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MacLean v. State8/2/1999
55 (8th Cir. 1997); Rabinovitz; Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994). Moreover, a claim of constructive discharge requires proof that the plaintiff's "working conditions were so intolerable that a reasonable person would have been compelled to resign." Rabinovitz, 89 F.3d at 489. See also Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998); West v. Salt River Agric. Improvement & Power Dist., 179 Ariz. 619, 880 P.2d 1165 (App. 1994); Civil Rights Div. of Arizona Dep't of Law v. Vernick Plumbing & Heating Co., 132 Ariz. 84, 643 P.2d 1054 (App. 1982).
Notwithstanding those requirements, MacLean presented sufficient evidence to support a prima facie claim that her protected conduct resulted in adverse employment action against her. It is for the trier of fact to evaluate all the evidence and to determine whether the circumstances under which MacLean resigned amounted to a constructive discharge and, hence, an adverse employment action. "As for the causation element, the temporal sequence between the protected expression and the adverse action may indicate a causal link between the two," thereby precluding summary judgment on that ground. Garza, 940 F. Supp. at 1244. See also Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994); Barker; Rabinovitz. Similarly, to the extent the record reflects arguably "legitimate, non-retaliatory reason for adverse employment action" by the Department against MacLean, Krouse, 126 F.3d at 500, the record also presents genuine issues of material fact as to whether such reasons are pretextual and whether "retaliation was the real reason for the adverse employment action." Id. at 501.
Finally, we are unpersuaded by the state's arguments that MacLean's retaliation claim fails as a matter of law because she "did not resign her employment with the State merely transferred to a new [state] agency," and because she attempted to return to her position with the Department, a job that she had "loved," a few months after her resignation. The state cites no authority to support these propositions, which, at most, may affect the weight a trier may give to MacLean's factual assertions or may bear on her damage claims.
DISPOSITION
We affirm the trial court's summary judgment as to that aspect of MacLean's disability claim based on 42 U.S.C. § 12102(2)(C). We reverse and remand for further proceedings with respect to MacLean's other claims.
JOHN PELANDER, Presiding Judge
CONCURRING:
WILLIAM E. DRUKE, Judge
M. JAN FLÓREZ, Judge
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