James R. POLAND, Plaintiff-Appellee, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Defendant-Appellant. James R. Poland, Plaintiff-Appellee, v. Michael Chertoff, Secretary of the Department of Homeland Security, Defendant-Appellant, and Paul O‘Neill, Secretary of Treasury, Defendant.
Nos. 05-35508, 05-35779
United States Court of Appeals, Ninth Circuit
July 20, 2007
Argued and Submitted March 8, 2007. Submission Vacated March 13, 2007. Resubmitted April 20, 2007.
Peter D. Keisler, Assistant Attorney General, Karin J. Immergut, United States Attorney, Marleigh D. Dover and Mark R. Freeman, Attorneys, Appellate Staff Civil Division, United States Department of Justice, Washington, D.C., for defendant-appellant Michael Chertoff.
Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.
Opinion by Judge GOULD; Partial Concurrence and Partial Dissent by Judge PAEZ.
GOULD, Circuit Judge:
After a bench trial, the district court entered a judgment in favor of James R. Poland, a former employee of the United States Customs Service, on his employment discrimination claim against the Customs Service, represented by the Sec
I
A
Poland, who was born in 1946, joined the United States Customs Service in 1974. Poland began his career as a customs inspector in Nogales, Arizona. In 1978, the Customs Service transferred Poland to Washington, D.C., where he served as an operations officer. The Customs Service then transferred Poland to Blaine, Washington, where Poland worked as a special agent investigating customs crimes. In 1985, the Customs Service assigned Poland to be a supervisor in charge of six or seven special agents in Seattle, Washington. Two years later, in 1987, the Customs Service transferred Poland back to Washington, D.C., where he worked in the customs fraud investigаtion division. Later that year, the Customs Service reassigned Poland to be a special assistant to the Assistant Commissioner for Investigations. Poland served the Customs Service in that capacity until 1989, when the Customs Service assigned him to work with the Central Intelligence Agency as a customs advisor.
In March 1991, Poland accepted the position of Resident Agent in Charge (“RAIC“) of the Customs Service‘s Portland, Oregon office. In Portland, Poland supervised twelve agents, a security officer, and an administrative officer. Poland also oversaw the Customs Service‘s branch offices in Coos Bay and Astoria.
During his first four years as RAIC of the Portland office, Poland reported to the Special Agent in Charge (“SAIC“) of the Seattle Customs Service office. However, in 1995, pursuant to a reorganization of the Customs Service, Poland began reporting to Gary Hillberry, SAIC of the Denver, Colorado office. The district court found that, during the time he supervised Poland, “SAIC Hillberry was preoccupied with and frequently commented on Poland‘s age and the age of the majority of the special agents assigned to the Portland office.” Representative conduct by Hillberry and the Denver SAIC office included:
- Telling Poland he was “too old” for career advancement with the Customs Service.
- Telling Poland on multiple occasions that the officers in the Portland office were too old.
- Refusing the request of a forty-nine-year-old special agent assigned to the Las Vegas office to transfer to the Portland office because there were no openings in Portland and, even if there were, Hillberry wanted to put “younger agents” there.
Telling a special agent assigned to the Denver office that Poland had a bunch of “old farts” in Portland who needed to “get with the times.” - Stating repeatedly that the personnel policies of the Customs Office of Investigations and budgetary constraints mandated that “younger agents” be brought into management positions.
- Circulating two “retirement surveys” directing Poland to provide “retirement related information” on special agents and investigators approaching retirement age.
On December 7, 1997, Poland filed an age discrimination complaint against Hillberry with the Customs Service‘s EEO Counselor. The next month, on January 6, 1998, Poland filed a reprisal complaint with the EEO Counselor, alleging that in retaliation for Poland‘s age discrimination complaint, Hillberry changed his mind regarding Poland‘s request to reassign an agent under Poland‘s supervision.
While Poland was serving as RAIC of the Portland office, Pamela Ewing was the Management Program Officer in the Denver SAIC office. Over the twenty-eight months from September 1995 (when Poland began reporting to Hillberry) to December 1997, Ewing wrote four notes to Hillberry or for Poland‘s file regarding Poland‘s conduct as RAIC of the Portland office. Between the time Poland filed his initial EEO age discrimination complaint in December 1997 and January 1999, a time period of fourteen months, Ewing wrote an additional twenty-three notes criticizing Poland‘s conduct. Also, over the course of his tenure as RAIC, Poland sought, but was not granted, promotions in other geographic locations.
In the spring of 1999, Hillberry requested that the Customs Service undertake an administrative inquiry into Poland‘s performance as RAIC of the Portland office. Hillberry alleged that Poland was confrontational, argumentative, and disrespectful toward members of the Denver SAIC office. The Customs Service initiated a formal inquiry in the summer of 1999. Witnesses selected by the Customs Service, without input from Poland, to testify before the administrative inquiry panel, testified that, as a manager, Poland was intransigent, inflexible, and unwilling to accept the views of others.
At the conclusion of the administrative inquiry, the panel found that Poland engaged in unprofessional and inappropriate conduct, аnd was confrontational, argumentative, retaliatory, and ineffective as a manager. The Customs Service Disciplinary Review Board reviewed the panel‘s conclusions and found that they lacked sufficient specificity to support an adverse employment action against Poland, but concluded that it was in the best interest of the Customs Service to reassign Poland to a nonsupervisory position somewhere other than Portland because of the Portland staff‘s concerns about retaliation for their participation in the administrative inquiry.
The Assistant Commissioner of Customs for the Office of Investigations, Bonni Tischler, agreed with the Review Board‘s recommendation and decided to reassign Poland. On February 25, 2000, Tischler notified Poland that he was being transferred to Vienna, Virginia and reassigned to the nonsupervisory position of Criminal Investigator. Poland accepted the reassignment and began working in Vienna in April 2000. After the transfer, Poland‘s pay and benefits remained unchanged from what they were when he was RAIC of the Portland office. In September 2000, Poland decided to take early retirement effective December 1, 2000, three years short of his December 2003 mandatory retirement date from the Customs Service.
On December 10, 2002, Poland filed his complaint in the district court alleging that the Customs Service violated the
The district court conducted a bench trial. On Poland‘s claim of disparate treatment based on the Customs Service‘s failure to promote him, the district court found in favor of the Customs Service, reasoning that Poland did not establish that his age was a motivating factor in the Customs Service‘s decision not to promote him because he did not present evidence that he was denied a promotion or that younger employees were promoted ahead of him.
On Poland‘s claim of retaliation, however, the district court ruled in Poland‘s favor. The district court found that Poland‘s performance reviews prior to Hillberry‘s initiation of the administrative inquiry never addressed any of the issues raised by the inquiry. Also, the district court found that the Customs Service had never disciplined Poland for any of the alleged behavior that came to light during the inquiry. Additionally, the district court found that the Customs Service‘s first formal discipline of Poland occurred only after he filed his first EEO age discrimination claim. The district court concluded that “the Customs Service violated the
The district court also ruled in Poland‘s favor on his claim that the Customs Service violated the
In calculating the damages due Poland, the district court relied only on the constructive discharge theory, awarding Poland the compensation he lost by retiring in December 2000 instead of on his mandatory retirement date of December 2003. Specifically, the court аwarded Poland: (1) the lost wages and other compensation Poland would have received from September 2000, the date of Poland‘s constructive discharge, to December 2003 (less taxes and mandatory retirement contributions, plus prejudgment interest); (2) the dollar value of annual leave that would have been available to Poland on his retirement date of December 2003; and (3) lost retirement benefits. The district court awarded Poland total damages of $339,130.75. The Customs Service, through the Secretary, appeals.
II
The Secretary first argues that Poland did not establish his claim of retaliation. We review the district court‘s findings of fact for clear error and review its conclusions of law de novo. Star v. West, 237 F.3d 1036, 1038 (9th Cir. 2001). To establish a claim of retaliation, a plaintiff must prove that (1) the plaintiff engaged in
In this case, Poland‘s filing of EEO complaints was a protected activity. See
The district court correctly concluded that Hillberry‘s initiation of the administrative inquiry was directly caused by Poland‘s filing of EEO complaints. The court also correctly concluded that Hillberry made the ultimate decision to initiate the inquiry, and therefore that his animus underlying that decision should be imputed to the Customs Service. The more difficult question is whether Poland established the required causal link2 between his EEO complaints, Hillberry‘s animus, and the Customs Service‘s adverse employment action of transferring Poland to Virginia.
This situation—one where a subordinate employee with bias (like Hillberry) precipitates an investigation that leads to an adverse employment action but an employee without bias makes the final decision to take the adverse action—raises difficult issues not yet addressed by our circuit concerning how involved in the investigation the biased subordinate must be fоr the subordinate‘s animus to be imputed to the employer who took the adverse employment action. As the Tenth Circuit recently explained, the agency principles underlying our employment discrimination laws, see
First, we could adopt a simple “but for” causation test. In cases where an employee with bias precipitates some form of inquiry, investigation, or disciplinary proceeding, the ultimate decisionmaker has no bias, and the plaintiff makes a claim of retaliation, we could ask only whether, but for engaging in his protected activity, the plaintiff would have suffered the adverse employment action.4 The liability that can flow from a “but for” standard of causation in subordinate bias cases is expansive. Under a “but for” standard, any time a biased employee, in response to a plaintiff‘s protected activity, sets in motion the process that leads to an adverse employment action, the employer would be liable, even if the employer then conducted an entirely independent inquiry and decisionmaking process insulated from the animus of the biased employee, and no matter how compelling the nondiscriminatory grounds for taking the adverse employment action. As the Tenth Circuit has observed, such a lenient standard can “weaken[] the deter-
The second rule we consider is the one suggested in this case by the Secretary. The Secretary urges that we should impute a subordinate‘s animus to his or her employer only in cases in which the subordinate dominates the investigatory process and the final decision is a perfunctory approval of the biased subordinate‘s inclination. Courts have termed this narrow standard the “rubber stamp” or “cat‘s paw” approach.5 The Fourth Circuit has adopted this view and imputes subordinate bias to an employer only when the final decisionmaker rubber stamps the biased decision of a subordinate. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en banc) (“[A]n aggrieved employee who rests a discrimination claim under Title VII or the ADEA upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer.“). No doubt an employer is liable for the discriminatory acts of a subordinate in cases where the biased subordinate is, as a
practical matter, the actual decisionmaker. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). But liability should not be limited to those cases only. As the Tenth Circuit has observed, the Fourth Circuit seems to take the cat‘s paw metaphor too literally. See BCI, 450 F.3d at 488. The purpose of the metaphor is to draw attention to the fact “that many companies separate the decisionmaking function from the investigation and reporting functions, and that . . . bias can taint any of those functions.” Id. The metaphor is not a causation rule. Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (criticizing the Fourth Circuit‘s аpproach as “inconsistent with the normal analysis of causal issues in tort litigation“). A more expansive approach to subordinate bias liability is called for in subordinate bias cases.
We hold that if a subordinate, in response to a plaintiff‘s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate‘s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. This standard is consistent with what we have suggested in previous Title VII retaliation cases, see Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (“Even if a manager was not the ultimate decisionmaker, that manager‘s retaliatory motive may be imputed to the company if the manager was involved in the [adverse employment] decision.“); Galdamez v. Potter, 415 F.3d 1015, 1026 n. 9 (9th Cir. 2005) (“Title VII may still be violated where the ultimate decision-maker, lacking individual
Thus, if an adverse employment action is the consequence of an entirely independent investigation by an employer, the animus of the retaliating employee is not imputed to the employer. See Willis, 118 F.3d at 547 (stating that if “the ultimate decision is clearly made on an independent and a legally permissive basis, the bias of the subordinate is not relevant“). Conversely, even if the biased subordinate was not the principal decisionmaker, the biased subordinate‘s retaliatory motive will be imputed to the employer if the subordinate influenced, affected, or was involved in the adverse employment decision. Bergene, 272 F.3d at 1141.
In this case, Hillberry, in retaliation for Poland‘s EEO complaints, asked the Customs Service to undertake an administrative inquiry of Poland‘s performance as RAIC of the Portland office. Hillberry‘s initiation of the administrative inquiry, on its own, would not be sufficient to impute Hillberry‘s animus to the Customs Service‘s decision to transfer Poland if the Customs Service had shielded the inquiry it subsequently undertook from Hillberry‘s influence. However, the inquiry panel in this case was not shielded from Hillberry‘s animus. Instead, the panel had access to Hillberry‘s lengthy memo requesting the inquiry in which he outlined numerous incidents of malfeasance by Poland. Also, Hillberry, without consulting Poland, provided a list of twenty-one witnesses for the inquiry panel to contact. Accordingly, the district court found that the inquiry panel conducted “interviews with 21 witnesses who were preselected by the Customs Serviсe without input from Poland.” Additionally, Hillberry provided and the panel considered Ewing‘s notes on Poland‘s performance. Ewing had greatly increased the frequency of these notes after Poland filed his initial EEO complaint. We cannot on this record conclude other than that Hillberry‘s animus had a pervasive influence on the administrative inquiry that led to the adverse employment action. Because Hillberry influenced or was involved in the inquiry, it was not sufficiently independent to break the causal chain between Poland‘s protected activity and the Cus-
In summary, we hold that to establish the essential element of causation in a subordinate bias case—where the investigation that led to the adverse employment decision was initiated by, and would not have happened but for, the biased subordinate—the plaintiff must show that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or the investigation leading thereto.6 We agree with the district court that Hillberry‘s animus and his role in defining the scope of the inquiry and in leading the inquiry panel to evidence unfavorable to Poland unlawfully tainted the decision to transfer Poland. Because Hillberry framed and influenced the inquiry panel‘s investigation, the decision to transfer Poland was not independent. We affirm the district court‘s judgment in favor of Poland on his ADEA retaliation claim.
III
The Secretary next contends that the district court erred in determining that Poland had been constructively discharged. Though a determination of constructive discharge is normally a factual question left to the trier of fact, see Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987), we review de novo questions of law underlying the district court‘s determination. Star, 237 F.3d at 1038.
“Under the constructive discharge doctrine, an employee‘s reasonable decision to resign because of unendurablе working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee‘s position would have felt compelled to resign?” Penn. State Police v. Suders, 542 U.S. 129, 141 (2004) (citation omitted). The district court concluded that a reasonable person in Poland‘s position would have felt compelled to retire “because the reassignment to Virginia resulted in separation from his family and demotion to a nonsupervisory position.”
However, this evidence of transfer and demotion is insufficient, as a matter of law, to establish a constructive discharge. Instead, we have held that a
constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.
Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (internal quotation marks omitted). We set the bar high for a claim of constructive discharge because federal antidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable.7 Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986); see also Tidwell v. Meyer‘s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996) (“An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.“).
Because we require job conditions to be worse than those which a reasonable person could tolerate, “[a]n employee may not be unreasonably sensitive to a change in job responsibilities.” Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 26 (1st Cir. 1997). For a special agent in the Customs Service, like Poland, a cross-country transfer to a new position is nothing extraordinary аnd would not cause a reasonable agent in Poland‘s shoes to feel compelled to quit. At trial, the government introduced testimony that all Customs Service special agents sign waivers acknowledging that they may be transferred anywhere in the country for the good of the agency. Poland himself had been transferred several times, serving in Arizona, Washington, D.C., Washington State, Oregon, and, finally, Virginia. Also, although it is not a dispositive factor, the fact that Poland‘s transfer resulted in no decrease of salary or benefits weighs against a finding of constructive discharge. See id. Though the transfer was to a nonsupervisory position, this fact alone does not cause Poland‘s transfer to amount to a constructive discharge. See Petrosino v. Bell Atl., 385 F.3d 210, 231 (2d Cir. 2004); Suarez v. Pueblo Int‘l, Inc., 229 F.3d 49, 55 (1st Cir. 2000); McCann v. Litton Sys., Inc., 986 F.2d 946, 952 (5th Cir. 1993) (refusing to find a constructive discharge when the plaintiff “faced a slight decrease in pay coupled with a loss of some supervisory responsibilities“).
We reverse the district court‘s verdict in favor of Poland on his constructive discharge claim, and we vacate the damage award based on the constructive discharge theory. Because Poland‘s damage award was predicated entirely on his constructive discharge theory, we remand this case and instruct the district court to give Poland the opportunity to amend his complaint to seek any remedies available under his retaliation theory.9
IV
The government also argues that we must vacate the district court‘s award of attorneys’ fees and costs to Poland.
In this case, we have vacated the district court‘s order awarding damages to Poland on his constructive discharge theory. Because the court did not award Poland any other damages or form of relief, Poland has, for the moment, not obtained any relief on the merits of his claims and is therefore not a prevailing party. We thus vacate the district court‘s order awarding attorneys’ fees and costs to Poland. However, we have also held that Poland established his claim of retaliation under the
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.
PAEZ, Circuit Judge, concurring in part and dissenting in part:
I concur in all but Part III of the majority‘s opinion. I disagree with the majority that, in light of the factual record, the constructive discharge question can be answered as a matter of law. I also disagree with the majority‘s alternate holding that the district court‘s constructive discharge finding was clearly erroneous. Accordingly, I would affirm the district court‘s factual finding that Poland wаs constructively discharged, and I respectfully dissent as to Part III.
A constructive discharge finding requires the application of an objective standard. See Penn. State Police v. Suders, 542 U.S. 129, 141 (2004) (“The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee‘s position would have felt compelled to resign?“). As the majority recognizes, however, whether a plaintiff meets this objective standard “is normally a factual question left to the trier of fact.” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987); see also Wallace v. City of San Diego, 479 F.3d 616, 626 (9th Cir. 2007) (“Whether working conditions were so intolerable and discriminatory as to justify a reasonable employee‘s decision to resign is normally a factual question for the jury.“). Therefore, when we review a judgment after trial that is based on a constructive discharge finding, we ordinarily review that finding for clear error. See Lojek v. Thomas, 716 F.2d 675, 683 (9th Cir. 1983) (“The district court‘s finding that Lojek was neither subjected to intolerable employment conditions nor was he coerced to resign is not clearly erroneous.“); see also Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984) (“Exxon contends that the trial court‘s finding of fact that Goss was constructively dis-
In Wallace v. City of San Diego, we recently emphasized the deference due the trier of fact, affirming the jury‘s constructive discharge finding and reversing the district court‘s judgment as a matter of law to the contrary:
Although the evidence could be viewed to support a finding that Wallace‘s working conditions were “favorable” to the point of barring a constructive discharge claim . . . the jury saw it differently, and substantial evidence supports its finding. We cannot disregard the jury‘s verdict simply because we would have weighed the evidence differently. Put another way, we do not disagree that a jury could have concluded that Wallace failed to establish constructive discharge. But . . . we cannot say that the evidence permits only a conclusion that is contrary to the jury‘s verdict.
The majority nonetheless concludes that, as a matter of law, Poland did not suffer a constructive discharge. When we have previously reversed a constructive discharge finding as a matter of law, however, we have done so in cases only involving a “single isolated instance” of employment discrimination. See Watson, 823 F.2d at 361 (“[W]e have noted that, in general, a single isolated instance of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge. . . . Hence, a plaintiff alleging a constructive discharge must show some aggravating factors, such as a continuous pattern of discriminatory treatment.” (internal quotation marks and emphasis omitted)); see also Wallace, 479 F.3d at 626 (“Although a single isolated incident is insufficient as a matter of law to support a finding of constructive discharge, we have upheld factual findings of constructive discharge when the plaintiff was subjected to incidents of differential treatment over a period of months or years.” (internal quotation marks and citation omitted)).
The majority does not contend that the Customs Service subjected Poland to only a single isolated instance of discrimination or retaliation. To the contrary, the district court‘s factual findings establish that the Customs Service subjected Poland to differential treatment for almost a decade. See id. (“Wallace offered evidence of a pattern of discrimination and retaliation . . . beginning as early 1991 and continuing through August 2000.“). Starting in 1992 or 1993, Poland‘s immediate supervisor, Gary Hillberry, frequently subjected him to discriminatory remarks and treatment. Further, in retaliation for Poland filing his first EEO complaint in 1997, Hillberry changed his mind and declined Poland‘s request to reassign a special agent under Poland‘s supervision. Hillberry also retaliated against Poland for filing his two subsequent EEO complaints in 1998 and 1999, by issuing Poland an unsubstantiated letter of admonishment and initiating and influencing the inquiry into Poland‘s managerial performance. Finally, as a result of that inquiry, the Customs Service demoted Poland from a high-level position supervising three offices and nineteen special agents and officers1 that he had held for more than ten years, to a “career
As Poland testified:
Q. And did you have any management responsibility in [your new position]?
A. No.
Q. Did you supervise anybody?
A. No.
Q. Did you—well, what were you doing?
A. I was put in an office and told to move paper from the left side of the desk to the right side of the desk.
Q. Okay. What does that mean?
A. That means exactly that. Some courier would bring some paper in and I‘d look it over and decide what sort of automated financial checks ought to be done, check-check the appropriate box and put it in the out box and somebody came by, picked it up and processed it.
Q. Did your new position involve any of the kind of judgment or discretion that you had to exercise as the RAIC for Portland?
A. None whatsoever.
Q. And you stayed in that position for approximately how many months?
A. Approximately a total of about—five and а half months, six months.
Q. All right. And what did you decide to do at the end of that period?
A. Decided it was in the best interests of my family and myself, because I didn‘t see—this was a career ender, that it was time to leave.
Q. Why did you decide to retire?
A. Because my career was over.
Q. Why do you say that?
A. Well, because I was in a nonsupervisory position, I was in a nonessential job, a job that had sat vacant for almost six months. My predecessor had retired. I had little interaction with anyone else. Based on my experience, watching other people‘s career[s] end in a similar way, I was done.
Q. Did you feel that you had any promotion or lateral assignment possibilities at that point?
A. None whatsoever.
In light of this testimony, which the district court found credible, and the seven or eight years of discrimination and retaliation prior to the demotion in Poland‘s duties, there was ample evidence for the district court, as trier of fact, to find that Poland was subjected to treatment sufficiently intolerable that a reasonable employee would have fеlt compelled to resign. See Satterwhite v. Smith, 744 F.2d 1380, 1382-83 (9th Cir. 1984) (affirming the district court‘s finding of a constructive discharge on similar facts, and discussing other similar decisions).
Further, because these circumstances are sufficient under our deferential standard of review to show that Poland suffered a constructive discharge, the district court‘s finding is not undermined by the evidence that the Customs Service regularly transferred its employees to different locations. Even if Poland‘s move across the country may not have been intolerable in and of itself, the move culminated in a drastic demotion in duties that the district court found objectively intolerable under the circumstances. Likewise, in light of the demotion and the years of discriminatory and retaliatory treatment, the district court‘s finding is not undermined by the fact that Poland‘s pay remained the same. See Buckley v. Hosp. Corp. of America, Inc., 758 F.2d 1525, 1530-31 (11th Cir. 1985) (rejecting defendant‘s contention that plaintiff was not constructively discharged because she was offered another position at the same pay, because plaintiff “testified she found [the new position] ‘humiliating’ after her years of service in sa-
Nor is the majority‘s reversal of the district court‘s factual finding justified simply because Poland worked for about five months after his demotion before resigning. We have never held that continuing to work for a period of months following an adverse employment decision precludes a constructive discharge finding. In the decisions cited by the majority, we merely affirmed findings that there was no constructive discharge; we did not suggest that the trier of fact could not have found to the contrary. See Manatt v. Bank of America, 339 F.3d 792, 804 (9th Cir. 2003); Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999); see also Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir. 1991). Also, in each of those cases, the plaintiffs conceded that the alleged discriminatory treatment had stopped entirely months or years before they resigned. Poland, however, was still subject to retaliatory treatment when he resigned, as the Customs Service kept him at a nonessential, nonsupervisory, career-ending job, moving papers from one side of his desk to the other. Moreover, we recently held that a similar, three-month delay in resigning did not “preclude[] a conclusion that [the plaintiff] was constructively discharged.” Wallace, 479 F.3d at 627. As we explained:
Although the dissent would conclude otherwise, the jury could have viewed [the plaintiff‘s] efforts to stay on the job despite the intolerable conditions as evidence that he indeed had “the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (internal quotation marks omitted).
Accordingly, there is no basis for the majority‘s decision in the instant case to circumscribe a new area within which there can be no constructive discharge as a matter of law. For the same reasons, I would hold on this record that the district court‘s factual finding that Poland was constructively discharged was not clearly erroneous, and I would therefore affirm.