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June 9, 1998

LISA C. TERNULLO, Plaintiff,
JANET RENO, Attorney General, U.S. Department of Justice, Defendant.

The opinion of the court was delivered by: MCAVOY


 This employment discrimination action arose out of plaintiff Lisa Ternullo's employment with defendant United States Department of Justice ("DOJ"). Plaintiff alleges that while she was employed as a Conciliation Specialist in the Community Relations Service ("CRS") of DOJ, her supervisor engaged in a pattern of discriminatory treatment of her on the basis of plaintiff's race and sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiff further alleges that after complaining about the treatment to CRS management, CRS officials engaged in unlawful retaliation through continued harassment, including threatening remarks and increasingly aggressive reprisals. Finally, plaintiff alleges that CRS officials maintained a hostile work environment so intolerable that she was forced to resign from her position with DOJ. Defendant now moves for summary judgment dismissing the Complaint.


 A. Facts:

 Plaintiff, a white female, was employed as a Conciliation Specialist for the CRS' Region II Office in New York City from January 1985 to October 1989. Her duties included conciliating disputes based upon race, color, or national origin, and required a high level of responsibility. She performed these duties under the general supervision of Regional Director Tommie Jones, a black female. When hired, plaintiff was one of five Conciliation Specialists in the New York office, two of whom were African-American males, one of whom was a Hispanic male, and one of whom was a white male.

 Plaintiff alleges that from the time she began to serve in the New York office, Jones engaged in a pattern of intolerable discriminatory treatment that was different from the treatment of the male conciliators. She alleges that Jones required her to tell her when she went to the bathroom and sabotaged her work. In response to the treatment, plaintiff filed various grievances and complaints.

 Plaintiff further contends that instead of helping her, the officials with whom she filed the complaints engaged in increasingly aggressive reprisals towards her. She claims the National Directors ("ND") (there were four during the relevant time period) endorsed Jones' actions and engaged in their own actions against plaintiff. Without specifying which ND took which action, plaintiff generally alleges that the NDs: 1) failed to end the harassment; 2) obstructed plaintiff's access to the appropriate officials to seek relief from the harassment; 3) used derogatory female stereotypes in reference to her; and 4) refused to implement an agency directive to evaluate the plaintiff for promotion. Plaintiff specifically alleges that ND Grace Flores Hughes: 1) told plaintiff that she resented plaintiff's filing an Equal Employment Opportunity ("EEO") complaint and demanded an apology; 2) falsified complaint processing dates; 3) reprimanded plaintiff in processing her complaint; 4) reprimanded plaintiff as "insubordinate;" 5) gave plaintiff a negative performance evaluation; and 6) prohibited plaintiff from interacting with community groups critical to the performance of plaintiff's work. Pl. Compl. P 8.

 In March of 1989, all the conciliation specialists in the Region II Office signed a memorandum requesting that Jones meet with them to discuss concerns about Jones' dysfunctional relationship with employees. The ND in charge at the time conducted an investigation and removed Jones from her position as Regional Director effective August 13, 1989. Plaintiff alleges that despite Jones' removal, her working conditions did not improve. She asserts that ND Hughes continued to refuse to acknowledge the discriminatory work conditions under which plaintiff suffered, was openly hostile towards her, refused to rescind reprimands the plaintiff received when filing complaints, and gave plaintiff a negative performance evaluation after Jones' departure. Additionally, plaintiff alleges that newly appointed Acting Regional Director Patricia Glenn told plaintiff that she knew of her EEO complaint and warned her to cooperate.

 Finally, plaintiff alleges that on August 1, 1989, prior to the removal of Jones, she informed Senior Conciliator Victor Risso, who was in charge of the region while Jones was on sick leave, of her intentions to resign. At that time, plaintiff submitted a leave request to use up her remaining accrued leave, processed cases to closure, and continued preparations to leave. Defendant denies that plaintiff notified CRS of her intention to leave until October 3 when plaintiff filed a written resignation. Plaintiff completed her work with CRS on October 21, 1989, citing discrimination and intolerable working conditions.

 B. Procedural History:

 Plaintiff filed an initial complaint with the Equal Employment Opportunity Commission ("EEOC") on January 24, 1989, more than eight months prior to her resignation. The complaint alleged race and sex discrimination regarding the denial of a promotion and the harassment by Jones. The EEOC investigated the complaint and, upon request, referred the matter to an administrative law judge ("ALJ") for a hearing. In December 1993, the parties notified the ALJ that a settlement might be reached if the ALJ ruled on DOJ's motion for a recommended decision, without a hearing, on two issues: 1) whether plaintiff timely alleged a claim of constructive discharge, and 2) assuming timely filing, whether the constructive discharge claim must fail as a matter of law. On July 24, 1994, the ALJ issued a recommended decision stating that although the constructive discharge claim was timely alleged, plaintiff failed to establish a prima facie case of constructive discharge.

 On April 11, 1995, the parties entered into a settlement agreement with respect to all claims except that of constructive discharge. On June 13, 1995, the DOJ Complaint Adjudication Office adopted the ALJ's recommended decision and the plaintiff appealed. On October 16, 1997, after review of the entire record, the EEOC issued a decision upholding the ALJ's findings and specifically rejecting plaintiff's contentions that she decided to resign during Jones' tenure and not on October 3, 1989 when she gave written notice of her resignation. On October 16, 1997, the EEOC issued plaintiff a right to sue letter.

 On November 20, 1997, plaintiff commenced this lawsuit. The Complaint asserts four causes of action: 1) discrimination on the basis of race; 2) discrimination on the basis of sex; 3) unlawful retaliation; and 4) constructive discharge, all in violation of Title VII. Defendant appeared by answer filed March 2, 1998.

 On March 2, 1998, defendant filed the present motion for summary judgment dismissing the Complaint, arguing that plaintiff, as a matter of law, cannot state a claim for constructive discharge because defendant did not deliberately make plaintiff's working conditions so intolerable that a ...

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