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October 17, 1990

BANK OF AMERICA, et al., Defendants

Frederick J. Woelflen, Chief United States Magistrate.

The opinion of the court was delivered by: WOELFLEN


 This is a civil action for wrongful discharge arising under the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 USC § 1132 and 1140. This action was filed in Superior Court in Sonoma, and was removed to federal court by defendants in April, 1990. Plaintiff Mary Lou Siddoway alleges four causes of action against defendants Bank of America ("Bank") and two of her former supervisors: breach of contract, intentional infliction of emotional distress, interference with contractual relations, and breach of the implied covenant of good faith and fair dealing. On May 11, 1990 the parties consented to proceed to trial before a United States Magistrate. On September 7, 1990 defendants filed their motion for summary judgment, or in the alternative, summary adjudication.


 From February 1971 until May 1989, plaintiff was employed by Bank of America in various capacities, beginning as a Teller. In April 1979 plaintiff became an authorized officer of the Bank in the position of Assistant Operations officer. In May 1983 plaintiff transferred to the Bank's Petaluma branch. Plaintiff became a Section Manager-Branch Operations on March 1, 1987 and remained in this position until she left the Bank in May 1989.

 Shortly after plaintiff began working at the Petaluma branch, Mr. Harry Kimball became branch manager. Ms. Sherry Kuntz transferred to the Petaluma branch in September 1987, filling the position of Manager-Branch Operations. Plaintiff was among the employees who reported directly to Ms. Kuntz. Both Mr. Kimball and Ms. Kuntz have been named as individual defendants in the complaint.

 Plaintiff has testified that, as a result of this harassment, she experienced an increasing degree of emotional distress. In December of 1988, plaintiff began seeing a psychologist for her symptoms, who subsequently recommended that plaintiff go on medical leave of absence for three months. In early February of 1989, the psychologist wrote a letter to Ms. Kuntz requesting such leave, and plaintiff was placed on medical leave and commenced her receipt of disability payments. Plaintiff claims that it was her understanding at that time that in order to qualify for additional leave she would have to be confined to a mental hospital, although no such condition is provided in the Bank's literature regarding medical leave.

 At the end of her 90 day leave plaintiff felt that she could not return to the Bank and, the day before her state disability payments expired, she sent a letter to Ms. Kuntz resigning from her job. Ms. Kuntz responded with a letter urging plaintiff to reconsider her decision and offering her the opportunity to rescind her resignation. Plaintiff did not respond to this letter and her resignation became effective.


 Under Federal Rule of Civil Procedure 56(c), a summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." If the movant satisfies his initial burden of demonstrating the absence of a genuine issue of fact, the burden then shifts to the opponent to come forward with specific facts showing that there remains a genuine issue for trial. Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979) (citing Fed.R.Civ.P. 56(e)), cert. den., Ruffin v. County of Los Angeles, 445 U.S. 951, 100 S. Ct. 1600, 63 L. Ed. 2d 786 (1980). The evidence offered in opposition to the motion for summary judgment must be "significantly probative as to any fact claimed to be dispositive." Id. (citations omitted). "'Where it is clear from the evidence presented at the hearing on a motion for summary judgment that the movant would be entitled to a directed verdict were the case to proceed to trial,' summary judgment ordinarily should be granted." Id. (citation omitted).


 In her complaint, plaintiff alleges four causes of action arising out of the termination of her employment with the Bank: 1) breach of contract, against the Bank; 2) intentional infliction of emotional distress, against her superiors; 3) interference with contract, against her superiors; and 4) breach of the covenant of good faith and fair dealing, against the Bank.


 Defendants argue that plaintiff's claims for breach of contract, breach of the covenant of good faith and fair dealing, and her tort claim for interference with contractual relations each rest upon the premise that plaintiff was "wrongfully discharged" from her employment with the Bank. Defendants contend that plaintiff was neither actively nor constructively discharged, and thus cannot prove that her contract was breached.

 A. Can plaintiff's resignation be viewed as a constructive discharge ?

 Under both California and federal law, a constructive discharge occurs when "an employer deliberately causes or allows the employee's working conditions to become so intolerable that the employee is forced into an involuntary resignation." Zilmer v. Carnation Co., 215 Cal. App. 3d 29, 38, 263 Cal. Rptr. 422 (1989), review den.; see also, Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 473 (8th Cir. 1990); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). In order to prove constructive discharge, a plaintiff must prove that his employer "breached an implied [or express] promise not to discharge him without good cause by forcing him to submit to intolerable working conditions which foreseeably and proximately caused his resignation." Panopulos v. Westinghouse Elec. Corp., 216 Cal. App. 3d 660, 667, 264 Cal. Rptr. 810 (1989), review den.

 Defendants argue that nothing in plaintiff's deposition testimony or the facts suggest that plaintiff's circumstances at the time of her resignation were intolerable. Plaintiff had been away on medical leave for three months at the time she resigned, and she could have requested an extension of her leave, rather than resign. Alternatively, plaintiff could have elected to return to work. Having foregone these options, defendants maintain that plaintiff cannot now claim that she faced intolerable conditions and was forced to resign.

 If plaintiff was not constructively discharged, defendants contend that each of plaintiff's contract-related claims must fail because the contract damages claimed flow exclusively from that discharge.

 Plaintiff does not address this argument in her opposition papers and thus has presented no specific facts showing that there remains a genuine issue for trial. However, assuming arguendo that a triable issue of fact exists as to whether defendants engaged in behavior which would lead a reasonable person to ...

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