Ass’n, 981 F.2d 1569 (10th Cir. 1992); 
Stamey v. Southern Bell Tel. & Tel. Co., 859F.2d 855 (11th Cir. 1988), cert, denied, 
490 U.S. 1116 (1989); Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53 (1st Cir. 
1984); Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir. 1984); Pena v. 
Brattleboro Retreat, 702 F.2d 322 (2d Cir. 1983).



9

proper standard of review to be applied to jury verdicts or trial court 
findings of constructive discharge that this Court, we submit, should 
resolve.

In its initial opinion, the Third Circuit openly held that it was apply­
ing a de novo standard of review to petitioner’s constructive discharge 
claim. In its Order Amending Slip Opinion, filed after petitioner filed 
her petition for rehearing, the Third Circuit ostensibly postponed for 
another day the standard of review issue for constructive discharge 
cases. In fact, however, the Third Circuit never changed its analyses 
of petitioner’s claim and it indeed applied a de novo review to the 
jury’s verdict in petitioner’s favor. Thus, the Third Circuit has now 
apparently joined the Sixth Circuit as the only Circuits holding that 
constructive discharge is a question of law, or at least a mixed question 
of law and fact, subject to de novo review in the appellate courts. 
Every other Circuit to consider the issue has held routinely that 
constructive discharge is like any other factual finding, subject to the 
clearly erroneous standard of review (if a court finding) or the judg­
ment as a matter of law standard of review (if a jury verdict).

This Court, we submit, should resolve this standard of review issue 
now, before other Circuits compound the error of the Sixth and Third 
Circuits and before other employment discrimination plaintiffs see 
their hard-won trial court victories unfairly reversed simply because 
an appellate court, reviewing a cold record, disagrees with a jury or 
trial court’s verdict.

There was a clear credibility choice concerning the reasons for 
Malloy’s actions. If Malloy’s testimony is not believed and Ms. 
Clowes’ testimony is believed, the jury was free to find that Malloy’s 
actions were intended to harass Ms. Clowes out of the workplace 
because of her age and that Ms. Clowes was, therefore, constructively 
discharged. It did so here. The Third Circuit’s description of the facts 
can be explained only if it made exactly the opposite credibility find­
ings to those of the jury.

The Sixth and Third Circuits’ de novo review standard is flatly 
inconsistent with this Court’s decision in Pullman-Standard v. Swint, 
456 U.S. 273 (1982), and reflects a fundamental disregard for the 
constitutionally-mandated deference to jury verdicts under the 
Seventh Amendment. This Court should reject the de novo standard 
of review for constructive discharge claims and restore the proper 
appellate deference to jury verdicts and trial court findings.



10

I. THE DE NOVO STANDARD OF REVIEW APPLIED BY 
THE COURT BELOW IS CONTRARY TO THE HOLD­
INGS OF EVERY CIRCUIT BUT THE SIXTH AND TO THE 
PRECEDENTS OF THIS COURT.

In its initial decision, the Third Circuit held that it was applying a 
de novo standard of review to Ms. Clowes’ constructive discharge 
claim:

The ADEA prohibits, among other things, the “discharge” of a 
covered individual “because of such individual’s age.” In this case, 
Clowes’ ADEA claim and the judgment she won were predicated 
on the assertion that she had been constructively discharged. “We 
employ an objective test in determining whether an employee was 
constructively discharged from employment: whether the conduct 
complained of would have the foreseeable result that working 
conditions would be so unpleasant or difficult that a reasonable per­
son in the employee’s shoes would resign.”

Whether a particular set o f facts meets this standard is a question 
o f law and therefore this question is subject to plenary review.

3-4a (citations omitted; emphasis added).

In its Order Amending Slip Opinion, fded after Ms. Clowes fded 
her petition for rehearing raising the standard of review issue, the 
Third Circuit ostensibly corrected its standard of review error—or at 
least postponed it for another day. Thus, the Third Circuit substituted 
the following paragraph for the standard of review discussion in its 
initial opinion:

Because this is an appeal from a judgment entered after trial, we 
must view the historical facts in the light most favorable to the judg­
ment. Whether a reasonable employee would resign when con­
fronted with a particular set of circumstances is not, however, a 
pure question of historical fact and the appropriate standard of 
review for such questions of reasonableness is subject to dispute. 
We need not resolve this question in the present case. Even if subject 
to review only for clear error, the district court’s holding that 
Clowes was constructively discharged cannot be sustained.

7-8a (citations omitted; emphasis added).



11

In fact, however, whatever lip service the Order Amending Slip 
Opinion may have paid to the definition of the standard of review 
issue, the Court below in fact applied a de novo standard of review to 
the jury’s verdict in Ms. Clowes’ favor. The Third Circuit essentially 
accepted as true Allegheny Hospital’s explanation that Malloy’s 
excessive supervision was designed merely to maintain the profes­
sional standards of her IV team. 2-3a. The vital function of the jury 
in judging credibility and weighing conflicting evidence was disre­
garded by the Circuit Court.

According to the Third Circuit, excessive supervision claims have 
to be “critically examined so that the ADEA is not improperly used 
as a means of thwarting an employer’s nondiscriminatory efforts to 
insist on high standards.” 5a. But, of course, a properly instructed jury, 
which heard all the witnesses and weighed their credibility, did 
exactly that: the jury “critically examined” petitioner’s claims and 
found that she was constructively discharged due to her age. The court 
below simply substituted its judgment of the facts for the jury’s judg­
ment because it disagreed with the jury’s result.

Thus, whatever the Third Circuit said about its standard of review, 
in fact the opinion below aligns the Third Circuit with the Sixth Cir­
cuit as the only circuits to apply a de novo standard of review to 
constructive discharge claims. See Yates v. Avco. Corp., 819 F.2d 630, 
636 (6th Cir. 1987 ) (“constructive discharge is, at least partially, a 
question of law and must therefore be reviewed by this Court de 
novo”); Wheeler v. Southland Corp., 875 F.2d 1246, 1249 (6th Cir. 
1989) (same).

Every other Circuit to consider the issue has rejected the Third and 
Sixth Circuits’ position and reviews constructive discharge claims as 
questions of fact, subject to the clearly erroneous standard (if a court 
finding) or the judgment as a matter of law standard (if a jury verdict). 
E.g., Cortes v. Maxus Exploration Corp., 977 F.2d 195, 200 (5th Cir. 
1992) (determination that plaintiff was constructively discharged 
reviewed as a finding of fact under the clearly erroneous rule); 
E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664,669 (8th Cir. 1992) 
(district court did not clearly err in finding that defendant deliberately 
created an intolerable workplace with the intent to cause plaintiff’s 
resignation); Hirschfeld v. New Mexico Corrections Dep’t., 916 F.2d 
572, 580 (10th Cir. 1990) (constructive discharge is a fact question



12

subject to the clearly erroneous standard of review); Watson v. Nation­
wide Insurance Co., 823 F.2d 360,362 (9th Cir. 1987) (determination 
of whether conditions were so intolerable and discriminatory as to jus­
tify a reasonable employee’s decision to resign is normally a factual 
question left to the trier of fact); Wardwell v. School Bd., 786 F.2d 
1554, 1557 (11th Cir. 1986) (the constructive discharge issue, being 
a question of fact is subject to the clearly erroneous standard of 
review); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1252 (4th Cir. 
1985), cert, denied, 475 U.S. 1082 (1986) (in reviewing the reversal 
of a denial of a motion for judgment n.o.v., court recognized deference 
due a jury finding of constructive discharge); Cozzola v. Codman & 
Shurtleff, Inc., 751 F.2d 53, 56 (1st Cir. 1984) (abuse of discretion 
standard applies to a denial of a motion for a new trial from a jury ver­
dict finding constructive discharge); Pena v. Brattle boro Retreat, 702 
F.2d 322, 325 (2d Cir. 1983) (review of denial of a motion for judg­
ment n.o.v. requires court to determine whether evidence “reasonably 
permits only a conclusion in the movants’ favor”).

Simply put, the Sixth and Third Circuits are wrong and this Court 
should grant this petition to correct their error and establish once and 
for all that jury verdicts in employment discrimination cases are 
entitled to the same deference as any other jury verdict under Federal 
Rule of Civil Procedure 50(a).

Indeed, the Sixth and Third Circuits’ error is exactly the same mis­
take this Court corrected in Pullman-Standard v. Swint, 456 U.S. 273 
(1982). There, the Fifth Circuit had established a rule that questions 
of discriminatory intent were “ultimate questions” and hence subject 
to de novo review at the appellate level. Swint v. Pullman-Standard, 
624 F.2d 525, 533 n.6 (5th Cir. 1980). This Court flatly rejected that 
approach, holding that discriminatory intent is no different than any 
other finding of fact for purposes of the proper appellate standard of 
review:

[Discriminatory intent], as we see it, is a pure question of fact,
subject to Rule 52(a)’s clearly-erroneous standard. It is not a ques­
tion of law and not a mixed question of law and fact.

Pullman-Standard, supra, 456 U.S. at 288. See also St. Mary’s Honor
Center v. Hicks,____U.S.____ , 113 S.Ct. 2742 (1993) (reaffirming
that discriminatory intent is a fact issue to be resolved by the finder 
of fact).



13

A jury verdict or trial court finding that an employee plaintiff was 
constructively discharged is no less a finding of fact than is a finding 
of discriminatory intent. Both require the application of law to facts; 
both require the resolution of different versions of the truth; both 
require the weighing of the credibility of witnesses. If discriminatory 
intent is a pure fact issue, then it necessarily follows that constructive 
discharge is a fact issue also.

Constructive discharge is not a mixed question of law and fact, sub­
ject to de novo review in the appellate courts. In Pullman-Standard, 
supra, this Court defined a mixed question of law and fact as one in 
which

[t]he historical facts are admitted or established, the rule of law 
is undisputed, and the issue is whether the facts satisfy the statutory 
standard, or to put it another way, whether the rule of law as applied 
to the established facts is or is not violated.

456 U.S. at 288 n.19.

Whatever else might be said about constructive discharge claims, 
it is certainly the case that the historical facts are rarely, if ever, undis­
puted and their significance, in context, is never a matter of stipula­
tion.

By the same token, constructive discharge cases do not require 
independent review by the appellate courts in order “to preserve the 
precious liberties established and ordained by the constitution.” Bose 
Corp. v. Consumers Union o f U.S., Inc., 466 U.S. 485, 512 (1984) 
(First Amendment requires de novo appellate review of defamation 
claims). Constructive discharge cases are not among that small group 
of actions where fundamental constitutional issues require heightened 
appellate review. Id.

In short, the Sixth and Third Circuits are wrong in applying plenary 
review to constructive discharge cases and this Court should grant this 
petition and correct that error.



14

II. THE GUIDANCE OF THIS COURT IS NECESSARY TO 
CURB THE DISTURBING WILLINGNESS OF CIRCUIT 
COURTS—EXEMPLIFIED BY THE DECISION
BELOW—TO RE-EXAMINE JURY FINDINGS IN 
VIOLATION OF THE SEVENTH AMENDMENT.

The Seventh Amendment requires that “no fact tried by jury shall 
be otherwise re-examined in any Court of the United States, than 
according to the rules of the common law.” As Justice Story long ago 
explained,

The trial by jury is justly dear to the American people . . . .  One 
of the strongest objections originally taken against the constitution 
of the United States was the want of an express provision securing 
the right of trial by jury in civil cases. As soon as the constitution 
was adopted, this right was secured by the seventh amendment of 
the constitution proposed by congress. . . .

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830).

This Court has always vigilantly protected the jury’s role as fact 
finder and demanded that due deference be paid to that role by appel­
late courts. As this Court has repeatedly held, an appellate court is jus­
tified in rejecting a jury’s finding only where there is a “complete 
absence of probative facts” to support the jury’s conclusion. Interna­
tional Terminal Operating Co. v. N. V. Nederl Amerik Stoomu Moats, 
393 U.S. 74 (1968); Dennis v. Denver & Rio Grande Western Railroad 
Co., 375 U.S. 208 (1963); Basham v. Pennsylvania Railroad Co., 372 
U.S. 699 (1963); Herdman v. Pennsylvania Railroad Co., 352 U.S. 
518(1957). Indeed, this Court has even stated, in describing the defer­
ence due to a jury’s verdict, that “a measure of speculation and conjec­
ture is required on the part of those whose duty it is to settle the dispute 
by choosing what seems to them to be the most reasonable infer­
ences.” Lavender v. Kurn, 327 U.S. 645, 653 (1946).

Unfortunately, as evidenced by the result in this case, in recent 
years the Circuit Courts have shown a disturbing lack of deference to 
jury verdicts and a willingness to reverse jury findings, particularly in 
employment discrimination cases. A recent study of published federal 
appellate opinions for the period October 1984 through October 1985 
found that an astonishing 49% of all jury verdicts challenged due to 
the insufficiency of the evidence were reversed. And the reversal rate 
for discrimination cases where the jury found in favor of the plaintiff



15

was an even higher 58.8%. Eric Schnapper, Judges Against Juries - 
Appellate Review o f Federal Civil Jury Verdicts, 1989 Wise. L. Rev. 
237, 246-50 (1989).

As Mr. Schnapper concludes, those statistics demonstrate that “left 
to their own devices, a large number of appellate judges simply cannot 
resist acting like superjurors, reviewing and revising civil verdicts to 
assure the result is precisely the verdict they would have returned had 
they been in the jury box.” Id. at 354.

This case is a paradigm example of that fallacy. A six-member jury, 
after hearing all the evidence and weighing the credibility of all the 
witnesses, held that Allegheny Hospital through Malloy’s excessive 
supervision, demeaning criticism and other harassment of petitioner, 
constructively discharged her. The Third Circuit did not hold that the 
type of facts as proven by Ms. Clowes could never, as a matter of law, 
constitute a constructive discharge. Rather, the Third Circuit held only 
that Ms. Clowes’ claim had to be “critically examined”—and then 
substituted its own judgment regarding the credibility of those facts 
for that of the jury.

The Seventh Amendment does not allow for that kind of appellate 
second-guessing of jury verdicts. This Court should grant this petition 
and re-affirm the deference to which jury verdicts are most certainly 
entitled.

CONCLUSION

For the reasons set forth above, petitioner Janet Clowes respect­
fully submits that the Court grant her Petition for Writ of Certiorari.

Respectfully submitted,

Riker, Danzig, Scherer, Hyland 
& Perretti

Attorneys for Petitioner 
Janet G. Clowes

By: Is/ Alan E. Kraus
Alan E. Kraus

Dated: September 14, 1993



APPENDIX



APPENDIX A
Filed April 23, 1993

UNITED STATES COURT OF APPEALS 
For The Third Circuit

Janet G. Clowes,

v.
Appellee

Allegheny Valley Hospital,
Appellant

On Appeal from the United States District Court 
for the Western District of Pennsylvania 

(D.C. Civil No. 89-01855)

Argued: December 3, 1992 
Before: Scirica, Alito, and Lewis, Circuit Judges 

(Opinion Filed: April 23, 1993)
Helen R. Kotler, Esq., (Argued) 

475 Union Trust Building 
501 Grant Street,
Pittsburgh, PA 15219

Jere Krakoff, Esq.,
Post Office Box 38034 
Pittsburgh, PA 15238 
Attorneys for Appellee

John E. Lyncheski, Esq., (Argued) 
Robert S. Grigsby, Esq.
Jeffrey P. Bauman, Esq.,
Cohen & Grigsby, P.C.
2900 CNG Tower,
625 Liberty Avenue 
Pittsburgh, PA 15222 
Attorney for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:
Allegheny Valley Hospital appeals from a judgment awarded under 

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,



based on the constructive discharge of a former employee. We hold 
that the evidence at trial was insufficient to prove a constructive dis­
charge, and we therefore reverse the judgment of the district court.

I.
Janet Clowes was employed as a nurse in full- or part-time positions 

by Allegheny Valley Hospital for nearly 30 years. In March 1987, 
Clowes, then 53 years old, requested and was granted a transfer to the 
IV (intravenous) Team. Members of the IV Team were required to 
insert and change IV’s, to make sure that IV’s were flowing properly, 
and to document the procedures performed.

After Clowes’s transfer, her supervisor was Diana Bennett Malloy, 
the IV Team’s 34-year-old head nurse. Friction between Malloy and 
Clowes soon developed.

Clowes claimed that Malloy singled her out for especially close and 
harsh supervision. In particular, Clowes asserted that Malloy unfairly 
criticized her for ineptitude in starting IVs. According to Malloy, 
Clowes too often had to make more than a single needle injection or 
“stick” in order to start an IV, but Clowes claimed that she was “not 
doing any more sticks than anyone else” on the staff. Clowes also 
alleged that Malloy followed her around the hospital and recorded the 
number of “sticks” she made with each patient but that Malloy made 
no effort to keep track of the number of “sticks” made by other nurses. 
Indeed, Clowes asserted that Malloy remained in the hospital after 
Clowes’s day shift ended in order to “check every one of [Clowes’s] 
patients [to] see if she could find anything that [Clowes] did wrong.” 
Clowes said that Malloy would write down everything that Clowes 
did or said. In addition, Clowes claimed that Malloy spoke to her in 
a “demeaning, condescending manner” different from that employed 
with the rest of the staff and that Malloy criticized her sharply in the 
presence of other nurses. Clowes also pointed to the fact that Malloy’s 
written evaluations often assessed her as “fair” although she had 
never before received an evaluation of less than “good.” Clowes 
claimed that as a result of this treatment she began to suffer from 
depression and related symptoms and required psychiatric and other 
medical treatment.

The hospital painted a different picture of the reasons for the con­
flict between Malloy and Clowes. The hospital claimed that Clowes’s 
performance on the job declined and that Malloy was concerned about

2a

Appendix A



maintaining the professional standards of the IV Team. The hospital 
asserted that Clowes repeatedly failed to complete the required docu­
mentation on her patients, that she was disorganized and had difficulty 
setting priorities, and that other nurses complained that she made too 
many “stick” attempts and did not attend to irritated catheter sites.

On November 5,1987, Malloy and a Nursing Department supervi­
sor held a conference with Clowes and discussed her alleged deficien­
cies. Clowes was instructed to submit a list of written goals, and she 
was also informed that her performance would be reviewed periodi­
cally and that any problems would be discussed. In addition, Malloy 
told her that disciplinary action would be taken if she did not improve. 
Shortly thereafter, Clowes submitted written goals, as well as a 
response to Malloy’s criticisms. Clowes’s last day of work at the hos­
pital was November 12. Beginning on November 13, Clowes took 
vacation and sick leave, and was later placed at her own request on 
temporary part-time status due to medical reasons. At the end of 
November, Clowes began working at a nursing home. In March 1988, 
she submitted a grievance to the hospital, but it was rejected as 
untimely.

In August 1989, Clowes commenced this action in the United 
States District Court for the Western District of Pennsylvania. Count 
1 of her complaint alleged that the Allegheny Valley Hospital had vio­
lated the ADEA by “forcing her to an involuntary retirement” based 
on her age. The other two counts asserted pendent state claims that are 
not involved in this appeal.

Clowes’s case went to trial before a jury, and the jury returned a ver­
dict in her favor. In response to special interrogatories, the jury found 
that Clowes had been constructively discharged and that age had been 
a determinative factor. The district court subsequently entered judg­
ment for Clowes and denied the hospital’s motion for judgment not­
withstanding the verdict or for a new trial. This appeal followed.

II.
The ADEA prohibits, among other things, the “discharge” of a 

covered individual “because of such individual’s age.” 29 U.S.C. 
§ 623(1). In this case, Clowes’s ADEA claim and the judgment she 
won were predicated on the assertion that she had been constructively 
discharged. “We employ an objective test in determining whether an 
employee was constructively discharged from employment: whether

3a

Appendix A



‘the conduct complained of would have the foreseeable result that 
working conditions would be so unpleasant or difficult that a reason­
able person in the employee’s shoes would resign.’ ” Gray v. York 
Newspapers, Inc., 957 F.2d 1070,1079 (3d Cir. 1992) (quoting Goss 
v. Exxon Office Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984)).

Whether a particular set of facts meets this standard is a question 
of law, and therefore this question is subject to plenary review. Leven- 
dos v. Stem Entertainment, Inc., 909 F.2d 747, 749 (3d Cir. 1990). 
However, because this is an appeal from a judgment entered after trial, 
we must view the historical facts in the light most favorable to the 
judgment. See, e.g., Linkv. Mercedes-Benz o f North America, Inc., 
788 F.2d 918, 921 (3d Cir. 1986). Applying these standards, we hold 
that the evidence in this case fell well short of establishing a construc­
tive discharge.

We first note that Clowes cannot rely on many of the factors com­
monly cited by employees who claim to have been constructively dis­
charged. Clowes was never threatened with discharge; nor did her 
employer ever urge or suggest that she resign or retire. Compare Spu- 
lak v. K-Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990); Levendos 
v. Stem Entertainment, Inc., 860 F.2d 1227, 1228 (3d Cir. 1988) 
(reversing summary judgment for employer). Similarly, Clowes’s 
employer did not demote her1 or reduce her pay or benefits.1 2 Clowes 
was not involuntarily transferred to a less desirable position,3 and her 
job responsibilities were not altered in any way.4 She was not even

4a

Appendix A

1 See. e.q., Shealy v. Winston, 929 F.2d 1009 (4th Cir. 1991); Huckley v. Hospital 
Corp. o f America, 758F.2d 1525,1530-31 (11th Cir. 1985). These cases and those 
cited in footnotes three and five are cited solely to illustrate some of the factors on 
which plaintiffs claiming constructive discharge have relied. We express no view 
as to whether these decisions gave those factors the proper weight.

2 See, e.g., Bergerv. Edgewater Steel Co., 911 F.2d 911,923 (3d Cir. 1990), cert, 
denied. I l l  S. Ct. 1310(1991).

3 See, e.g., Meyer v. Brown & Root Construction Co., 661 F.2d 369 (5th Cir. 
1981); Muller V. U.S. Steel Corp., 509 F.2d 923 (10th Cir.), cert, denied, 423 U.S. 
825 (1975).

4 See, e.g., Gray, 957 F.2d at 1082 (reporter removed from desirable beat; no 
constructive discharge); Goss, 747 F.2d at 888-89 (sales representative removed 
from prior territory; constructive discharge).



given unsatisfactory job evaluations5 but merely received ratings of 
“fair.”

It is also highly significant that Clowes, prior to leaving her position 
with the hospital, never requested to be transferred to another posi­
tion, never advised the hospital that she would feel compelled to leave 
if changes regarding the manner in which she was being supervised 
were not made, and did not even attempt to file a grievance until long 
after she had stopped working at the hospital. As other courts of 
appeals have noted, a reasonable employee will usually explore such 
alternative avenues thoroughly before coming to the conclusion that 
resignation is the only option.6 Bozev. Branstetter, 912F.2d 801, 805 
(5th Cir. 1990); Gamer v. Wal-Mart Stores, Inc., 807 F.2d 1536,1539 
(11th Cir. 1987).7

Moreover, it is significant, in our view, that Clowes’s complaints 
focused exclusively on Malloy’s allegedly overzealous supervision 
of her work. Clowes has not brought to our attention a single case in 
which a constructive discharge has been found based solely upon such 
supervision. While we do not hold that an employer’s imposition of 
unreasonably exacting standards of job performance may never 
amount to a constructive discharge, we are convinced that a construc­
tive discharge claim based solely on evidence of close supervision of 
job performance must be critically examined so—-that the ADEA is 
not improperly used as a means of thwarting an employer’s nondis- 
criminatory efforts to insist on high standards.

In support of her claim of constructive discharge, Clowes relies 
heavily on evidence regarding the impact that the events in question

5 See, e.g., Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1982).

6 We do not require that such steps be taken in ail cases. An employee may be 
able to show working conditions were so intolerable that a reasonable employee 
would feel forced to resign without remaining on the job for the period necessary 
to take those steps. In this case, however, the evidence is lacking in other respects 
and the plaintiff’s complaint focuses exclusively on the actions of one supervisor; 
accordingly, we find it significant that the plaintiff did not even request a transfer 
before deciding to resign.

7 In a somewhat similar vein, some courts have held that an employee must gen­
erally pursue litigation before quitting and claiming constructive discharge. See, 
e.g., Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989); Bourque v. 
Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980).

5a

Appendix A



had on her. But as we have noted, “ ‘the law does not permit an 
employee’s subjective perceptions to govern a claim of constructive 
discharge.’ ” Gray, 957 F.2d at 1083 (quoting Bristow v. Daily Press, 
Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).

We recognize that the jury, which heard testimony by both Clowes 
and Malloy, presumably concluded that Malloy treated Clowes 
unfairly and that her criticisms of Clowes were not entirely warranted. 
We accept these apparent conclusions for purposes of this appeal, but 
it is clear that unfair and unwarranted treatment is by no means the 
same as constructive discharge.

In sum, we hold that the evidence in this case was insufficient to 
show that Clowes was constructively discharged. The judgment of the 
district court is therefore reversed.

A True Copy:
Teste:

Clerk o f the United States Court o f Appeals 
fo r the Third Circuit

6a

Appendix A



7a

For Publication May 27, 1993

UNITED STATES COURT OF APPEALS 
For the Third Circuit

Appendix A

No. 92-3271

Janet G. Clowes,

v.
Appellee

Allegheny Valley Hospital,
Appellant

On Appeal From the United States District Court 
For the Western District of Pennsylvania 

(D.C. Civil No. 89-01855)

Argued: December 3, 1992 
Before: Scirica, Alito, and Lewis, Circuit Judges 

Dated: May 27, 1993

ORDER AMENDING SLIP OPINION

IT IS HEREBY ORDERED that the slip opinion in the above case, 
filed April 23,1993, be amended as follows: Delete the paragraph that 
begins at the bottom of page 4 and continues on page 5. In its place, 
insert the following:

Because this is an appeal from a judgment entered after trial, we 
must view the historical facts in the light most favorable to the judg­
ment. See, e.g., Link v. Mercedes-Benz o f North America, Inc., 788 
F.2d 918,921 (3d Cir. 1986). Whether a reasonable employee would 
resign when confronted with a particular set of circumstances is not, 
however, a pure question of historical fact, and the appropriate stan­
dard of review for such questions of reasonableness is subject to dis­
pute. See United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir.



Appendix A

1991) (en banc); id. at 1419-22 (Beam, J., dissenting). We need not 
resolve this question in the present case. Even if subject to review only 
for clear error, the district court’s holding that Clowes was construc­
tively discharged cannot be sustained.

BY THE COURT,

Is/ Samuel A. Auto , Jr.
Samuel A. Alito, Jr., 

Circuit Judge

Dated: May 27, 1993



9a

Appendix A

Janet G. Clowes, Appellee 
v.

Allegheny Valley Hospital, Appellant

NO. 92-3271

United States Court of Appeals, 
Third Circuit.

Argued Dec. 3, 1992.
Decided April 23, 1993 

As amended May 27, 1993

Reported at 991 F.2d 1159 (3d Cir. 1993)

Helen R. Kotler (argued), Jere Krakoff, Pittsburgh, PA, for appel­
lee.

John E. Lyncheski (argued), Robert S. Grigsby, Jeffrey P. Bauman, 
Cohen & Grigsby, PC., Pittsburgh, PA, for appellant.

Before: Scirica, Alito, and Lewis, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:
Allegheny Valley Hospital appeals from a judgment awarded under 

the Age Discrimination in Employment Act, 29 U.S.C. § 621 etseq., 
based on the constructive discharge of a former employee. We hold 
that the evidence at trial was insufficient to prove a constructive dis­
charge, and we therefore reverse the judgment of the district court.

I.
Janet Clowes was employed as a nurse in full- or part-time positions 

by Allegheny Valley Hospital for nearly 30 years. In March 1987,



10a

Clowes, then 53 years old, requested and was granted a transfer to the 
IV (intravenous) Team. Members of the IV Team were required to 
insert and change IV’s, to make sure that IV’s were flowing properly, 
and to document the procedures performed.

After Clowes’s transfer, her supervisor was Diana Bennett Malloy, 
the IV Team’s 34-year-old head nurse. Friction between Malloy and 
Clowes soon developed.

Clowes claimed that Malloy singled her out for especially close and 
harsh supervision. In particular, Clowes asserted that Malloy unfairly 
criticized her for ineptitude in starting IVs. According to Malloy, 
Clowes too often had to make more than a single needle injection or 
“ stick” in order to start an IV, but Clowes claimed that she was “not 
doing any more sticks than anyone else” on the staff. Clowes also 
alleged that Malloy followed her around the hospital and recorded the 
number of “ sticks” she made with each patient but that Malloy made 
no effort to keep track of the number of “sticks” made by other nurses. 
Indeed, Clowes asserted that Malloy remained in the hospital after 
Clowes’s day shift ended in order to “check every one of [Clowes’s] 
patients [to] see if she could find anything that [Clowes] did wrong.” 
Clowes said that Malloy would write down everything that Clowes 
did or said. In addition, Clowes claimed that Malloy spoke to her in 
a “demeaning, condescending manner” different from that employed 
with the rest of the staff and that Malloy criticized her sharply in the 
presence of other nurses. Clowes also pointed to the fact that Malloy’s 
written evaluations often assessed her as “fair” although she had 
never before received an evaluation of less than “good.” Clowes 
claimed that as a result of this treatment she began to suffer from 
depression and related symptoms and required psychiatric and other 
medical treatment.

The hospital painted a different picture of the reasons for the con­
flict between Malloy and Clowes. The hospital claimed that Clowes’s 
performance on the job declined and that Malloy was concerned about 
maintaining the professional standards of the IV Team. The hospital 
asserted that Clowes repeatedly failed to complete the required docu­
mentation on her patients, that she was disorganized and had difficulty 
setting priorities, and that other nurses complained that she made too 
many “ stick” attempts and did not attend to irritated catheter sites.

Appendix A



11a

On November 5,1987, Malloy and a Nursing Department supervi­
sor held a conference with Clowes and discussed her alleged deficien­
cies. Clowes was instructed to submit a list of written goals, and she 
was also informed that her performance would be reviewed periodi­
cally and that any problems would be discussed. In addition, Malloy 
told her that disciplinary action would be taken if she did not improve. 
Shortly thereafter, Clowes submitted written goals, as well as a 
response to Malloy’s criticisms. Clowes’s last day of work at the hos­
pital was November 12. Beginning on November 13, Clowes took 
vacation and sick leave, and was later placed at her own request on 
temporary part-time status due to medical reasons. At the end of 
November, Clowes began working at a nursing home. In March 1988, 
she submitted a grievance to the hospital, but it was rejected as 
untimely.

In August 1989, Clowes commenced this action in the United 
States District Court for the Western District of Pennsylvania. Count 
1 of her complaint alleged that the Allegheny Valley Hospital had vio­
lated the ADEA by “forcing her to an involuntary retirement” based 
on her age. The other two counts asserted pendent state claims that are 
not involved in this appeal.

Clowes’s case went to trial before a jury, and the jury returned a ver­
dict in her favor. In response to special interrogatories, the jury found 
that Clowes had been constructively discharged and that age had been 
a determinative factor. The district court subsequently entered judg­
ment for Clowes and denied the hospital’s motion for judgment not­
withstanding the verdict or for a new trial. This appeal followed.

II.
The ADEA prohibits, among other things, the “discharge” of a 

covered individual “because of such individual’s age.” 29 U.S.C. 
§ 623(1). In this case, Clowes’s ADEA claim and the judgment she 
won were predicated on the assertion that she had been constructively 
discharged. “We employ an objective test in determining whether an 
employee was constructively discharged from employment: whether 
‘the conduct complained of would have the foreseeable result that 
working conditions would be so unpleasant or difficult that a reason­
able person in the employee’s shoes would resign.’ ” Gray v. York 
Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992) (quoting Goss 
v. Exxon Office Systems Co., 1A1 F.2d 885, 887-88 (3d Cir. 1984)).

Appendix A



12a

Because this is an appeal from a judgment entered after trial, we 
must view the historical facts in the light most favorable to the judg­
ment. See, e.g., Link v. Mercedes-Benz o f North America, Inc., 788 
F.2d 918, 921 (3d Cir. 1986). Whether a reasonable employee would 
resign when confronted with a particular set of circumstances is not, 
however, a pure question of historical fact, and the appropriate stan­
dard of review for such questions of reasonableness is subject to dis­
pute. See United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir. 
1991) (en banc); id. at 1419-22 (Beam, J., dissenting). We need not 
resolve this question in the present case. Even if subject to review only 
for clear error, the district court’s holding that Clowes was construc­
tively discharged cannot be sustained.

We first note that Clowes cannot rely on many of the factors com­
monly cited by employees who claim to have been constructively dis­
charged. Clowes was never threatened with discharge; nor did her 
employer ever urge or suggest that she resign or retire. Compare Spu- 
lak v. K-Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990); Levendos 
v. Stem Entertainment, Inc., 860 F.2d 1227, 1228 (3d Cir. 1988) 
(reversing summary judgment for employer). Similarly, Clowes’s 
employer did not demote her1 or reduce her pay or benefits.1 2 Clowes 
was not involuntarily transferred to a less desirable position,3 and her 
job responsibilities were not altered in any way.4 She was not even 
given unsatisfactory job evaluations5 but merely received ratings of 
“fair.”

Appendix A

1 See. e.q.,Shealyv. Winston, 929F.2d 1009(4thCir. 1991); Huckley v. Hospital 
Corp. of America, 758 F.2d 1525,1530-31 (11th Cir. 1985). These cases and those 
cited in footnotes three and five are cited solely to illustrate some of the factors on 
which plaintiffs claiming constructive discharge have relied. We express no view 
as to whether these decisions gave those factors the proper weight.

2 See, e.g., Berger v. EdgewaterSteel Co., 911 F.2d 911,923 (3d Cir. 1990), cert, 
denied. I l l  S. Ct. 1310(1991).

3 See, e.g., Meyer v. Brown & Root Construction Co., 661 F.2d 369 (5th Cir. 
1981); Muller V. U.S. Steel Corp., 509 F.2d 923 (10th Cir.), cert, denied, 423 U.S. 
825 (1975).

4 See, e.g., Gray, 957 F.2d at 1082 (reporter removed from desirable beat; no 
constructive discharge); Goss, 747 F.2d at 888-89 (sales representative removed 
from prior territory; constructive discharge).

5 See, e.g., Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1982).



13a

It is also highly significant that Clowes, prior to leaving her position 
with the hospital, never requested to be transferred to another posi­
tion, never advised the hospital that she would feel compelled to leave 
if changes regarding the manner in which she was being supervised 
were not made, and did not even attempt to file a grievance until long 
after she had stopped working at the hospital. As other courts of 
appeals have noted, a reasonable employee will usually explore such 
alternative avenues thoroughly before coming to the conclusion that 
resignation is the only option.6 Boze v. Branstetter, 912 F.2d 801, 805 
(5th Cir. 1990); Garner v. Wal-Mart Stores, Inc., 807 F,2d 1536,1539 
(11th Cir. 1987).7

Moreover, it is significant, in our view, that Clowes’s complaints 
focused exclusively on Malloy’s allegedly overzealous supervision 
of her work. Clowes has not brought to our attention a single case in 
which a constructive discharge has been found based solely upon such 
supervision. While we do not hold that an employer’s imposition of 
unreasonably exacting standards of job performance may never 
amount to a constructive discharge, we are convinced that a construc­
tive discharge claim based solely on evidence of close supervision of 
job performance must be critically examined so—that the ADEA is 
not improperly used as a means of thwarting an employer’s nondis- 
criminatory efforts to insist on high standards.

In support of her claim of constructive discharge, Clowes relies 
heavily on evidence regarding the impact that the events in question 
had on her. But as we have noted, “ ‘the law does not permit an 
employee’s subjective perceptions to govern a claim of constructive

Appendix A

6 We do not require that such steps be taken in all cases. An employee may be 
able to show working conditions were so intolerable that a reasonable employee 
would feel forced to resign without remaining on the job for the period necessary 
to take those steps. In this case, however, the evidence is lacking in other respects 
and the plaintiff’s complaint focuses exclusively on the actions of one supervisor; 
accordingly, we find it significant that the plaintiff did not even request a transfer 
before deciding to resign.

7 In a somewhat similar vein, some courts have held that an employee must gen­
erally pursue litigation before quitting and claiming constructive discharge. See, 
e.g., Brooms v. Regal Tube Co., B81 F.2d 412, 423 (7th Cir. 1989); Bourque v. 
Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980).



14a

discharge.’ ” Gray, 957F.2dat 1083 (quoting Bristow v. Daily Press, 
Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).

We recognize that the jury, which heard testimony by both Clowes 
and Malloy, presumably concluded that Malloy treated Clowes 
unfairly and that her criticisms of Clowes were not entirely warranted. 
We accept these apparent conclusions for purposes of this appeal, but 
it is clear that unfair and unwarranted treatment is by no means the 
same as constructive discharge.

In sum, we hold that the evidence in this case was insufficient to 
show that Clowes was constructively discharged. The judgment of the 
district court is therefore reversed.

Appendix A



15a

Appendix A

UNITED STATES DISTRICT COURT 
Western District of Pennsylvania

Civil Action No. 89-1855

Janet G. Clowes 
v.

Allegheny Valley Hospital

JUDGMENT ON A CIVIL CASE

[X| Jury Verdict. This action came before the Court for a trial by 
jury. The issues have been tried and the jury has rendered its ver­
dict. by Special Interrogatories.

□  Decision by Court. This action came to trial or hearing before 
the Court. The issues have been tried or heard and a decision has 
been rendered.

IT IS ORDERED AND ADJUDGED

Judgment is entered in favor of the plaintiff, Janet G. Clowes, and 
against the defendant, Allegheny Valley Hospital in the amount 
of $13,295.00.

Oct 31, 1991 
Date

Approved:

Is/ Alan N. Bloch
United States District Judge 

10/31/91

/s/ Catherine D. Martrano 
Clerk

/si Colleen Williams
(By) Deputy Clerk



16a

In the United States District Court 
For the Western District of Pennsylvania

Appendix A

Civil Action No. 89-1855

Janet G. Clowes 

vs.
Plaintiff,

Allegheny Valley Hospital,
Defendant,

O R D E R

And Now, this 8th day of November, 1991, upon consideration of 
Defendant’s Motion for Judgment Notwithstanding the Verdict or, in 
the Alternative, Motion for New Trial, filed in the above captioned 
matter on November 8, 1991,

It Is Hereby Ordered that said Motion is Denied.

/s/ Alan N. Bloch 
United States District Judge

cc: Helen Kotler, Esquire 
475 Union Trust Building,
Pittsburgh, PA 15219

Robert Grigsby, Esquire
2900 CNG Tower, 625 Liberty Avenue,
Pittsburgh, PA 15222



17a

Appendix A

IN THE UNITED STATES DISTRICT COURT 
For the Western District of Pennsylvania

Civil Action No. 89-1855

Janet G. Clowes, an individual,
Plaintiff,

vs.

Allegheny Valley Hospital,
Defendant

V E R D I C T

And Now, this 30th day of October, 1991, we, the Jurors empaneled 
in the above captioned case, find as follows:

Section I

1. Do you find by a preponderance of the evidence that plaintiff 
was constructively discharged from employment with the defendant?

X Yes 
____  No

If your answer to question No. 1 is “yes,” proceed to question No.
2. If your answer to question No. 1 is “no,” enter a verdict in favor 
of defendant and against plaintiff in Section II and proceed no further; 
sign and date the verdict form.



18a

2. Do you find by a preponderance of the evidence that plaintiff’s 
age was a determinative factor in the constructive discharge of 
plaintiff?

X Yes
____  No

If your answer to question No. 2 is “yes,” enter a verdict in favor 
of plaintiff and against defendant in Section II and proceed to Section 
III, question No. 3. If your answer to question No. 2 is “no,” enter a 
verdict in favor of defendant and against plaintiff in Section II and 
proceed no further; sign and date the verdict form.

Section II

-  Verdict in favor of defendant Allegheny Valley Hospital 
and against plaintiff Janet G. Clowes.

X -  Verdict in favor of plaintiff Janet G. Clowes and against 
defendant Allegheny Valley Hospital.

Section III

3. What sum of money do you find by a preponderance of the evi­
dence to be the total amount of plaintiff’s damages?

$15,855.00________________ .

Proceed to question No. 4.

4. Do you find by a preponderance of the evidence that plaintiff has 
failed to mitigate damages?

X Yes
____  No

If your answer to question No. 4 is “no,” proceed no further; sign 
and date the verdict form. If your answer to question No. 4 is “yes,” 
proceed to question No. 5.

Appendix A



Appendix A

5. What sum of money in addition to that she actually earned do 
you find plaintiff could have earned had she been reasonably diligent 
in mitigating damages?

$2,560.00________________ •

Sign and date the verdict form.

X

X ___________

X ____________ _

X _________ _

X_________________________.

X

NET DAMAGES EXCLUDING ATTORNEY’S FEES $13,295.00



20a

Appendix A

UNITED STATES COURT OF APPEALS 
For the Third Circuit

No. 92-3271

Janet G. Clowes,

v.
Appellee

Allegheny Valley Hospital,
Appellant

(D.C. Civil No. 89-01855)

SUR PETITION FOR REHEARING

Present: Sloviter, Chief Judge 
Becker, Stapleton, Mansman, Greenberg, 

Hutchinson, Scirica, Cowen, Nygaard, 
Alito, Roth and Lewis, Circuit Judges

The petition for rehearing filed by appellee in the above-entitled 
case have been submitted to the judges who participated in the deci­
sion of this court and to all the other available circuit judges of the cir­
cuit in regular active service, and no judge who concurred in the deci­
sion having asked for rehearing, and a majority of the circuit judges 
of the circuit in regular active service not having voted for rehearing 
by the Court in banc, the petition for rehearing is denied.

BY THE COURT,

Is/ Samuel A. Alito, Jr., 
Circuit Judge

Dated: June 16, 1993



LAW OFFICES OF 
HELEN R. KOTLER
475 UNION TRUST BUILDING 

501 GRANT STREET 
PITTSBURGH, PENNSYLVANIA 15219 

(412) 281-6538

September 17, 1993

Steve Ralston
NAACP Legal Defense Fund 
Suite 1600 
99 Hudson Street 
New York, NY 10013-2897

Re: Clowes v. Allegheny Valley Hospital
October Term, 1993 
Our File No.: 126-88

Dear Mr. Ralston:

Enclosed is a true and correct copy of Petition For Writ Of Certiorari To The United 
States Court Of Appeals For The Third Circuit.

Very truly yours,

Helen R. Kotler

HRK/ams

Enclosure

cc: Ms. Janet Clowes
File