§ 1.10.4 The Legal Standard for Determining Whether a Constructive Discharge Has Occurred. Prior to enactment of A.R.S. § 23-1502, in a case arising under the Arizona Civil Rights Act, the Arizona Court of Appeals in Vernick Plumbing24 explained that a constructive discharge has occurred if "working conditions [are] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign."25 The court specifically rejected a body of case law that held that the employer must have imposed intolerable working conditions for the purpose of forcing an employee to resign in order for the employer's conduct to constitute a constructive discharge. Likewise, the Ninth Circuit noted that its definition of constructive discharge is similar to the Vernick Plumbing definition, and explained the following:
We have held that a constructive discharge occurs when, "looking at the totality of the circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.'"26
The language of the Arizona constructive discharge statute provides:
In any action under the statutes of this state or under common law, constructive discharge may only be established by either of the following:
1. Evidence of objectively difficult or unpleasant working conditions to the extent that a reasonable employee would feel compelled to resign, if the employer has been given at least fifteen days' notice by the employee that the employee intends to resign because of these conditions and the employer fails to respond to the employee's concerns.
2. Evidence of outrageous conduct by the employer or a managing agent of the employer, including sexual assault, threats of violence directed at the employee, a continuous pattern of discriminatory harassment by the employer or by a managing agent of the employer or other similar kinds of conduct, if the conduct would cause a reasonable employee to feel compelled to resign.27
In the cases prior to enactment of A.R.S. § 23-1502, both Arizona and federal courts required that conduct more egregious than mere discrimination or unlawful retaliation is necessary in order to constitute a constructive discharge. In the Vernick Plumbing decision, for example, the court noted that an employer's behavior towards an employee who brought a charge of sexual discrimination deliberately changed as a result of her filing the charge. The court observed that it was "not an unexpected result" that there would be tension and a coolness in the relationship between the employee and the employer after the charge was filed; however, the court upheld the trial court's conclusion that the employer's treatment of the employee did not constitute a constructive discharge.28
A similar result occurred in Thomas v. Douglas,29 which involved a whistleblower who reported possible criminal violations by two of his supervisors in the Pima County Sheriff's Department. The plaintiff alleged that he feared for his personal safety in being assigned to the Ajo Sheriff's Office because he feared retaliation by the supervisors who were the subject of his internal affairs complaint. The court held that he was not constructively discharged by his continued assignment to the Ajo office despite his fear that he was in "imminent" danger as a result of his continued presence in Ajo. The court noted that his "discomfort, however, was as likely the product of human nature as of anything that [the employer] did or failed to do."30 In affirming the summary judgment for the employer, the court noted that "the...
