California Civil Jury Instructions (CACI)

2432. Constructive Discharge in Violation of Public Policy - Plaintiff Required to Endure Intolerable Conditions for Improper Purpose that Violates Public Policy

[Name of plaintiff] claims that [name of defendant] forced [him/her] to resign for reasons that violate public policy. To establish this claim, [name of plaintiff] must prove all of the following:

p>1. That [name of plaintiff] was employed by [name of defendant];

2. That [name of plaintiff] was subjected to working conditions that violated public policy, in that [describe conditions imposed on the employee that constitute the violation, e.g., "[name of plaintiff] was treated intolerably in retaliation for filing a workers' compensation claim"];

3. That [name of defendant] intentionally created or knowingly permitted these working conditions;

4. That these working conditions were so intolerable that a reasonable person in [name of plaintiff]'s position would have had no reasonable alternative except to resign;

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

6. That [name of plaintiff] was harmed; and

7. That the working conditions were a substantial factor in causing [name of plaintiff]'s harm.

To be intolerable, the adverse working conditions must be unusually or repeatedly offensive to a reasonable person in [name of plaintiff]'s position.

Directions for Use

The judge should determine whether the purported reason for plaintiff's resignation would amount to a violation of public policy.

This instruction should be given when plaintiff claims his or her constructive termination was wrongful because defendant subjected plaintiff to intolerable working conditions in violation of public policy. The nstruction must be supplemented with CACI No. 2433, Wrongful Discharge in Violation of Public Policy—Damages.

Sources and Authority

"[W]hen an employer's 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].)

"[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], fn. omitted.)

"In addition to statutes and constitutional provisions, valid administrative regulations may also serve as a source of fundamental public policy that impacts on an employer's 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.)

In Rojo v. Kliger (1990) 52 Cal.3d 65, 88-91 [276 Cal.Rptr. 130, 801 P.2d 373], the court held that an employee terminated in retaliation for refusing her employer's sexual advances may state a wrongful termination cause of action in tort.

"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 employer's 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 omitted.)

"Whether conditions were so intolerable as to justify a reasonable employee's decision to resign is normally a question of fact." (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056 [282 Cal.Rptr. 726], internal citation omitted.)

"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 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.)

"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.)

"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.)

Secondary Sources

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.04 (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 1997) Public Policy Violations, §§ 5.45-5.46

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.15, 249.50 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline, Forms 20, 23 (Matthew Bender)

Bancroft-Whitney's Cal. Civil Practice: Employment Litigation (1993) §§ 6:22-6:24

(New September 2003)