California Civil Jury Instructions (CACI) (2017)

2510. “Constructive Discharge” Explained

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2510.“Constructive Discharge” Explained
[Name of plaintiff] must prove that [he/she] 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.
New June 2012
Directions for Use
Give this instruction with 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,
he or she 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
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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.)
• “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 (10th ed. 2005) Agency and Employment,
§225
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2510
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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)
CACI No. 2510 FAIR EMPLOYMENT AND HOUSING ACT
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