CACI No. 2431. Constructive Discharge in Violation of Public Policy - Plaintiff Required to Violate Public Policy

Judicial Council of California Civil Jury Instructions (2023 edition)

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2431.Constructive Discharge in Violation of Public
Policy - Plaintiff Required to Violate Public Policy
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was forced to
resign rather than commit a violation of public policy. It is a violation of
public policy [specify claim in case, e.g., for an employer to require that an
employee engage in price fixing]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] required [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
3. That this requirement was so intolerable that a reasonable person
in [name of plaintiff]’s position would have had no reasonable
alternative except to resign;
4. That [name of plaintiff] resigned because of this requirement;
5. That [name of plaintiff] was harmed; and
6. That the requirement was a substantial factor in causing [name of
plaintiff]’s harm.
New September 2003; Revised June 2014, December 2014, May 2020
Directions for Use
This instruction should be given if a plaintiff claims that the plaintiff’s constructive
termination was wrongful because the defendant required the plaintiff to commit an
act in violation of public policy. If the plaintiff alleges the plaintiff was subjected to
intolerable working conditions that violate public policy, see CACI No. 2432,
Constructive Discharge in Violation of Public Policy - Plaintiff Required to Endure
Intolerable Conditions for Improper Purpose That Violates Public Policy.
This instruction must be supplemented with CACI No. 3903P, Damages From
Employer for Wrongful Discharge (Economic Damage). See also CACI No. 2510,
“Constructive Discharge” Explained.
The judge should determine whether the purported reason for plaintiff’s resignation
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680], overruled on other grounds
in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d
16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct
would constitute a public-policy violation if proved.
Sources and Authority
“[W]hen an employers discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
“[A]n employers authority over its employees does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. An employer
engaging in such conduct violates a basic duty imposed by law upon all
employers, and thus an employee who has suffered damages as a result of such
discharge may maintain a tort action for wrongful discharge against the
employer.” (Tameny, supra, 27 Cal.3d at p. 178.)
“[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890 [66
Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
“[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1090-1091 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal
citations and fn. omitted, overruled on other grounds in Green v. Ralee
Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d
1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
“In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that impacts
on an employers right to discharge employees when such regulations implement
fundamental public policy found in their enabling statutes.” (D’sa v. Playhut, Inc.
(2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)
“Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the employment
relationship is actually severed involuntarily by the employers acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a
firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1244-1245 [32 Cal.Rptr.2d 223, 876 P.2d 1022], internal citation
“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].)
“In order to establish a constructive discharge, an employee must plead and
prove . . . 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.”
(Turner, supra, 7 Cal.4th at p. 1251.)
“The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his
or her employer. The proper focus is on whether the resignation was coerced, not
whether it was simply one rational option for the employee.” (Turner, supra, 7
Cal.4th at p. 1246.)
“In some circumstances, a single intolerable incident, such as a crime of
violence against an employee by an employer, or an employers 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.)
“The mere existence of illegal conduct in a workplace does not, without more,
render employment conditions intolerable to a reasonable employee.” (Turner,
supra, 7 Cal.4th at p. 1254.)
“[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.” (Turner, supra, 7 Cal.4th at p. 1254.)
“[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.” (Simers,supra, 18 Cal.App.5th at
p. 1271.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 235
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive
Discharge, ¶¶ 4:405-4:406, 4:409-4:410, 4:421-4:422 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:45-5:47, 5:50, 5:70,
5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.45-5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.35-100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23-6:25 (Thomson Reuters)

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