Brady v. Elixir Industries

• Decision Date: 11 December 1987
• Docket Number: No. E002656,E002656
• Citation: 196 Cal.App.3d 1299,242 Cal.Rptr. 324
• Court: California Court of Appeals Court of Appeals
• Parties: , 66 Fair Empl.Prac.Cas. (BNA) 693 Redina BRADY, Plaintiff and Appellant, v. ELIXIR INDUSTRIES, etc., Defendant and Respondent.

Page 324

242 Cal.Rptr. 324

196 Cal.App.3d 1299, 66 Fair Empl.Prac.Cas. (BNA) 693

Redina BRADY, Plaintiff and Appellant, v. ELIXIR INDUSTRIES, etc., Defendant and Respondent.

No. E002656.

Court of Appeal, Fourth District, Division 2, California.

Dec. 11, 1987.

Review Denied Feb. 24, 1988.

Kathryn Burkett Dickson, San Francisco, for plaintiff and appellant

[196 Cal.App.3d 1302] Rexon, Freedman, Klepetar & Thomas, Raymond W. Thomas, Fred B. Griffin and Linda J. Lopez, Los Angeles, for defendant and respondent.

OPINION

CAMPBELL, Presiding Justice.

Plaintiff appeals a judgment against her on two causes of action for sexual discrimination and tortious constructive discharge. We reverse, holding the trial court: (1) prejudicially abused its discretion in denying plaintiff's motion during trial to amend the discrimination cause of action to allege a different factual basis; (2) prejudicially erred in instructing that constructive discharge required employer intent to cause the employee to quit.

DENIAL OF AMENDMENT

Plaintiff brought her cause of action for sexual discrimination under the California Fair Employment and Housing Act (FEHA). ¹ Plaintiff, a division manager of defendant Elixir Industries (Elixir), alleged Elixir paid her less than its male division managers over nearly a four year period ending in January 1980 with her resignation caused by Elixir's sexual discrimination. In a hearing pursuant to Evidence Code section 402 ² held just before trial began, the trial court ruled plaintiff's salary could not be compared with salaries of the other division managers because she could not establish the preliminary fact that her position was substantially similar to their positions. Plaintiff does not contest this ruling.

Because this ruling excluded the factual basis that plaintiff had pleaded for her sexual discrimination cause of action, she moved, after presentation of a portion of her case, to amend that cause of action to allege Elixir paid plaintiff's male subordinates and predecessors more than she was paid. The trial court denied the motion because of the late stage of the proceedings and the variance between the current and proposed allegations. The trial court later granted Elixir's motion for a nonsuit as to the sexual discrimination cause of action. Plaintiff correctly contends that the amendment's denial was a prejudicial abuse of discretion.

A pleading may be amended at the time of trial unless the adverse party can establish prejudice. (United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915, 210 Cal.Rptr. 453, 694 P.2d 138.) Where a party is allowed to prove facts to establish one cause of action, an amendment which would allow the same facts to establish another cause of action is favored, and a trial court abuses its discretion by prohibiting such an amendment when it would not prejudice another party. (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401, 126 Cal.Rptr. 549. See also Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 962-963, fn. 14, 218 Cal.Rptr. 839 [trial court allowed amendment to seek easements where proof presented of pleaded cause of action for inverse condemnation established right to easements].) A variance between pleading and proof does not justify the denial of an amendment to conform pleading to proof unless the unamended pleading "misled the adverse party to his prejudice in maintaining his action or defense upon the merits." (Code Civ.Proc., § 469; Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 212-213, 98 Cal.Rptr. 467, 490 P.2d 1155.)

Elixir does not contend now, nor did it contend below, that the unamended pleadings misled it or that the amendment unfairly prejudiced its defense, nor could it reasonably have so argued. Plaintiff's allegations about her subordinates and predecessors were the subject of ample discovery and Elixir's opening statement. The trial court recognized that Elixir "was prepared for all of them, so nobody's claiming suprise." The record further manifests the trial court's abuse of discretion in that, although denial of the amendment prevented plaintiff from proving the sexual discrimination cause of action by showing that her subordinates and predecessors had received higher pay, paradoxically the trial court allowed plaintiff to prove these facts to show sexual discrimination as the public policy violation necessary to sustain her cause of action for tortious constructive discharge. Thus, the effect of the trial court's denial of the amendment was to admit facts to establish one cause of action while denying their admission to establish another cause of action, even though the facts and the causes of action were well known to Elixir prior to trial. Clearly, the trial court abused its discretion in denying the amendment.

Elixir argues the error did not prejudice plaintiff since the evidence concerning the subordinate and predecessor pay differentials were admitted on the tortious constructive discharge cause of action. Elixir reasons the plaintiff would have prevailed on that cause of action if the jury believed the evidence established sexual discrimination.

This argument is spurious. Proof of tortious constructive discharge according to the jury instructions would have required not only convincing the jury the sexual discrimination occurred, but also persuading the jury: (1) of the existence of circumstances so intolerable that a reasonable person would have resigned, and (2) that Elixir intended to create those circumstances to force plaintiff to quit. Obviously the jury could have found sexual discrimination but not intolerable circumstances or intent. (See, e.g., Pittman v. Hattiesburg Mun. Separate Sch. Dist. (5th Cir.1981) 644 F.2d 1071, 1077 [employer discriminated against, but did not constructively discharge, employee].)

Furthermore, plaintiff presented significant evidence of sexually motivated discrimination. Plaintiff presented her own testimony and that of several of her superiors who no longer worked for Elixir. This testimony indicated that, because of her sex, plaintiff was not as highly paid as she merited and was otherwise unfairly treated. Two men who were arguably her subordinates received pay substantially equal to or greater than she received. Elixir did present evidence on these issues which contradicted plaintiff's evidence. However, given the substantial character of the evidence plaintiff presented, we must conclude in the words of Estate of Kime (1983) 144 Cal.App.3d 246, 260, 193 Cal.Rptr. 718, that had the error not occurred, it is " 'reasonably probable' (though far from certain) that ... the result would have been different."

ERRONEOUS INSTRUCTION

On the sole remaining cause of action for tortious constructive discharge, the trial court instructed the jury as follows:

"In order for plaintiff to recover for constructive discharge due to unlawful sexual discrimination, plaintiff must prove by a preponderance of the evidence the following:

"1. There was, in fact, discrimination based on sex,

"2. Which discrimination existed at the time of discharge, and

"3. Which discrimination persisted after the employee protested the same to the employer, and

"4. The employer failed to eliminate the discrimination within a reasonable time after notice thereof.

"In order for the discrimination to be sufficient to amount to a constructive discharge, it must be such conduct by the employer, made with the intent to cause the employee to resign, and which sex discrimination [sic] conduct made working conditions so intolerable that the employee, as a reasonable person, is forced to resign."

We hold that this instruction was prejudicially erroneous.

Although none of this state's courts have addressed the issue of what facts and circumstances will constitute a constructive discharge, ³ federal district and appellate courts including the Ninth Circuit, the California Fair Employment and Housing Commission (FEHC), and a number of other state courts have dealt with this issue in statutory as well as common law contexts. All of these authorities agree that a tortious constructive discharge ⁴ requires proof of a violation of public policy, such as unlawful discrimination, plus circumstances so aggravated or intolerable that a reasonable employee would feel compelled to resign. However, federal and state case and administrative law have taken divergent views as to whether a third element concerning the mental state of the employer must be proved by an employee to establish constructive discharge. The majority does not require a third element, while the minority has required proof of intent, knowledge, or foreseeability on the employer's part that the employee would resign because of those circumstances. (Nolan v. Cleland, supra, 686 F.2d 806, 813.) ⁵ Recent FEHC precedential decisions have required intent, but have held the intent is proved by the same evidence that established the aggravated conditions that would have caused a reasonable person in the employee's position to resign. (See FEHC decisions cited in fn. 5, ante.)

While the majority correctly take the position that requiring intent or actual knowledge is too stringent (see Nolan, 686 F.2d at p. 814, fn. 17), not requiring a third element of any kind relating to the employer's knowledge does not adequately insure that a peaceful, on-the-job resolution has been attempted or was futile.

Accordingly, we hold that, to establish a tortious constructive discharge, an employee must show:

(1) the actions and conditions that caused the employee to resign were violative of public policy;

(2) these actions and conditions were so intolerable or aggravated at the time of the employee's resignation that a reasonable person in the employee's position would have resigned; and

(3) facts and circumstances showing that the employer had actual or constructive knowledge of the...