CACI 2510 Constructive Discharge Explained

California Civil Jury Instructions CACI

2510 “Constructive Discharge” Explained

[Name of plaintiff] must prove that [he/she/nonbinary pronoun] was constructively discharged. To establish constructive discharge, [name of plaintiff] must prove the following:

1.That [name of defendant] [through [name of defendant]’s officers, directors, managing agents, or supervisory employees] intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in [name of plaintiff]’s position would have had no reasonable alternative except to resign; and

2.That [name of plaintiff] resigned because of these working conditions.

In order to be sufficiently intolerable, adverse working conditions must be unusually aggravated or amount to a continuous pattern. In general, single, trivial, or isolated acts of misconduct are insufficient to support a constructive discharge claim. But in some circumstances, a single intolerable incident may constitute a constructive discharge.

Directions for Use

Give this instruction with CACI No. 2401, Breach of Employment Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual Elements, CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if the employee alleges that because of the employer’s actions, the employee had no reasonable alternative other than to leave the employment. Constructive discharge can constitute the adverse employment action required to establish a FEHA violation for discrimination or retaliation. (See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].)

Sources and Authority

“[C]onstructive discharge occurs only when an employer terminates employment by forcing the employee to resign. A constructive discharge is equivalent to a dismissal, although it is accomplished indirectly. Constructive discharge occurs only when the employer coerces the employee’s resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer. We have said ‘a constructive discharge is legally regarded as a firing rather than a resignation.’ ” (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737 [63 Cal.Rptr.2d 636, 936 P.2d 1246], internal citations omitted.)

“Actual discharge carries significant legal consequences for employers, including possible liability for wrongful discharge. In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted ‘end runs’ around wrongful discharge and other claims requiring employer-initiated terminations of employment.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [32 Cal.Rptr.2d 223, 876 P.2d 1022].)

“Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing.” (Turner, supra, 7 Cal.4th at p. 1251.)

“In order to amount to constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim. Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” (Turner, supra, 7 Cal.4th at p. 1247, internal citation and footnotes omitted.)

“In some circumstances, a single intolerable incident, such as a crime of violence against an employee by an employer, or an employer’s ultimatum that an employee commit a crime, may constitute a constructive discharge. Such misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th at p. 1247, fn. 3.)

“Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact. [Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)

“[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248, internal citations omitted.)

“[U]nder Turner, the proper focus is on the working conditions themselves, not on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d 695], original italics.)

“The length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint of a reasonable person.” (Turnersupra, 7 Cal.4th at p. 1254, original italics.)

“[T]here was, as the trial court found, substantial evidence that plaintiff’s age and disability were ‘substantial motivating reason[s]’ for the adverse employment action or actions to which plaintiff was subjected. But the discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simerssupra, 18 Cal.App.5th at p. 1271.)

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p. 1251.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, § 238
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive Discharge, ¶ 4:405 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.34 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, § 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.31 et seq. (Matthew Bender)