CACI No. 2432. Constructive Discharge in Violation of Public Policy - Plaintiff Required to Endure Intolerable Conditions for Improper Purpose that Violates Public Policy

Judicial Council of California Civil Jury Instructions (2017 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] 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 40 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 40 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
Directions for Use
This instruction should be given if plaintiff claims that his or her 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. 2433, Wrongful Discharge in Violation of Public
Policy—Damages. 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 employer’s ultimatum that an employee commit a crime, may
constitute a constructive discharge. (Id. at p. 1247, fn.3.)
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], 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 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.)
• “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 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, 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.)
• “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
8 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
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
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 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)

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