NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBORAH J. TICHENOR, No. 22-55953

Plaintiff-Appellee, D.C. No. 3:20-cv-00499-JM-BGS v.

BAE SYSTEMS TECHNOLOGY MEMORANDUM*

SOLUTIONS & SERVICES, INC.,

Defendant-Appellant,

and

KARI CORONADO; DOES, Does 1 through 30, inclusive,

Defendants.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted October 18, 2023 Pasadena, California

Before: CLIFTON and SANCHEZ, Circuit Judges, and KORMAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Defendant-Appellant BAE Systems Technology Solutions & Services, Inc.

(“BAE”) appeals from the judgment of the district court, entered in favor of

Plaintiff-Appellee Deborah Tichenor after a jury trial, and from the district court’s

denial of BAE’s post-trial motion for judgment as a matter of law and motion for

new trial. Tichenor was employed by BAE from 2005 through her resignation in

early 2019. She subsequently sued BAE, and the parties proceeded to trial on a

claim for constructive discharge based on violation of the provision of California’s

Fair Employment and Housing Act (“FEHA”) prohibiting disability discrimination.

See Cal. Gov’t Code § 12940(a). At the close of Plaintiff-Appellee’s case in chief,

the district court denied BAE’s motion for judgment as a matter of law. See Fed.

R. Civ. P. 50(a). Prior to jury instructions, the district court determined that

Plaintiff-Appellee abandoned her claim for constructive discharge based on

disability discrimination.1 The district court instead instructed the jury on a claim

for constructive discharge based on breach of an employment contract.

After the entry of judgment in Plaintiff-Appellee’s favor, BAE renewed its

motion for judgment as a matter of law and, in the alternative, moved for a new

trial. The district court denied both motions. This appeal followed. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of the motion for

judgment as a matter of law de novo and the denial of a motion for new trial for

1 Plaintiff-Appellee does not challenge this determination on appeal. abuse of discretion. DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218 (9th Cir.

2010). We reverse and remand to the district court with instructions to enter

judgment for BAE.

1. A constructive discharge “occurs when the employer’s conduct

effectively forces an employee to resign.” Turner v. Anheuser-Busch, Inc., 876

P.2d 1022, 1025 (Cal. 1994). It functions as “a doctrine that transforms what is

ostensibly a resignation into a firing.” Id. at 1030. Thus, even after establishing

that a constructive discharge has occurred, to obtain relief an employee must still

show that the discharge was wrongful. Id.; see, e.g., Steele v. Youthful Offender

Parole Bd., 76 Cal. Rptr. 3d 632, 641–49 (Cal. Ct. App. 2008) (constructive

discharge was wrongful because it violated the FEHA provision prohibiting

retaliation for protected activity); Starzynski v. Cap. Pub. Radio, Inc., 105 Cal.

Rptr. 2d 525, 530 (Cal. Ct. App. 2001) (constructive discharge may be wrongful if

it constitutes breach of an employment contract).

2. The district court erred in amending the pleadings to introduce a claim for

constructive discharge based on breach of an employment contract. Under Federal

Rule of Civil Procedure 15(b), an amendment to the pleadings “will be proper only

if it is found that the parties either expressly or impliedly consented for a trial of

the issues not raised in the pleadings.” Campbell v. Bd. of Trs. of Leland Stanford

Junior Univ., 817 F.2d 499, 506 (9th Cir. 1987). Here, nothing in the record constitutes BAE’s express consent to try a claim for breach of contract. Nor does

BAE’s mere “acknowledg[ment] [that] the trial was not based on a claim for

disability discrimination” permit the conclusion that BAE impliedly consented to

try a contract claim instead.

3. Moreover, sustaining a constructive discharge claim based on breach of

an employment contract is legally impossible where, as here, the employee was

employed at will.2 See Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1110 (Cal. 2000)

(“Precisely because employment at will allows the employer freedom to terminate

the relationship as it chooses, the employer does not frustrate the employee’s

contractual rights merely by doing so.”).

Thus, because Plaintiff-Appellee has not shown that the constructive

discharge was wrongful, there is no legal basis on which to find BAE liable.

Accordingly, we need not reach the denial of the motion for new trial.

REVERSED and REMANDED.

2 Plaintiff-Appellee’s counsel conceded at oral argument that she was an at-will employee.