No. 25603-1-III.The Court of Appeals of Washington, Division Three.
March 11, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 05-2-00812-9, Carrie L. Runge, J., entered August 25, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, J., and Stephens, J. Pro Tem.
BROWN, J.
Morris Poll appeals the summary dismissal of his constructive discharge counterclaim against his former employer, West One Automotive Group, Inc., d/b/a Hertz Car Sales (West One). Mr. Poll was hired as a human resource director, but after about six months he was reassigned to salesperson. Mr. Poll quit about eight months later. West One then sued on a promissory note given to Mr. Poll for his relocation expenses. We hold that because there was no constructive discharge, summary judgment was appropriate. Accordingly, we affirm.
FACTS
The facts are recited in a light most favorable to the Polls. See Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005) (“The court must consider all facts submitted and reasonable inferences from the facts in the light most favorable to the nonmoving party.”).
In August 2003, West One hired Mr. Poll as its first human resources (HR) director to begin in September. Apparently, the position was created because of existing problems and former employee litigation concerning pornography in the workplace. West One loaned the Polls $30,000 to relocate. Mr. Poll was paid $6,000 monthly. No job description existed for the HR position. Mr. Poll’s first assigned tasks were to create an employee manual and a procedures manual, due December 31, 2003. Mr. Poll failed to satisfactorily complete the employee manual and failed entirely to complete the procedures manual. His supervisor noted he was the last one to arrive at work each day and the first to leave. Further, Mr. Poll’s “written communication skills were deplorable.” Clerk’s Papers (CP) at 38.
Mr. Poll passed on reports of alleged instances of hostile work environment, disparate treatment, and harassment to his supervisor, who apparently believed they were mainly related to the existing litigation being handled by company counsel or unsubstantiated. When asked in his deposition whether he had any evidence that any of the claims had merit, Mr. Poll responded, “No.” CP at 120.
In March 2004, Mr. Poll was reassigned to salesperson. While his earning potential as salesperson was about $8,000 monthly, Mr. Poll averaged about $4,000. He initially accepted the transfer, but quit in January 2005.
West One then sued the Polls to recover the $30,000 relocation loan. The Polls counterclaimed for retaliation, wrongful discharge based on violation of public policy, and constructive discharge. The court granted partial summary judgment dismissal of the Polls’ counterclaims.[1] The Polls appealed.
ANALYSIS
The dispositive issue is whether the trial court erred in granting West One’s request for summary dismissal of the Polls’ constructive discharge claim. The Polls contend genuine issues of material fact remain.
We review de novo a trial court’s summary judgment grant engaging in the same inquiry as the trial court. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgment is proper if no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c). The facts and reasonable inferences therefrom are construed most favorably to the nonmoving party. Id. Summary judgment should be granted if reasonable persons could reach but one conclusion from the evidence presented. Id.
Generally, we presume a resignation is voluntary and, thus, cannot give rise to a claim for constructive discharge. Molsness v. City of Walla Walla, 84 Wn. App. 393, 398, 928 P.2d 1108 (1996). An employee may rebut this presumption by showing the resignation was prompted by duress or an employer’s oppressive actions. Id. But duress is not measured by an employee’s subjective evaluation of a situation, and an undesirable work situation does not, in itself, obviate the voluntariness of a resignation. Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wn. App. 630, 638, 700 P.2d 338 (1985); Molsness, 84 Wn. App. at 399. “Washington cases generally describe constructive discharge as involving deliberate acts by the employer that create intolerable conditions, thus forcing the employee to quit or resign.”Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 179, 125 P.3d 119 (2005). The Korslund court also noted, “an employee who is forced to permanently leave work for medical reasons may have been constructively discharged.” Id. at 180.
Here, West One reassigned Mr. Poll to a position where he had the potential to earn a higher salary than he was currently earning. Further, Mr. Poll could have advanced to managerial positions. The Polls’ contrary arguments are based on Mr. Poll’s subjective beliefs and do not create genuine issues of material fact. Thus, the Polls have not overcome the presumption that Mr. Poll’s resignation was voluntary.
Because there was no discharge, the Polls’ remaining counterclaims of retaliatory discharge and wrongful discharge against public policy must fail. Accordingly, the trial court properly granted West One’s motion for summary judgment dismissal of the Polls’ counterclaims.
In the last sentence of the respondent’s brief under the heading, “Conclusion,” West One requests attorney fees and costs. Since its request does not satisfy RAP 18.1(b), which requires a party to devote a section of its brief to attorney fees, we deny West One’s request.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, J. and STEPHENS, J. PRO TEM, concur.