In Kelley v. California Unemployment Appeals Board, 2014 Cal.App. LEXIS 128, the California Court of Appeal, Second Appellate District, found that an employee did not voluntarily quit under Cal. Code Regs., Title. 22, ยง 1256-1(f). That section provides that “[i]n some cases, the employee is deemed to have left work voluntarily even though the apparent cause of termination is the employee’s discharge by the employer. Such a leaving is a constructive voluntary leaving and it occurs when an employee becomes the moving party by engaging in a voluntary act or course of conduct which leaves the employer no reasonable alternative, but to discharge the employee and which the employee knew or reasonably should have known would result in his or her loss of employment.”
In May 2010, Stephanie Kelley went on a stress leave from her job as a marketing director for Merle Norman Cosmetics. In November 2010, Kelley was cleared to return to work. Her attorney emailed counsel for Merle Norman and advised that Kelley was ready to return to work, but was concerned that Merle Norman would retaliate against her. Kelley therefore requested the following in writing: a job description; a statement of goals and objectives; confirmation of Kelley’s job title, duties, benefits and salary; and the status of her earlier request for vacation for the Christmas holiday.
The parties’ counsel exchanged further emails wherein Merle Norman advised that Kelley had exhausted all of her vacation time, and that Kelley and her supervisor should meet upon her return to discuss her duties and expectations. In response, Kelley asked whether Merle Norman’s vacation policy had changed or whether Kelley was being singled out, which would be further evidence of retaliation. Merle Norman responded that it had been willing to take Kelley back despite learning of “performance deficiencies” while she was on leave. Merle Norman further advised that the conditions which Kelley demanded upon her return to work were unacceptable, such that under all of the current circumstances, “Merle Norman considers Ms. Kelley’s employment to be terminated as of today….”
The Court of Appeal affirmed the trial court’s ruling that the emails from Kelley’s attorney were, to some extent, posturing for the threatened civil action, and that they contained requests, instead of ultimatums, demands, or conditions. Therefore, Kelley did not place Merle Norman in a position where its only reasonable alternative was to fire her. Rather, the company should have waited to see if Kelley showed up for work on November 30, as requested. As a result, the court found that Kelley did not constructively quit.
The Court of Appeal noted that Merle Norman could have instead asked whether Kelley would report to work despite the company’s refusal to supply the information. In short, even if the emails amounted to some form of pre-litigation poker, Merle Norman could not simply declare itself a winner. Rather, it had to call and see whether Kelley was bluffing.
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