                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 27 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JANET WHEELER, an individual,                    No.   17-55560

              Plaintiff-Appellant,               D.C. No.
                                                 3:15-cv-02236-CAB-AGS
 v.

HOME DEPOT USA, INC.; DOES 1-10,                 MEMORANDUM*

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                      Argued and Submitted October 22, 2019
                               Pasadena, California

Before: KLEINFELD, PAEZ, and CALLAHAN, Circuit Judges.

      Janet Wheeler appeals the district court’s decision to grant summary

judgment on her California Fair Employment and Housing Act (FEHA) and

wrongful termination claims against her former employer, Home Depot. We

review a grant of summary judgment de novo. Adcock v. Chrysler Corp., 166 F.3d



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1290, 1292 (9th Cir. 1999). This court has jurisdiction over her appeal under 28

U.S.C. § 1291, and we vacate the judgment and remand for further proceedings.

      A determination of constructive discharge is normally a factual question left

to the trier of fact. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007).

“Under the constructive discharge doctrine, an employee’s reasonable decision to

resign because of unendurable working conditions is assimilated to a formal

discharge for remedial purposes. The inquiry is objective: Did working conditions

become so intolerable that a reasonable person in the employee’s position would

have felt compelled to resign?” Id. (quoting Penn. State Police v. Suders, 542 U.S.

129, 141 (2004)).

      Under California law, to establish a constructive discharge, “an employee

must plead and prove, by the usual preponderance of the evidence standard, that

the employer either intentionally created or knowingly permitted working

conditions that were 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 be compelled to resign.” Scotch v. Art Inst. of

Cal.-Orange Cty., Inc., 173 Cal. App. 4th 986, 1022 (2009) (quoting Turner v.

Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251 (1994)). “Whether conditions were so

intolerable or aggravated under that standard is usually a question of fact; however,


                                          2
summary judgment against an employee on a constructive discharge claim is

appropriate when, under the undisputed facts, the decision to resign was

unreasonable as a matter of law.” Id.

      When evaluating whether the conditions of employment have become so

intolerable as to constitute constructive discharge we consider the totality of the

circumstances. See Watson v. Nationwide Ins. Co, 823 F.2d 360, 361 (9th Cir.

1987). An employee is constructively discharged when “looking at the totality of

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.’” Id. (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir.

1984)).

      Here the proffered evidence, taken in the light most favorable to Wheeler,

raises substantial questions as to whether Home Depot created intolerable

conditions that forced Wheeler to resign. After working for Home Depot for

twenty years, and receiving excellent reviews, raises, and bonuses the preceding

three years, Wheeler in April 2014 received a first Progressive Disciplinary Notice

from her district manager. Wheeler testified that he told her that he was being

pressured to ensure store managers were being held accountable, and repeatedly

apologized to her for having to give her the notice. In addition, Wheeler proffered


                                           3
some evidence that management sought to get rid of older managers because they

had high salaries. Wheeler complained about feeling unfairly targeted to her

human resources manager. After a new district manager was appointed, Wheeler

received additional negative performance reviews and on July 30, 2014, received a

second Progressive Disciplinary Notice.

       On August 14, 2014, Wheeler’s store was inspected and received all green

and yellow scores. The store was again inspected on August 20, 2014 and received

all green scores. Nonetheless, on August 25, 2014, the human resources manager

issued Wheeler a Manager’s Note stating that there had been no improvement in

the past four months. Wheeler was also notified that her store had been ranked in

the top five of the district.

       On the same day, the district operations officer, Alex Taylor, sent an email

to all the store managers in his district outlining the issues Home Depot had been

having with Wheeler and noting that she “will be receiving her Final [write up] this

week[.]” Two minutes later Taylor sent an email asking that his prior email be

deleted, and fourteen minutes later he sent another email to the same recipients

apologizing for sending an email that was not intended for them and that contained

privileged information.




                                          4
      Three days later the human resources manager met with Wheeler and during

the course of the meeting asked her, off the record, whether she knew anybody

who could hire her. Wheeler interpreted the comment to indicate that she was

being targeted for termination. Wheeler resigned on August 29, 2014.

      Home Depot asserts that Taylor’s email was sent by accident. However, a

jury would not be required to accept Home Depot’s explanation and could well

find that the broadcasting of Wheeler’s disciplinary issues to all the store managers

was intentional and had a devastating impact on her credibility and ability to work

with her colleagues. In light of the totality of the circumstances, including

Wheeler’s indications of age and gender discrimination, her past excellent

performance reviews, and the inspections of her store, we cannot conclude that a

reasonable jury could not find that Home Depot had created conditions that were

so intolerable that a reasonable person in Wheeler’s position would have felt

compelled to resign. See Poland, 494 F.3d at 1184.

      Accordingly, because Wheeler has raised triable issues of material fact on

the constructive discharge element of her claims, the district court’s grant of

summary judgment on her FEHA claims and her common law wrongful




                                           5
termination claim is vacated. We remand to the district court for further

consideration in light of this disposition.

      VACATED AND REMANDED.




                                              6
                                                                            FILED
Wheeler v. Home Depot USA, Inc., et al No. 17-55560
                                                                             DEC 27 2019
Kleinfeld, Senior Circuit Judge, dissenting:                             MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


      I respectfully dissent.



      The question presented on which we resolve the case is not whether Wheeler

was treated unfairly, or discriminated against on account of her age. We address

only “constructive discharge,” because that is the issue in dispute.



      Since Wheeler was not fired or otherwise disciplined, the question before us

is whether there was evidence from which a jury could conclude that Home Depot

“intentionally created or knowingly permitted” working conditions that “were so

intolerable or aggravated” that when she quit, a reasonable employer would realize

that a reasonable person in her position would feel compelled to resign.1 The

mediocre reviews she began receiving do not amount to constructive discharge,

because “mere oral or written criticism of an employee . . . does not meet the

definition of an adverse employment action under FEHA.”2 This case hinges on

the email sent to all store managers in the district saying that she was going to


      1
          King v. AC & R Advert., 65 F.3d 764, 767 (9th Cir. 1995).
      2
          Akers v. Cty. of San Diego, 116 Cal. Rptr. 2d 602, 613 (Cal. Ct. App.
2002).
receive a final write up, that is, that she was about to be fired. This certainly would

be embarrassing or humiliating for any employee, and arguably it does not fall

within the category of “mere oral or written criticism,”3 or at the least a jury could

find that it did not. Assuming that Home Depot by this email did indeed create

intolerable working conditions such that an employee would be compelled to

resign, whether that amounts to constructive discharge depends on whether the

employer “intentionally” created them or “knowingly permitted” them.4



      There is no evidence in the record showing that the humiliating email was

sent to all store managers intentionally or that Home Depot chose to permit it to be

sent to all store managers. The district operations officer who sent it retracted it

immediately “2 minutes after sending it.” And 14 minutes later, he retracted it

again, apologizing for sending it. And subsequently, he was disciplined for having

sent it. That is quite a lot of evidence that it was so sent accidentally, not

intentionally, and that Home Depot, far from permitting the email to be sent to all

store managers, punished the sending.



      3
          Id.
      4
       Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101, 114–15 (Cal. Ct.
App. 1997).

                                            2
      There was nothing unreasonable about Wheeler inferring that she was likely

soon to be fired, and quitting before that happened. But quitting when firing seems

likely is just not the same thing as being fired. People do it precisely to avoid

being fired, thereby avoiding the black mark of dismissal on their resumes. After

all, “[t]he proper focus is on whether the resignation was coerced, not whether it

was simply one rational option for the employee.”5




      5
          Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1246 (Cal. 1994).

                                           3
