                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JAMES D. WALLACE,                         No. 03-56552
               Plaintiff-Appellant,
                                             D.C. No.
               v.
                                          CV-01-00703-
CITY OF SAN DIEGO; CITY OF SAN               JM/RBB
DIEGO POLICE DEPARTMENT,
                                            OPINION
            Defendants-Appellees.
                                      
       Appeal from the United States District Court
          for the Southern District of California
        Jeffrey T. Miller, District Judge, Presiding

                 Argued and Submitted
            May 4, 2005—Pasadena, California

                   Filed August 25, 2006

    Before: James R. Browning, Raymond C. Fisher, and
               Jay S. Bybee, Circuit Judges.

               Opinion by Judge Browning;
                 Dissent by Judge Bybee




                           10171
                 WALLACE v. CITY OF SAN DIEGO              10175
                          COUNSEL

Carolyn Chapman, Coronado, California, for the appellant.

Mark Stiffler, Deputy City Attorney, San Diego, California,
for the appellee.


                          OPINION

BROWNING, Circuit Judge:

   Plaintiff-Appellant James D. Wallace appeals the district
court’s order granting the Defendant-Appellee City of San
Diego’s (“City”) motion for judgment as a matter of law and
conditionally granting a new trial. The district court issued its
order after a jury found that the City retaliated against Wal-
lace in violation of the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 et
seq., and awarded him $256,800 in damages. Wallace also
appeals the district court’s finding that the jury verdict “was
against the great weight of the evidence.” In addition, Wallace
seeks reversal of the jury’s finding that the City’s violations
of USERRA were not willful, precluding an assessment of
liquidated damages.

   We have jurisdiction over this appeal of the final judgment
of the district court under 28 U.S.C. § 1291(a). We reverse the
district court’s grant of judgment as a matter of law as well
as its conditional grant of a new trial. We hold that the jury’s
finding that the City constructively discharged Wallace and
took other retaliatory actions against him in violation of
USERRA was supported by substantial evidence and was not
contrary to the great weight of the evidence. However, we
affirm the jury’s determination that liquidated damages
should not be awarded because Wallace failed to preserve the
issue for appeal.
10176            WALLACE v. CITY OF SAN DIEGO
                                I.

   Wallace was employed as a police officer with the San
Diego Police Department (“SDPD”) from March 28, 1975
until October 10, 2000. In 1981, Wallace applied and was
selected for a position as a police detective. In 1984, the
SDPD promoted Wallace to the position of Sergeant.

   Beginning in 1982, Wallace served as an officer in the
Naval Reserve. As a reserve officer, Wallace served annual
tours of active duty of two to three weeks, typically using paid
leave time from the SDPD to do so. In 1991, Wallace was cal-
led up on active duty and served seven months in Operation
Desert Storm in Iraq. Upon his return to the SDPD from Iraq,
Wallace applied numerous times for promotions beyond the
level of Sergeant, but was never considered. After serving in
Iraq, Wallace continued to serve annual tours of duty. Upon
returning from military leave in 1994, and again in 1995 and
1996, the SDPD assigned Wallace to a division of the depart-
ment far from his home and gave him undesirable or reduced
responsibilities. This occurred despite Wallace’s seniority and
that there were more convenient and more desirable assign-
ments available within the department.

   In December 1996, after serving 97 days of active duty,
Wallace was assigned to the SDPD’s Southern Division and
began reporting to Lieutenant Jorge Guevara. In 1997, Gue-
vara initiated an investigation of an incident in which Wallace
was accused of striking a female police officer on the buttocks
with a newspaper. The incident occurred as Wallace
instructed the officer and several other officers with whom
she was talking after a meeting to get back to their duty sta-
tions. During the investigation, Wallace stated that he was not
aware that the newspaper he was carrying had struck the offi-
cer, and that, if it had, it was accidental. Nevertheless, in April
1997, three days before Wallace again left for military duty,
Guevarra issued Wallace a reprimand and a disciplinary trans-
fer. Wallace testified that in his experience as a supervisor,
                WALLACE v. CITY OF SAN DIEGO             10177
this discipline was unusually harsh. However, Wallace did not
appeal the decision as department policy permitted him to do,
because he was leaving on active duty in three days, and as
it was the first discipline he had received, he had no reason
to believe it would become part of a pattern.

   In July 1997, Wallace was assigned to investigate a citi-
zen’s complaint about a subordinate officer, James Needham.
Shortly thereafter, in August 1997, Wallace served a brief
tour of active duty. Upon his return, he completed his investi-
gation and submitted it to Guevara. Guevara rejected the
report and asked Wallace to make a number of changes. Wal-
lace testified that in his time as a sergeant, he had never had
a report rejected by a superior. Nevertheless, he made the
requested changes and again turned the report in to Guevara,
who again rejected it requesting further changes. Wallace
once more made the requested changes. In October 1997,
prior to having the completed report of the investigation
approved, Wallace was called up for an extended tour of
active duty. Prior to leaving on active duty, Wallace gave a
copy of the draft report and underlying investigative materials
to Officer Needham, the subject of the investigation. Wallace
testified that he believed that under the State law, Needham
had a right to see a copy of the report, and that this right
trumped contrary department regulations, which in any event
predated the state law. However, when Wallace returned from
active duty in April of 1998, he was faced with an investiga-
tion and disciplinary proceedings concerning this conduct. As
a result, Guevara served Wallace with a notice of adverse
action which Wallace appealed to the police chief, who
affirmed the disciplinary action.

   In addition, upon his return, Wallace received his annual
performance evaluation from Guevara, which covered the
period September 1996 to September 1997. It was the first
“below standard” evaluation he had received in his career
with the SDPD. The evaluation cited a number of reasons for
the below standard rating, including the alleged newspaper
10178           WALLACE v. CITY OF SAN DIEGO
incident. It also included a number of other instances of
alleged misconduct which Guevara testified he had been
informed of but, contrary to department policy, had not inves-
tigated. Wallace testified that in his experience, annual evalu-
ations were not to be based on unsubstantiated or
uninvestigated allegations, and he believed these instances
were improperly considered in his rating. As a result of this
evaluation, Wallace was placed on a 90 day supplemental per-
formance review. In July of 1998, he received a rating of
“competent.”

   Wallace testified that the usual procedure in the SDPD was
to give an officer the annual performance evaluation very
soon after the end of the year the evaluation covered, in this
instance, in September 1997. Wallace told the jury that a sup-
plemental performance review is intended to allow an officer
a chance to correct poor performance, and is therefore
intended to be imposed as soon after the incidents giving rise
to the poor performance review as possible. In this instance,
Wallace did not receive the supplemental performance review
until many months after the end of the period for which he
received the negative evaluation. Had Lieutenant Guevara put
Wallace on a supplemental performance review in September
1997, Wallace would have been on military leave during most
of the supplemental review period. Wallace suggested that
Guevara departed from department practices and gave him the
performance review when he returned as a punitive measure.

   In August 1998, Wallace served a three week tour of active
duty. In September, shortly after his return, he again received
an annual rating of “below standard” predicated primarily on
the disclosure of the investigatory information to Officer
Needham.

   In February 1999, Wallace learned that he was going to be
called up for an extended tour of duty in Bosnia. At around
the same time, division Captain Cheryl Ann Meyers denied
Wallace’s request to teach at the police academy on his day
                 WALLACE v. CITY OF SAN DIEGO              10179
off, though he had been doing so regularly since the early
1980s. Also in February, Guevara inquired whether Wallace
could provide documentation of his attendance at weekend
naval reserve drills. Wallace testified that his drills had never
conflicted with his work schedule, and that such documenta-
tion had never been required of him before. He knew of no
other reservist in the department who was required to provide
it. On March 2, 1999, Wallace was given a one-day suspen-
sion as a result of the Needham incident.

   In March 1999, Wallace was called up for active duty in
Bosnia, and received orders running through July 1999. At
that point, Wallace had attended no weekend drills since Gue-
vara’s request for documentation. Subsequently, Wallace’s
orders were extended until September 29.

   On August 2, after Wallace had been away on military
leave for over four months, and at about the time his tour was
extended for a further 60 days, Guevara initiated an investiga-
tion of Wallace for teaching at the police academy on his day
off without approval. In the same disciplinary package, Gue-
vara initiated disciplinary action for Wallace’s failure to pro-
vide documentation from his naval reserve commanding
officer that he had attended his weekend drills, even though
he had only inquired about such documentation two weeks
prior to Wallace’s leaving for Bosnia and had not ordered him
to provide it, and despite Wallace’s having attended no drills
since that inquiry.

   On August 4, while still in Europe, Wallace received the
orders extending his tour of duty until September 29. Because
the orders were back to back with his previous orders, Wal-
lace was not required to fill out an additional notice of leave
form with the police department. On the day he received his
new orders, he faxed them to Guevara. On that same day,
however, Guevara began a disciplinary investigation on Wal-
lace for his failure to report to work on August 3, the day he
had been expected back from his original orders.
10180            WALLACE v. CITY OF SAN DIEGO
   Wallace returned from Bosnia on September 25 and took
four days of military leave. On October 1, 1999, he received
new military orders for a tour of duty in Bosnia running
through March 2000. He delivered those orders to the SDPD
on October 2, and filled out a leave request form. Because
Guevara was not in the office, Wallace left the orders with
Guevara’s assistant. Pursuant to his orders, he then left for
Bosnia. Upon reviewing the orders and the request for leave,
Guevara refused to approve Wallace’s military leave. On Jan-
uary 5, 2000, while Wallace was on active duty in Bosnia,
Guevara began another investigation for Wallace’s failure to
report to work on October 2, 1999, and for being absent with-
out leave after Guevara had refused to approve his leave
request. At trial, Guevara testified that his intent was to disci-
pline Wallace for his failure to inform the department of his
whereabouts, rather than for failing to report to work. How-
ever, he admitted that the charge was for failure to report to
work on a day when Wallace was on active military duty. He
also admitted that he was without the authority to disapprove
the leave request.

   Shortly before Wallace returned from Bosnia in March
2000, Guevara and Meyers initiated termination proceedings
against him based upon the three disciplinary packages Gue-
vara had filed while Wallace was away on active duty. The
termination package was served on Wallace on April 2, a few
days after his return. Wallace returned to work under Guevara
a month later, and on May 19, appealed his termination to the
Assistant Chief of Police, Rulette Armstead. On June 27,
Chief Armstead issued a five-page order rescinding the rec-
ommendation for termination and instead imposed a four-day
suspension. In issuing the suspension, Chief Armstead con-
cluded that Wallace had been “less than responsible in notify-
ing [his] command of [his military] duty status in a timely
manner” in August and October 1999, all the while recogniz-
ing that it was not reasonable for the SDPD to expect Wallace
either “to report for duty at the Police Department when [he
is] under military orders” or “to fill out a Leave of Absence
                WALLACE v. CITY OF SAN DIEGO              10181
form in a timely manner if [he] is out of the country and under
extended military orders.” [ER 65] In addition, although Chief
Armstead agreed that Guevara “did not have the authority to
deny [Wallace’s] request for military leave of absence,” she
nonetheless issued Wallace a warning that “further instances
of misconduct” would be grounds for “more stringent action,”
including “termination.” [ER 65]

   Four days later, on July 1, 2000, Wallace was transferred
from the Eastern Division to the Northern Division, much
closer to his home. Wallace testified that he welcomed the
transfer because he would no longer be working for Guevara,
that he “[got] along pretty well” with his new supervisors and
that he did not have negative experiences with them. How-
ever, on August 17, 2000, a month-and-a-half into the new
assignment, Guevara nonetheless served on Wallace a perfor-
mance evaluation of “unacceptable” for the previous year
based on the disciplinary actions taken against him while he
had been serving on active duty in Bosnia. In conjunction
with this report, Guevara placed Wallace on another 90-day
supplemental performance review, notwithstanding that Wal-
lace was no longer under his direct command.

  The following month, Wallace was assigned to investigate
a citizen’s complaint against one of his officers. When he
spoke to the citizen, whom Wallace described as mentally
impaired, she threatened to file a discrimination complaint
against him if he failed to substantiate her complaint. With
more than a month left on his supplemental performance
review period, Wallace resigned from the SDPD on October
10, 2000.

   At trial, Wallace sought to prove under USERRA that his
resignation in fact constituted constructive discharge and that
this and a number of the City’s other adverse employment
actions were undertaken in retaliation for exercising his rights
as a military reservist. After receiving instructions that an
adverse employment action includes constructive discharge,
10182           WALLACE v. CITY OF SAN DIEGO
reprimand, suspension or a decision causing a significant
change in benefits, a jury found that the SDPD had retaliated
against Wallace in violation of USERRA and awarded dam-
ages of $256,800. The district court set aside this verdict as
“not supported by substantial evidence” and granted the
SDPD’s renewed motion for judgment as a matter of law, or,
in the alternative, a new trial.

                              II.

   We review the district court’s grant of judgment as a matter
of law de novo. Gilbrook v. City of Winchester, 177 F.3d 839,
864 (9th Cir. 1999). In reviewing a grant of judgment as a
matter of law, we apply the same standard used by the district
court in evaluating the jury’s verdict. Freund v. Nycomed
Amersham, 347 F.3d 752, 760 n.8 (9th Cir. 2003). A jury’s
verdict must be upheld if it is supported by substantial evi-
dence. Johnson v. Paradise Valley Unified School District,
251 F.3d 1222, 1227 (9th Cir. 2001). “Substantial evidence is
evidence adequate to support the jury’s conclusion, even if it
is also possible to draw a contrary conclusion from the same
evidence.” Id. In making this determination, the court must
not weigh the evidence, but should simply ask whether the
plaintiff has presented sufficient evidence to support the
jury’s conclusion. See id. at 1227-28. While the court must
review the entire evidentiary record, it must disregard all evi-
dence favorable to the moving party that the jury is not
required to believe. Id. at 1227. The evidence must be viewed
in the light most favorable to the nonmoving party, and all
reasonable inferences must be drawn in favor of that party. Id.
Judgment as a matter of law may be granted only where, so
viewed, the evidence permits only one reasonable conclusion,
and that conclusion is contrary to the jury’s verdict. McLean
v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000).

   In determining whether an employer retaliated against a
reservist for exercising his rights under USERRA, we must
first decide whether the employee exercised such rights,
                   WALLACE v. CITY OF SAN DIEGO                     10183
thereby coming within the class of persons protected by the
statute. If so, then we apply the burden-shifting framework
approved by the Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393, 401 (1983). See Leisek v.
Brightwood Corp., 278 F.3d 895, 898-99 (9th Cir. 2002).
“Under the scheme set forth in Transportation Management,
the employee first has the burden of showing, by a preponder-
ance of the evidence, that his or her protected status was ‘a
substantial or motivating factor in the adverse [employment]
action;’ the employer may then avoid liability only by show-
ing, as an affirmative defense, that the employer would have
taken the same action without regard to the employee’s pro-
tected status.” Id. at 899 (alteration in the original).

                                   III.

                                    A.

    [1] USERRA prohibits employers from taking “any adverse
employment action against any person because such person
. . . (4) has exercised a right provided for in this chapter.” 38
U.S.C. § 4311(b).1 To the extent the district court concluded
that actions taken prior to the time Wallace submitted his
application for reemployment on April 4, 2000 could not as
a matter of law be retaliatory, it was incorrect. Section 4312
of USERRA provides a right to reemployment for members
of the armed services who (1) properly notify their employers
of the need for a service-related absence, (2) take cumulative
absence of no more than five years and (3) properly report to
work or reapply for employment, depending upon the length
of the absence. 38 U.S.C. § 4312. An employee exercises this
right whenever he seeks reemployment after complying with
  1
    Although the term “retaliation” is not used in USERRA, the gravamen
of this section is to prohibit adverse employment actions taken in retalia-
tion for the exercise of the rights provided by USERRA. See Gagnon v.
Sprint Corp., 284 F.3d 839, 853 (8th Cir. 2002) (Section 4311(b) sets out
“[t]he USERRA standard for retaliation claims”).
10184                WALLACE v. CITY OF SAN DIEGO
the requirements of the section.2 The employee need not cite
the appropriate sections of the statute when seeking reemploy-
ment or notify the employer of its legal obligation to reem-
ploy him.

   [2] On April 4, 2000, after taking military leave of more
than 31 days, Wallace invoked his right to reemployment in
conformance with USERRA by submitting a formal applica-
tion for reemployment. However, even before this date, Wal-
lace had repeatedly exercised his USERRA right to
reemployment when on several occasions he gave proper
notice of his need for a service-related absence, took military
leave totaling less than 31 days on each occasion and reported
to work within the time the statute prescribes. See 38 U.S.C.
§ 4312(a) and (e)(1)(A). Further, evidence in the record sug-
gests Wallace’s relationship with his superiors was strained at
least in part due to his military service, which permits an
inference that adverse employment actions were taken even
before April 2000 because of his exercise of rights protected
by USERRA.

                                       B.

   [3] Constructive discharge occurs when, “looking at the
totality of the circumstances, ‘a reasonable person in [the
  2
    USERRA sets forth the following requirements for the exercise of the
right to reemployment: A person whose military leave was less than 31
days is entitled to USERRA’s reemployment rights and benefits if that
person “notif[ies] the employer . . . of [his or her] intent to return to a posi-
tion of employment . . . . by reporting to the employer” upon completion
of the period of service. 38 U.S.C. § 4312(e)(1)(A). By contrast, a person
whose period of service was for more than 30 days but less than 181 days
is required to notify the employer of his intent to return “by submitting an
application for reemployment not later than 14 days after the completion
of the period of service.” Id. at § 4312(e)(1)(C). If the period of service
was for more than 180 days, the employee has 90 days to submit an appli-
cation for reemployment. Id. at § 4312(e)(1)(D). The jury was correctly
instructed on the details of this statutory scheme. See Jury Instruction No.
15.
                    WALLACE v. CITY OF SAN DIEGO                     10185
employee’s] position would have felt that he was forced to
quit because of intolerable and discriminatory working condi-
tions.’ ” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361
(9th Cir. 1987) (alteration in the original).3 We have said that
“[i]n such cases the individual has simply had enough; she
can’t take it anymore.” Draper v. Coeur Rochester, Inc., 147
F.3d 1104, 1110 (9th Cir. 1998). “Whether working condi-
tions were so intolerable and discriminatory as to justify a rea-
sonable employee’s decision to resign is normally a factual
question for the jury.” Schnidrig v. Columbia Mach., Inc., 80
F.3d 1406, 1411 (9th Cir. 1996). In order to prevail, “a plain-
tiff alleging a constructive discharge must show some aggra-
vating factors, such as a continuous pattern of discriminatory
treatment.” Id. at 1412.

   Although “a single isolated incident is insufficient as a mat-
ter of law to support a finding of constructive discharge,” id.
at 1411-12, “we have upheld factual findings of constructive
discharge when the plaintiff was subjected to incidents of dif-
ferential treatment over a period of months or years.” Watson,
823 F.2d at 361; accord Satterwhite v. Smith, 744 F.2d 1380,
1383 (9th Cir. 1984); see also Goss v. Exxon Office Sys. Co.,
  3
    Where a plaintiff alleges constructive discharge in violation of a fed-
eral statute, constructive discharge is governed by a federal standard. See
Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (setting out
standard for constructive discharge under Title VII). The dissent suggests
that Wallace’s USERRA claim may be governed by state law because
constructive discharge, here asserted as a violation of his federally pro-
tected rights, can also be asserted as an independent cause of action under
state law. We find no support for this view in the cases. Suders lays out
an objective standard for constructive discharge without reference to state
law. Suders, 542 U.S. at 141. Moreover, cases such as Suders, applying
constructive discharge in the Title VII context, adapted the theory from the
labor relations field, where it has, from the beginning, been an issue of
federal law. See id. (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894
(1984)); see generally Goss v. Exxon Office Systems Co., 747 F.2d 885,
888 (3d Cir. 1984) (tracing history of constructive discharge and citing
cases).
10186              WALLACE v. CITY OF SAN DIEGO
747 F.2d 885, 887-89 (3d Cir. 1984); Real v. Continental
Group, Inc., 627 F. Supp. 434, 443-44 (N.D. Cal. 1986).

   [4] Here, Wallace offered evidence of a pattern of discrimi-
nation and retaliation by the SDPD based upon his military
status beginning as early 1991 and continuing through August
2000. The discriminatory conduct supported by the evidence
includes (1) failing to consider Wallace for promotion beyond
the level of sergeant; (2) imposing excessive and discrimina-
tory disciplinary action in response to actual misconduct (the
newspaper and Needham incidents); (3) refusing without jus-
tification or explanation to approve Wallace’s requests for
permission to teach at the Police Academy; (4) initiating
disciplinary proceedings for Wallace’s absence from work
while he was on military duty in August 1999; (5) Guevara’s
refusing to approve military leave on October 2, 1999; (6) ini-
tiating termination proceedings and suspending Wallace for
four days based on the foregoing discriminatory disciplinary
action; (7) threatening Wallace that further misconduct could
result in termination; and (8) issuing an “unacceptable” rating
and putting Wallace on an additional 90-day supplemental
performance review as late as August 2000. Although the evi-
dence may have permitted the jury to conclude that some of
this conduct was not retaliatory or discriminatory, but legiti-
mate discipline, it did not compel such a conclusion, particu-
larly when viewed, as it must be, in the light most favorable
to Wallace. See Johnson, 251 F.3d at 1229. Moreover, Wal-
lace presented evidence of a continuing pattern of hostile and
discriminatory conduct that went largely unaddressed by the
SDPD. This evidence was sufficient to permit the jury to con-
clude that the intolerable situation had not abated at the time
of Wallace’s resignation, and therefore, that a reasonable per-
son in his position would have felt compelled to quit even as
late as October 2000.4
  4
   The dissent raises the specter that our conclusion in this regard would
give Wallace “a free ticket to complain at any time after the actions taken
                   WALLACE v. CITY OF SAN DIEGO                     10187
   The district court placed considerable emphasis on evi-
dence that Wallace’s working conditions had improved some-
what in the time period immediately preceding his
resignation, that there had been a delay between the time of
the last overt discriminatory action to which he had been sub-
jected and his resignation and that the event immediately pre-
cipitating his resignation was unrelated to his military service
or to any discriminatory action on the part of the police
department. But none of these factors precludes a conclusion
that Wallace was constructively discharged. Similarly, the
dissent maintains that we have disregarded the requirement
that the intolerable conditions exist at the time of the employ-
ee’s resignation. Dissent at 10197-98. Not so — instead, we
conclude that this standard is met here.

   First, although Wallace’s transfer to the Northern Division
may have incrementally improved his working conditions, the
jury could have concluded, based on Guevara’s “unaccept-
able” performance evaluation and related 90-day supplemen-
tal review in August 2000 — roughly 45 days into his new
assignment — that Guevara was still willing and able to take
continued discriminatory action against Wallace even after his
transfer from the Eastern Division.5 Moreover, viewing the

against him in the Eastern Division” and that “there was nothing SDPD
could have done to correct the situation.” Dissent at 10201. But our hold-
ing does not go so far as to preclude a finding in a proper case that the
conditions of employment have sufficiently changed to bar a claim of con-
structive discharge. Rather, we hold that, given the fact-intensive nature
of the reasonableness inquiry, see Schnidrig, 80 F.3d at 1411, the evidence
in this case permitted the jury to conclude that “a reasonable person in
[Wallace’s] position would have felt that [he] was forced to quit because
of intolerable and discriminatory working conditions,” notwithstanding
some mitigating changes in employment conditions had occurred since his
transfer to the Northern Division on July 1, 2000.
   5
     Although the dissent characterizes Guevara’s August 17 evaluation as
a mere “reminder of the conduct that the City had cured a month-and-a-
half earlier by transferring Wallace to the Northern Division,” Dissent at
10188               WALLACE v. CITY OF SAN DIEGO
evidence in the light most favorable to Wallace, the jury could
have determined that the SDPD condoned the discriminatory
behavior, given that the department had taken no disciplinary
action against Guevara or Meyers, the two Eastern Division
supervisors who had carried out the bulk of the retaliatory
conduct. Indeed, in her order rescinding the termination rec-
ommendation and imposing the four-day suspension, Chief
Armstead conceded that Guevara “did not have the authority
to deny” Wallace’s requests for military leave of absence.
Thus, this case is distinguishable from the cases cited by the
dissent, because the evidence here permitted a reasonable jury
to conclude that Wallace’s employment conditions had not
sufficiently changed to preclude a constructive discharge
claim, notwithstanding his transfer to the Northern Division.
See Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.
1999) (harassing supervisors disciplined or fired months
before alleged constructive discharge); Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994) (same).

   [5] In addition, given Wallace’s past experience with the

10198 n.3, this is an impermissible inference from the evidence drawn in
favor of the SDPD. Viewing Guevara’s evaluation in the light most favor-
able to Wallace, a jury could have concluded that the transfer to the North-
ern Division did not necessarily put an end to his “intolerable and
discriminatory working conditions.” For example, the jury could have
concluded that Guevara retained supervisory authority over Wallace even
after his transfer to the Northern Division, based on Guevara’s 90-day
supplemental performance review, which he issued well after Wallace had
been transferred. Indeed, this evidence supports the inference that Wallace
was facing another performance review at the expiration of the supple-
mental review period on November 17, 2000, perhaps with input from
Guevara, and that such a review would likely include whatever transpired
from the citizen’s complaint. Our cases make clear that in reviewing a
jury’s verdict, we may not weigh the evidence (as the dissent would),
because we are charged only with determining whether substantial evi-
dence supports the jury’s finding of constructive discharge, “even if it is
also possible to draw a contrary conclusion from the same evidence.”
Johnson, 251 F.3d at 1227-28.
                   WALLACE v. CITY OF SAN DIEGO                   10189
SDPD, the jury could have concluded that Wallace reasonably
feared subsequent transfer to a less desirable post or to Gue-
vara’s division again. Moreover, although he was no longer
working under Guevara or Meyers, Assistant Chief Armstead
was still at the top of his chain of command. She had imposed
the four-day suspension and had issued the threat that further
misconduct would be grounds for termination. Indeed, one
witness testified that Chief Armstead “had discriminatory ani-
mus or retaliatory motive towards Sergeant Wallace because
he was in the military.” And when asked whether the Chief
did not like people in the military, the witness responded, “she
didn’t like this individual [referring to Wallace] in the mili-
tary.” Further, Armstead’s testimony permitted the jury to
infer that her decision to suspend Wallace arose primarily
from his performance of his duties as a Naval reserve officer,
and it was not required to credit her assertions to the contrary.
The jury was permitted to consider all of this evidence and
balance it against any evidence that Wallace’s working condi-
tions had improved. See, e.g., Draper, 147 F.3d at 1110 n.2
(noting that “[t]he frequency and freshness of the instances of
harassment may enter into” a jury’s determination of con-
structive discharge, but that a jury is free to find constructive
discharge “under all of the circumstances”) (emphasis added).
Thus, although evidence of an improvement in working con-
ditions supported a conclusion contrary to that reached by the
jury, it did not require such a conclusion.6 Accordingly, the
  6
    Moreover, in asserting that Wallace cannot prevail on a constructive
discharge theory because his “working conditions were favorable for three
months before he resigned,” Dissent at 10196, the dissent again draws an
impermissible inference from the evidence in favor of the SDPD. Specifi-
cally, the dissent improperly reads Wallace’s testimony in the light most
favorable to the SDPD when it states that Wallace admitted that “hostile
conditions had abated for three months.” Dissent at 10198. However, in
light of Wallace’s prior experience with the Eastern Division, Guevara’s
August 2000 “unacceptable” rating and 90-day supplemental review and
the SDPD’s failure to reprimand Guevara or Meyers for their retaliatory
conduct, Wallace’s testimony supports only the conclusion that he did not
have negative experiences with his immediate supervisors in the Northern
Division during his three months there; it says nothing about Wallace’s
10190              WALLACE v. CITY OF SAN DIEGO
district court should not have usurped the jury’s basic fact-
finding authority, including the authority to weigh evidence
and draw inferences from it. See Johnson, 251 F.3d at 1227-
29.

   [6] Finally, that Wallace resigned almost immediately fol-
lowing a civilian’s threat to bring false charges of discrimina-
tion against him did not preclude the jury’s finding of
constructive discharge. Although the dissent is correct that the
threatened charges might have been groundless and not sur-
vived investigation, there was evidence to support the conclu-
sion that the department had a history of taking disciplinary
action against Wallace for pretextual reasons and without
investigation. The jury could have concluded that a reason-
able person in Wallace’s position legitimately would have
feared being subjected to such proceedings again, and that the
potential for such retaliatory conduct was high. Indeed, after
Wallace had been given the four-day suspension for reasons
the jury could permissibly have found pretextual, Chief Arms-
tead threatened Wallace with termination for any future mis-
conduct.

   The dissent would hold that the SDPD’s efforts to “accom-
modate” Wallace required him to give it the chance to “do the
right thing in response to the ‘5150’s’ threatened complaint.”
Dissent at 10202. But nothing in the evidence compels the
conclusion that the reduction of the SDPD’s retaliatory termi-
nation of Wallace to a retaliatory four day suspension was an
“accommodation,” and it is improper to view it as such. As
for the transfer, the record indicates that officers in the SDPD
were periodically transferred to different divisions, and that

relationship with Chief Armstead, Meyers or Guevara. See Dissent at
10198-99. The dissent’s contention that there is “nothing in the record on
[Wallace’s] relations with Armstead, Meyers or Guevara” ignores the evi-
dence of Guevara’s August 17 evaluation. Dissent at 10200 n.4. Given this
and other evidence, the jury was free to conclude that Wallace’s working
conditions remained hostile and intolerable, notwithstanding the transfer.
                    WALLACE v. CITY OF SAN DIEGO                     10191
Wallace had in the past been given undesirable transfers
despite his seniority. Thus, the jury reasonably could have
inferred that Wallace’s most recent transfer to his preferred
division was not an effort to “accommodate” him, but rather
the result of standard SDPD policy unrelated to his claims of
discriminatory conduct. Given this prior discriminatory treat-
ment of Wallace, the jury could have concluded that a reason-
able person would not have had the confidence to give the
department another chance to “do the right thing.”

   [7] In sum, evidence of the SDPD’s history of discrimina-
tory conduct, its failure to take action against Guevara and
Meyers and Guevara’s retaliatory “unacceptable” perfor-
mance rating and 90-day supplemental performance review
after Wallace’s transfer to the Northern Division, permitted
the jury to conclude that, despite the absence of discrimina-
tory action in the events immediately precipitating Wallace’s
resignation, the totality of the circumstances surrounding his
departure from the police department was such that a reason-
able person in his position would have felt that he had no
choice but to quit. See Watson, 823 F.2d at 361.7 Although the
evidence could be viewed to support a finding that Wallace’s
working conditions were “favorable” to the point of barring
a constructive discharge claim, as the dissent would conclude,
the jury saw it differently, and substantial evidence supports
its finding. We cannot disregard the jury’s verdict simply
because we would have weighed the evidence differently. Put
   7
     Unlike the dissent, we do not view as conclusive Wallace’s decision to
remain on the job for a relatively short period of time after the last overt
discriminatory action. Although the dissent would conclude otherwise, the
jury could have viewed Wallace’s efforts to stay on the job despite the
intolerable conditions as evidence that he indeed had “the normal motiva-
tion of a competent, diligent, and reasonable employee to remain on the
job to earn a livelihood and to serve his or her employer.” Brooks v. City
of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (internal quotations
marks omitted). And as we have already said, the rest of the evidence per-
mitted the jury to conclude that, despite such a motivation, a reasonable
person in Wallace’s position would have felt forced to resign.
10192           WALLACE v. CITY OF SAN DIEGO
another way, we do not disagree that a jury could have con-
cluded that Wallace failed to establish constructive discharge.
But viewing the evidence in the light most favorable to Wal-
lace and drawing all reasonable inferences in his favor — as
we must — we cannot say that the evidence permits only a
conclusion that is contrary to the jury’s verdict. See McLean,
222 F.3d at 1153.

   [8] On appeal, rather than show how the evidence fails to
support the jury’s verdict, the City engages in an effort to
reargue the facts of the case. The City first argues that a num-
ber of adverse actions taken against Wallace were legitimate,
and that it therefore rebutted any showing that the actions
were discriminatory. Even if the City offered evidence of
legitimate, non-discriminatory reasons for many of these
adverse actions — an issue on which it bore the burden of
proof — the jury was not required to credit this evidence.
Indeed, the evidence presented to the jury permitted an infer-
ence that these disciplinary actions, while within department
policy, were unusually harsh and simply provided a pretext
for the City to discriminate against Wallace because of his
military status. Moreover, the City fails to take into account
evidence offered by Wallace which suggested these legitimate
reasons were merely pretextual. For example, Everett Bobbitt
testified that in his experience, the SDPD had never required
a reservist to provide documentation of attendance at weekend
drills, although City personnel procedures permitted the
department to demand it. Accordingly, we cannot conclude
that the evidence compelled a finding that these actions were
not discriminatory.

   Similarly, the City argues — and the court below held —
that Wallace’s testimony that he liked his immediate superiors
and fellow officers in the division to which he was assigned
subsequent to his four-day suspension precludes a finding of
constructive discharge. While this improvement in conditions
is certainly relevant to Wallace’s claim of constructive dis-
                 WALLACE v. CITY OF SAN DIEGO              10193
charge, in light of the other evidence he presented, it does not
compel a conclusion contrary to that of the jury.

   [9] Because substantial evidence supported the jury’s ver-
dict, we conclude that the district court erred in granting judg-
ment as a matter of law.

                              IV.

   In the alternative to its grant of the City’s motion for judg-
ment as a matter of law, the district court granted the City’s
motion for a new trial, finding the jury’s verdict “against the
great weight of the evidence.” We review the district court’s
grant of a new trial for abuse of discretion. Silver Sage Part-
ners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 818
(9th Cir. 2001). The district court may grant a new trial only
if the jury’s verdict was against the clear weight of the evi-
dence. Id. at 819. “[A] district court may not grant a new trial
simply because it would have arrived at a different verdict.”
Id. Accordingly, “if the jury’s verdict is not against the clear
weight of the evidence, we may find that a district court
abused its discretion in granting a new trial.” Id. In addition,
“[i]f an exercise of discretion is based on an erroneous inter-
pretation of the law, the ruling should be overturned.” Miles
v. State of California, 320 F.3d 986, 988 (9th Cir. 2003) (cit-
ing In re Arden, 176 F.3d 1226, 1228 (9th Cir. 1999)).

   [10] As described above, the district court’s ruling was
based on two erroneous interpretations of the law. First, the
district court erroneously held that only adverse employment
actions taken after an employee formally asserts his statutory
rights may constitute retaliation, and that only such actions
may be considered in determining whether employment con-
ditions rose to the level required for a finding of constructive
discharge. Second, the district court erred in concluding that,
as a matter of law, the evidence did not support a finding of
constructive discharge. Because the district court based its
grant of a new trial on its analysis of the City’s motion for
10194           WALLACE v. CITY OF SAN DIEGO
judgment as a matter of law, these errors of law compel us to
conclude that the district court abused its discretion in order-
ing a new trial.

   In addition, after a careful review of the record, we hold
that the jury’s verdict was not against the great weight of the
evidence, and for this reason as well it was an abuse of the
district court’s discretion to grant the City’s motion for a new
trial.

                              V.

   Wallace additionally appeals the jury’s finding that the
City’s violations of USERRA were not willful, precluding an
assessment of liquidated damages. Wallace’s challenge to the
jury’s verdict on this issue is waived on appeal by his failure
to make a timely motion for judgment as a matter of law
under Fed. R. Civ. P. 50(b). Saman v. Robbins, 173 F.3d
1150, 1154 (9th Cir. 1999) (“Rule 50(b) is to be strictly
observed, and that failure to comply with it precludes a later
challenge to the sufficiency of the evidence on appeal.”) (cit-
ing Johnson v. New York, New Haven & Hartford R.R. Co.,
344 U.S. 48, 50 (1952); Cone v. West Virginia Pulp & Paper
Co., 330 U.S. 212, 217-18 (1947)). Accordingly, we decline
to address Wallace’s arguments on this issue.

                              VI.

   For the foregoing reasons, we REVERSE the district
court’s grant of judgment as a matter of law and its condi-
tional grant of a new trial. Accordingly, we VACATE the
judgment below and REMAND the case to the district court
with instructions to enter judgment on the jury’s verdict.



BYBEE, Circuit Judge, dissenting:

  James Wallace had a checkered past with the San Diego
Police Department (“SDPD”). On numerous occasions, he
                    WALLACE v. CITY OF SAN DIEGO                     10195
had been reprimanded, disciplined, and suspended. Wallace
was convinced that SDPD had it in for him, or at least that his
supervisors, Captain Myers and Lieutenant Guevara, wanted
to see him removed from the force. Wallace was further con-
vinced that Myers and Guevara’s disapproval of him was
related to his service in the United States Naval Reserves. On
May 19, 2000, after being suspended for multiple rules viola-
tions, Wallace was warned that he was receiving his last
chance and that any future violations would be taken seri-
ously.

   In July of 2000, SDPD transferred Wallace to a much more
favorable work assignment—the Northern Division—which
was the assignment Wallace had been seeking. Wallace’s new
work assignment was closer to Wallace’s home and Wallace
was no longer under the supervision of Myers or Guevara. In
his new work assignment, Wallace reported to two well-liked
and well-respected officers with whom Wallace had not expe-
rienced any problems. In fact, Wallace testified that he did not
have any difficulties in his new assignment and that his work-
ing conditions at the Northern Division were quite favorable.
Wallace’s working conditions in the Northern Division
remained favorable for the duration of Wallace’s employment
with SDPD, which lasted until Wallace abruptly resigned on
October 10, 2000.

   In the beginning of October, while Wallace was on duty
with SDPD, a “5150”—a woman with an apparent mental
problem—threatened to file a racial discrimination complaint
against Wallace.1 Without waiting to see if she filed the com-
plaint and without consulting his superiors, Wallace quit. He
then filed this suit, complaining that he had been construc-
tively discharged.
   1
     The term “5150” refers to California Welfare and Institutions Code
section 5150, which grants police officers authority to take into custody
for the purpose of treatment and evaluation individuals the officers believe
to be mentally disturbed. Wallace testified that officers use the term
“5150” to refer to individuals they believe to be mentally disordered.
10196            WALLACE v. CITY OF SAN DIEGO
   The district court held that Wallace could not, as a matter
of law, prevail on his claim of constructive discharge and
granted the city judgment as a matter of law. I think the dis-
trict court got it right. I part company with the majority for
two reasons. First, I do not believe the law permits Wallace
to claim constructive discharge more than three months after
the last incident of which Wallace could reasonably complain,
and at a time when SDPD had made every effort to accommo-
date him. Second, Wallace cannot bring a constructive dis-
charge claim when he quit on his own terms and when the
precipitating event was the possibility that someone outside
SDPD would file a claim against him. Without knowing
whether such a claim would be filed, whether the claim would
make sense, or whether SDPD would treat him fairly, Wallace
quit and claimed that he was constructively fired. Because I
do not think there is such a thing as a claim for “anticipatory
constructive discharge,” I respectfully dissent.
                                 I
   The majority concludes that “evidence that Wallace’s
working conditions had improved somewhat in the time
period immediately preceding his resignation, that there had
been a delay between the time of the last overt discriminatory
action to which he had been subjected and his resignation
. . . . [does not] preclude[ ] a conclusion that Wallace was
constructively discharged.” Maj. op. at 10187. I disagree. The
fact that Wallace’s working conditions were favorable for
three months before he resigned vitiates any claim he may
have had for constructive discharge. Furthermore, the fact that
SDPD had attempted to accommodate Wallace by transferring
him to his desired work assignment, where Wallace admitted
he enjoyed his work environment, establishes that Wallace
was not being constructively discharged when he quit. The
majority’s assertion to the contrary belies the law of this cir-
cuit as well as California’s law governing constructive dis-
charge.2


  2
   Although Wallace’s cause of action is based on the Uniformed Ser-
vices Employment and Reemployment Rights Act of 1994, 38 U.S.C.
                   WALLACE v. CITY OF SAN DIEGO                     10197
   We have long required that an employee asserting construc-
tive discharge establish that his or her working conditions
were “intolerable ‘at the time of the employee’s resigna-
tion.’ ” Steiner v. Showboat Operating Co., 25 F.3d 1459,
1465 (9th Cir. 1994) (quoting Brady v. Elixir Indus., 242 Cal.
Rptr. 324, 328 (Cal. Ct. App. 4 Dist. 1987), overruled by Tur-
ner v. Anheuser-Busch, Inc., 876 P.2d 1022 (Cal. 1994)); see
also Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.
1999); King v. AC&R Adver., 65 F.3d 764, 767 (9th Cir.
1995); accord Turner, 876 P.2d at 1026-27; Garamendi v.
Golden Eagle Ins. Co., 27 Cal. Rptr. 3d 239, 254 (Cal. Ct.
App. 2005); Cloud v. Casey, 90 Cal. Rptr. 2d 757, 761 (Cal.
Ct. App. 1999). We have previously held that an employee
may not sustain a claim of constructive discharge when the
intolerable working conditions stopped months before the
employee resigned. In Montero, for example, we affirmed
summary judgment in favor of the employer on an employ-
ee’s constructive discharge claim because the behavior com-
plained of had ceased three to four months prior to the
employee’s resignation. “By the time Plaintiff resigned she
was not subject to intolerable working conditions. . . . Plaintiff
was not constructively discharged, because no reasonable per-
son in Plaintiff’s position would have felt forced to quit when
she did.” Montero, 192 F.2d at 861. Similarly, in Steiner, we
again upheld judgment for the employer on an employee’s
constructive discharge claim because the employee had been
restored to her favored shift and the employer had fired the
manager who was making her work environment intolerable
two-and-one-half months previously. “Taken together, these
facts suggest that . . . [the manager’s] sexual harassment had
been halted some time before she quit.” Steiner, 25 F.3d at
1466. California courts have been equally strict in considering
whether working conditions were intolerable at the time of an

§§ 4301 et seq. (“USERRA”), the theory he asserts is constructive dis-
charge, which is a state law cause of action. Therefore, I examine Califor-
nia law in addition to our own precedent.
10198               WALLACE v. CITY OF SAN DIEGO
employee’s resignation. In Garamendi, for example, the Cali-
fornia Court of Appeal held that an employee could not sus-
tain his constructive discharge claim because the employee
resigned one month after control of his company had changed
hands and the adverse treatment had stopped. 27 Cal. Rptr. 3d
at 255.

   By his own admission, at the time Wallace resigned, hostile
conditions had abated for three months. Wallace testified that
between July 1, 2000, and the date he resigned, October 10,
2000, he did not experience any friction or unpleasantries
with any of his co-workers or superiors.3 Specifically, when
asked, “It’s fair to say that you were happy as a bug in a rug
to get out of Eastern [Division] and up to Northern [Divi-
sion],” Wallace replied, “The change of scenery was very
nice, yes.” Counsel for the city continued, “But [the Northern
Division] was certainly more favorable to you in terms of the
  3
    Although Wallace received an “unacceptable” rating on his perfor-
mance review on August 17, 2000, the performance evaluation does not
change the fact that Wallace’s last three-and-one-half months of employ-
ment were free from retaliatory conduct. The performance evaluation was
based on Wallace’s performance during the year prior to his transfer to the
Northern Division. The review was, at most, a reminder of the conduct
that the City had cured a month-and-a-half earlier by transferring Wallace
to the Northern Division. Additionally, even if receipt of the dated perfor-
mance evaluation on August 18 had created an intolerable work environ-
ment for Wallace, Wallace has no complaints about SDPD’s conduct from
August 18 until October 10—which is still insufficient to establish con-
structive discharge at the time Wallace resigned.
   The majority suggests that the jury might have concluded that “Guevara
retained supervisory authority over Wallace” and “was still willing and
able to take continued discriminatory action against Wallace.” Maj. op. at
10187-88 & n.5. This is rank speculation. I know of no evidence that Gue-
vara could exercise continuing supervisory authority over Wallace, who
had been transferred out of Guevara’s division. Indeed, the majority’s
point is contrary to Wallace’s testimony that after his transfer he would no
longer “be working for Lieutenant Guevara, which was the issue.” If the
jury was engaging in the kind of speculation suggested by the majority,
the district court was fully justified in concluding that the verdict was
“against the great weight of the evidence.”
                 WALLACE v. CITY OF SAN DIEGO              10199
fact that you were now going to be working for Captain
Ramirez and more directly Lieutenant Guy Swanger, cor-
rect?” Wallace replied, “Correct. I was not going to be work-
ing for Lieutenant Guevara, which was the issue.”
Furthermore, Wallace testified that he and Lieutenant
Swanger, “get along pretty well.” When counsel for the city
asked, “So in that roughly three-and-a-half month period [you
worked at the Northern Division], you didn’t have any inci-
dents whatsoever, negative experiences, with your supervi-
sor,” Wallace replied, “Correct.”

   Furthermore, the fact that Wallace’s personnel file, which
contained records of his previous misconduct and discipline,
accompanied him to the Northern Division does not change
the fact that Wallace’s last three months of employment were
anything but intolerable. The mere existence of derogatory
information in a personnel file does not establish constructive
discharge. Personnel files are not intolerable working condi-
tions; they may lead to some tangible action, but it is the
action, not the files, that we must consider. Constructive dis-
charge only occurs when “ ‘a reasonable person in [the
employee’s] position would have felt that he was forced to
quit because of intolerable and discriminatory working condi-
tions.’ ” Watson v. Nationwide Ins. Co., 823 F.2d 360, 361
(9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380,
1381 (9th Cir. 1984)) (alteration in original). In fact, the work
environment to which an employee must be subject before he
or she may sustain a claim for constructive discharge must be
“ ‘sufficiently extraordinary and egregious to overcome the
normal motivation of a competent, diligent, and reasonable
employee to remain on the job to earn a livelihood and to
serve his or her employer.’ ” Brooks v. City of San Mateo, 229
F.3d 917, 930 (9th Cir. 2000) (quoting Turner, 876 P.2d at
1026). While the presence of adverse information in a person-
nel file might support a claim of hostile work environment
(for example, a claim of retaliation, see Yartzoff v. Thomas,
809 F.2d 1371, 1376-77 (9th Cir. 1987)), the mere existence
of a personnel file with negative information in it is not, with-
10200               WALLACE v. CITY OF SAN DIEGO
out more, sufficient to create the intolerable working condi-
tion necessary to permit a finding of constructive discharge.
Compare Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113
(9th Cir. 2000) (denying claim for constructive discharge
where negative evaluation had no tangible consequences) with
Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (1990) (find-
ing constructive discharge where unfounded negative evalua-
tion lead to denial of merit pay). Moreover, we ought not to
confuse a claim of hostile work environment with construc-
tive discharge: Constructive discharge requires a “higher
standard”—conditions so intolerable that a reasonable person
must leave the job. Brooks, 229 F.2d at 930; see also Manatt
v. Bank of Am., 339 F.3d 792, 804 (9th Cir. 2003) (declaring
the standard for establishing constructive discharge signifi-
cantly higher than the standard for establishing a hostile work
environment).

   Even aside from the passage of time, Wallace cannot claim
constructive discharge because SDPD took substantial steps
to defuse his complaints. In Wallace’s testimony, he admitted
that SDPD’s actions had greatly improved his work environ-
ment. Yet, if the majority’s theory is correct, then Wallace
could have quit at any time after his transfer to the Northern
Division, irrespective of his confrontation with the “5150”
and regardless of whether she filed a complaint.4 The majority
  4
    The majority complains that I have “improperly read[ ] Wallace’s testi-
mony in the light most favorable to the SDPD because I pointed out that
“Wallace admitted that ‘hostile conditions had abated for three months.’ ”
Maj. op. at 10189-90 n.6. The majority claims that Wallace’s own testi-
mony “supports only a conclusion that he did not have negative experi-
ences with his immediate supervisors in the Northern Division during his
three months there; it says nothing about Wallace’s relationship with Chief
Armstead, Meyers or Guevara.” Id. From this the majority concludes that
the jury was free to conclude that Wallace’s working conditions remained
hostile and intolerable, notwithstanding the transfer.” Id.
   There is a difference between construing the evidence in a light most
favorable to the jury and simply making up evidence. There is no evidence
whatsoever that Wallace’s working conditions “remained hostile and intol-
erable” in the Northern Division, and nothing in the record reflects that he
had any contact with Armstead, Meyers or Guevara after he left the South-
ern Division. Wallace’s own testimony is completely to the contrary to the
thoughts the majority puts into the jury’s collective mind.
                WALLACE v. CITY OF SAN DIEGO             10201
has given Wallace a free ticket to complain at any time after
the actions taken against him in the Eastern Division. In
effect, there was nothing SDPD could have done to correct
the situation.

                              II

   Wallace’s claim also fails as a matter of law because he
quit in anticipation of, not in response to, an adverse employ-
ment action. Wallace quit after a citizen threatened to file a
civil rights complaint against him. But Wallace cannot claim
constructive discharge based on what he thinks his employer
might do; an employer is responsible for its own actions and
not for all the bad things an employee can imagine might hap-
pen. For an employee to succeed on a constructive discharge
claim, the employer must be the party responsible for the
employee’s intolerable work environment. See Brooks, 229
F.3d at 924 (finding that, although a coworker’s harassment
was “egregious,” the employer was not responsible for the
behavior under the circumstances and, therefore, the
employee could not succeed on a Title VII claim against her
employer).

   The majority is simply wrong to conclude that the fact “that
Wallace resigned [al]most immediately following a civilian’s
threat to bring false charges of discrimination against him did
not preclude the jury’s finding of constructive discharge.”
Maj. op. at 10190. It is no excuse to say that SDPD “had a
history of taking disciplinary action against Wallace for pre-
textual reasons and without investigation” and, therefore, “de-
spite the absence of discriminatory action in the events
immediately precipitating Wallace’s resignation,” “[t]he jury
could have concluded that [Wallace] legitimately would have
feared being subjected to such proceedings again.” Id. at
10190. The precipitating event had absolutely nothing to do
with SDPD or any of its employees. SDPD had no control
over the “5150’s” threat to file a complaint that Wallace
believed was groundless. In fact, Wallace has presented no
10202            WALLACE v. CITY OF SAN DIEGO
evidence that SDPD knew anything about the event that Wal-
lace claims forced him to resign.

   SDPD never got a chance to react to the “5150’s” ground-
less complaint against Wallace. As soon as the woman threat-
ened to file a complaint, Wallace quit. He did not wait to see
whether she ever actually filed a complaint (which, appar-
ently, she never did); he did not wait to see whether any com-
plaint that the woman filed would make any sense; and he did
not wait to see how SDPD would have reacted to the com-
plaint. Most importantly, he did not give SDPD the opportu-
nity to respond appropriately to any forthcoming complaint.
Instead, Wallace resigned, filed this suit, and asked the district
court to find that he was constructively discharged based on
the possibility that, if the woman filed a complaint, SDPD
might have taken an adverse employment action against him.
As the district court aptly explained, “[Wallace’s] assump-
tions of what working conditions would become if a com-
plaint had been filed simply fails to address the working
conditions as they existed when the citizen made the alleged
statement to [him].”

   Given what SDPD had done to try to accommodate Wal-
lace in response to his complaints, he was obligated to give
SDPD the opportunity to do the right thing in response to the
“5150’s” threatened complaint. Instead, he took matters into
his own hands, and now he wants SDPD to pay for it. That
is not constructive discharge. I would affirm the judgment of
the district court.

  I respectfully dissent.
