Claxton v. Waters

Filed 3/12/02
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CAROLYN CLAXTON,
Plaintiff and Appellant,
v.
RAY WATERS and PACIFIC MARITIME
ASSOCIATION,
Defendants and Respondents.
B141129
(Los Angeles County
Super. Ct. No. NC 024284)
APPEAL from a judgment and an order of the Superior Court for the County of
Los Angeles. Richard F. Charvat, Judge. Reversed and remanded.
Joseph R. Zamora for Plaintiff and Appellant.
Gibson, Dunn & Crutcher, David A. Cathcart and Michele L. Maryott for
Defendants and Respondents.
____________________________

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SUMMARY
Carolyn Claxton appeals from a grant of summary judgment in favor of Ray
Waters and her former employer, Pacific Maritime Association, on her claim for sexual
harassment. Claxton asserts that a “compromise and release” she executed of her claims
for workers’ compensation benefits did not bar her civil claim, and that the trial court
should have permitted her to amend her complaint to plead a constructive discharge. We
conclude that (1) triable issues of material fact precluded summary judgment on the
question whether Claxton released her claims for emotional distress damages from the
sexual harassment, and (2) the trial court did not abuse its discretion in refusing to allow
Claxton to amend her complaint because she cannot, as a matter of law, establish a claim
for constructive discharge in violation of public policy.
FACTUAL AND PROCEDURAL BACKGROUND
Claxton was employed by PMA as an office assistant from February 1995 until
her resignation on September 16, 1997. PMA is a multi-employer association that
performs labor relations functions for stevedoring, shipping and marine terminal
companies. Waters was employed by PMA as senior administrator for its Southern
California training and accident prevention department and was Claxton’s immediate
supervisor.
After her resignation, Claxton filed this lawsuit, as well as two applications for
adjudication of claims with the Workers’ Compensation Appeals Board (WCAB), as
follows:
• On December 16, 1997, she filed an application with the WCAB for adjudication
of a claim for injury to her “left lower extremity & psyche,” in connection with a
fall on May 9, 1997.
• On January 16, 1998, she filed a second application with the WCAB, claiming
injury to her “psyche” which occurred “due to sexual harassment.”
• On January 29, 1998 the California Department of Fair Employment and Housing
issued a right to sue notice, and on September 15, 1998, Claxton filed this lawsuit

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against PMA and Waters.1
The lawsuit asserted claims for sexual harassment,
denial of civil rights, retaliation, disparate treatment, assault and battery and
intentional infliction of emotional distress. The complaint alleged that on
numerous occasions during Claxton’s employment, Waters touched Claxton
inappropriately and talked to her about sexual matters.
On February 25, 1999, Claxton executed a “Compromise and Release” of her
workers’ compensation claims on a pre-preprinted form, WCAB Form 15. The release
stated that on “5-9-97” and “CT 2-1-95 – 9-16-97” she sustained injury “arising out of
and in the course of employment to Psyche, Left Lower Extremity….” In the release
Claxton and PMA agreed “to settle any and all claims on account of said injury” by the
payment of $25,000. The release provided that:
“Upon approval of this compromise agreement …, said employee
releases and forever discharges said employer and insurance carrier
from all claims and causes of action, whether now known or
ascertained, or which may hereafter arise or develop as a result of
said injury .…”
Case numbers for both of Claxton’s applications appeared in the blank space provided in
the release for the case number. The WCAB approved the settlement on March 16, 1999.
After taking Claxton’s deposition in April 1999, PMA sought summary judgment.
PMA’s motion, filed on June 3, 1999, asserted Claxton’s claim for sexual harassment
failed as a matter of law because Claxton could not establish the requisite “severe or
pervasive” conduct within the limitations period.2
On July 6, 1999, the trial court denied
1
Unless the context indicates otherwise, further references to “PMA” include
Waters as well.
2
Claxton cited 20 specific incidents over the course of Claxton’s two and one-half
years of employment. These consisted of 11 incidents that occurred from February
through August 16, 1995; three in October 1996; and six between February 20, 1997 and
September 11, 1997. The incidents included four instances of comments on sexual
matters; the others involved touching, such as Waters touching Claxton’s arm, leg, back

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summary adjudication of the sexual harassment claim, but granted PMA’s motion as to
the other causes of action.
Meanwhile, on June 7, 1999, PMA filed a motion for leave to amend its answer to
assert several additional affirmative defenses. These included defenses of release, waiver
and res judicata, based upon the compromise and release of Claxton’s workers’
compensation claims. On July 13, 1999, the trial court granted the motion, and the
amended answer was deemed filed.
Five months after filing its amended answer, PMA filed a second motion for
summary adjudication of Claxton’s sexual harassment claim. The motion asserted (1)
recovery of emotional distress damages from the alleged harassment was barred by
Claxton’s settlement of her workers’ compensation claims, and (2) she could not recover
economic damages because her complaint did not allege her resignation was caused by
sexual harassment, and even if it did, she failed to establish the necessary causal
connection between the harassment and her resignation. PMA argued that Claxton’s own
deposition testimony established she resigned because she did not receive a prompt
response from PMA to her request for an immediate raise.
On January 3, 2000, Claxton filed an ex parte motion seeking leave to amend her
complaint to add allegations she was constructively discharged in violation of public
policy. The court denied the motion.
On January 13, 2000, the trial court granted PMA’s motion for summary
judgment, finding that Claxton’s claim was barred by the compromise and release signed
in connection with her workers’ compensation claim, and that she could not recover
economic damages because she failed to plead constructive discharge “and otherwise
cannot establish a causal connection between the alleged harassment and her voluntary
resignation.”
and shoulders, placing his head on her shoulder, putting his hand between her arm and
breast, and sitting and standing too close to her.

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After an unsuccessful motion for a new trial, Claxton filed this appeal on April 4,
2000. Meanwhile, on March 24, 2000, PMA and Waters moved for an award of
attorneys’ fees. PMA argued that Claxton’s continued pursuit of her sexual harassment
claim after having signed the release of her workers’ compensation claim was
unreasonable and, at a minimum, PMA was entitled to partial attorneys’ fees of
$92,459.75. This amount was calculated from May 2, 1999, the date Claxton’s counsel
rejected a stipulation offered by PMA’s counsel for amendment of the PMA answer to
assert the release as an affirmative defense.
On May 9, 2000, the trial court granted PMA’s motion for attorneys’ fees. The
court’s order stated Claxton’s claims “were unreasonable, frivolous and/or groundless, at
least as of May 2, 1999,” and allowed fees in the amount of $92,459.75. Claxton filed a
notice of appeal from that order, and the two appeals were later consolidated.
DISCUSSION
I. The trial court erred in concluding Claxton’s claim was
barred by the compromise and release she signed in
connection with her workers’ compensation claim.
Claxton argues the compromise and release of her workers’ compensation claims
did not release her civil claims for sexual harassment against PMA and Waters.3
Claxton
points out that (1) sexual harassment is a form of sex discrimination and violates public
policy, and (2) the exclusive remedy provisions of the workers’ compensation law do not
bar a civil suit for damages when the employer’s conduct is outside the compensation
bargain. On these general points of law, Claxton is correct. (See, e.g., Gantt v. Sentry
Insurance (1992) 1 Cal.4th 1083, 1100, 1101 [just as an individual employment
agreement may not include terms which violate fundamental public policy, “so the more
general ‘compensation bargain’ cannot encompass conduct, such as sexual or racial
3
In July 2001 the Supreme Court accepted for review the case of Jefferson v.
Department of Youth Authority, S097104, which presents a similar issue.

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discrimination,” that is contrary to public policy], overruled on other grounds by Green v.
Ralee Engineering Co. (1998) 19 Cal. 4th 66, 80 n.6; Accardi v. Superior Court (1993)
17 Cal.App.4th 341, 352-353 [claim for emotional distress arising out of sexual
harassment is not barred by the exclusivity provisions of workers’ compensation laws].)
PMA does not disagree with these principles, and does not argue that Claxton’s
entire claim for sexual harassment was barred by her release. Instead, PMA argues that
Claxton’s harassment claim fails because she cannot establish any prospect for the
recovery of damages, either economic or non-economic. This is so (a) as to economic
damages, because she cannot show the harassment caused her resignation, and (b) as to
non-economic damages, because she released any claim for emotional distress damages.
Thus, so far as the compromise and release is concerned, PMA’s argument is not that
Claxton released her right to bring a lawsuit for sexual harassment, but that she released
her claim to one of the types of damages–emotional distress–she could otherwise seek in
that lawsuit. We do not agree.
First, a number of courts have held similar settlements of workers’ compensation
claims did not operate to bar civil lawsuits in various circumstances. For example, in
Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, the court held that a
workers’ compensation compromise and release did not bar Delaney’s cause of action for
intentional infliction of emotional distress, since a question of fact existed as to the intent
underlying the settlement. Delaney’s application for adjudication of his workers’
compensation claim was based on injuries to his psyche and continuing trauma, resulting
from harassment on the basis of his sexual orientation. The compromise and release
recited that Delaney sustained injuries to his back and his psyche, and released the
employer from all claims and causes of action that might arise “as a result of said
injury ….” (14 Cal.App.4th at p. 599.) The court observed it would not be impossible
for an employee with emotional distress claims to knowingly agree to abandon them at
the same time as he or she settles a workers’ compensation claim. However:

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“[T]he form release in issue here does not compel such a conclusion.
That is to say, while its language is very broad, encompassing all
claims and causes of action arising from the injury suffered, that
expansive language is simply that which appears on all standard
workers’ compensation forms. [Citations.] It is preprinted and makes
no specific reference to potentially independent civil rights or
remedies. Consequently, it may reasonably be understood as
releasing only those claims which traditionally fall within the scope of
the workers’ compensation system.” (Ibid.)
(See also Lopez v. Sikkema (1991) 229 Cal.App.3d 31 [execution of a compromise and
release by a worker’s dependents, releasing the employer from liability for all claims
arising out of the worker’s death, did not preclude a civil lawsuit for wrongful death and
for civil rights violations];4
Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856
[workers’ compensation compromise and release did not bar the worker’s racial
discrimination claims].)
We perceive no reasoned distinction between this case and the circumstances in
Delaney, Lopez and Asare. The preprinted WCAB release form is the same. It makes no
reference to the pending civil suit. PMA presented no evidence the parties discussed the
impact of the settlement on the pending civil claims. Claxton’s April 26, 1999 deposition
testimony–given before PMA sought to amend its answer to assert the release as an
affirmative defense–indicated her belief the worker’s compensation settlement was only
for her knee injury. Moreover, the release makes no reference at all to Ray Waters,
further supporting Claxton’s claim there was no intent to release the civil claims.5
4
The court in Lopez observed there was no evidence the parties discussed the
impact of the settlement on the civil claims then pending. The court found that if the
compromise and release were intended to cover claims not compensable under the
workers’ compensation law–in that case, the employer’s liability for hiring and arming
the two strikebreakers who fatally shot the worker in the head–the release should have
contained express language to that effect. (Lopez v. Sikkema, supra, 229 Cal.App.3d at
pp. 38-39.)
5
PMA argues that the release covers Waters because it states the parties “stipulate
that the consideration for this Compromise and Release includes full compensation for all

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PMA argues that the language of the preprinted form release is clear and
unambiguous, and the trial court properly refused to consider Claxton’s extrinsic
evidence. The release states the parties agree to settle “any and all claims on account of
said injury,” and that “said employee releases and forever discharges said employer and
insurance carrier from all claims and causes of action, whether now known or
ascertained, or which may hereafter arise or develop as a result of said injury ….” We
cannot agree that those words on a preprinted form, ordinarily used to release claims
compensable only under workers’ compensation, are unambiguous. As Delaney pointed
out, that same expansive language appears on every workers’ compensation release form.
The “said injury” to which it refers in this case states: “Psyche, Left Lower Extremity.”6
The compromise and release itself nowhere refers to sexual harassment;7
in order to find
out that the injury to Claxton’s psyche was due to sexual harassment, reference must be
made to Claxton’s application to the WCAB.
Under these circumstances, we agree with Delaney that the release “may
reasonably be understood as releasing only those claims which traditionally fall within
injuries sustained by the applicant while employed by defendants, including all specific
injuries and continuous traumas.” We do not see how this language encompasses Waters,
who has no workers’ compensation liability. PMA cites Hollywood Refrigeration Sales
Co. v. Superior Court (1985) 164 Cal.App.3d 754 for the proposition that, if an
employee’s injuries are compensable under the workers’ compensation law, the benefits
provided under the law “constitute the exclusive remedy against the employer and any
fellow employee.” (Id. at p. 757.) However, as discussed above, sexual harassment is
outside the compensation bargain and workers’ compensation is not the exclusive remedy
for such a claim.
6
Claxton’s first application, resulting from her knee injury, also claimed injury to
her “left lower extremity & psyche.”
7
Moreover, it is difficult to see how, from the words of the release form, the
employee can be expected to understand that – as PMA argues – she is not releasing her
entire suit for sexual harassment, but she is releasing her right to recover a particular type
of damage otherwise available in that suit – especially since workers’ compensation
benefits for the injury to her psyche are limited to medical expenses.

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the scope of the workers’ compensation system.” (14 Cal.App.4th at p. 599.) A claim
for sexual harassment plainly falls outside that system. (Accardi v. Superior Court,
supra, 17 Cal.App.4th 341, 353.) In short, if a workers’ compensation compromise and
release is intended to release pending civil claims based on acts–here, sexual harassment
–that fall “outside the risks encompassed within the compensation bargain” (Charles J.
Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811-812), it should
say so. Where it does not, we conclude it is ambiguous, and a triable issue of fact exists
as to the intent of the parties.8
PMA also argues that Claxton recovered damages for emotional distress in her
workers’ compensation settlement, and that equitable principles preclude double
recovery, citing City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158, 1161.
Certainly Claxton may not obtain a double recovery. That does not mean, however, that
Claxton may obtain no other damages for emotional distress. The workers’
compensation system compensates “only for medical costs and lost wages caused by the
disability.” (Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 500-501;
8
PMA relies on Hollywood Refrigeration Sales Co. v. Superior Court, supra, 164
Cal.App.3d 754, for the proposition that a civil suit for emotional distress is barred by
settlement of workers’ compensation claims based on a course of abusive or harassing
conduct. We do not see the relevance of Hollywood Refrigeration to the issue in this
case. In Hollywood Refrigeration, the plaintiff sued for intentional infliction of
emotional distress. The court held that the WCAB had exclusive jurisdiction of the
claim, and the plaintiff’s compromise and release of his workers’ compensation claim for
stress due to his employer’s harassment and abusive behavior was res judicata as to the
civil action. (164 Cal.App.3d at p. 757.) The case did not involve sexual harassment or
discrimination or other claims that have been held to be beyond the scope of the
compensation bargain. Indeed, the Supreme Court subsequently held that suits for
intentional infliction of emotional distress are barred by the exclusive remedy provisions
of the Labor Code, when the employer’s misconduct alleged consists of actions which are
“a normal part of the employment relationship, such as demotions, promotions, criticism
of work practices, and frictions in negotiations as to grievances ….” (Cole v. Fair Oaks
Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) In this case, however, the misconduct
alleged is not a “normal part of the employment relationship ….” (Ibid.)

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see Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th 800, 814
[workers’ compensation system compensates only for injuries that cause a disability or
the need for medical treatment].) The wider range of potential remedies for violation of
the FEHA, however, may include compensatory damages for pain and suffering and
punitive damages. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter
Group 2001) ¶ 7:1110, p. 7-112.) So, in addition to the medical expenses she recovered
for injury to her psyche in her workers’ compensation settlement, Claxton could
potentially obtain emotional distress damages for the humiliation, embarrassment or
anxiety caused by the alleged harassment. There is no danger of double recovery:
“In the event of any overlap in the recovery of both compensation
and damages, the employer must be allowed a credit against the
judgment for any compensation already paid on account of an
industrial injury arising from the same facts.” (Shoemaker v. Myers
(1990) 52 Cal.3d 1, 23 n.12.)
(See also Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 478-
479 [“although plaintiff filed an application for workers' compensation and may receive
an award in that proceeding, double recovery may be avoided by allowing the employer a
setoff in the event plaintiff is awarded compensation for the aggravation of his injury in
that proceeding and in the present case as well”]; Meninga v. Raley’s, Inc. (1989) 216
Cal.App.3d 79, 88-90 [plaintiff’s cause of action for employment discrimination was not
barred by exclusive remedy provisions of workers’ compensation law, even though
plaintiff applied for and received workers’ compensation benefits due to cumulative
stress; workers’ compensation claim cannot address the employer’s liability for
employment discrimination].)
Accordingly, the trial court erred when it held that Claxton’s claim for emotional
distress damages from the harassment was barred by the compromise and release. It
necessarily follows that the court also erred when it granted PMA’s motion for attorneys’
fees on the ground Claxton’s lawsuit was frivolous after her execution of the release.

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II. The trial court did not err in refusing to allow Claxton to
amend her complaint to allege a constructive discharge in
violation of public policy.
Claxton argues that she produced sufficient evidence to support a claim for
constructive discharge in violation of public policy, and that the trial court abused its
discretion in refusing to permit her to amend her complaint to allege a constructive
discharge and substantial losses in earnings and job benefits.9
We disagree on both
points.
To establish a constructive discharge, “an employee must plead and prove … 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.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1251.) We conclude Claxton’s facts cannot pass the third element of the Turner test–the
employer’s actual knowledge of intolerable conditions–and Claxton therefore cannot
prove a constructive discharge.10
Accordingly, the trial court did not err in denying
Claxton’s motion for leave to amend her complaint.
9
The trial court ruled Claxton could not recover economic damages because she
failed to plead constructive discharge, “and otherwise cannot establish a causal
connection between the alleged harassment and her voluntary resignation.” We question
the latter conclusion. While Claxton’s deposition testimony showed her resignation was
precipitated by PMA’s failure to respond to her request for a raise, both her testimony
and her resignation letter (see footnote 12 infra) suggest the alleged harassment may have
been a substantial factor in her resignation. We express no opinion on Claxton’s
argument that a plaintiff who has resigned to escape a hostile environment should not
have to prove a constructive termination in order to recover for the job loss, and instead
“should be allowed to plead and prove that the job loss is an element of damage flowing
from the harassment.” (Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.
2001) § 3.45, pp. 147-148.) Claxton raised the point in her motion for a new trial, but
there is no indication the trial court considered the issue.
10
The Supreme Court explained that requiring the employer’s actual knowledge of
intolerable conditions “serves to emphasize a central aspect of constructive discharge law
– the resignation must be employer-caused and against the employee's will. Consistent

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12
The relevant circumstances surrounding the alleged harassment and Claxton’s
resignation were these. According to Claxton’s testimony, eleven incidents of sexual
comments or unwanted touching occurred between February and August 1995 (see
footnote 2 supra). On March 23, 1995, Chuck Wallace, a PMA vice president, was made
aware Claxton was having some problems with Waters, and came to Claxton to speak to
her about it. Wallace told her Waters would not be touching her anymore, and Waters
subsequently apologized to Claxton. Claxton never contacted Wallace again about
Waters.
On September 8 and September 27, 1995, Claxton talked to two persons in
management, Charlie Young and Carie Clements, about her concerns with Waters’
behavior, and said she did not want Waters “touching me and talking to me in my face.”
Claxton was told by Clements that Clements would talk to Waters about it and that if
Claxton had any more problems, she should tell Clements. Claxton testified that she did
not go back to Clements about the harassment. According to Claxton’s testimony, the
next incident of harassment occurred more than a year later. Claxton identified three
incidents of touching in October 1996, and six other incidents of touching or sexual
comments between February 20 and September 11, 1997. After the September 1995
meetings, Claxton did not complain to anyone at PMA about any inappropriate touching
or comments by Waters.
On July 17, 1997, Claxton had a meeting with Clements and Wallace, at which
they discussed Claxton’s absenteeism and her complaints that Waters had docked her
vacation time and sick time. Claxton told Clements and Wallace that docking her
vacation and sick time was “another form of harassment,” and testified she “assume[d]
that they knew that if it was another form, that they would know that he was still
with this principle, the employer must either deliberately create the intolerable working
conditions that trigger the resignation or, at a minimum, must know about them and fail
to remedy the situation in order to force the employee to resign.” (Turner v. Anheuser-
Busch, Inc., supra, 7 Cal.4th at pp. 1249-1250.)

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harassing me in other ways sexually.” However, Claxton testified that she did not
actually tell Clements and Wallace that she had experienced any incidents of sexual
harassment since their previous meetings. Her next indication to management that a
sexual harassment problem existed occurred in her letter of resignation on September 16,
1997.11
At the end of July 1997, Claxton learned that she had not received an anticipated
salary increase. She also learned a new manager, Bob Dodge, would be replacing Ray
Waters at the training center in Wilmington where Claxton worked, and that Waters
would no longer be her supervisor. In August she had a meeting with Waters about her
performance, and was told that her performance would be reviewed again in December,
at which time a salary increase would be considered.
On September 10, 1997, PMA’s Vice President of Training and Accident
Prevention, John Pavelko, told Claxton she would be promoted to a position as Dodge’s
assistant. She asked Pavelko if she could get a raise for the promotion. Pavelko told her
to draft performance objectives, which would be reviewed after Dodge took over as
manager. Her performance would be reviewed in December “and if objectives are being
satisfactorily completed you may be recommended for a salary increase.” Claxton
responded to Pavelko by e-mail on September 11, 1997, asking for an immediate
increase. She sent another e-mail to Pavelko on September 12, saying that with the added
responsibilities as assistant to Dodge, she deserved a pay increase. On September 15, she
sent a third e-mail message. It said:
“John, [¶] Could you please let me know about the pay increase by
this afternoon (4:00 p.m.), as I am expected to start training, and
coordinating the crew tomorrow. I do not believe that PMA should
ask me to perform all the extras duties and responsibilities without
11
In an e-mail message to John Pavelko on September 11, five days before her
resignation, she referred to “harassment” as the reason she did not get a raise, but again
said nothing about sexual harassment.

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compensating me. I’m sorry to put you in a spot, but if this problem
with Ray Waters had been settled years ago, we wouldn’t be having
this problem.”
Claxton came to work the next day, found no answer to her e-mail message, and
thereupon resigned her employment by e-mailing a resignation letter to Pavelko and
others. In her letter, she stated that the company was ignoring her request for a pay
increase, “ignor[ed] the problems and allow[ed] inappropriate behavior to be
commonplace,” and ignored her past complaint about sexual harassment and “many other
forms of harassment.”12
At her deposition, Claxton testified that she decided to resign
when she logged on to her computer on September 16 and found she had no response
from Pavelko to her request for a raise. She testified she had not formed any intention to
leave PMA prior to that time, and her decision to resign was triggered by the fact that
Pavelko seemed to be ignoring her e-mail.
On these facts, we conclude Claxton cannot establish a constructive discharge,
because she cannot establish the third necessary element: Claxton clearly cannot show
that PMA knew about the intolerable conditions “and fail[ed] to remedy the situation in
order to force [Claxton] to resign.” (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at
pp. 1249-1250.) Claxton’s evidence that PMA was aware of the sexual harassment
consists only of Claxton’s conversations with management personnel in March and
September 1995. After September 1995, (1) no incidents of harassment are alleged for
more than a year, and (2) Claxton did not inform management about the sexual
12
The letter included the following comments: “…I have lived in hell the last 2
years, because you have chosen ignore this problem telling me ‘That is just the way he
is’. PMA teaches the longshoremen about sexual harassment maybe upper management
should sit in one of the classes. (Also the diversity training class would be a great idea).
I can no longer work under these conditions, as my health and mental well being is at
stake, I can’t sleep, I have nightmares of Mr. Waters, and I am sick to my stomach almost
every morning. [¶] This is to inform you that I resign, effectively immediately, as I can
not work for a company that allows this type of behavior to continue and putting their
employee in danger.”

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harassment she now says occurred in October 1996 and in 1997 until she submitted her
resignation letter.13
Accordingly, Claxton cannot prove at least one of the elements required to
establish a constructive discharge. It necessarily follows that the trial court did not abuse
its discretion in denying Claxton’s motion to amend her complaint to allege she was
constructively discharged in violation of public policy.
DISPOSITION
The judgment is reversed and the cause is remanded with directions to the trial
court to vacate its orders granting defendants’ motions for summary judgment and
attorneys’ fees and to enter new orders denying those motions. Claxton is to recover her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BOLAND, J.
We concur:
COOPER, P.J.
RUBIN, J.
13
Even if Claxton’s September 11 e-mail referring to unspecified harassment could
be considered a report of sexual harassment, Claxton resigned five days later, giving
PMA no opportunity to correct the problem. (See Turner v. Anheuser-Busch, Inc., supra,
7 Cal.4th at p. 1250 [standard requiring employees to notify someone in authority about
intolerable working conditions “permit[s] employers unaware of any wrongdoing to
correct a potentially destructive situation]”.)

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