lucrative bonus program were reduced. The court held that these facts
were insufficient to prove intolerable work conditions. Id. at 769. The
court also held that his resignation was unreasonable as a matter of
law. Id. The pattern of activity in King affected the terms of
plaintiff's employment as the defendant altered his job responsibilities
and salary. Nevertheless, the court found as a matter of law that the
conditions were not intolerable. In the case at bar, the pattern of
conduct is less egregious as the terms and conditions of plaintiffs
employment were not altered.
Similarly, the facts in the Turner case are more egregious than the
case at bar, and in Turner, the court found no constructive discharge. In
Turner, the plaintiff produced evidence indicating that he: (1) observed
illegal acts by his co-workers that he reported to management; (2) was
reassigned in retaliation; and (3) was given a low performance rating.
Turner, 7 Cal.4th at 1243-44, 32 Cal.Rptr.2d 223, 876 P.2d 1022. These
working conditions are more egregious than plaintiff's, yet the court
found that these charges, when considered together, did not constitute
aggravating conditions or a continuous pattern of harassment. Id. at
1253-55, 32 Cal.Rptr.2d 223, 876 P.2d 1022.
Finally, in Jordan v. Clark, 847 F.2d 1368, 1376-77 (9th Cir. 1988),
the court found that the following pattern of conduct did not give rise
to a constructive discharge (pattern of harassment): (1) delay in
submitting promotion papers, (2) increase of duties without amendment of
job description, (3) plaintiff not allowed to attend management
conference, (4) position undermined by taking away of higher level
duties, (5) poor performance evaluations and derogatory memos in file,
(6) defendant drew up performance standards as a means of reviewing later
performance unfavorably, (7) defendant directed plaintiffs work to other
employees, (8) plaintiff given new position limited to clerical work.
Again, this pattern is significantly more intolerable than the situation
in the case at bar. In Jordan, the plaintiff's job responsibilities were
altered and she was demoted. This, however, was not enough to warrant a
finding of constructive discharge. In the case at bar, plaintiff was not
demoted or docked pay, and she was not given a new position. Her
conditions were not unreasonably harsh, nor were they any worse than the
normal frustrations, challenges and disappointments faced at every job.
See also, Lefevre v. Design Professional Ins. Co., No. C-93-20720 RPA,
1994 WL 544430 (N.D.Cal. Sept. 27, 1994) (plaintiff's allegation of poor
performance reviews, threat of verbal warning and harsh criticism, and
retaliatory threats, all which happened after plaintiff engaged in
protected activity, did not amount to objectively intolerable work
conditions); Casenas v. Fujisawa USA Inc., 58 Cal.App.4th 101, 113-14,
67 Cal.Rptr.2d 827 (Cal.App. 1997) (no constructive discharge where
plaintiff alleged: (1) unfair performance evaluation, and (2) she was not
considered for a promotion; additionally, there was no evidence of
threats, reprimands, or intimidating remarks).
Under the standard set out in Turner, and consistent with other
California case law, we find that the evidence submitted at trial is
insufficient as a matter of law to prove intolerable working conditions.
Plaintiff failed to demonstrate that her working conditions were so
egregious that a reasonable person in her position would be compelled to
working conditions were not intolerable, and plaintiffs resignation was
unreasonable as a matter of law, she was not constructively discharged.
Therefore, the Court finds that as a matter of law, there is a complete
absence of evidence that any adverse action was taken by defendant.*fn13
Plaintiff has failed to prove her prima facie case as a matter of law and
judgment on the retaliation claim is granted in favor of the defendants.
Accordingly, defendants' Motion for Judgment as a Matter of Law is
granted for plaintiff's retaliation claim.
For the reasons stated above, the defendants' Motion for Judgment as a
Matter of Law is granted. All other motions are dismissed as moot.
*fn2 AIG and AIGCS were both named as defendants. The jury found that
AIG was the employer, and this finding is not at issue in these
*fn3 United States District Court Chief Judge Marilyn L. Huff made this
ruling on January 22, 1998.
*fn4 Fair Employment and Housing Act, Cal. Gov't Code § 12940.
*fn5 The jury was instructed that plaintiff must prove constructive
discharge to receive compensatory damages for time after she resigned. It
obviously found that the evidence supported constructive discharge in
order to give such a large award of compensatory, economic damages
accounting for approximately 19 years of front pay.
*fn6 In a motion for judgment as a matter of law, facts are construed in
a light most favorable to the nonmoving party. See Lambert v. Ackerly,
156 F.3d 1018, 1021-22 (9th Cir. 1998).
*fn7 The Court gave the following fury instruction: "The essential
elements of [intentional infliction of emotional distress] are: (1) the
defendant engaged in outrageous, unprivileged conduct; (2) the defendant
intended to cause plaintiff to suffer emotional distress; (3) the
plaintiff suffered severe emotional distress; (4) such outrageous,
unprivileged conduct of a defendant was the cause of the emotional
distress suffered by the plaintiff. . . Extreme and outrageous conduct
is not mere insults, indignities, threats, annoyances, petty oppression
or other trivialities. All persons must necessarily be expected to be
hardened to a certain amount of language and to occasional acts that are
definitely in considerate and unkind. Extreme and outrageous conduct,
however, is conduct which would cause an average man of the community to
immediately react in outrage." (RT at 847-49).
*fn8 Because the Court finds no extreme and outrageous conduct, we need
not address the other elements. See King v. AC & R Advertising,
65 F.3d 764, 769 (9th Cir. 1995).
*fn9 In evaluating plaintiff's claim the Court will examine California
FEHA cases as well as federal Title VII claims. "Lawsuits claiming
retaliatory employment termination in violation of [FEHA] are analogous
to federal [T]itle VII' claims (Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. . . .) and are evaluated under
federal law interpreting [T]itle VII cases." Flait v. North American
Watch Corp., 3 Cal.App.4th 467, 475-76, 4 Cal.Rptr.2d 522 (Cal.Ct.App.
1992) (citing University of Southern California v. Superior Court,
222 Cal.App.3d 1028, 1035, 272 Cal.Rptr. 264 (Cal.Ct.App. 1990); Fisher
v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 606, 262 Cal.Rptr. 842
*fn10 Plaintiff's counsel admitted this during oral arguments. The
Court, however, will examine the actions that plaintiff alleges to be
*fn11 The jury was instructed that to award plaintiff compensatory
damages for time after she resigned, it must find that she was
constructively discharged. Its award of $350,000 in economic damages
demonstrates that it reached this conclusion. The court instructed the
jury that termination is constructive when "an employee resigns because
an employer . . . intentionally creates or knowingly permits to exist
working conditions that are so intolerable or aggravated at the time of
the employee's resignation that a reasonable employer would realize that
a reasonable person in the employee's position would have to resign.
Adverse working conditions must be unusually aggravated or amount to a
continuous pattern before the situation will be deemed intolerable." (RT
*fn12 The Court also notes that plaintiff failed to prove the third
element of constructive discharge. The Turner court noted that an
employer's failure to remedy intolerable conditions may constitute
circumstantial evidence of constructive discharge. 7 Cal.4th at 1249,
32 Cal.Rptr.2d 223, 876 P.2d 1022. Conversely, if an employer attempts to
remedy the conditions, this is circumstantial evidence that there was no
constructive discharge. Here, defendants cured most of the allegedly
intolerable conditions. They rescinded the threatened lay-off and they
corrected two inaccurate performance reviews. Furthermore, defendants'
supervisory employees immediately reprimanded Mr. Austin. These actions
further support the Court's holding that there was no constructive
discharge as a matter of law.
*fn13 In light of Faragher v. City of Boca Raton, 524 U.S. 775, 118
S.Ct. 2275, 141 L.Ed.2d 662(1998), the Court is skeptical as to whether
plaintiff reasonably believed she was sexually harassed, the first element
of her retaliation claim. In Faragher, the Court stated as follows: "[A]
sexually Objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find hostile,
or abusive, and one that the victim in fact did perceive to be so. We
directed courts to determine whether an environment is sufficiently
hostile or abusive by `looking at all the circumstances,' including the
`frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.'
Most recently, we explained that Title VII does not prohibit `genuine but
innocuous differences in the ways men and women routinely interact with
members of the same sex and of the opposite sex.' . . . [S]imple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the `terms and
conditions of employment'" 524 U.S. 775, 118 S.Ct. at 2283 (citations
omitted). It should also be noted that the record is devoid of any
evidence indicating that Mr. Austin repeated the allegedly offensive
remark or any other similar remarks to plaintiff. And there is no
evidence that Mr. Austin said anything else to her that she considered
improperly sexual in context. In light of this holding, it is unlikely
that plaintiff's belief that this singular comment constituted sexual
harassment was objectively reasonable. See Ellison v. Brady, 924 F.2d 872,
878-80 (9th Cir. 1991) (adopting the reasonable woman standard in
determining whether belief was reasonable). The Court, however, need not
reach this conclusion because its finding as a matter of law no adverse
employment action defeats the claim of retaliation.
1. Currently pending is plaintiffs Motion for New Trial, or
Alternatively, Reconsideration and/or Amendment or Correction of
Judgment. In an Order and Opinion dated March 2, 1999, the Court granted
defendants' Motion for Judgment as a Matter of Law,' dismissed
defendants' Motion for New Trial, or Alternatively Remittitur as moot,
and dismissed plaintiff's Motion for Attorneys Fees as moot. This Order:
(1) amends the March 2, 1999 Opinion and Order, insofar as it deals with
defendants' Motion for New Trial or Alternatively Remittitur, and (2)
decides plaintiff's pending Motion for New Trial, or Alternatively,
Reconsideration and/or Amendment or Correction of Judgment.
2. Federal Rule of Civil Procedure 50(c)(1) states:
If the renewed motion for judgment as a matter of law
is granted, the court shall also rule on the motion
for new trial, if any, by determining whether it
should be granted if the judgment is thereafter
vacated or reversed, and shall specify the grounds for
granting or denying the motion for new trial. If the
motion for a new trial is thus conditionally granted,
the order thereon does not affect the finality of the
In case the motion for new trial has been
conditionally granted and the judgment is reversed on
appeal, the new trial shall proceed unless the
appellate court has otherwise ordered. In case the
motion for new trial has been conditionally
denied, the appellee on appeal may assert error in
that denial; and if the judgment is reversed on
appeal, subsequent proceedings shall be in accordance
with the order of the appellate court.
The Court will now undertake this determination.