dissenting:

James Wallace had a checkered past with the San Diego Police Department (“SDPD”). On numerous occasions, he 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 convinced 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 violations, Wallace was warned that he was receiving his last chance and that any future violations would be taken seriously.

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 experienced any problems. In fact, Wallace testified that he did not have any difficulties in his new assignment and that his working 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 *1196 waiting to see if she filed the complaint and without consulting his superiors, Wallace quit. He then filed this suit, complaining that he had been constructively discharged.

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 district 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 accommodate him. Second, Wallace cannot bring a constructive discharge 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] preelude[ ] a eonclusion that Wallace was constructively discharged.” Maj. op. at 1191. 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 circuit as well as California’s law governing constructive discharge. 2

We have long required that an employee asserting constructive discharge establish that his or her working conditions were “intolerable ‘at the time of the employee’s resignation.’ ” Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994) (quoting Brady v. Elixir Indus., 196 Cal.App.3d 1299 , 242 Cal.Rptr. 324, 328 (4 Dist.1987), overruled by Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 , 32 Cal.Rptr.2d 223 , 876 P.2d 1022 (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, 32 Cal.Rptr.2d 223 , 876 P.2d at 1026-27 ; Garamendi v. Golden Eagle Ins. Co., 128 Cal.App.4th 452 , 27 Cal.Rptr.3d 239, 254 (2005); Cloud v. Casey, 76 Cal.App.4th 895 , 90 Cal.Rptr.2d 757, 761 (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 Monte- *1197 ro, for example, we affirmed summary judgment in favor of the employer on an employee’s constructive discharge claim because the behavior complained 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 person in Plaintiffs position would have felt forced to quit when she did.” Montero, 192 F.3d 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 employee’s resignation. In Garam-endi, for example, the California Court of Appeal held that an employee could not sustain 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 [Division],” 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 fact that you were now going to be working for Captain Ramirez and more directly Lieutenant Guy Swanger, correct?” Wallace replied, “Correct. I was not going to be working 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 *1198 any incidents whatsoever, negative experiences, with your supervisor,” 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 conditions; they may lead to some tangible action, but it is the action, not the files, that we must consider. Constructive discharge 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 conditions.’ ” Watson v. Nationwide Ins. Co., 828 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, 32 Cal.Rptr.2d 223 , 876 P.2d at 1026 ). While the presence of adverse information in a personnel 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, without more, sufficient to create the intolerable working condition 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) (finding constructive discharge where unfounded negative evaluation lead to denial of merit pay). Moreover, we ought not to confuse a claim of hostile work environment with constructive discharge: Constructive discharge requires a “higher standard” — conditions so intolerable that a reasonable person must leave the job. Brooks, 229 F.3d at 930 ; see also Manatt v. Bank of Am., 339 F.3d 792, 804 (9th Cir.2003) (declaring the standard for establishing constructive discharge significantly 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 environment. 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 has *1199 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 employment 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 happen. 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 [aljmost 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 1193. It is no excuse to say that SDPD “had a history of taking disciplinary action against Wallace for pretex-tual reasons and without investigation” and, therefore, “despite 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 1193. 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 evidence that SDPD knew anything about the event that Wallace claims forced him to resign.

SDPD never got a chance to react to the “5150’s” groundless complaint against Wallace. As soon as the woman threatened to file a complaint, Wallace quit. He did not wait to see whether she ever actually filed a complaint (which, apparently, she never did); he did not wait to see whether any complaint that the woman filed would make any sense; and he did not wait to see how SDPD would have reacted to the complaint. Most importantly, he did not give SDPD the opportunity 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] assumptions of what working conditions would become if a complaint 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 Wallace 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 *1200 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.

. The term "5150” refers to California Welfare and Institutions Code section 5150, which *1196 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.

. Although. Wallace’s cause of action is based on the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq. ("USERRA”), the theory he asserts is constructive discharge, which is a state law cause of action. Therefore, I examine California law in addition to our own precedent.

. Although Wallace received an “unacceptable” rating on his performance review on August 17, 2000, the performance evaluation does not change the fact that Wallace’s last three-and-one-half months of employment 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 performance evaluation on August 18 had created an intolerable work environment for Wallace, Wallace has no complaints about SDPD’s conduct from August 18 until October 10 — which is still insufficient to establish constructive 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 1191 n. 5. This is rank speculation. I know of no evidence that Guevara 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.”

. The majority complains that I have "improperly read[] Wallace's testimony 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 1192 n. 6. The majority claims that Wallace’s own testimony "supports only a 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 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.

*1199 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 intolerable” in the Northern Division, and nothing in the record reflects that he had any contact with Armstead, Meyers or Guevara after he left the Southern Division. Wallace's own testimony is completely to the contrary to the thoughts the majority puts into the jury's collective mind.