WPI330.52Wrongful Termination in Violation of Public Policy—Constructive Discharge—Burden of Pr...
6A WAPRAC WPI 330.52Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.52 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.52 Wrongful Termination in Violation of Public Policy—Constructive Discharge—Burden of Proof
Constructive discharge occurs when an employer deliberately creates working conditions so intolerable that a reasonable person in the shoes of the employee would feel compelled to [resign] [retire].
To establish constructive discharge,(name of plaintiff)must prove the following:
1. That the defendant deliberately made working conditions intolerable for [him] [her];
2. That a reasonable person in [his] [her] position would be forced to [resign] [retire];
3. That [he] [she] [resigned] [retired] because of the conditions and not for any other reason; and
4. That [he] [she] suffered damage as a result of being forced to [resign] [retire].
NOTE ON USE
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.
This instruction was first published in the 2017–2018 Supplement to 6A Washington Practice, Washington Pattern Jury Instructions: Civil (6th ed.).
The Court of Appeals approved this instruction, with minor rewording, in Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 489, 302 P.3d 500, 507 (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:
must prove that [her employer] deliberately made working conditions intolerable for her; that a “reasonable person in her position” would be forced to quit; that she did quit because of the conditions and not for any other reason; and that she suffered damage as a result of being forced to quit …
Haubry v. Snow, 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 v. Barna, 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 discussion in Bulaich v. AT & T Info. Sys., 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 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 v. Boeing, 137 Wn.2d at 368.
[Current as of September 2018.]
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