Should You Resign or Quit? Constructive Termination
Are you being forced to resign? Don’t quit before reading this:
Keep in mind that your subjective reaction is not as important as what a reasonable employeewould consider to be intolerable. According to California courts, a reasonable employee is someone with a tolerance for abuse. In Gibson v. Aro Corp., the court of appeal held that “demotion of job level, even when accompanied by reduction in pay, does not constitute constructive discharge.” 32 Cal.App.4th 1628, 1635 (1995). “Thus, the mere failure to promote the plaintiff, even if unlawfully discriminatory, will not support a finding of constructive discharge.” Valdez v. City of Los Angeles,231 Cal.App.3d 1043, 1056 (1991). “Nor is it sufficient to show only that the employee received a poor performance rating.” Ibid.; see also Soules v. Cadam, Inc., 2 Cal.App.4th 390, 402 (1998)(explaining that “a single, isolated instance of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge.”).
To prevail, you must demonstrate “a continuous pattern of discriminatory treatment,” — the longer the better. Valdez, 231 Cal.App.3d at 1057. For example, in DesRosiers v. Hartford, the court held that from the circumstances of that case a jury could reasonably infer that the plaintiff was forced to resign. Among other adverse actions, over the course of a year, the employer denied plaintiff’s multiple requests for a reasonable accommodation of her medical condition, issued undeserved reprimands, and encouraged her to find another job — all of which made her medical condition worse. 979 F. Supp. 2d 1036, 1052 (2013). Of course, one incident could potentially validate a constructive discharge if it is sufficiently extreme.
