CACI No. 2432. Constructive Discharge in Violation of Public Policy - Plaintiff Required to Endure Intolerable Conditions That Violate Public Policy

Judicial Council of California Civil Jury Instructions (2023 edition)

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2432.Constructive Discharge in Violation of Public
Policy - Plaintiff Required to Endure Intolerable Conditions That
Violate Public Policy
[Name of plaintiff] claims that [name of defendant] forced
[him/her/nonbinary pronoun] to resign for reasons that violate public
policy. It is a violation of public policy [specify claim in case, e.g., for an
employer to require an employee to work more than forty hours a week for
less than minimum wage]. 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 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
required to work more than forty hours a week for less than minimum
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
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
aggravated or involve a continuous pattern of mistreatment. Trivial acts
are insufficient.
New September 2003; Revised December 2014, June 2015, May 2020
Directions for Use
This instruction should be given if the plaintiff claims that the plaintiff’s
constructive termination was wrongful because defendant subjected plaintiff to
intolerable working conditions in violation of public policy. The 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.
Whether conditions are so intolerable as to justify the employee’s decision to quit
rather than endure them is to be judged by an objective reasonable-employee
standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32
Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The
paragraph at the end of the instruction gives the jury additional guidance as to what
makes conditions intolerable. (See id. at p. 1247.) Note that 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. (Id. at p. 1247, fn. 3.)
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].)
“[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.)
“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.)
“Plaintiffs assert, in essence, that they were terminated for refusing to engage in
conduct that violated fundamental public policy, to wit, nonconsensual sexual
acts. They also assert, in effect, that they were discharged in retaliation for
attempting to exercise a fundamental right - the right to be free from sexual
assault and harassment. Under either theory, plaintiffs, in short, should have been
granted leave to amend to plead a cause of action for wrongful discharge in
violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276
Cal.Rptr. 130, 801 P.2d 373].)
“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, supra, 7 Cal.4th at pp. 1244-1245,
internal citation omitted.)
“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 order to amount to a 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, footnote and internal citation omitted.)
“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, 4:409-4:411, 4:421-4:422 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:4, 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, §§ 249.15, 249.50 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.32, 100.36-100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23-6:25 (Thomson Reuters)
2433-2440 Reserved for Future Use

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