WPI 330.52 Employment Discrimination—Constructive Discharge—Burden of Proof

This instruction sets forth the elements of a claim of constructive discharge and can be used when a plaintiff was not expressly terminated from employment but claims that he or she was forced to resign or retire because the defendant/employer made working conditions intolerable. This instruction may be used in any claim asserting a wrongful termination through constructive discharge; but see the Comment below regarding Martini v. Boeing, 137 Wn.2d 357, 367, 971 P.2d 45 (1999), in which the Supreme Court held that a plaintiff alleging disability discrimination under the Washington Law Against Discrimination (WLAD) is not required to establish constructive discharge to recover lost wages.

For a claim of constructive discharge in violation of public policy, the jury should be instructed on the four elements of this constructive discharge claim and the elements of WPI 330.51 (Employment Discrimination—Wrongful Termination in Violation of Public Policy—Burden of Proof). Peiffer v. Pro-Cut Concrete Cutting & Breaking Inc., 6 Wn.App.2d 803, 830, 431 P.3d 1018 (2018).

This instruction is based on the Court of Appeals decision in Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 489, 302 P.3d 500 (2013), stating “[N]umerous Washington cases establish that these four elements are necessary for a wrongful constructive discharge claim.” See, e.g., Haubry v. Snow, 106 Wn.App. 666, 31 P.3d 1186 (2001), in which the court explained that an employee:

Haubry, 106 Wn.App. at 677 (quoting Hill v. GTE Directories Sales Corp., 71 Wn.App. 132, 143, 856 P.2d 746 (1993)); see also Sneed v. Barna, 80 Wn.App. 843, 849, 912 P.2d 1035 (1996) (to establish constructive discharge, the employer must engage in a deliberate act that made working conditions so intolerable that a reasonable person would have felt compelled to resign).

Whether conditions are intolerable is a question of fact. Bulaich v. AT & T Info. Sys., 113 Wn.2d 254, 261–62, 778 P.2d 1031 (1989). The “intolerable” element can be shown by aggravated circumstances or a pattern of conduct. Sneed, 80 Wn.App. at 850 (citing Wunderly v. S.C. Johnson & Son, Inc., 828 F.Supp. 801, 806 (D. Or. 1993)). Additionally, the employee must show that he or she resigned because of the conditions and not for some other reason, like finding a better job. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 408, 693 P.2d 708 (1985) (citing Henson v. City of Dundee, 682 F.2d 897, 907 (11th Cir. 1982)).

The question of whether an employee must prove that the employer deliberately intended to force the employee to resign, as opposed to deliberately intending to create an intolerable working atmosphere which had the effect of causing the employee's resignation, is unresolved. See Bulaich, 113 Wn.2d at 261–62. The Bulaich court noted a conflict among jurisdictions as to whether the employee must prove an employer's subjective intent to provoke the employee's resignation, but expressly declined to resolve that conflict.

In Peiffer v. Pro-Cut Concrete Cutting and Breaking Inc., 6 Wn.App.2d 803, 431 P.3d 1018 (2018), the Court of Appeals commented that, “the after-acquired-evidence doctrine does not apply to wrongful discharge claims, meaning that an employer's overriding justification is irrelevant unless it motivated a firing” and therefore it is unnecessary to analyze an overriding justification element in a constructive discharge case. Peiffer, 6 Wn.App.2d at 830 n.9 (citing Martin v. Gonzaga Univ., 191 Wn.2d 712, 425 P.3d 837 (2018)).

In Martini v. Boeing, 137 Wn.2d 357, 367, 971 P.2d 45 (1999), the Supreme Court held that an employee who resigned because of a failure to accommodate a disability was not required to prove constructive discharge before being entitled to damages under RCW 49.60.030(2). A plaintiff bringing a claim under RCW Chapter 49.60 need only establish that the damages were proximately caused by the discrimination. Martini, 137 Wn.2d at 368.