Turner v. Anheuser-Busch, Inc., ANHEUSER-BUSC

CourtUnited States State Supreme Court (California)
Citation32 Cal.Rptr.2d 223,876 P.2d 1022,7 Cal.4th 1238
Parties, 876 P.2d 1022, 63 USLW 2087, 128 Lab.Cas. P 57,746, 9 IER Cases 1185 James M. TURNER, Plaintiff and Appellant, v., Defendant and Respondent.
Docket NumberNo. S029985,ANHEUSER-BUSC,INC
Decision Date25 July 1994

Page 223

32 Cal.Rptr.2d 223
7 Cal.4th 1238, 876 P.2d 1022, 63 USLW 2087,
128 Lab.Cas. P 57,746, 9 IER Cases 1185
James M. TURNER, Plaintiff and Appellant,
ANHEUSER-BUSCH, INC., Defendant and Respondent.
No. S029985.
Supreme Court of California,
In Bank.
July 25, 1994.

Page 225

[7 Cal.4th 1242] [876 P.2d 1024] Timothy L. Taggart, Bloomington, for plaintiff and appellant.

[7 Cal.4th 1243] Joseph Posner, Encino, and William C. Quackenbush, Palo Alto, as amici curiae on behalf of plaintiff and appellant.

Ballard, Rosenberg & Golper, John B. Golper, Universal City, Jeffrey P. Fuchsman and John J. Manier, Los Angeles, for defendant and respondent.

Paul, Hastings, Janofsky & Walker, Paul Grossman, Paul W. Cane, Jr., Los Angeles, Horvitz & Levy, Ellis J. Horvitz and Daniel J. Gonzalez, Encino, as amici curiae on behalf of defendant and respondent.

LUCAS, Chief Justice.

Plaintiff James M. Turner asserts he was forced by his employer, defendant Anheuser Busch, Inc. (ABI), to quit his job after he complained of ABI's alleged illegal activity. Although ABI prevailed on summary judgment in the trial court, Turner persuaded the Court of Appeal to reinstate his claim. We now consider the elements of a cause of action for constructive wrongful discharge in violation of fundamental public policy. Applying those elements, we discern no material issue of fact and no legal foundation for Turner's case. We therefore reverse the judgment of the Court of Appeal and direct summary judgment in favor of ABI.


Turner worked at ABI's Los Angeles brewery as an industrial relations manager for approximately six years, until his voluntary resignation in 1981. In January 1984, Turner returned to work for ABI at its wholesale operations division in Riverside.

Turner's initial position at the Riverside division was "branch off-premises coordinator" in the sales department. As such, he was responsible for coordinating sales activities with retailers who sold ABI products off-sale, i.e., for consumption away from the retailers' premises. Turner's immediate supervisor was William Schmitt. Schmitt's supervisor was George Liakos.

In May 1985, Turner was reassigned to the position of "assistant supervisor route sales." He retained the same salary and level of responsibility. In his new position, Turner no longer reported to Schmitt. In January 1986, Schmitt was transferred to St. Louis, Missouri.

Page 226

[876 P.2d 1025] With one exception, Turner received overall "good" ratings on written performance evaluations between June 1984 and November 1987. (He received a "needs improvement" rating in December 1984.) On his December [7 Cal.4th 1244] 28, 1988, evaluation, however, Turner received a "needs improvement" rating. On that day, Turner met with ABI supervisors who, citing specific incidents, alleged that Turner's job performance had deteriorated. Turner denied that charge and criticized the supervisors' decision to wait until the meeting to complain of the particular incidents, rather than discussing them at the time of their occurrence.

On January 3, 1989, Turner tendered a letter of resignation to ABI, effective February 1, 1989. After his departure, Turner filed suit against ABI and certain individuals, alleging causes of action for age discrimination, constructive wrongful discharge in violation of public policy, breach of contract, and both intentional and negligent infliction of emotional distress.

The individual defendants were dismissed in various pretrial proceedings. Turner's emotional distress claims were dismissed on ABI's motion for judgment on the pleadings; he voluntarily dismissed his claim for age discrimination. ABI then obtained summary judgment on the breach of contract and public policy claims.

The Court of Appeal affirmed the summary judgment as to the contract claim, but reversed on the public policy claim. It held that the "cumulative effect" of the "long list of alleged actions [by ABI] and [workplace] conditions" established a triable case of constructive wrongful discharge in violation of public policy. We granted ABI's petition for review.


A. The Governing Law

Employment relationships are generally terminated by resignation or discharge. (Lab.Code, § 2922.) An employee voluntarily severs the relationship by resignation; the employer does so by actual discharge. (Ibid.)

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 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.

(1) Constructive Discharge

Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, "I [7 Cal.4th 1245] 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. (Zilmer v. Carnation Co. (1989) 215 Cal.App.3d 29, 38-39, 263 Cal.Rptr. 422 [hereafter Zilmer ].)

We have not previously addressed what an employee must prove to establish a constructive discharge. The Courts of Appeal have devised and applied the following test for constructive discharge: "[A]n employee who is forced to resign due to actions and conditions so intolerable or aggravated at the time of his resignation that a reasonable person in the employee's position would have resigned, and whose employer had actual or constructive knowledge of the intolerable actions and conditions and of their impact upon the employee and could have remedied the situation, but did not, is constructively discharged." (Zilmer, supra, 215 Cal.App.3d at p. 38, 263 Cal.Rptr. 422; see also Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, 1306, 242 Cal.Rptr. 324 [hereafter Brady ].)

Three areas of inquiry are suggested by the proffered test: (1) what kinds of actions or conditions are sufficient to convert what is ostensibly a voluntary quit into a discharge; (2) whether the impact of those actions and conditions is measured by a subjective (impact on this particular employee) test or an objective (impact on a hypothetical reasonable employee) test; and (3) what level of employer knowledge or intent regarding

Page 227

[876 P.2d 1026] those actions or conditions should be required to achieve a discharge. We will consider these questions in light of the case law concerning constructive discharge.

The doctrine of constructive discharge was first recognized in federal cases brought under the National Labor Relations Act (NLRA). Under section 8(a)(3) of the NLRA, it is "an unfair labor practice for an employer ... by discrimination ... to encourage or discourage membership in any labor organization ...." (29 U.S.C. § 158(a)(3).) Approving decisions of the National Labor Relations Board and lower courts, the United States Supreme Court has held that "an employer violates [§ 8(a)(3) ] not only when, for the purpose of discouraging union activity, it directly dismisses an employee, but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign--a so-called 'constructive discharge.' " (Sure-Tan, Inc. v. NLRB (1984) 467 U.S. 883, 894, 104 S.Ct. 2803, 2810, 81 L.Ed.2d 732, italics added.)

The federal courts have also applied constructive discharge in employment discrimination cases under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and the Age Discrimination in Employment Act of 1967 (29 [7 Cal.4th 1246] U.S.C. §§ 621-634; ADEA). Some federal cases have required "deliberate" conduct by an employer creating conditions so aggravated or intolerable that a reasonable person in the employee's position would have felt compelled to resign. 1 The federal Court of Appeals for the Fourth Circuit has gone further, requiring proof of an employer's express intent to cause an employee to resign. (Bristow v. Daily Press, Inc. (4th Cir.1985) 770 F.2d 1251, 1255, cert. den. 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986).)

In contrast, the Ninth Circuit's formulation of constructive discharge makes no reference to employer knowledge or intent, but provides instead that "[a] constructive discharge occurs when, looking at the totality of circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.' " (Watson v. Nationwide Ins. Co. (9th Cir.1987) 823 F.2d 360, 361, quoting Satterwhite v. Smith (9th Cir.1984) 744 F.2d 1380, 1381.) 2 State court cases in discrimination and wrongful discharge contexts have generally followed the lead of the federal courts. (See, e.g., Slack v. Kanawha County Housing [hereafter Slack ] (1992) 188 W.Va. 144, 423 S.E.2d 547 [collecting and analyzing state and federal cases]; Beye v. Bureau of National Affairs [hereafter Beye ] 59 Md.App. 642, 477 A.2d 1197, cert. den. (1984) 301 Md. 639, 484 A.2d 274.)

a. Intolerable Conditions

Under the cases, an employee cannot simply "quit and sue," claiming he or she was constructively discharged. 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.

[7 Cal.4th 1247] " 'An employee may not be unreasonably sensitive to his [or her] working environment.... Every job has its frustrations, challenges,...

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