Sam Stamey v. Forest River, Incorporated ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐1539
SAM STAMEY,
Plaintiff‐Appellant,
v.
FOREST RIVER, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19‐cv‐250 — Damon R. Leichty, Judge.
____________________
ARGUED NOVEMBER 16, 2021 — DECIDED JUNE 17, 2022
____________________
Before BRENNAN, SCUDDER, and JACKSON‐AKIWUMI, Circuit
Judges.
SCUDDER, Circuit Judge. Sam Stamey installed wiring in
cargo trailers at Forest River, Inc.’s plant in Elkhart, Indiana
for over ten years. He resigned in August 2018 at age 62 and
then sued Forest River alleging that the company construc‐
tively discharged him in violation of the Age Discrimination
in Employment Act by refusing to address a relentless and
ruthless campaign of age‐based harassment undertaken by
2 No. 21‐1539
his coworkers. The district court saw the facts differently and
entered summary judgment for Forest River.
We reverse. While this case is close, what tips it to trial is
the requirement at summary judgment that we view the facts,
and draw all reasonable inferences, in Stamey’s favor. If we
credit his account that—in less than a year—his coworkers
hurled upwards of 1,000 age‐based insults at him without
management taking effective steps to end the misconduct, a
jury could return a verdict in Stamey’s favor. On the other
hand, if Forest River shows that Stamey’s account lacks cred‐
ibility, the company may prevail. Our role is not to weigh ev‐
idence or resolve factual disputes—it is up to the jury to de‐
cide.
I
A
Sam Stamey began working at Forest River in October
2007 at age 51. He accumulated a strong work record, receiv‐
ing several raises and avoiding any discipline.
Stamey maintains that his coworkers began harassing him
in the fall of 2017, when he was 61. The alleged harassment
continued for roughly 10 months and took two forms. First,
there was verbal harassment, which Stamey described as es‐
calating to the point where he “caught old age insults practi‐
cally every morning on [his] way into the building, when [he]
left for the day, during breaks, and whenever [he] walked into
other parts of the plant.” The insults included comments that
either explicitly or implicitly referred to Stamey’s age, with
coworkers calling him “Walmart greeter, grandma, old b‐‐‐‐,
and a lot more stuff.” Coworkers also asked questions like
“You still alive? What the F?”; “When the f‐‐‐ you retiring?”;
No. 21‐1539 3
“What’s up homo? Looks like your dentures are about to fall
out.”; and “What are you doing here? I thought you died last
week.” When asked in his deposition, Stamey estimated that
he received around 1,000 insults between late 2017 and early
2018. By the end of his time at Forest River, he believes ap‐
proximately two dozen coworkers had participated.
Second, the alleged harassment went beyond the verbal
and included acts to interfere with Stamey’s work. His
coworkers repeatedly defaced his workstation, including by
writing profanity on his tool cabinet, in the bathroom, and
around the plant, and zip tying his tools together. At different
times, unidentified coworkers taped or glued his tool cabinet
shut; screwed it closed and stripped the screw heads; and
drove screws into the wheels of his wire cart, immobilizing it.
On one occasion, Stamey had to spend 45 minutes prying his
cabinet open. Another time, he found undercoating sprayed
on his lunch plate. Still more, someone once cut the power
cord to his new electric coffee maker in several places, expos‐
ing its wiring. Sometime after the alleged harassment began
in 2017, Stamey’s fiancée called Jeff Rowe in Forest River’s hu‐
man resources department to report the misconduct. Rowe
suggested that Stamey contact Wendy Tubicsak, who also
worked in HR. Stamey did so, leaving Tubicsak a voicemail
message. But he then never heard back from her.
Stamey next turned to his supervisor, Frank Pontius. Sta‐
mey testified that he and Pontius had approximately 10 con‐
versations over about two months in late 2017 about the al‐
leged harassment. For his part, Pontius reacted to the com‐
plaints by conferring with another manager who, in turn, told
Stamey that the harassment would stop. Stamey acknowl‐
edges that the insults and related disruptions with his
4 No. 21‐1539
workspace and tools did stop for a week or two. But they then
resumed.
After Pontius died, Mike Brady became Stamey’s new su‐
pervisor in January 2018. When the alleged harassment re‐
sumed, Stamey had two or three conversations with Brady
and gave him the names of those coworkers who had leveled
the worst, most insulting age‐based comments. Stamey also
told Brady that he believed these same coworkers were re‐
sponsible for defacing his workstation and spray‐painting de‐
rogatory comments around the plant. Brady responded by
telling Stamey that, without certainty about the identity of the
perpetrators, he could not help.
Nothing much changed through the end of 2017 and into
early 2018. In the spring of 2018, Stamey tried once more to
get help from management but again received little relief. He
brought pictures of some of the alleged physical harassment
to Forest River’s corporate office and asked to speak with Tu‐
bicsak in HR. Finding her out of the office, Stamey left her a
voicemail message informing her once again of the ongoing
harassment. Without responding directly to Stamey, Tubicsak
did call plant manager Scott McDonald and asked him to fol‐
low up. McDonald did so the next day by approaching Sta‐
mey.
Stamey showed McDonald some of the graffiti and de‐
scribed not only the profane insult written on the bathroom
wall, but also what he kept finding at his workstation, includ‐
ing his tool cabinet being taped or screwed shut. McDonald
told Stamey that he “shouldn’t have gone over his head” by
complaining to Tubicsak in HR. McDonald later spoke to Sta‐
mey’s supervisor (Mike Brady), several plant workers, and
other supervisors, telling them that the “horseplay” must end,
No. 21‐1539 5
but stopping short of threatening any consequences if it per‐
sisted. Stamey was not present during that conversation and
was never told about it. McDonald apparently took no step to
confirm the harassment had stopped or to monitor the situa‐
tion, and indeed he later testified that he never learned that it
resumed.
The alleged harassment nevertheless persisted and, in
June 2018, Stamey filed a charge of discrimination with the
Equal Employment Opportunity Commission. He alleged
“co‐workers have insulted, taunted, and tormented [him] on
account of his age.” Forest River reacted by itself investigating
and concluding that “there are no facts to support [Stamey’s]
allegations.”
By Stamey’s account, the alleged physical harassment
stopped after he filed his EEOC complaint, but the verbal har‐
assment continued and indeed grew more frequent. Stamey
then appealed to his supervisor Brady one last time. As be‐
fore, Brady said that he could do nothing without certainty as
to the perpetrators—despite Stamey identifying a few of the
“workers who seemed to be the worst offenders.”
Stamey alleges that he suffered emotionally and physi‐
cally because of his coworkers’ behavior. He had trouble eat‐
ing and sleeping, dreaded going to work, felt depressed and
humiliated, and found his hands shaking while at home. He
testified that the last straw came on August 10, 2018, when a
supervisor in another department taunted him in front of his
coworkers by quipping: “Damn, Sam, you still kicking?
You’ve got one foot in the grave and the other on a banana
peel!”
6 No. 21‐1539
Stamey quit that day. Mike Brady, Stamey’s supervisor,
called him and told him to come back because he still had his
job. Stamey did not do so and instead later filed a second
charge of discrimination with the EEOC.
B
Stamey sued Forest River, alleging that the company con‐
structively discharged him in violation of the Age Discrimi‐
nation in Employment Act. See 29 U.S.C. § 621 et seq. Follow‐
ing discovery, the district court granted Forest River’s motion
for summary judgment. It concluded that Stamey could not
show his working conditions to be so intolerable that a rea‐
sonable person would have been compelled to resign. The dis‐
trict court also determined that Stamey acted unreasonably in
assuming that the company’s management would not help
him further.
As for the working conditions, the district court reasoned
that, although “the harassment here is worse than other
cases” in which summary judgment was warranted on a con‐
structive‐discharge claim, it was not “nearly as egregious” as
in constructive‐discharge cases that went to a jury. Rather, in
the district court’s view, the “name calling may have been hu‐
miliating,” but “[n]one of the comments were made by Mr.
Stamey’s direct supervisors” and the alleged physical harass‐
ment was best seen as “physical pranks” with “a more atten‐
uated connection to age, if any at all.”
From there the district added that a reasonable person in
Stamey’s position would not have quit, but instead tried an‐
other time to get help from Forest River management. Sta‐
mey’s own assumption “that his supervisors would be of no
help to him,” the district court determined, was unreasonable
No. 21‐1539 7
“particularly when Forest River’s system of handling com‐
plaints had worked, on occasion perfectly well and on other
occasions less well” and that it had never proved “futile” to
make a complaint. Because there was no “extraordinary con‐
dition here,” such as a threat of violence, a “scheme to accuse
him of a crime” or “resounding silence in the face of myriad
complaints,” the district court concluded that Stamey was not
constructively discharged. So it entered summary judgment
for Forest River.
Stamey now appeals.
II
We owe no deference to the district court’s view of what
findings and inferences the factual record permits. To the con‐
trary, our obligation is to take our own fresh look at whether
Stamey has identified genuine disputes over facts material to
the resolution of his constructive discharge claim. See Fed. R.
Civ. P. 56(a); see also Flexible Steel Lacing Co. v. Conveyor Acces‐
sories, Inc., 955 F.3d 632, 643 (7th Cir. 2020). In doing so, we
must draw “all justifiable inferences” in the favor of Stamey,
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A
The Age Discrimination in Employment Act prohibits an
employer from “discharg[ing] any individual or otherwise
discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of employ‐
ment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Its protections are “limited to individuals who are at least 40
years of age.” Id. § 631(a). An ADEA plaintiff “must prove, by
a preponderance of the evidence, that age was the ‘but‐for’
8 No. 21‐1539
cause of the challenged adverse employment action.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
Here, Forest River did not discipline or fire Stamey. This
explains why he proceeds under the theory of constructive
discharge—that the company effectively fired him by subject‐
ing him to unbearable age‐based harassment. Ordinarily, of
course, employers can expect their employees to remain on
the job and seek redress from workplace misconduct. See
Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th Cir. 2001). A
constructive discharge occurs in the extraordinary case when
an employee suffers “working conditions so intolerable that a
reasonable person would have felt compelled to resign.” Pa.
State Police v. Suders, 542 U.S. 129, 147 (2004).
This is a high hurdle for Stamey to clear. He must first
show “working conditions even more egregious than that re‐
quired for a hostile work environment claim.” Chapin v. Fort‐
Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). Serious
threats to an employee’s physical safety meet this burden.
See, e.g., Patton v. Keystone RV Co., 455 F.3d 812, 818 (7th Cir.
2006) (recognizing that “[w]hen it becomes reasonable to fear
serious physical harm, it becomes reasonable to quit immedi‐
ately rather than seek redress while on the job”). But threats
of serious physical harm are only “one general circumstance
meeting this higher standard of harassment.” Id. Indeed, we
have recognized that there was enough evidence to overcome
summary judgment when a plaintiff “alleged a repeated pat‐
tern of offensive conduct by her supervisor, retaliatory actions
after she complained to human resources, and her employer’s
general failure to respond despite repeated complaints.” Bou‐
mehdi v. Plastag Holdings, LLC, 489 F.3d 781, 790 (7th Cir. 2007).
No. 21‐1539 9
Egregious working conditions alone are not enough to
prevail on a constructive discharge claim, however. The law
requires the employee to go further by showing that seeking
redress from the employer would be futile. See id. An em‐
ployee who, though not in immediate danger, quits without
notifying the employer of the egregious harassment has acted
unreasonably and has not been constructively discharged. See
Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 639–40 (7th Cir.
2009). Similarly, no constructive discharge occurs if the em‐
ployer responds diligently, and the employee quits despite a
reasonable prospect that further complaints could lead to a
resolution. See id. But if the employer “had numerous oppor‐
tunities to respond to the situation” and failed to do so, with
the “alleged complaints [falling] on deaf ears,” a jury may find
that the employee had no means other than quitting to pre‐
vent the harassment and thus was constructively discharged.
Boumehdi, 489 F.3d at 790.
B
A jury could find that the harassment Stamey experienced
was egregious enough to meet the high threshold of construc‐
tive discharge. For nearly a year, coworkers showered Stamey
with verbal, age‐based insults throughout the day—including
“old b‐‐‐‐,” “Walmart greeter,” “grandma,” and “old man.”
This unrelenting alleged verbal harassment swelled to in‐
clude, by Stamey’s estimate, over 1,000 insults that, when cou‐
pled with coworkers interfering with his workspace and writ‐
ing vulgar graffiti around the plant, eventually had physical
effects on Stamey. He described how “[his] nerves had be‐
come shot,” “[he] couldn’t sleep,” “[his] hands would shake,”
“[he] dreaded going to work,” “[his] stomach was upset,”
“[he] couldn’t eat,” and “[he] felt depressed and humiliated.”
10 No. 21‐1539
Our 2007 decision in Boumehdi is instructive. We con‐
cluded there that Julie Boumehdi had identified a “repeated
pattern of offensive conduct”—including her direct supervi‐
sor making at least 18 sexist and offensive remarks over the
course of 10 months and threatening retaliation if she re‐
ported anything to management. When Boumedhi did com‐
plain to HR, management did nothing to intervene and ad‐
dress the harassment. 489 F.3d at 786, 790. Right to it, we saw
the facts as permitting a jury to “conclude that a reasonable
person in Boumehdi’s position would feel she had no choice
but to resign.” Id. at 790.
We see the facts here in a similar way. A jury could con‐
clude that Stamey’s working conditions were as egregious as
those in Boumehdi. First, Stamey endured more frequent and
pervasive verbal harassment: he estimates that he received at
least 1,000 age‐based taunts over the course of nearly a year,
often several in a day, from dozens of people. Not all of the
comments explicitly reference Stamey’s age and, indeed,
many have sexual or homophobic undertones. But a jury
could reasonably infer that they were part and parcel of the
age‐based harassment campaign—they were often closely
linked and targeted at the plant’s oldest employee. To be sure,
the individual comments in Boumehdi were qualitatively
worse than those here, and there is a difference between state‐
ments made by a supervisor and those made by a coworker.
See Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir.
2004). But there is also a difference between 18 comments
from one source and upwards of 1,000 coming from all direc‐
tions. One thousand is a huge number when the measure is
workplace, age‐based insults.
No. 21‐1539 11
Second, the sexist, insulting conduct that Julie Boumehdi
faced was all verbal. Stamey also contends that he had to en‐
dure humiliating graffiti in the workplace and regular inter‐
ference with his workspace and tools. Again, a jury could see
these acts hand‐in‐glove with the pattern of verbal age‐based
insults that Stamey endured at Forest River. If it credits Sta‐
mey’s account, a jury could tally all of this evidence and con‐
clude his working conditions were sufficiently egregious to
give rise to a constructive discharge.
C
Drawing every inference in Stamey’s favor, as we must on
summary judgment, a rational jury could also conclude that a
reasonable person in his position would have believed it futile
to continue seeking help from Forest River. See Porter,
576 F.3d at 640; Boumehdi, 489 F.3d at 790. On this score, the
judgment call is close.
A jury could reasonably find that Forest River had suffi‐
cient notice of the harassment and its continuation after Sta‐
mey complained to the EEOC in June 2018. Before he filed his
complaint with the EEOC, Stamey and his fiancée spoke to at
least five people about the alleged harassment: Jeff Rowe and
Wendy Tubicsak in HR; Frank Pontius, Stamey’s original su‐
pervisor; Mike Brady, his new supervisor; and Scott McDon‐
ald, the plant manager.
We also see the record as permitting a finding that Stamey
spoke to Brady after filing his charge with the EEOC about the
relentless and indeed worsening verbal insults. This point re‐
quires some unpacking because the district court viewed the
summary judgment record a different way.
12 No. 21‐1539
At one place in his deposition, Stamey answered “no” to
the general question “did you go to your supervisors to talk
between June of 2018, when you filed your first complaint,
and when you quit?” But later in the same deposition, when
asked specifically, “after you filed your charge of discrimina‐
tion in June, did you have any conversations . . . with [your
supervisor] Mike Brady about how things were getting
worse?” Stamey answered “[y]es.” He echoed the same point
in an affidavit he submitted as part of opposing Forest River’s
motion for summary judgment, stating that “[a]fter I filed my
charge of discrimination, I approached Mr. Brady again for a
second time. He said to me: ‘I don’t know who is doing it.’ I
told him the names of six or so workers who seemed to be the
wors[t] offenders . . . Mr. Brady refused to get involved.”
The district court excluded the affidavit on the ground that
it contradicted Stamey’s deposition testimony that he did not
talk to any of his supervisors about the worsening harassment
after filing his EEOC charge. But the district court never men‐
tioned Stamey’s more specific deposition testimony in which
he stated that he did have another conversation with Brady
sometime after June 2018 but before leaving the company two
months later.
The district court should have accounted for Stamey’s spe‐
cific testimony about this further notice to Brady. Though this
specific testimony is in tension with Stamey’s prior, more gen‐
eral testimony, it aligns with the account in his affidavit. See,
e.g., Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015)
(cautioning that “summary judgment is not a tool for decid‐
ing questions of credibility” and recognizing that “an affida‐
vit can be excluded as a sham only where the witness has
given clear answers to unambiguous questions which negate
No. 21‐1539 13
the existence of any genuine issue of material fact”) (internal
quotations omitted). To be sure, Stamey can be impeached
with this discrepancy at trial. But for the purposes of sum‐
mary judgment, we must view the evidence in the light most
favorable to him and doing so requires us to credit that the
conversation with Brady occurred, and that Forest River was
on notice of worsening harassment after the EEOC charge.
Likewise, Stamey has presented enough evidence for a
jury to find that he did not need to give Forest River more time
to attempt to remedy the harassment before quitting because
he reasonably believed that doing so would have been futile.
After his former supervisor Pontius died, there remained
three Forest River supervisors with whom Stamey had dis‐
cussed the harassment. Tubicsak in HR never returned either
of Stamey’s messages. Stamey’s supervisor Brady shrugged
off at least two requests for help, claiming that Stamey could
not name the offenders with certainty—despite Stamey
providing him the names of some of the most persistent al‐
leged verbal harassers. And Scott McDonald, the plant man‐
ager, chastised Stamey for reporting the harassment to Tubic‐
sak and never made him aware of any steps being taken to
stop it. After Stamey spoke to McDonald, the physical inter‐
ference stopped but the verbal harassment escalated. So from
Stamey’s perspective there was little reason to believe that an‐
ybody at Forest River would do anything to address his per‐
sistent harassment. See Boumehdi, 489 F.3d at 790.
On this record, a jury could find that the company’s mini‐
mal response to Stamey’s complaints was unlikely to change
the environment. Nobody stopped the misconduct and
McDonald trivialized the daily harassment, interference, and
vulgar graffiti as mere “horseplay”; did not threaten any
14 No. 21‐1539
penalties for its recurrence; and did not monitor the situation
to ensure that there was no recurrence. A jury could also find
that Stamey’s “last straw” reaction of quitting when a man‐
ager told him in front of coworkers that he had “one foot in
the grave and the other on a banana peel” was reasonable. Be‐
cause a supervisor was now contributing to the harassment,
and doing so in front of Stamey’s coworkers, a factfinder
could conclude that management remained unlikely to inter‐
vene to stop the harassment and that any future complaints
would simply “f[all] on deaf ears.” Boumehdi, 489 F.3d at 790.
* * *
For these reasons, we VACATE the entry of summary
judgment for Forest River and REMAND for trial.
No. 21‐1539 15
BRENNAN, Circuit Judge, dissenting. Forest River did not
fire Sam Stamey; he resigned. Stamey seeks relief under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq., arguing he was constructively discharged when
Forest River permitted discriminatory harassment so
intolerable it forced him to quit. As the majority opinion
acknowledges, Stamey faces a “high hurdle.” Not only are the
requirements rigorous, but this court has never recognized a
constructive discharge claim based on age. To prevail, Stamey
must show that he suffered egregious, age‐based harassment,
and that his attempts to seek relief from the company would
have been futile.
Stamey fails at both steps. Under our case law, the age‐
related harassment he reported, though offensive and highly
regrettable, did not qualify as so intolerable that it would have
forced a reasonable employee to quit. Stamey also did not do
enough to aid Forest River in putting an end to his coworkers’
actions, and he left before his employer could do more on his
behalf. Because Stamey has failed to establish a claim for con‐
structive discharge, I would affirm the judgment of the dis‐
trict court.
I
Stamey worked for Forest River from 2007 until 2018, with
a one‐year layoff between 2009 and 2010. In late 2017, Sta‐
mey’s coworkers began harassing him with words and with
actions best described as crude practical jokes. The name‐call‐
ing consisted of some age‐based insults, like “grandma” and
“old man,” interspersed with other vulgarities and sexual in‐
nuendo. As to the practical jokes, coworkers damaged his cof‐
fee maker and, on several occasions, zip‐tied his personal or
work belongings together or to other fixed objects in the
16 No. 21‐1539
workplace. When asked if a specific event triggered this sud‐
den change in workplace environment, Stamey responded, “I
don’t know … I did not do nothing. I did my job.” He also
mentioned that Forest River “just had a bunch of young peo‐
ple in, and I was the oldest one there.”
Nothing in the record suggests Stamey took any action to
remedy the situation, either by asking his coworkers to stop
or by reaching out to management, until his fiancée called Jeff
Rowe, a member of Forest River’s human resources depart‐
ment, whom she knew from her previous employment at For‐
est River.1 Rowe advised Stamey’s fiancée to have Stamey
contact Wendy Tubicsak, Forest River’s human resource man‐
ager. Stamey took this advice and left a voicemail for Tubic‐
sak, but she never responded. Stamey did not follow up.
In late 2017, Stamey had approximately ten conversations
with his supervisor, Frank Pontius, about “[e]verything that
went on.” Pontius spoke to the manager of the neighboring
department because Stamey suspected the practical jokes em‐
anated from that work group. That manager assured Stamey
that the practical jokes would end, and for approximately two
or three weeks, they did.
Stamey complained to his new supervisor, Mike Brady, in
early 2018 about the practical jokes, which had resumed after
the “Christmas shut down.” Stamey gave Brady the names of
1On this point, Stamey’s affidavit contradicts his deposition testi‐
mony. His affidavit says he talked to his supervisor, Frank Pontius first,
and his fiancée called Jeff Rowe later, perhaps in early 2018. Under the
sham‐affidavit rule, his deposition testimony controls. See James v. Hale,
959 F.3d 307, 316 (7th Cir. 2020) (“[T]he sham‐affidavit rule prohibits a
party from submitting an affidavit that contradicts the party’s prior dep‐
osition or other sworn testimony.”).
No. 21‐1539 17
the three employees who most often verbally insulted him,
and Stamey speculated that they were also behind the pranks.
Without knowing the identities of the pranksters, Brady said
there was nothing he could do. Stamey recalled speaking to
Brady two or three times in total about the verbal harassment
and practical jokes.
Later in the spring of 2018, Stamey drove to Forest River’s
corporate office, looking for Tubicsak without an appoint‐
ment. Although Tubicsak was not there, he showed photo‐
graphs to her assistant, which depicted written insults
throughout the workplace. The assistant provided Stamey
with Tubicsak’s cellphone number, and he called her. Tubic‐
sak did not pick up, so Stamey left a voicemail. For her part,
Tubicsak recalls speaking with Stamey and instructing him to
talk to the plant manager, Scott McDonald. But Stamey does
not remember this, and we must give him the benefit of the
doubt at this procedural stage.
It is undisputed, though, that Tubicsak alerted McDonald
of the issue. McDonald then called a meeting among the su‐
pervisors and the suspected wrongdoers. He warned them
that the “horseplay” must stop. Exercising poor judgment,
McDonald scolded Stamey for going “above his head.”
After McDonald’s intervention, Stamey reported that the
verbal abuse ramped up, yet he did not reach out to Brady,
McDonald, or Tubicsak. Instead, in June 2018, he filed a
charge of discrimination with the Equal Employment Oppor‐
tunity Commission (“EEOC”).2 The next month, Forest River
2 There is some confusion about whether Stamey spoke with Brady
about workplace conditions after Stamey initiated the EEOC complaint. In
18 No. 21‐1539
submitted its position statement to the EEOC, documenting
its efforts to resolve Stamey’s complaints.
Then, in August 2018, 62‐year‐old Stamey stopped going
to work. Brady called Stamey, reassuring him that he still had
a job at Forest River and asking him to return, but Stamey de‐
clined. In November 2018, Stamey filed a second charge of
discrimination, adding allegations of conduct that occurred
between June and August of that year. When he received
right‐to‐sue letters from the EEOC, Stamey filed this lawsuit.
II
Bullies can exist anywhere, from a classroom to a shop
floor. To be sure, school leaders who fail to address pervasive
student misconduct may be blamed or even ousted. In the
same way, federal law punishes employers who turn a blind
eye to unconstrained workplace harassment that forces a
worker to resign. But responsibility for a bully’s acts is not
unlimited. And here, that responsibility is bounded by statute
and by case law.
No one disputes that Stamey’s coworkers peppered him
with distasteful names and insults, wrote demeaning mes‐
sages about him on walls and other surfaces, and vandalized
his property. However repulsive that conduct may be, the
ADEA is not a blanket prohibition on such workplace bully‐
ing. Rather, that law protects an employee forty years of age
and older from age‐based discrimination perpetrated by an
employer. The majority opinion relies primarily on a single
the end, I agree with my colleagues that the sham‐affidavit rule does not
apply on this point, and we cannot say whether Stamey did or did not
speak to Brady after he submitted a charge of discrimination with the
EEOC.
No. 21‐1539 19
precedent, without acknowledging our court’s rich construc‐
tive discharge case law. That body of law defines the require‐
ments Stamey must meet and ultimately dictates that his
claim fails.
A
The ADEA makes it “unlawful for an employer … to dis‐
charge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, condi‐
tions, or privileges of employment, because of such individ‐
ual’s age.” 29 U.S.C. § 623(a). This prohibition is “limited to
individuals who are at least 40 years of age.” Id. § 631(a). To
establish a claim under the ADEA, the plaintiff “must prove,
by a preponderance of the evidence, that age was the ‘but‐for’
cause of the challenged adverse employment action.” Sinha v.
Bradley Univ., 995 F.3d 568, 573 (7th Cir. 2021) (quoting Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)).
Voluntary resignation, on its own, is not an adverse em‐
ployment action because the plaintiff, not the employer, is the
relevant actor. But not all resignations are voluntary. To com‐
bat coerced resignations, the National Labor Relations Board
pioneered the constructive discharge doctrine in the 1930s,
which equates “an employee’s reasonable decision to resign
because of unendurable working conditions” with “a formal
discharge for remedial purposes.” Pa. State Police v. Suders,
542 U.S. 129, 141 (2004); see also Green v. Brennan, 578 U.S. 547,
555 (2016) (noting that, when the doctrine applies, it treats
“resignation as tantamount to an actual discharge”).3
3 An ADEA plaintiff may also bring a claim against its employer for a
hostile work environment, in which harassment functionally alters the
20 No. 21‐1539
To establish a constructive discharge, the plaintiff “must
show that the abusive working environment became so intol‐
erable that her resignation qualified as a fitting response.”
Suders, 542 U.S. at 134. “[H]arassment so intolerable as to
cause a resignation may be effected through co‐worker con‐
duct, unofficial supervisory conduct, or official company
acts.” Id. at 148. An employer can defend against a construc‐
tive discharge claim “by showing both (1) that it had installed
a readily accessible and effective policy for reporting and re‐
solving complaints of … harassment, and (2) that the plaintiff
unreasonably failed to avail herself of that employer‐pro‐
vided preventive or remedial apparatus.” Id. at 134.
On many occasions, this court has declined to expand the
constructive discharge doctrine beyond its outer boundary:
the workplace must become “so intolerable that a reasonable
person in the employee’s position would have felt compelled
to resign.” Green, 578 U.S. at 555 (quoting Suders, 542 U.S. at
141). Whether that standard is met depends on the totality of
the circumstances, Gawley v. Indiana Univ., 276 F.3d 301, 315
(7th Cir. 2001), and is assessed “from the viewpoint of a rea‐
sonable employee.” Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526,
employee’s conditions of employment. For decades, the Seventh Circuit
has “assumed, but never decided, that plaintiffs may bring hostile envi‐
ronment claims under the ADEA.” Tyburski v. City of Chicago, 964 F.3d 590,
600 (7th Cir. 2020) (quoting Racicot v. Wal‐Mart Stores, Inc., 414 F.3d 675,
678 (7th Cir. 2005) (citing Bennington v. Caterpillar, Inc., 275 F.3d 654, 660
(7th Cir. 2001); Halloway v. Milwaukee Cnty., 180 F.3d 820, 827 (7th Cir.
1999))). Stamey initially brought a claim for hostile work environment,
which is easier to establish than a claim for constructive discharge, but he
abandoned the hostile work environment claim before the district court.
No. 21‐1539 21
537 (7th Cir. 1993); see also Suders, 542 U.S. at 141 (“The [con‐
structive discharge] inquiry is objective.”).
This standard is difficult to meet. In nearly all cases, a
threat to physical safety is required. “When it becomes rea‐
sonable to fear serious physical harm, it becomes reasonable
to quit immediately rather than seek redress while on the
job.” Patton v. Keystone RV Co., 455 F.3d 812, 818 (7th Cir.
2006).
For example, on at least two occasions, we have identified
egregious conduct qualifying for constructive discharge in
the context of threatened racial violence. See Porter v. Erie
Foods Intʹl, Inc., 576 F.3d 629 (7th Cir. 2009); Taylor v. W.S. Life
Ins. Co., 966 F.2d 1188 (7th Cir. 1992). In Porter, employees
taunted the plaintiff, the only black employee, with several
handmade nooses and threatened him with comments, like “I
wish you would die.” Porter, 576 F.3d at 631–33. Conditions
in the workplace deteriorated to the point that the plaintiff
called the police to document the aggression. Id. And in Tay‐
lor, the plaintiff’s boss made racist comments about him, and
once recklessly pointed a handgun at the plaintiff’s head. Tay‐
lor, 966 F.2d at 1191.
In additional instances, we have concluded that employ‐
ees were constructively discharged based on conduct arising
from sexual harassment. See Patton v. Keystone RV Co., 455
F.3d 812 (7th Cir. 2006); Robinson v. Sappington, 351 F.3d 317(7th Cir. 2003); Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir.
1989). In Patton, we recognized the plaintiff’s “fear that her
supervisor was an obsessed man who—based on previous
acts showing no regard for [her] right to control who could
touch intimate areas of her body—was capable of, and desir‐
ous of, physically assaulting her in a serious way.” Patton, 455
22 No. 21‐1539
F.3d at 818. Similarly, in Robinson, the plaintiff’s supervisor
repeatedly made sexual comments to her and became violent
when she spoke with other men. Robinson, 351 F.3d at 320–21.
He threatened to kill her on at least one occasion and spoke
about sexual acts he would like to perform with her. Id. In
Brooms, the plaintiff endured “repeated instances of grossly
offensive conduct and commentary,” and an “incident in
which [her supervisor] showed an extremely offensive photo‐
graph to [her], grabbed her arm when she attempted to seize
a copy, and threatened to kill her.” Id. at 423. Even the Su‐
preme Court’s landmark case on constructive discharge, Sud‐
ers, involved violent intimidation in the context of sexual har‐
assment—the plaintiff’s aggressor would “pound on furni‐
ture to intimidate her.” Suders, 542 U.S. at 135.
Stamey did not allege he was physically harmed or felt
threatened by impending physical harm—unlike the plain‐
tiffs in Porter, Taylor, Patton, Robinson, and Brooms. So, the ma‐
jority opinion relies almost entirely on Boumehdi v. Plastag
Holdings, LLC, 489 F.3d 781 (7th Cir. 2007)—a rare example of
this court concluding that a constructive discharge occurred
absent physical violence or threats of physical violence. But
that decision is not sufficiently analogous to support the
weight the majority opinion places on it.
The behavior here is more egregious than in Boumehdi, the
majority opinion concludes, because Stamey estimated he had
been insulted “one thousand” times, and the plaintiff in Bou‐
mehdi alleged her supervisor made “at least eighteen sex‐
based comments.” Boumehdi, 489 F.3d at 786. Frequency is one
metric with which to view the severity of verbal abuse, but so
is the nature of those comments.
No. 21‐1539 23
Helen Boumehdi was told repeatedly by her supervisor,
Ed Vega, that women did not belong in the pressroom—
where “credit cards, gift cards, calendars, and identification
tags” were manufactured—and that women “think they
know everything.” Id. at 785–87. Vega also expressed his view
that women should work in flower shops and wear low cut
blouses and shorter shorts. Id. at 786. Most importantly, un‐
like here, the verbal abuse in Boumehdi was intensely personal.
Vega aimed comments directly at Boumehdi:
 When Boumehdi bent over in the course of
her work, Vega told her to remain in that
“perfect” position. Id. at 786.
 Vega commented on Boumehdi’s breasts
when she was pregnant, speculating that she
got a breast enlargement. Id. After learning that Boumehdi miscarried,
Vega wondered aloud why she would get
pregnant at her age. Id. Vega asked Boumehdi to clean the press‐
room and told her that only women, not
men, were supposed to do that job. Id. When Boumehdi complained about the
abuse, Vega threatened her with undesirable
work like scrubbing floors and cleaning toi‐
lets. Id.All this shows that Vega harbored deep‐seated resentment
for women and expressed his misogyny in individualized
terms to Boumehdi. By contrast, the insults directed at Sta‐
mey, although vulgar and demeaning, were more generalized
and less personal.
24 No. 21‐1539
Continuing with its analogy, the majority opinion claims
the sexist, insulting conduct Boumehdi faced was all verbal,
while Stamey endured harassment beyond that in the form of
graffiti and vandalism. That is inaccurate. Boumehdi also al‐
leged other forms of harassment, including that Vega wrote
Boumehdi negative performance reviews, scolded her for re‐
porting conduct to human resources, altered her schedule to
reduce her pay, and refused to respond to complaints about
her compensation reduction. Id. at 786–87.
This point does not make Stamey’s case equivalent to Bou‐
mehdi, though, because Stamey must “link the conditions of
his employment to … age‐related bias.” See Bennington v. Cat‐
erpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001). And unlike the
nonverbal harassment in Boumehdi, the practical jokes in‐
flicted on Stamey were not related to his age and should not
be considered in the constructive discharge analysis. Stamey
merely speculated that the practical jokes were committed by
the same coworkers that called him names—and recall, only
some of those insults were age‐related. Such a tenuous asso‐
ciation cannot support a conclusion that the practical jokes
were committed with Stamey’s age in mind. Accordingly,
they should not be part of the summary‐judgment calculus.
Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996) (“The work‐
ing conditions must be more than merely intolerable; they
must be intolerable in a discriminatory way.”); Gawley, 276
F.3d at 315 (“[A]n employee can be constructively discharged
only if the underlying working conditions were themselves
unlawful or discriminatory in some fashion.”).
If we consider solely Stamey’s allegations that are age‐
based, only verbal insults remain. Those insults were diverse,
and many were disconnected from any age‐related animus.
No. 21‐1539 25
On their own, those comments cannot support a claim for
constructive discharge. Again, the ADEA is not a shield
against general employee misconduct. It proscribes a specific
type of misconduct: employer‐committed age discrimination.
As shown above, any distinctions between Boumehdi and
this case favor Forest River. The verbal harassment that Bou‐
mehdi suffered was more severe than Stamey experienced.
And unlike the nonverbal harassment of Stamey, which was
not related to his age, the nonverbal harassment of Boumehdi
was connected to her gender. That is because the verbal and
nonverbal harassment was committed by the same individual
in Boumehdi, leaving no doubt that both forms of harassment
were connected to her gender. Considering the totality of the
circumstances, Gawley, 276 F.3d at 315, Boumehdi and this case
are not analogs.
Because Stamey never alleged physical threats, and Bou‐
mehdi is dissimilar in important respects, Stamey falls short of
proving he was constructively discharged. Indeed, this case
resembles others in which this court decided that a construc‐
tive discharge had not occurred.4 For example, in Cooper‐Schut
v. Visteon Auto. Sys., 361 F.3d 421 (7th Cir. 2004), the plaintiff’s
4 In two nonprecedential orders relied on by the district court, this
court concluded that the plaintiff failed to establish constructive discharge
under circumstances similar to those here: Scurlock v. IRC, LP, 716 F. App’x
544 (7th Cir. 2017) (affirming there was no constructive discharge when
the plaintiff’s supervisor called him “stupid,” “dumb,” “special,” and
“old,” on many occasions); Fugate v. Dolgen‐corp, LLC, 555 F. App’x 600
(7th Cir. 2014) (affirming there was no constructive discharge when super‐
visor made age‐related offensive remarks about the plaintiff‐employee
like “I can’t believe you forgot your teeth!” in addition to criticizing her
performance and subjecting her to disciplinary action).
26 No. 21‐1539
supervisors discussed women in a derogatory manner, tried
rhyming the plaintiff’s name with “slut,” and screamed at her.
Id. at 424. Employees made misogynist statements about the
plaintiff, used racial epithets, and discussed who would first
have sex with her. Id. at 424–25. Her safety was threatened
too. Once, a coworker violently pushed an industrial basket
toward the plaintiff. Id. at 425. And on two occasions, factory
trays were dropped on her, which she believed was inten‐
tional. Id. One of those incidents resulted in an injury that re‐
quired medical attention. Id. Despite this substantial harass‐
ment, this court held that the plaintiff’s claim of constructive
discharge failed because “whatever racial and sexual harass‐
ment she experienced was, for the most part, mild.” Id. at 429.
Forest River admits its employees’ conduct was “inappro‐
priate, demeaning, and vulgar.” Cooper‐Schut also involved
inappropriate, demeaning, and vulgar conduct, yet we con‐
cluded the conduct was not “so intolerable that her resigna‐
tion qualified as a fitting response.” Suders, 542 U.S. at 134.
That is because a constructive discharge claim requires more;
specifically, conditions in the workplace must be so unbeara‐
ble that any reasonable person would feel compelled to leave.
On this record, Stamey has not met that threshold.
As noted above, this is the first claim under the ADEA for
constructive discharge approved by our court.5 That is not to
5On the flip side, this court has consistently rejected constructive dis‐
charge claims brought under the ADEA. Fields v. Bd. of Educ. of City of Chi‐
cago, 928 F.3d 622, 625 (7th Cir. 2019) (denying a constructive discharge
claim under both Title VII and the ADEA because the plaintiff had “no
evidence that she was subjected to a threat of violence or other conditions
that are more severe than those required to establish a hostile work
No. 21‐1539 27
say a cognizable constructive discharge claim can never be
brought under that Act. But our precedents drew a line be‐
tween a workplace that was coarse‐but‐bearable, and one that
was intolerable. By recognizing Stamey’s claim, which in‐
cluded no threat to his physical safety, and general rather
than individual verbal abuse, the majority opinion moves that
line.
B
Stamey’s claim fails for a second reason. Even if “harass‐
ment so intolerable as to cause resignation” occurs, an em‐
ployer must be given the opportunity to respond to and re‐
solve malfeasance. Suders, 542 U.S. at 148; Porter, 576 F.3d at
640. Unlike most of the decisions summarized above, Stamey
does not allege his supervisors harassed him. Rather, he argues
his coworkers harassed him and that Forest River did not re‐
spond quickly enough. So, it is Forest River’s lack of respon‐
siveness that subjects it to liability. Porter, 576 F.3d at 639(“[The plaintiff] does not contend that the harassment he en‐
dured was effectuated by his supervisors. Rather, he
environment.”); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004) (rejecting
a constructive discharge claim “based entirely on [the plaintiff’s] dissatis‐
faction with having to work at [a different] facility.”); Darnell v. Target
Stores, 16 F.3d 174, 179 (7th Cir. 1994) (holding that an ADEA plaintiff
failed to establish constructive discharge because he only showed “that
his job was difficult, and required him to work long hours and perform
unpleasant tasks and that on top of the ordinary demands of the job, he
labored under an insufferable boss”); Henn v. Natʹl Geographic Soc., 819
F.2d 824, 830 (7th Cir. 1987) (denying an ADEA constructive discharge
claim); Bartman v. Allis‐Chalmers Corp., 799 F.2d 311, 314 (7th Cir. 1986)
(same).
28 No. 21‐1539
maintains that management’s failure to take definitive action
to stop the harassment justified his departure.”). Here, Forest
River should not be liable for lack of responsiveness because
Stamey resigned too fast. Constructive discharge means co‐
erced departure. When Stamey resigned, that threshold had
not been crossed.
An illustrative case is Gawley. There, the plaintiff endured
“harassing comments about her pants and breasts,” and had
her breast groped by a supervisor. Id. at 315. But “[s]he did
not complain to her employer about much of the harassment
under the [employer’s] procedures.” Id. at 316. In fact, she
“waited seven months before availing herself of the formal
procedures the university established for victims of harass‐
ment even though her informal efforts to protect herself were
unsuccessful.” Id. at 315. As the plaintiff conceded, “as soon
as she used the system, the university took action and the har‐
assment stopped.” Id. at 311. We affirmed the district court’s
conclusion that the plaintiff had not established constructive
discharge. Id. at 316.
Like the plaintiff in Gawley, Stamey left too early. Seeking
relief from Forest River was not futile, especially when his
conversations with Pontius and then Tubicsak (who con‐
tacted McDonald) resulted in relief. If the harassment started
up again, as Stamey claims it did, he was obligated to speak
with a supervisor, as he had done before. Forest River can
only solve a recurring problem if it knows the problem has
again arisen. Of course, a point may arrive where it becomes
futile for an employee to keep asking for two‐ or three‐week
extensions of relief—the law does not require this endless cy‐
cle—but that is not what happened here.
No. 21‐1539 29
Stamey had other options at his disposal, but he declined
to pursue them. There is no evidence he ever asked his
coworkers to stop the name‐calling or practical jokes. Nor did
he conclusively learn the identities of his antagonizers. As to
the verbal insults, Stamey only offered Brady three names. As
to the practical jokes, he discussed a person at his deposition
who was “bound to know” the identity of the workers who
vandalized his workstation, yet apparently Stamey never
asked this person about their identities nor notified Forest
River that he may have pertinent information. Finally, when
asked if he told his coworkers about his displeasure with their
treatment of him, Stamey replied that he did not.
Stamey’s coworkers knew what they were doing was
wrong, just like a grade‐school bully does, and nobody de‐
serves the treatment Stamey received. Moreover, Forest River
does not win an award for human resource management. Per‐
haps it could have done more to proactively investigate the
misconduct and identify wrongdoers. But given the limited
information Stamey provided, convening a meeting to scold
employees was just about all Forest River could do—and
McDonald took that step. When Stamey’s coworkers kept up
their antics after McDonald reprimanded them, Stamey made
little to no effort to complain within Forest River’s system.
From Forest River’s perspective, when it learned of miscon‐
duct, it was addressed.
In sum, the record does not permit the inference that ad‐
ditional attempts by Stamey to seek relief would have been
futile. His constructive discharge claim fails for the separate,
independent reason that, under binding case law, he acted
prematurely when he gave up on Forest River’s ability to rem‐
edy the situation.
30 No. 21‐1539
III
Simply put, there was not enough “constructive” in the
plaintiff’s constructive discharge claim. In reaching the oppo‐
site conclusion, the majority opinion departs from settled law.
Respectfully, I would adhere to the threshold for constructive
discharge set by our precedents and affirm the district court.