384 F.2d 664
Vernon F. PETERSON et al., Appellants,v.UNITED STATES of America et al., Appellees.
No. 18690.
United States Court of Appeals Eighth Circuit.
October 25, 1967.

William R. Mills, Bismarck, N. D., made argument for appellants and filed brief.
Milton K. Higgins, Bismarck, N. D., for appellee; Bruce M. Van Sickle, of McGee, Van Sickle, Hankla & Backes, Minot, N. D., was on the brief.
Before MEHAFFY and GIBSON, Circuit Judges, and STEPHENSON, District Judge.
MEHAFFY, Circuit Judge.

1
The sole issue here is the ownership of a tract of land in North Dakota condemned by the United States, along with other land, for the construction of the Oahe Dam and Reservoir. The tract with which we are concerned is designated as No. 3562 located in Burleigh County and described in the condemnation proceedings as:

2
All that portion of Lots 2 and 3 of Section 27 lying Easterly of the left bank of the Missouri River; that portion of Lots 3 and 7 of Section 28 lying Easterly of the left bank of the Missouri River. All the above in Township 137 North, Range 79 West of the Fifth Principal Meridian, together with all accretions thereto containing 184.62 acres, more or less.

3
The tract involved is accretion land formed in the Missouri River and the disputed ownership stems from the former existence of an island in the river. The appellant group, described in more detail hereafter, predicate their rights on claimed ownership of certain island lots and asserted accretions thereto, whereas appellee group, consisting of owners of riparian lots on the east bank of the Missouri River across from the former island, claim ownership of the disputed land asserting it to be accretion to the bank land lots.

4
The District Court found that, at least by the year 1933, the island had completely eroded away and that the land in question was formed by accretions to the east bank of the river and, therefore, belongs to appellees. The District Court opinion sub nom. United States v. 2,134.46 Acres of Land, etc. is published at 257 F.Supp. 723 (1966). We affirm.

The Parties, the Basis of Their Claims, and the Court's Findings.

5
Appellants Vernon F. Peterson, John Peterson, Thornton Davis and Andre J. Masson base their claim of ownership on a tax deed issued by Burleigh County, North Dakota, grantor, to Jeff Hawks, grantee, dated May 16, 1949, and filed for record in the office of the Register of Deeds on July 2, 1949, describing, along with other lands, Lots 2 and 3 in Section 27 and Lots 3 and 7 in Section 28, of Township 137 North, Range 79 West. This is the description of some island lots surveyed and platted in 1899. (The 1899 plat did not show Lot 7 in Section 28, but the 1901 amended plat and the 1905 replat did show Lot 7.) As a result of various quitclaim deeds, the Petersons became the successors in interest of Jeff Hawks to the surface rights and Davis and Masson became Hawks' successors in interest to a portion of the mineral rights. The court found from the evidence "that the island (of which Lots 2 and 3 in Section 27 and Lots 3 and 7 in Section 28 were a part) was completely eroded and washed away and became physically nonexistent sometime prior to 1933," and that "the area in controversy (Tract 3562) is land formed by the process of accretion to the east bank of the Missouri River between the year 1933 and the date of taking."

6
Appellees, originally consisting of two groups of individuals and a corporation who owned three adjacent tracts of land riparian to the east bank of the Missouri River at the time of patent, had previously agreed upon a division among themselves of the accreted lands involved herein by extending their property lines west to the river. Appellants have dismissed this appeal as to one of the groups consisting of Mabel C. Small, Betty Jane McCormick, Rosemary Weigel, Royanne Bement and Walter I. Small. No reason now exists to discuss the interests of the dismissed parties.

7
Appellees Alex W. MacLean, Robert B. MacLean, William V. MacLean and Pauline M. MacLean claim ownership to that portion of Tract 3562 lying west of Lot 4 of Section 27, Township 137 North, Range 79 West, designated as Tract 3552, which they concededly owned at the time of taking. Lot 4 was surveyed for the Government in 1899, and the patent was issued in accordance with the official plat made therefrom. It was riparian at the time of the 1899 survey and the MacLeans are successors to the patentee through a succession of transfers, subject to certain severed mineral rights not material here. The court found that the MacLeans, or their predecessors in title, paid, for more than twenty years prior to the commencement of this action, all taxes on the said Lot 4, together with the accretion formed thereto, and during all of that time remained in open, notorious and adverse possession of Lot 4 and its accretion, and that at the time of taking, all that part of Tract 3562 lying west of Tract 3552 was owned in joint tenancy by Alex W. MacLean, Robert B. MacLean and William V. MacLean, subject to a life estate in Pauline M. MacLean.

8
J. T. Ranch, Inc. claims that portion of Tract 3562 which lies west of Tract 3555, which it concededly owned at the time of the taking, and south of the accretion claimed by the MacLeans. The legal description of the property owned by J. T. Ranch, Inc. is Lots 5 and 6 of Section 27, and Lots 1 and 2 of Section 34, Township 137 North, Range 79 West. These lots were surveyed for the Government in 1899 and patents subsequently issued in accordance with the official plat. All of these lots were riparian at the time they were surveyed in 1899, and J. T. Ranch, Inc. is successor to the patentee through a succession of transfers, subject to certain severed mineral rights not material here. The court found that J. T. Ranch, Inc., or its predecessors in title, paid, for more than twenty years prior to the commencement of this action, all taxes on the above-described lots, together with the accretion formed thereto, and during all of that time remained in open, notorious and adverse possession of these lots and their accretion.

The Record Evidence.

9
Cases of this type are always annoyingly difficult, requiring as they do a perusal of old maps, surveys, and other documents. Our careful review of the entire record compels the conclusion that the evidence was amply sufficient to justify the trial court's finding that the island became physically nonexistent sometime prior to 1933 and that the area in controversy is land formed by accretion to the east bank of the river between the year 1933 and the date of taking by the Government. Additional to the many plats, maps, surveys, aerial photographs and other exhibits, there were knowledgeable witnesses who positively testified as to these facts. Alex W. MacLean, who was born in 1901 and lived in the area all of his life, testified that as a young boy he well remembered the island; that it was then heavily timbered; that when he was eleven or twelve years old the eastern part of the island was occupied by Mr. A. J. "Angus" Nicholson and the balance by Mr. Carl Moore, who had a hunting shack and spent part time there; that the river took the western part of the island about 1913 and the balance in 1916 or 1917; and that Mr. Nicholson lived there until 1913. The evidence disclosed that on April 8, 1933 Mr. Moore quitclaimed his island lots, which were the same as those claimed by appellants, and all accretions thereto to Alex MacLean, the father of Alex W. MacLean. Actually, according to the evidence, the lots were in the river at that time and in any event the deed was not discovered until the elder Mr. MacLean's death and not placed of record until January 15, 1963.

10
Alex W. MacLean also testified that he participated in making the survey in 1933 and there was no island there then. This testimony was corroborated by Robert B. MacLean, a brother of Alex W., who also participated in making the 1933 survey. The evidence further reveals that the appellee land bank owners at all times used the accreted land extending to the river, fencing it in 1933 or 1934, and using it thereafter as pasture and timber land from which some of the trees cut were two feet in diameter.

11
Mr. Walter Small testified that his father farmed their place on the river bank and in fact fenced up what had been the old river bed, and that he personally started farming a small tract in 1954 after his father's death.

12
Appellants did not produce any witness in contradiction of this evidence which alone would suffice in our opinion to justify the trial court's findings. Furthermore, there is not a scintilla of evidence to indicate that appellants ever attempted to locate the land in controversy or exercise any control over it. They did, however, after succeeding to the tax title acquired by Mr. Jeff Hawks in 1949, pay taxes on the descriptions contained in their deed. The appellee bank land owners also continued to pay taxes assessed against their described bank lands to which the accretion was formed.

13
It is interesting to note that in 1947 or 1948, prior to the time Jeff Hawks obtained a tax deed from the county under which appellants now claim title, one John F. Baker acquired a tax title to Lots 2 and 3 of Section 27, but after attempting to locate the property and finding that the island was no longer in existence he reconveyed or quitclaimed the lots to Burleigh County on January 14, 1948.

14
In our view, the evidence lends no support to appellants' contention that the land between the island and shore gradually filled in until there was no longer any water there and that the boundary of the island lots is the last thread of dried up stream between the island and the shore. As stated, appellants produced no witnesses to establish their theory, relying solely on the abstract of title and other documentary evidence which lends tenuous support, if any, to their theory, and finds direct conflict with appellees' evidence aforementioned, which the trial court was justified in crediting and we feel compelled to sustain. The rule is that findings of the District Court are presumptively correct and must be sustained unless clearly erroneous. As a reviewing court, we are not privileged to substitute our judgment for that of the District Court and must view the evidence favorably to the successful party. If the District Court's findings are supported by substantial, competent evidence, they must be sustained. Colorado Milling & Elevator Co. v. Terminal R. Ass'n. of St. Louis, 350 F.2d 273, 277 (8th Cir. 1965), cert. denied, 382 U.S. 989, 86 S.Ct. 563, 15 L.Ed. 2d 476 (1966); Fremont Cake & Meal Co. v. Wilson & Co., 183 F.2d 57 (8th Cir. 1950); Federal Sav. & Loan Ins. Corp. v. First Nat'l Bank, 164 F.2d 929 (8th Cir. 1947); F. W. Fitch Co. v. Camille, Inc., 106 F.2d 635 (8th Cir. 1939).

The Legal Issues.

15
The tract consisting as it does of accretions to the east bank of the Missouri River, Section 47-06-05 N.D.C.C. is the applicable North Dakota statute and it states:

16
"Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank."

17
Appellants contend, however, that the case of Perry v. Erling, 132 N.W.2d 889 (N.D.1965), is controlling here. Much has been written about the Perry opinion and we will not undertake to completely analyze it as the facts in this case are clearly distinguishable. In Perry the court dealt with land which was riparian at the time of the original survey and lost by erosion so that non-riparian land became riparian. Thereafter, land built by accretion to the land which was originally non-riparian extended over the location formerly occupied by originally riparian land. The court held that the owner of the land originally non-riparian has title only to the accreted land within the boundaries of the formerly non-riparian tract and that all other land so accreted and extending over the area formerly occupied by the land of the original riparian owner becomes the property of the owner of the originally riparian land. The factual distinction is that in the case at bar the land of the appellees was riparian at the date of survey and patent and under such circumstances the water line would continue to be the boundary, no matter how it shifts due to the addition of accretion; and, further, Perry concerned two parcels of bank land — riparian and remote — whereas we are concerned with island lots and bank lots.

18
The North Dakota court held in Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509, 513 (1937) that:

19
"The controlling rule as it applies in the instant case may be stated thus: `Where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary, and a deed describing the lot by number or name conveys the land up to such shifting line exactly as it does up to fixed side line and conveys all accretion thereto.' Jefferis v. East Omaha Land Company, supra. [134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890)]"

20
Chief Judge Register in his memorandum, 257 F.Supp. at 727, 728, discusses this legal problem more extensively, calling attention to the fact that Perry, supra, made it plain no modification of the Oberly rule was intended and that each decision stood on its own peculiar facts.

21
The basic flaw in appellants' argument is that it is bottomed upon the erroneous assertion that appellants treat as a conclusion that the island did not completely become nonexistent and that always there was a thread of island land to which accretions could attach. The record evidence simply does not support such assertion or conclusion. Contrarily, it supports the trial court's holding that since 1933 the island had been nonexistent and from at least that date the tract in controversy was accretion land attaching itself to the bank land lots of appellees, who became the owners thereof, despite the fact that the tract extends over an area formerly occupied by island lots, on which appellants hold a tax title. See in this connection Hogue v. Bourgois, 71 N.W.2d 47, 54 A.L.R.2d 633 (N.D. 1955), where the facts showed that a large part of the mainland washed away and a nearby island grew by accretion over a part of the area formerly occupied by the mainland. The court held that the accretion which formed to the island belonged to the owners thereof, regardless of the fact that the island extended over a location formerly occupied by the mainland. In the present case it is the mainland to which the accretion has attached itself, and by the same token it becomes the property of the owners of the bank lands to which it has accreted.

22
We have also considered and find no merit in the asserted failure of appellees to establish their titles by adverse possession. Appellees' titles are not dependent upon adverse possession, but we note from the court's findings that appellees and their predecessors in interest had for more than twenty years remained in open, notorious and adverse possession of the disputed land and its accretions and for the same period paid taxes on it. See and compare Anderson-Tully Co. v. Chicago Mill & Lumber Co., 175 F.2d 735 (8th Cir. 1949), and the trial court's discussion in its memorandum opinion, 257 F.Supp. 723, 726 and 727.

23
North Dakota's longest limitation statute against adverse ownership is twenty years and Section 28-01-11 N.D.C.C. provides:

24
"Acts constituted adverse possession not based upon a written instrument. — For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument nor upon a judgment or decree, land shall be deemed to have been possessed and occupied only in the following cases:

25
"1. When it has been protected by a substantial enclosure; or

26
"2. When it has been usually cultivated or improved."

27
So it is that appellees, even if they had not been in possession under color of title, had been in actual, notorious and adverse possession for more than the twenty-year statutory period.

28
We, therefore, completely agree with the learned trial judge in his fact finding as well as with his interpretation of the North Dakota law.

29
The judgment is affirmed.


638 F.2d 14
3 Collier Bankr.Cas.2d 549, Bankr. L. Rep.  P 67,768Gary GREENBLATT, Trustee, Appellant,v.Levy FORD, Jr., Appellee.In re Levy FORD, Jr., Debtor.
No. 80-1589.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 2, 1980.Decided Jan. 9, 1981.

Charles M. Tatelbaum, Gary Greenblatt, Baltimore, Md.  (Edmund A. Goldberg, Sherbow, Shea & Tatelbaum, P. A., Baltimore, Md., on brief), for appellant.
Shale D. Stiller, Baltimore, Md.  (Irving E. Walker, Frank, Bernstein, Conaway & Goldman, Baltimore, Md., L. Stephen Hess, Baltimore, Md., on brief), for appellee.
Before WINTER, SPROUSE and ERVIN, Circuit Judges.
PER CURIAM:

1
The trustee in a bankruptcy proceeding brought under Chapter 7 of the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-1330, appeals from a decision of the United States Bankruptcy Court for the District of Maryland, sitting in banc.  In a thorough and detailed opinion, the Bankruptcy Court held that the filing of a bankruptcy petition solely by the husband does not sever the estate of tenancy by the entirety in either real or personal property held as such by the debtor and his wife under Maryland law, that the debtor's interest in entireties property is property of the bankruptcy estate under 11 U.S.C. § 541(a)(1), but that the interest may be exempted by the debtor from property of the estate pursuant to 11 U.S.C. § 522(b)(2)(B).

2
In this appeal, the trustee challenges the first and third of these holdings.  On the severance issue, he argues that the filing of a bankruptcy petition disturbs the unities of time, title, identity of interest, and possession necessary to preserve the entireties estate, thus creating a tenancy in common.  He also contends that the debtor may not invoke § 522(b)(2)(B) because the debtor's interest is not "exempt from process" under Maryland law.

3
We reject these contentions.  Having considered the briefs and arguments of counsel before this court, we affirm on the opinion of the Bankruptcy Court.  In re Levy Ford, Jr., 3 B.R. 559 (Bkrtcy.D.Md.1980).*

4
AFFIRMED.

*
 Although he did not take a cross appeal, the debtor urges on us that the Bankruptcy Court was in error in holding that his interest in property held by him and his wife as tenants by the entireties became part of the bankrupt estate.  We reject this argument also for the reasons assigned by the Bankruptcy Court


767 F.2d 875
32 Cont.Cas.Fed. (CCH)  73,682
Harry N. and Rose C. FORMAN, Appellants,v.The UNITED STATES, Appellee.
Appeal No. 85-577.
United States Court of Appeals,Federal Circuit.
July 8, 1985.

G. David Fensterheim, Williams & Connolly, Washington, D.C., argued for appellants.  With him on the brief was Raymond W. Bergan.
Stephen R. Bergenholtz, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee.  With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan, Asst. Director.
Before DAVIS, SMITH and BISSELL, Circuit Judges.
DAVIS, Circuit Judge.

1
This case confronts us with two general questions relating to federal leases, as well as a more particular issue of lease interpretation.  Harry N. and Rose C. Forman appeal from a decision of the Postal Service Board of Contract Appeals (PSBCA or Board) in which the Board ruled that the Postal Service could sublet to various businesses parts of premises which it leased from the Formans.  PSBCA No. 1235, 84-3 BCA p 17,514.  The Formans contend that the Board erred in applying federal law to interpret the lease in this case, and, whether state or federal law applies, in interpreting the lease as allowing the Postal Service such broad subleasing authority.  The Government argues that the Board had no jurisdiction to consider this case, but otherwise supports the decision.  We affirm.

I. Background

2
In 1960 the Formans entered into a contract with the Postal Service1 in which the Formans agreed to construct a postal facility in Hollywood, Florida, and the Postal Service agreed to enter into a long-term lease of the facility.  The 1960 contract contained as an appendix a copy of the Postal Service's then standard lease form.  The parties entered into the lease here in dispute in October 1961 following the standard form.

3
Since 1980, the Postal Service has sublet various portions of the facility to several businesses, including a real estate investment company, a secretarial service, a telephone answering service, and lawyers.  The Formans say that this violates paragraphs 2 and 8 of the Postal Service's lease.  Paragraph 2 states that "Lessor hereby leases to the Government the following described premises ... to be used for postal purposes."    Paragraph 8 provides that the Postal Service "may sublet all or any part of the premises or assign this lease but shall not be relieved from any obligation under this lease by reason of any such subletting or assignment."    The Formans understood that these two paragraphs, when read together, limited the Postal Service's authority to sublet the premises only to other organizations involved in the Postal Service's function or affairs.2   They never sought clarification from the Government, and there is no evidence that the Government agreed to their understanding, either at the time the lease was entered into or later.

4
In 1983, the Formans requested from the Government's contracting officer that he declare the lease terminated or, in the alternative, that the payments from the Postal Service to the Formans be increased by the amount which the Postal Service receives from the "non-postal" sublessees in excess of the Postal Service's rental payments under the lease.  The contracting officer refused to terminate the lease and denied the monetary claim.  The Formans filed a timely appeal to the Board seeking the same monetary award they requested from the contracting officer.

5
The Board ruled initially on two preliminary matters.  The Government objected to the Board's jurisdiction, but the Board upheld its authority over this claim.  Appellants contended that the Board should apply state (Florida) and not federal law as the rule of decision.  The Board, however, relied on cases from the Court of Claims and the Third Circuit which held that federal law applies to lease agreements to which the Government is a party.  The Board further noted that the choice of Florida law or applicable federal common law would not alter the result.

6
On the merits, the Board concluded that restrictions on alienation in a lease are generally construed very strictly against the landlord.  In this particular case, the Board concluded that "the premises serve primarily as the Hollywood, Florida post office."    The property was therefore "used for postal purposes," and not in violation of paragraphs 2 or 8 of the lease.  The Board concluded:  "No evidence has been presented that this fundamental character of the premises has been altered by the various commercial or professional subtenants."    The Board thus denied the Formans' claim.  They filed a timely appeal to this court.II. The Board's Jurisdiction

7
Section 8(d) of the Contract Disputes Act [the Disputes Act], 41 U.S.C. Sec. 607(d) (1982), provides that the boards of contract appeals "shall have jurisdiction to decide any appeal from a decision of a contracting officer ... relative to a contract" entered into by an executive agency within the particular board's purview.  Section 3 of the Disputes Act, 41 U.S.C. Sec. 602, limits the types of contracts to which the statute is applicable:

8
(a) Executive agency contracts

9
Unless otherwise specifically provided herein, this chapter [the Disputes Act] applies to any express or implied contract ... entered into by an executive agency for--

10
(1) the procurement of property, other than real property in being.    [Emphasis added.]

11
The Government repeats here the jurisdictional arguments it presented to the Board.  Specifically, it is contended that:  a lease is a means by which the Government procures the use of real property in being;  leases are, therefore, not contracts to which the Disputes Act applies under Sec. 3(a)(1) of the Disputes Act;  and accordingly the Board lacks jurisdiction over these contracts under Sec. 8(d) of the Act.  We disagree that Congress intended to exclude leases from the scope of the Disputes Act, and therefore reject the Government's reasoning.

12
The legislative history of the Disputes Act contains little illuminating Congress' intended meaning of the phrase "real property in being."    The committee reports are silent.  We are directed to the debate on the floor of the House of Representatives, in which Congressman Kindness remarked:  "The procedures and remedies set down in the bill are applicable to all express or implied contracts entered into by the United States for (1) the procurement of property (other than the procurement of real property in being which is governed by the laws of eminent domain)."    124 Cong.Rec. 31,645 (1978).  This morsel is not a sufficient explanation of the statute's purpose or meaning for it to be highly persuasive in this case.  We note, however, that the Government enters into a lease by agreement (as in the instant case) and not through exercise of eminent domain (or the threat thereof).  To the extent that this single remark is probative, it supports the conclusion that Congress did not intend lease agreements to fall within the "real property in being" exception of Sec. 3(a)(1).

13
The Government points to the Office of Federal Procurement Policy Act (the Policy Act), 41 U.S.C. Secs. 401-409 (1982), Sec. 6(a)(1) of which also excludes contracts for the procurement of "real property in being" from its coverage, and argues that it should be read in pari materia with the Disputes Act.  The Policy Act created the Office of Federal Procurement Policy within the Executive Office of the President, and assigned that agency the task of devising guidelines on procurement applicable throughout the executive branch.  Section 6(a)(1) of the Policy Act, 41 U.S.C. Sec. 405(a)(1) (1982), presents a list of contracts to which the statute applies, which is in pertinent parts identical to the corresponding section (Sec. 3) of the Disputes Act.3   Because the phrases in the two statutes are almost identical and because they focus on the same object--Government procurement--we assume for the purposes of this appeal that Congress intended the phrase to have the same meaning in the Disputes Act as it had in the earlier Policy Act.  2A Sands, Sutherland's Statutory Construction Sec. 51.02 (4th ed. 1984).

14
The legislative history of the Policy Act is more informative in this regard than the history of the Disputes Act.  The Senate Report accompanying the bill which became the Policy Act states:

15
Procurement under [Sec. 6(a) ] covers property ... and construction, alteration, repair or maintenance of buildings and other forms of real property, but excludes real property in being.  Accordingly, the acquisition of a fee, easements, leases, or other interests in existing buildings and land would not be subject to the policies and regulations promulgated by OFPP.

16
S.Rep. No. 93-692, 93d Cong., 2d Sess.  (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 4589, 4599.  This comment does not support the Government's case.  "Acquisition of" a lease is not the same thing as "entering into" a lease.  The Report's language apparently refers to the procurement of existing interests--fees, easements, leases, etc.--and not the initial creation of these interests.  A leasehold does not exist until a lease is entered into, and by entering into a lease the Government does not acquire a pre-existing interest in the land;  it establishes a new one.  Thus, the Policy Act's language excluding contracts to procure "real property in being" fails to apply to newly-created lease agreements, and they fall within the purview of that statute and of the corresponding provisions of the Contract Disputes Act.  This comports with Congressman Kindness' comments, since the Government can acquire a leasehold interest held by another through eminent domain, but, as mentioned supra, it creates a leasehold for itself by agreement.4

17
Moreover, the Government has even less ground for contesting the Board's jurisdiction in this particular case because the lease was a part of a larger agreement over which the Board plainly does have jurisdiction.  In essence, in 1960 the Government promised to lease the Formans' property in exchange for their agreement to construct the postal facility.  The lease's terms were made part of this contract by reference.  Without doubt, the Board has jurisdiction over construction contracts.  Were we to accept the Government's view in this case, the Board would have jurisdiction to construe the Formans' obligations, but not the Government's.  We refuse to believe that Congress, when it excluded contracts relating to the procurement of "real property in being," intended such a bizarre result in this construction-plus-lease type of case.

III. Choice of Law

18
In light of Powers v. United States Postal Service, 671 F.2d 1041 (7th Cir.1982), the Formans assert that application of Florida law is appropriate here.  In Powers, the issue was whether the landlord could evict the Postal Service for failure to pay $1,600 in rent, which the Postal Service had expended to repaint the leased premises.  In order to determine whether the duty to paint fell on the landlord or the tenant under the lease, the Seventh Circuit looked to applicable state law, expressly disavowing the view of the Court of Claims that federal law controls Government leases.  671 F.2d at 1043 (noting that the court in Brooklyn Waterfront Term.  Corp. v. United States, 90 F.Supp. 943, 948, 117 Ct.Cl. 62, 84, cert. denied, 340 U.S. 931, 71 S.Ct. 493, 95 L.Ed. 672 (1950), applied federal law when construing a Government lease).5   However, we have no such option, as decisions of our predecessor courts are binding upon this panel unless changed by this court in banc.    Moreover, we have no occasion, in this case, to ask the court in banc to consider the matter of federal vs. state law since the postal lease here involved appears to be a general postal form used in the 1960's which was adopted for reasons peculiar to the Postal Service.  See Part IV, infra.    Federal law, rather than the law of the individual states, seems appropriate at least for that kind of specialized lease.6

IV. Interpretation of the Lease

19
Appellants urge that the statement in paragraph 2 of the lease referring to use of the premises "for postal purposes" is a limitation on the use to which the property may be put.  This covenant is said to run with the land, and thus to be binding on the Postal Service's sublessees.  The Formans also point out that the Postal Service drafted the lease, and that any ambiguities in the lease should be strictly construed against the author.  Finally, they note that, on a prior occasion, the Postal Service sought their approval to enter into a sublease, thus indicating (we are told) that even the Postal Service has construed paragraph 2 as a limitation on the uses to which the property may be put.

20
The construction of a lease provision setting forth a particular purpose for the property is not a novel issue.  Many courts and scholars have considered this matter.  We rely here on those authorities directly on point, rather than beginning anew from the Formans' profferred general principles concerning the construction of lease contracts.

21
As a start, we note that (absent a valid restriction) a tenant may put the leased premises to whatever lawful purpose it so desires consistent with the design and construction of the property.  R. Schoshinski, American Law of Landlord Tenant, Sec. 5:6 (1980).  The landlord is free to impose restrictions on the tenant's use of the property, but in light of the principle which gives the tenant free use, any restrictions are construed narrowly against the landlord.  "Because the lessee stands in the position of an owner in fee with regards to rights of user ... the lessee's right of use are [sic ] strictly construed against the landlord where there is any ambiguity."    1 American Law of Property Sec. 3.40 (A. Casner ed. 1950).  Applied to the specific instance in which a lease provision sets forth the use of the property, the authorities are in agreement that such a provision, absent a clear and specific indication that the landlord intended to limit the tenant's use of the property, is generally permissive and not restrictive.  That is, it indicates that the landlord is aware of and sanctions the tenant's intended use, but does not limit tenant to that use alone.  Id.;  Schoshinski, supra, Secs. 5:6-5:7;  Hatcho Corp. v. Della Pietra, 195 Conn. 18, 485 A.2d 1285, 1289 (1985);  Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93, 97 (Mo.App.1974);  Southland Corp. v. D.C. Burns Realty & Trust Co., 166 Colo. 444, 444 P.2d 394, 396 (1968) (en banc );  Borgen v. Wiglesworth, 189 Kan. 261, 369 P.2d 360, 363 (1962);  Silkey v. Malone, 123 Ind.App. 395, 111 N.E.2d 665 (1953) (en banc );  Otting v. Gradsky, 294 Ky. 779, 172 S.W.2d 554 (1943).

22
A recent Wisconsin case, Rapids Associates v. Shopko Stores, Inc., 96 Wisc.2d 516, 292 N.W.2d 668 (1980), presented a situation identical in pertinent respects to the one we have here.  The landlord leased the property "for the purpose of conducting a retail department store."    The tenant sought to sublet the property to another business.  The court held that the language in the lease did not prohibit the sublease:While this clause does describe [tenant's] intended use of the premises, it does not contain terms of restriction prohibiting uses other than a retail, discount department store.  Generally, absent express restrictive terms, such descriptive clauses are merely permissive in nature and do not restrict lessee's use of the premises.

23
292 N.W.2d at 670 (footnote omitted).  The court also noted that, had the parties intended the lease to restrict the tenant's use of the premises, "they could have inserted simple words of limitation."    Id.

24
Based on this accepted principle, we hold that paragraph 2 of the Postal Service's lease with the Formans describes the Postal Service's intended use of the property and does not limit the other uses to which the Postal Service or its sublessees (as authorized by paragraph 8 of the lease) may put the property.  The lease simply does not say that use for postal purposes is the only use, and there is no ground for implying such a narrowing limitation.7   Appellants make much of the fact that, the first time the Postal Service subleased part of the facility, it asked the Formans' consent, but obviously that did not constitute a settled interpretation of the lease because all the subsequent subleases were made without any such request.

25
Great emphasis is likewise placed on the lease formulation making the leased property "be used for postal purposes" a part of the "granting" language of the lease, and framing that provision in terms of a "covenant and agreement."    The inference, it is claimed, is that the Formans leased the property only for postal purposes and that is the full scope of the demise.  There are twin answers.  The general rule is that such covenants are not construed as restrictive (on the lessee) unless clearly expressed (51 C.J.S., Landlord & Tenant Sec. 235 (1967);  49 Am.Jur.2d Landlord and Tenant Sec. 238 (1970)),8 and, at the very best for the Formans, that is certainly not true here.  Rather, the terms of this lease, read literally, seem to show that only the lessors (not the Government) "covenant and agree" that the demised premises are "to be used for postal purposes."9   The Government made no such express promise.

26
AFFIRMED.

1
 At that time the Postal Service was called the United States Post Office Department, but for simplicity we use the name Postal Service throughout

2
 Thus, the Formans have not objected to the Postal Service's sublease of space to the Postal Employees Credit Union

3
 The Disputes Act places a comma before "other than real property in being," while the Policy Act does not

4
 If we were to put legislative history (both of the Policy Act and of the Contract Disputes Act) wholly aside, we would reach the same conclusion from the bare terms of the statutes because leases are normally considered within the realm of contracts (see Keydata Corp. v. United States, 504 F.2d 1115, 1123, 205 Ct.Cl. 467 (1974)) and also as personal (rather than real) property.  51C C.J.S., Landlord & Tenant, Sec. 26 at 62-63

5
 The reasons for the Court of Claims' conclusion are more fully expressed in Keydata Corp. v. United States, supra

6
 We note parenthetically that, since the Seventh Circuit's decision in Powers, Congress has taken action which tends to undercut one of the principal rationales behind that decision.  The Seventh Circuit reasoned that the twelve regional circuits are much more likely to create a uniform interpretation of state landlord-tenant law than federal landlord-tenant law, i.e., when applying state law a conflict between the circuits is of negligible concern.  Ever since Congress passed the Federal Courts Improvement Act in 1982, the regional circuits will generally face (except for postal leases, see 39 U.S.C. Sec. 409(a)) a landlord-tenant problem involving the United States as a tenant only when the landlord can seek wholly equitable relief or an eviction.  Most cases will come on appeal to this court, either from the district courts (under the little Tucker Act), from the Claims Court, or from the Boards of Contract Appeals.  This court will, therefore, be in a good position to create a uniform body of federal law in this area;  indeed, the danger of confusion might be enhanced if this court were to embark on an effort to interpret the laws of the fifty states, the District of Columbia, and the several territories

7
 On the contrary, there are very good reasons suggesting that the inclusion of the phrase had no such restrictive purpose whatever.  To facilitate the ability of potential construction-lessors (for the Postal Service) to obtain necessary financing, Congress enacted (in 1960) a special statute authorizing the Postmaster General to agree to such construction-plus-lease arrangements for periods up to 30 years, if the arrangements were "for postal purposes" or "for use for postal purposes."    39 U.S.C. Sec. 2103(a).  This record contains specific and undisputed testimony that the instant type of lease was used to show that the lease fell under that particular statute, and also in order to allow the construction-lessor to obtain financing--and it is plain that the lease traces the very words of Sec. 2103(a).  Moreover, Sec. 2103(a)(2)(B) expressly permits the Postmaster General to dispose of such property (acquired under Sec. 2103(d)) "in such terms as he deems appropriate to the best interests of the United States," thus literally covering the sublease made in this case

8
 As it happens, Florida strongly enforces this principle.   Great Southern Aircraft Corp. v. Kraus, 132 So.2d 608, 609 (Fla.Dist.Ct.App.1961).  For that reason, the Board noted that application of Florida law, pressed by appellants, would not help them

9
 The Government argues that this was done because the lease required the lessors to repair the premises to satisfactory condition "for the purposes leased," if any part of the leased property becomes "unfit for use for the purposes leased."


542 U.S. 129 (2004)
PENNSYLVANIA STATE POLICE
v.
SUDERS.
No. 03-95.
Supreme Court of United States.
Argued March 31, 2004.
Decided June 14, 2004.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
*130 *131 *132 GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, post, p. 152.
John G. Knorr III, Chief Deputy Attorney General of Pennsylvania, argued the cause for petitioner. With him on the briefs were Gerald J. Pappert, Acting Attorney General, and Howard G. Hopkirk and Sarah C. Yerger, Deputy Attorneys General.
Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General *133 Acosta, Deputy Solicitor General Clement, Eric S. Dreiband, and Lorraine C. Davis.
Donald A. Bailey argued the cause and filed a brief for respondent.[*]
JUSTICE GINSBURG delivered the opinion of the Court.
Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.
To establish hostile work environment, plaintiffs like Suders must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [their] employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees *134 because of their ... gender ... offends Title VII's broad rule of workplace equality."). Beyond that, we hold, to establish "constructive discharge," the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, and Faragher v. Boca Raton, 524 U. S. 775.

I
Because this case was decided against Suders in the District Court on the PSP's motion for summary judgment, we recite the facts, as summarized by the Court of Appeals, in the light most favorable to Suders.[1] In March 1998, the PSP hired Suders as a police communications operator for the McConnellsburg barracks. Suders v. Easton, 325 F. 3d 432, 436 (CA3 2003). Suders' supervisors were Sergeant Eric D. Easton, Station Commander at the McConnellsburg barracks, Patrol Corporal William D. Baker, and Corporal Eric B. Prendergast. Ibid. Those three supervisors subjected *135 Suders to a continuous barrage of sexual harassment that ceased only when she resigned from the force. Ibid.
Easton "would bring up [the subject of] people having sex with animals" each time Suders entered his office. Ibid. (internal quotation marks omitted). He told Prendergast, in front of Suders, that young girls should be given instruction in how to gratify men with oral sex. Ibid. Easton also would sit down near Suders, wearing spandex shorts, and spread his legs apart. Ibid. Apparently imitating a move popularized by television wrestling, Baker repeatedly made an obscene gesture in Suders' presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex. Id., at 437. Baker made this gesture as many as five-to-ten times per night throughout Suders' employment at the barracks. Ibid. Suders once told Baker she "`d[id]n't think [he] should be doing this'"; Baker responded by jumping on a chair and again performing the gesture, with the accompanying vulgarity. Ibid. Further, Baker would "rub his rear end in front of her and remark `I have a nice ass, don't I?'" Ibid. Prendergast told Suders "`the village idiot could do her job'"; wearing black gloves, he would pound on furniture to intimidate her. Ibid.[2]
In June 1998, Prendergast accused Suders of taking a missing accident file home with her. Id., at 438. After that incident, Suders approached the PSP's Equal Employment Opportunity Officer, Virginia Smith-Elliott, and told her she "might need some help." Ibid. Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation. Ibid. On August 18, 1998, Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid. Ibid. Smith-Elliott told Suders to *136 file a complaint, but did not tell her how to obtain the necessary form. Smith-Elliott's response and the manner in which it was conveyed appeared to Suders insensitive and unhelpful. Ibid.
Two days later, Suders' supervisors arrested her for theft, and Suders resigned from the force. The theft arrest occurred in the following circumstances. Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Id., at 438-439. Each time, Suders' supervisors told her that she had failed. Id., at 439. Suders one day came upon her exams in a set of drawers in the women's locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Ibid. Regarding the tests as her property, Suders removed them from the locker room. Ibid.; App. 11, 119-120. Upon finding that the exams had been removed, Suders' supervisors devised a plan to arrest her for theft. 325 F. 3d, at 438-439. The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched. Id., at 439. As anticipated by Easton, Baker, and Prendergast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue. Ibid. The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her. Ibid. Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her. Ibid. Nevertheless, the supervisors initially refused to release her. Instead, they brought her to an interrogation room, gave her warnings under Miranda v. Arizona, 384 U. S. 436 (1966), and continued to question her. 325 F. 3d, at 439. Suders reiterated that she wanted to resign, and Easton then let her leave. Ibid. The PSP never brought theft charges against her.
In September 2000, Suders sued the PSP in Federal District Court, alleging, inter alia, that she had been subjected *137 to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. App. 1, 12-13.[3] At the close of discovery, the District Court granted the PSP's motion for summary judgment. Suders' testimony, the District Court recognized, sufficed to permit a trier of fact to conclude that the supervisors had created a hostile work environment. App. to Pet. for Cert. 76a. The court nevertheless held that the PSP was not vicariously liable for the supervisors' conduct. Id., at 80a.
In so concluding, the District Court referred to our 1998 decision in Faragher v. Boca Raton, 524 U. S. 775. See App. to Pet. for Cert. 77a-78a. In Faragher, along with Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, decided the same day, the Court distinguished between supervisor harassment unaccompanied by an adverse official act and supervisor harassment attended by "a tangible employment action." Id., at 765; accord Faragher, 524 U. S., at 808. Both decisions hold that an employer is strictly liable for supervisor harassment that "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 808. But when no tangible employment action is taken, both decisions also hold, the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence: "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably *138 failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807.
Suders' hostile work environment claim was untenable as a matter of law, the District Court stated, because she "unreasonably failed to avail herself of the PSP's internal procedures for reporting any harassment." App. to Pet. for Cert. 80a. Resigning just two days after she first mentioned anything about harassment to Equal Employment Opportunity Officer Smith-Elliott, the court noted, Suders had "never given [the PSP] the opportunity to respond to [her] complaints." Ibid. The District Court did not address Suders' constructive discharge claim.[4]
The Court of Appeals for the Third Circuit reversed and remanded the case for disposition on the merits. 325 F. 3d, at 462. The Third Circuit agreed with the District Court that Suders had presented evidence sufficient for a trier of fact to conclude that the supervisors had engaged in a "pattern of sexual harassment that was pervasive and regular." Id., at 442. But the appeals court disagreed with the District Court in two fundamental respects. First, the Court of Appeals held that, even assuming the PSP could assert the affirmative defense described in Ellerth and Faragher, *139 genuine issues of material fact existed concerning the effectiveness of the PSP's "program ... to address sexual harassment claims." 325 F. 3d, at 443. Second, the appeals court held that the District Court erred in failing to recognize that Suders had stated a claim of constructive discharge due to the hostile work environment. Ibid.[5]
A plaintiff alleging constructive discharge in violation of Title VII, the Court of Appeals stated, must establish:
"(1) he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign . . .; and (2) the employee's reaction to the workplace situationthat is, his or her decision to resignwas reasonable given the totality of circumstances. . . ." Id., at 445.
Viewing the complaint in that context, the court determined that Suders had raised genuine issues of material fact relating to her claim of constructive discharge. Id., at 446.
The Court of Appeals then made the ruling challenged here: It held that "a constructive discharge, when proved, constitutes a tangible employment action." Id., at 447. Under Ellerth and Faragher, the court observed, such an action renders an employer strictly liable and precludes employer recourse to the affirmative defense announced in those decisions. 325 F. 3d, at 447. The Third Circuit recognized that the Courts of Appeals for the Second and Sixth Circuits had ruled otherwise. A constructive discharge resulting from a supervisor-created hostile work environment, both Circuits had held, does not qualify as a tangible employment action, and therefore does not stop an employer from *140 invoking the Ellerth/Faragher affirmative defense. 325 F. 3d, at 452-453 (citing Caridad v. Metro-North Commuter R. Co., 191 F. 3d 283, 294 (CA2 1999), and Turner v. Dowbrands, Inc., No. 99-3984, 2000 WL 924599, *1 (CA6, June 26, 2000) (unpublished)). The Third Circuit, however, reasoned that a constructive discharge "`constitutes a significant change in employment status' by ending the employer-employee relationship" and "also inflicts the same type of `direct economic harm'" as the tangible employment actions Ellerth and Faragher offered by way of example (discharge, demotion, undesirable reassignment). 325 F. 3d, at 460 (quoting Ellerth, 524 U. S., at 761, 762). Satisfied that Suders had "raised genuine issues of material fact as to her claim of constructive discharge," and that the PSP was "precluded from asserting the affirmative defense to liability advanced in support of its motion for summary judgment," the Court of Appeals remanded Suders' Title VII claim for trial. 325 F. 3d, at 461.
This Court granted certiorari, 540 U. S. 1046 (2003), to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher. Compare 325 F. 3d, at 461 (constructive discharge qualifies as a tangible employment action); Jaros v. LodgeNet Entertainment Corp., 294 F. 3d 960, 966 (CA8 2002) (same), with Caridad, 191 F. 3d, at 294 (constructive discharge does not qualify as a tangible employment action); Turner, 2000 WL 924599, *1 (same), and Reed v. MBNA Marketing Systems, Inc., 333 F. 3d 27, 33 (CA1 2003) (constructive discharge qualifies as a tangible employment action only when effected through a supervisor's official act); Robinson v. Sappington, 351 F. 3d 317, 336 (CA7 2003) (same). We conclude that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive *141 discharge; absent such a "tangible employment action," however, the defense is available to the employer whose supervisors are charged with harassment. We therefore vacate the Third Circuit's judgment and remand the case for further proceedings.

II

A
Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 838-839 (3d ed. 1996) (hereinafter Lindemann & Grossman). 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? See C. Weirich et al., 2002 Cumulative Supplement to Lindemann & Grossman 651-652, and n. 1 (collecting cases) (hereinafter Weirich).
The constructive discharge concept originated in the labor-law field in the 1930's; the National Labor Relations Board (NLRB) developed the doctrine to address situations in which employers coerced employees to resign, often by creating intolerable working conditions, in retaliation for employees' engagement in collective activities. Lieb, Constructive Discharge Under Section 8(a)(3) of the National Labor Relations Act: A Study in Undue Concern Over Motives, 7 Indus. Rel. L. J. 143, 146-148 (1985); see In re Sterling Corset Co., 9 N. L. R. B. 858, 865 (1938) (first case to use term "constructive discharg[e]"). Over the next two decades, Courts of Appeals sustained NLRB constructive discharge rulings. See, e. g., NLRB v. East Texas Motor Freight Lines, 140 F. 2d 404, 405 (CA5 1944) (first Circuit case to hold supervisor-caused resignation an unfair labor practice); NLRB v. Saxe-Glassman Shoe Corp., 201 F. 2d 238, 243 (CA1 1953) (first Circuit case to allow backpay award for *142 constructive discharge). By 1964, the year Title VII was enacted, the doctrine was solidly established in the federal courts. See Comment, That's It, I Quit: Returning to First Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab. L. 401, 410 (2002).
The Courts of Appeals have recognized constructive discharge claims in a wide range of Title VII cases. See, e. g., Robinson, 351 F. 3d, at 336-337 (sexual harassment); Moore v. KUKA Welding Systems & Robot Corp., 171 F. 3d 1073, 1080 (CA6 1999) (race); Bergstrom-Ek v. Best Oil Co., 153 F. 3d 851, 858-859 (CA8 1998) (pregnancy); Amirmokri v. Baltimore Gas & Elec. Co., 60 F. 3d 1126, 1132-1133 (CA4 1995) (national origin); Derr v. Gulf Oil Corp., 796 F. 2d 340, 343 (CA10 1986) (sex); Young v. Southwestern Sav. & Loan Assn., 509 F. 2d 140, 143-144 (CA5 1975) (religion). See also Goss v. Exxon Office Systems Co., 747 F. 2d 885, 887 (CA3 1984) ("[A]pplication of the constructive discharge doctrine to Title VII cases has received apparently universal recognition among the courts of appeals which have addressed that issue."); 3 L. Larson, Labor and Employment Law § 59.05[8] (2003) (collecting cases). And the Equal Employment Opportunity Commission (EEOC), the federal agency charged with implementing Title VII, has stated: An employer "is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a charging party." 2 EEOC Compliance Manual § 612.9(a) (2002).
Although this Court has not had occasion earlier to hold that a claim for constructive discharge lies under Title VII, we have recognized constructive discharge in the labor-law context, see Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 894 (1984) (NLRB may find employer engaged in unfair labor practice "when, for the purpose of discouraging union activity, ... [the employer] creates working conditions so intolerable that the employee has no option but to resigna so-called `constructive discharge.'"). Furthermore, we have stated that *143 "Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment." Ellerth, 524 U. S., at 752. See also Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 64 ("The phrase `terms, conditions, or privileges of employment' [in Title VII] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." (some internal quotation marks omitted)). We agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge.

B
This case concerns an employer's liability for one subset of Title VII constructive discharge claims: constructive discharge resulting from sexual harassment, or "hostile work environment," attributable to a supervisor. Our starting point is the framework Ellerth and Faragher established to govern employer liability for sexual harassment by supervisors.[6] As earlier noted, see supra, at 137-138, those decisions delineate two categories of hostile work environment claims: (1) harassment that "culminates in a tangible employment action," for which employers are strictly liable, Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 808, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense, Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807. With the background set out above in mind, we turn to the key issues here at stake: Into which Ellerth/Faragher category do hostile-environment constructive discharge claims falland what proof burdens do the parties bear in such cases.
In Ellerth and Faragher, the plaintiffs-employees sought to hold their employers vicariously liable for sexual harassment by their supervisors, even though the plaintiffs "suffer[ed] *144 no adverse, tangible job consequences." Ellerth, 524 U. S., at 747. Setting out a framework for employer liability in those decisions, this Court noted that Title VII's definition of "employer" includes the employer's "agent[s]," 42 U. S. C. § 2000e(b). See Ellerth, 524 U. S., at 754. We viewed that definition as a direction to "interpret Title VII based on agency principles." Ibid. The Restatement (Second) of Agency (1957) (hereinafter Restatement), the Court noted, states (in its black-letter formulation) that an employer is liable for the acts of its agent when the agent "`was aided in accomplishing the tort by the existence of the agency relation.'" Ellerth, 524 U. S., at 758 (quoting Restatement § 219(2)(d)); accord Faragher, 524 U. S., at 801.
We then identified "a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate." Ellerth, 524 U. S., at 760. A tangible employment action, the Court explained, "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id., at 761. Unlike injuries that could equally be inflicted by a co-worker, we stated, tangible employment actions "fall within the special province of the supervisor," who "has been empowered by the company as . . . [an] agent to make economic decisions affecting other employees under his or her control." Id., at 762. The tangible employment action, the Court elaborated, is, in essential character, "an official act of the enterprise, a company act." Ibid. It is "the means by which the supervisor brings the official power of the enterprise to bear on subordinates." Ibid. Often, the supervisor will "use [the company's] internal processes" and thereby "obtain the imprimatur of the enterprise." Ibid. Ordinarily, the tangible employment decision "is documented in official company records, and may be subject to review by *145 higher level supervisors." Ibid. In sum, we stated, "when a supervisor takes a tangible employment action against a subordinate[,] ... it would be implausible to interpret agency principles to allow an employer to escape liability." Id., at 762-763.
When a supervisor's harassment of a subordinate does not culminate in a tangible employment action, the Court next explained, it is "less obvious" that the agency relation is the driving force. Id., at 763. We acknowledged that a supervisor's "power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation." Ibid. But we also recognized that "there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status [would] mak[e] little difference." Ibid.
An "aided-by-the-agency-relation" standard, the Court suggested, was insufficiently developed to press into service as the standard governing cases in which no tangible employment action is in the picture. Looking elsewhere for guidance, we focused on Title VII's design "to encourage the creation of antiharassment policies and effective grievance mechanisms." Id., at 764. The Court reasoned that tying the liability standard to an employer's effort to install effective grievance procedures would advance Congress' purpose "to promote conciliation rather than litigation" of Title VII controversies. Ibid. At the same time, such linkage of liability limitation to effective preventive and corrective measures could serve Title VII's deterrent purpose by "encourag[ing] employees to report harassing conduct before it becomes severe or pervasive." Ibid. Accordingly, we held that when no tangible employment action is taken, the employer may defeat vicarious liability for supervisor harassment by establishing, as an affirmative defense, both that "the employer exercised reasonable care to prevent and correct *146 promptly any sexually harassing behavior," and that "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id., at 765; accord Faragher, 524 U. S., at 807.
Ellerth and Faragher also clarified the parties' respective proof burdens in hostile environment cases. Title VII, the Court noted, "borrows from tort law the avoidable consequences doctrine," Ellerth, 524 U. S., at 764, under which victims have "a duty `to use such means as are reasonable under the circumstances to avoid or minimize the damages' that result from violations of the statute," Faragher, 524 U. S., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219, 231, n. 15 (1982)). The Ellerth/Faragher affirmative defense accommodates that doctrine by requiring plaintiffs reasonably to stave off avoidable harm. But both decisions place the burden squarely on the defendant to prove that the plaintiff unreasonably failed to avoid or reduce harm. Ellerth, 524 U. S., at 765; accord Faragher, 524 U. S., at 807; cf. C. McCormick, Law of Damages 130 (1935) (defendant has burden of persuading factfinder "plaintiff could reasonably have reduced his loss or avoided injurious consequences").[7]

1
The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, we reiterate, see supra, at 133-134, the offending behavior "must be sufficiently severe or pervasive to alter the conditions of the victim's *147 employment and create an abusive working environment." Meritor, 477 U. S., at 67 (internal quotation marks and brackets omitted). A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e. g., Breeding v. Arthur J. Gallagher & Co., 164 F. 3d 1151, 1160 (CA8 1999) ("[A]lthough there may be evidence from which a jury could find sexual harassment, ... the facts alleged [for constructive discharge must be] ... so intolerable that a reasonable person would be forced to quit."); Perry v. Harris Chernin, Inc., 126 F. 3d 1010, 1015 (CA7 1997) ("[U]nless conditions are beyond `ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress.").[8]
Suders' claim is of the same genre as the hostile work environment claims the Court analyzed in Ellerth and Faragher.[9] Essentially, Suders presents a "worse case" harassment scenario, *148 harassment ratcheted up to the breaking point. Like the harassment considered in our pathmarking decisions, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee's decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. See Brief for United States as Amicus Curiae 24.
To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. See supra, at 147, n. 8. As the Third Circuit observed, both "en[d] the employer-employee relationship," and both "inflic[t] ... direct economic harm." 325 F. 3d, at 460 (internal quotation marks omitted). But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. See Ellerth, 524 U. S., at 762. Absent "an official act of the enterprise," ibid., as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company recordsa demotion or a reduction in compensation, for exampleshows "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage. See Ellerth, 524 U. S., at 760. Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation, as we earlier recounted, see supra, at *149 145, is less certain. That uncertainty, our precedent establishes, see supra, at 145-146, justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.
The Third Circuit drew the line differently. Under its formulation, the affirmative defense would be eliminated in all hostile-environment constructive discharge cases, but retained, as Ellerth and Faragher require, in "ordinary" hostile work environment cases, i. e., cases involving no tangible employment action. That placement of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work environment. Moreover, the Third Circuit's formulation, that court itself recognized, would make matters complex, indeed, more than a little confusing to jurors. Creation of a hostile work environment is a necessary predicate to a hostile-environment constructive discharge case. Juries would be so informed. Under the Third Circuit's decision, a jury, presumably, would be cautioned to consider the affirmative-defense evidence only in reaching a decision on the hostile work environment claim, and to ignore or at least downplay that same evidence in deciding the closely associated constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next when the only variation between the two claims is the severity of the hostile working conditions. Cf. Faragher, 524 U. S., at 801 (affirming "the virtue of categorical clarity").
We note, finally, two recent Court of Appeals decisions that indicate how the "official act" (or "tangible employment action") criterion should play out when constructive discharge is alleged. Both decisions advance the untangled approach we approve in this opinion. In Reed v. MBNA Marketing Systems, Inc., 333 F. 3d 27 (CA1 2003), the plaintiff claimed a constructive discharge based on her supervisor's *150 repeated sexual comments and an incident in which he sexually assaulted her. The First Circuit held that the alleged wrongdoing did not preclude the employer from asserting the Ellerth/Faragher affirmative defense. As the court explained in Reed, the supervisor's behavior involved no official actions. Unlike, "e. g., an extremely dangerous job assignment to retaliate for spurned advances," 333 F. 3d, at 33, the supervisor's conduct in Reed "was exceedingly unofficial and involved no direct exercise of company authority"; indeed, it was "exactly the kind of wholly unauthorized conduct for which the affirmative defense was designed," ibid. In contrast, in Robinson v. Sappington, 351 F. 3d 317 (CA7 2003), after the plaintiff complained that she was sexually harassed by the judge for whom she worked, the presiding judge decided to transfer her to another judge, but told her that "her first six months [in the new post] probably would be `hell,'" and that it was in her "`best interest to resign.'" Id., at 324. The Seventh Circuit held that the employer was precluded from asserting the affirmative defense to the plaintiff's constructive discharge claim. The Robinson plaintiff's decision to resign, the court explained, "resulted, at least in part, from [the presiding judge's] official actio[n] in transferring" her to a judge who resisted placing her on his staff. Id., at 337. The courts in Reed and Robinson properly recognized that Ellerth and Faragher, which divided the universe of supervisor-harassment claims according to the presence or absence of an official act, mark the path constructive discharge claims based on harassing conduct must follow.

2
In its summation, the Third Circuit qualified its holding that a constructive discharge itself "constitutes a tangible employment action within the meaning of Ellerth and Faragher." 325 F. 3d, at 462. The affirmative defense Ellerth and Faragher delineated, the court said, might be imported into the anterior issue whether "the employee's decision *151 to resign was reasonable under the circumstances." 325 F. 3d, at 462.[10] As the Third Circuit expressed its thinking:
"[I]t may be relevant to a claim of constructive discharge whether an employer had an effective remedial scheme in place, whether an employer attempted to investigate, or otherwise to address, plaintiff's complaints, and whether plaintiff took advantage of alternatives offered by antiharassment programs." Ibid.

These considerations, the Third Circuit recognized, "are, of course, the same considerations relevant to the affirmative defense in Ellerth and Faragher." Ibid.
The Third Circuit left open when and how the Ellerth/Faragher considerations would be brought home to the fact trier. It did not address specifically the allocation of pleading and persuasion burdens. It simply relied on "the wisdom and expertise of trial judges to exercise their gatekeeping authority when assessing whether all, some, or none of the evidence relating to employers' antiharassment programs and to employees' exploration of alternative avenues warrants introduction at trial." 325 F. 3d, at 463.
*152 We see no cause for leaving the district courts thus unguided. Following Ellerth and Faragher, the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. See supra, at 146. The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer's affirmative defense, not as a legal requirement.

*   *   *
We agree with the Third Circuit that the case, in its current posture, presents genuine issues of material fact concerning Suders' hostile work environment and constructive discharge claims.[11] We hold, however, that the Court of Appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. Accordingly, we vacate the Third Circuit's judgment and remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, dissenting.
As the Court explains, the National Labor Relations Board (NLRB) developed the concept of constructive discharge to address situations in which employers coerced employees into resigning because of the employees' involvement in union activities. See ante, at 141-142. In light of this specific focus, the NLRB requires employees to establish two elements to prove a constructive discharge. First, the employer must impose burdens upon the employee that "cause, and [are] intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. *153 Second, it must be shown that those burdens were imposed because of the employee's union activities." Crystal Princeton Refining Co., 222 N. L. R. B. 1068, 1069 (1976).
When the constructive discharge concept was first imported into Title VII of the Civil Rights Act of 1964, some courts imposed similar requirements. See, e. g., Muller v. United States Steel Corp., 509 F. 2d 923, 929 (CA10 1975) (requiring a showing that "an employer deliberately render[ed] the employee's working conditions intolerable and thus force[d] him to quit his job"). Moreover, because the Court had not yet recognized the hostile work environment cause of action, the first successful Title VII constructive discharge claims typically involved adverse employment actions. See, Muller, supra (denial of job promotion); Derr v. Gulf Oil Corp., 796 F. 2d 340, 344 (CA10 1986) (demotion). If, in order to establish a constructive discharge, an employee must prove that his employer subjected him to an adverse employment action with the specific intent of forcing the employee to quit, it makes sense to attach the same legal consequences to a constructive discharge as to an actual discharge.
The Court has now adopted a definition of constructive discharge, however, that does not in the least resemble actual discharge. The Court holds that to establish "`constructive discharge,'" a plaintiff must "show that the abusive working environment became so intolerable that [the employee's] resignation qualified as a fitting response." Ante, at 134. Under this rule, it is possible to allege a constructive discharge absent any adverse employment action. Moreover, a majority of Courts of Appeals have declined to impose a specific intent or reasonable foreseeability requirement. See, e. g., Brooks v. San Mateo, 229 F. 3d 917, 930 (CA9 2000) ("[C]onstructive 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, *154 diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer" (internal quotation marks omitted)).
Thus, as it is currently conceived, a "constructive" discharge does not require a "company ac[t] that can be performed only by the exercise of specific authority granted by the employer," Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 768 (1998) (THOMAS, J., dissenting) (i.e., an adverse employment action), nor does it require that the act be undertaken with the same purpose as an actual discharge. Under these circumstances, it no longer makes sense to view a constructive discharge as equivalent to an actual discharge. Instead, as the Court points out, a constructive discharge is more akin to "an aggravated case of ... sexual harassment or hostile work environment." Ante, at 146. And under this "hostile work environment plus" framework, the proper standard for determining employer liability is the same standard for hostile work environment claims that I articulated in Burlington Industries, Inc., supra. "An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor's conduct to occur." Id., at 767. If a supervisor takes an adverse employment action because of sex that directly results in the constructive discharge, the employer is vicariously liable. Id., at 768. But, where the alleged constructive discharge results only from a hostile work environment, an employer is liable if negligent. Ibid. Because respondent has not adduced sufficient evidence of an adverse employment action taken because of her sex, nor has she proffered any evidence that petitioner knew or should have known of the alleged harassment, I would reverse the judgment of the Court of Appeals.
NOTES
[*]   Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Peter Buscemi, Harry A. Rissetto, Stephen A. Bokat, and Robin S. Conrad; for the Equal Employment Advisory Council by Ann Elizabeth Reesman and Katherine Y. K. Cheung; and for the Society for Human Resource Management by Allan H. Weitzman, Sarah A. Mindes, Edward Cerasia II, Lawrence Z. Lorber, and Paul Salvatore.

Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; and for the Lawyers' Committee for Civil Rights Under Law et al. by Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Sarah C. Crawford, Audrey Wiggins, Susan Grover, Patricia Roberts, Daniel B. Kohrman, Laurie A. McCann, Thomas Osborne, Melvin Radowitz, Steven R. Shapiro, Lenora M. Lapidus, Patricia A. Shiu, Claudia Center, Dennis C. Hayes, Vincent A. Eng, Judith L. Lichtman, Jocelyn C. Frye, Dina R. Lassow, and Jennifer K. Brown.
[1]  The PSP, we note, "vigorously dispute[s]" the truth of Suders' allegations, contending that some of the incidents she describes "never happened at all," while "others took place in a context quite different from that suggested by [Suders]." Brief for Petitioner 4, n. 3.
[2]  In addition, the supervisors made derogatory remarks about Suders' age, e. g., stating "`a 25-year-old could catch on faster'" than she could, 325 F. 3d, at 436, and calling her "`momma,'" id., at 437. They further harassed her for having political influence. Ibid. Suders' age and political-affiliation discrimination claims are not before us.
[3]  Suders raised several other claims that are not at issue here, including claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq., and the Pennsylvania Human Relations Act (PHRA), Pa. Stat. Ann., Tit. 43, § 951 et seq. (Purdon 1991). App. 7. She also asserted claims against Easton, Baker, Prendergast, and Smith-Elliott in their individual capacities under Title VII, the ADEA, and the PHRA. App. to Pet. for Cert. 70a-73a.
[4]  The District Court disposed of all other claims in the PSP's favor. The court granted the PSP summary judgment on Suders' Title VII retaliation claim, observing that Suders did not engage in any protected activity, e. g., she did not file a discrimination claim, prior to her resignation. Id., at 80a-81a. It dismissed Suders' ADEA and PHRA claims against the PSP on sovereign immunity grounds, id., at 72a-73a, and her Title VII and ADEA claims against the individual defendants on the ground that those statutes do not provide for individual liability, id., at 70a-72a. The court also dismissed the PHRA claims against the individual defendants because Suders had failed to respond to the defendants' assertions of immunity. Id., at 73a-74a. Suders did not raise any of the above claims on appeal. See Brief for Appellant in No. 01-3512 (CA3), p. 2; Brief for Appellees in No. 01-3512, p. 4.
[5]  Although Suders' complaint did not expressly mention constructive discharge, the Third Circuit found "[t]he allegations of constructive discharge ... apparent on the face of Suders's [pleading]." 325 F. 3d, at 443; see ibid. ("In the very first paragraph, Suders alleged that she was `forced to suffer a termination of employment because she would not yield to sexual suggestions [and] innuendoes. . . .'" (quoting Introductory Statement to Suders' complaint, reprinted in this Court at App. 6)).
[6]  Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we.
[7]  The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate. See 9 J. Wigmore, Evidence § 2486, p. 290 (J. Chadbourn rev. ed. 1981) ("[T]he burden of proving a fact is said to be put on the party who presumably has peculiar means of knowledge enabling him to prove its falsity if it is false." (emphasis deleted)).
[8]  As earlier noted, see supra, at 141, a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge. The plaintiff may recover postresignation damages, including both backpay and, in fitting circumstances, frontpay, see 1 Lindemann & Grossman 838; Weirich 651, as well as the compensatory and punitive damages now provided for Title VII claims generally, see 42 U. S. C. § 1981a(a)(1); Pollard v. E. I. du Pont de Nemours & Co., 532 U. S. 843, 848 (2001) (noting expanded remedies under Civil Rights Act of 1991).
[9]  Both the Ellerth and Faragher plaintiffs resigned from their posts; plaintiff Ellerth expressly alleged constructive discharge. See Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 748-749 (1998); Faragher v. Boca Raton, 524 U. S. 775, 783 (1998). Although Ellerth's constructive discharge claim was not before this Court, the decision's omission of constructive discharge from its examples of tangible employment actions is conspicuous. See 524 U. S., at 761; Brief for Chamber of Commerce of the United States as Amicus Curiae 10 ("[T]his Court's omission of constructive discharge in its discussion of tangible employment actions was widely regarded as a purposeful one."). Tellingly, we stated that Ellerth "ha[d] not alleged she suffered a tangible employment action," despite the fact that her complaint alleged constructive discharge. 524 U. S., at 766.
[10]  For similar expressions, see, e. g., Jaros v. LodgeNet Entertainment Corp., 294 F. 3d 960, 965 (CA8 2002) (though not entitled to the Ellerth/Faragher affirmative defense, employer facing constructive discharge complaint may assert that plaintiff "did not give it a chance to respond to her [grievance]" in rebutting plaintiff's contention that conditions were so intolerable as to force her resignation); Marrero v. Goya of Puerto Rico, Inc., 304 F. 3d 7, 28 (CA1 2002) ("the jury reasonably can take into account how the employer responded to the plaintiff's complaints, if any" in deciding whether conditions were intolerable); Hartman v. Sterling, Inc., No. Civ. A. 01-CV-2630, 2003 WL 22358548, *13 (ED Pa., Sept. 10, 2003) (noting "it is relevant," but not dispositive, whether plaintiff complained); Brief for Lawyers' Committee for Civil Rights Under Law et al. as Amici Curiae 19 (affirmative defense unnecessary because of "the overlap between elements of constructive discharge and of the Faragher/Ellerth [affirmative] defense").
[11]  Although most of the discriminatory behavior Suders alleged involved unofficial conduct, the events surrounding her computer-skills exams, see supra, at 136, were less obviously unofficial.