A constructive discharge occurs when the working conditions are so intolerable that a reasonable person in the employee’s position would feel forced to resign.
Courts have recognized that an employee’s refusal to engage in a criminal act may constitute a valid cause of action for wrongful discharge. See, e.g., Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) (at-will employee fired in retaliation for his insistence that his employer comply with state laws relating to food labeling); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1979) (employee fired for refusing employer’s request to ask for excuse from jury duty); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985) (employee discharged for refusal to perform an illegal act); Harless v. First Nat’l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978) (bank employee discharged in retaliation for his efforts to require employer to comply with state and federal consumer credit protection laws).
Resigning in lieu of termination can constitute a constructive discharge. “When an employer acts in a manner so as to have communicated to a reasonable employee that [he] will be terminated, and the . . . employee resigns, the employer’s conduct may amount to constructive discharge.” Under this standard, an employee who can show that the “handwriting is on the wall” and the “axe is about to fall” can make out a constructive-discharge claim.” Dietz v. Cypress Semiconductor Corp., ARB No. 15-017, ALJ No. 2014-SOX-002 (ARB Mar. 30, 2016) vacated on other grounds sub nom, Dietz v. Cypress Semiconductor Corp., __Fed.Appx. __, 2017 WL 4676650 (10th Cir. Oct. 17, 2017);