Would Alexander’s Terrible, Horrible, No Good, Very Bad Day Qualify? Dealing with Constructive Discharge Claims

In the children’s book by the same name, Alexander has a terrible, horrible, no good, very bad day.  It begins with gum in his hair and proceeds with one calamity after another, including having to sit in the middle of the car’s backseat, being demoted to third best-friend, having no dessert at lunch, eating lima beans, wearing pajamas with railroads on them, and seeing kissing on TV.  Yuck!  Alexander wonders if only bad things happen to him and he ponders moving to Australia.

Constructive discharge claims sometimes stem from short-term conditions that an employee considers untenable.  But when an employee quits after one terrible, horrible day, is that enough to qualify as a legal equivalent to termination?  Generally, the answer is no.

To establish a constructive discharge, an employee must prove the employer either intentionally or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that an employer would realize that a reasonable person in the employee’s position would be forced to resign.  Typically an ongoing pattern of egregious conduct is required in order to show that a person was forced to resign instead of voluntarily quitting.  One negative remark or personnel evaluation is not enough to create an intolerable situation. On the other hand, one outrageous act such as a crime of violence or extreme sexual misconduct by an employer would be sufficient.

In many cases, employees are unhappy because they are underpaid, overworked, or perhaps don’t like co-workers or a supervisor due to a personality conflict.  They resign and then claim constructive discharge, trying to profit from their decision to quit by blaming the employer.  So long as the employer can show that its personnel actions (i.e. evaluations and transfers) were legitimate and done for business reasons, and there are no instances of egregious misconduct or mistreatment, the employer should be able to successfully defend the lawsuit.  The law requires that the employer knew of the conditions or intended to create intolerable working conditions in order to be held liable.

Although government jobs generally require cause for termination, private jobs in California are generally at-will, meaning an employee can be terminated at any time and for any reason, so long as it is not discriminatory.  The law does not require that jobs are stress-free or easy. Most constructive termination claims are based on an alleged violation of a statute or public policy, such as sexual harassment, racial discrimination, or being asked to participate in unlawful conduct, for example.

In the recent case of Simers v. Los Angeles Times, decided on January 5, 2018, the California Court of Appeal (2d District) upheld the trial court’s decision to grant judgment notwithstanding the jury’s verdict.  The jury found for plaintiff on his claims of disability and age discrimination, and on his claim of constructive termination.  The trial judge overturned the jury’s decision on the constructive termination claim, finding that a poor performance rating or a demotion was not sufficient to qualify as a constructive discharge.  The Court of Appeal noted that the focus should be on the working conditions and whether they were objectively intolerable.  The Court concluded that some of Plaintiff’s complaints were subjective reactions to standard employer disciplinary actions that were “well within an employer’s prerogative for running its business.”  For example, Plaintiff’s embarrassment at being demoted from a columnist to a journalist was not sufficient to convert his demotion into a constructive discharge.  Even though the jury found that age or disability discrimination was a motivating factor in one or more of the LA Times’ actions, nothing in the conveyance of the criticism, the performance of an investigation, or the resulting demotion reflected any “unusually aggravated” working conditions or a “continuous pattern of misconduct” needed to prove a constructive discharge claim.  The Court of Appeal found that the objective standard is used to assess the working conditions and not whether the employee’s reaction to them is reasonable given the person’s position or prominence.

What can employers do to avoid constructive discharge claims?   Unfortunately nothing.  But you can minimize your exposure by making sure the company or agency has anti-harassment and/or anti-discrimination policies.  Encourage employees to report misconduct and violations of policy.  Any complaints should be promptly investigated, with action taken as appropriate.  Performance issues should be addressed at or near the time issues arise. Delays in performance evaluations and discipline of troublesome employees will only aggravate the problem later, when the person claims they have never before received a negative review.  Particularly when government procedures govern, it may be difficult to sustain personnel action after it is appealed when there is no history of progressive disciplinary action or at least constructive criticism.

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