Wednesday, February 12, 2014
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Appeals Panel Rejects ‘Constructive Voluntary Quit’ Claim
Justices Hold Rarely-Cited Doctrine Inapplicable to Employee Who Alleged Retaliation
By MICHAEL J. PEIL, Staff Writer
An employee who was discharged before returning to work from stress leave did not constructively resign her employment by seeking assurances about her future employment conditions that the employer considered unreasonable, this district’s Court of Appeal has ruled.
Div. Eight, in an opinion by Justice Laurence D. Rubin, affirmed on Monday the overturning of the California Unemployment Insurance Appeal’s Board decision to deny Stephanie Kelley unemployment benefits after she was discharged from Merle Norman Cosmetics.
Rubin rejected the employer’s attempt to invoke the little-sued “constructive voluntary quit” doctrine.
The trial court explained that Kelley had not constructively quit her job when she sought to have conditions met prior to her return, because her attempts were requests, not ultimatums, so that the company had alternatives to discharging her.
In May 2010, Kelley went on stress leave from her job as a marketing director with the cosmetics company one month after she filed a claim with the California Department of Fair Unemployment and Housing. She alleged that Merle Norman was retaliating against her for reporting sexual harassment.
Kelley, who was cleared to return to work the following November, hired a lawyer, Pam Teren, to represent her in a potential civil action against the company. Teren sent emails to the company’s lawyer, Mike McGuiness, requesting that Merle Norman Cosmetics make certain assurances to Kelley before she returned to work.
The requested assurances included a written confirmation that Kelley would not be subject to retaliation due to her previous complaints of sexual harassment, and confirmation of her title, duties, pay and benefits.
Teren said that Kelley could no longer afford to remain on unpaid leave, and that Kelley wanted to resume work earlier than the McGuiness’ proposed start date.
McGuiness explained that the company was willing to take Kelley back, but that Kelley’s continued insistence on receiving assurances before her return was unreasonable. McGuiness said on Nov. 18 that due to the company’s unwillingness to satisfy Kelley’s demands, and Kelley’s unwillingness to return to work unless the company satisfied her requests, Merle Norman Cosmetics considered Kelley’s employment to be terminated.
Kelley applied for unemployment benefits, but Merle Norman Cosmetics argued that she was ineligible to receive the benefits because she had quit her job under the constructive voluntary quit doctrine.
The only reported decision to use the term, constructive voluntary quit, was Steinberg v. Unemployment Ins. Appeals Bd. (1978) 87 Cal.App.3d 582. The court, in that case, said that the rule applied when an employee “set in motion the chain of events which resulted in the employer’s having no choice except to terminate him.” The doctrine, the court explained, is a permutation of California Code Regulation §1256-1.
Merle Norman Cosmetics contended that Kelley was ineligible for the benefits under the doctrine because she insisted on conditions being met that the company had no obligation to satisfy, making it impossible to return her to work.
On appeal, Rubin reasoned that Kelley did not quit under §1256-1, which states that an employee is deemed to have quit by acting in a way that leaves an employer no alternative but discharge.
He explained, citing an example given in the statute, Kelley’s emailed requests were unlike a truck driver who loses his driver’s license after driving intoxicated, which renders it impossible for the driver to then perform his job.
He said:
“[T]his case is, at most, rife with ambiguity about the meaning of the emails from Kelley’s lawyer Teren’s emails never used the terms ‘demands’ or ‘conditions’. Instead, she referred to the items she wanted as requests and at no time said that Kelley would not return to work if Merle Norman did not comply.”
Rubin noted that the court did not express an opinion on whether Kelley’s requests were reasonable.
He explained that the constructive voluntary quit doctrine does not apply where an employee makes requests about employment matters, even if the employer is irritated by such requests.
He concluded:
“[T]he constructive voluntary quit doctrine requires the employer to overcome a rebuttable presumption against a finding of constructive quit. This can only be done by substantial evidence that an employee took some action that actually prevented the employer from retaining the employee, or made some unequivocal demand as a condition to his continued employment that the employer had not obligation to meet and that the employee reasonably knew would result in termination.”
The case is Kelley v. California Unemployment Insurance Appeals Board, 14 S.O.S. 735.
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