concurring in part and dissenting in part:
I respectfully concur in part and dissent in part. We granted certiorari to determine the burden of proof required to prove punitive damages under the Civil Rights Act, 42 U.S.C. § 1983 (1981). Although I agree with the majority’s view that punitive damages must be established by proof beyond a reasonable doubt, I would not reach this issue because the trial judge properly entered a judgment notwithstanding the verdict (J.N.O.V.). The jury was instructed that the plaintiff was required to sustain the burden of proof beyond a reasonable doubt to recover punitive damages, and a verdict was returned for the plaintiff. The trial judge in entering J.N.O.V. employed the proper legal and factual analysis of the issues relating to the claim of constructive discharge. The majority, without analyzing the evidence, concludes that there was a conflict in the evidence on the constructive discharge of Price and affirms the court of appeals in setting the J.N.O.V. aside and ordering a new trial..
In granting certiorari we also undertook review of whether the court of appeals erred by engaging in fact finding that is without support in the record and employed a subjective standard in determining the constructive discharge issue. From my reading of the record, I conclude that the court of appeals not only wrongly looked to a subjective standard, but also used the incorrect standard for constructive discharge. The facts in the record support the action of the trial judge in entering J.N.O.V. and do not support the findings of the court of appeals.
The respondent, Gary D. Price, who was the plaintiff in the trial court, did not prove or even contend that he was subjected to any new conditions of employment or that the conditions already in existence were intolerable. As a matter of law, no reasonable jury could have found that Price was constructively discharged from his employment by Boulder Valley School District R-2. Wilson v. Board of County *1100Comm’rs of Adams County, 703 P.2d 1257 (Colo.1985).
Price brought suit against Zeckser and the school district under 42 U.S.C. § 1983, alleging that he had been constructively discharged without a hearing,' and had been denied due process of law. The trial court reserved ruling on the defendant’s motion for a directed verdict at the close of the plaintiffs case, but after the jury returned a verdict for Price granted J.N.O.V. for Zeckser and school district.1
In reviewing an order for J.N.O.V., the court must apply a two-pronged standard. The evidence must be viewed in the light most favorable to the verdict, and every reasonable inference that can be drawn must be made to support the verdict. Thorpe v. Durango School Dist. No. 9-R, 200 Colo. 268, 614 P.2d 880 (1980); Smith v. City of Denver, 726 P.2d 1125, 1128 (1986). J.N.O.V. may be granted if there is no factual issue properly determinable by the jury. Alexander v. First National Bank, 169 Colo. 252, 260, 455 P.2d 861, 865 (1969) (J.N.O.V. upheld because plaintiff failed to provide any proof of damages.).
The court of appeals reversed the trial court’s order for J.N.O.V. holding that a “Jury here could reasonably conclude that Zeckser’s actions were deliberate and were calculated to deprive Price of his employment without resort to the process to which Price was entitled.” Price v. Boulder Valley School Dist. R2, 782 P.2d 821, 825 (Colo.App.1989). The court of appeals holding is in error because it does not include all of the elements of the tort of constructive discharge. The majority concludes that the evidence was in conflict and that J.N.O.V. should not have been entered. I disagree.
To prove constructive discharge, an employee must present sufficient evidence to establish deliberate action by the employer that makes or allows an employee’s working conditions to become so difficult or *1101intolerable that the employee has no other choice but to resign. Wilson v. Board of County Comm’rs of Adams County, 703 P.2d at 1259. “The determination of whether the actions of an employer amount to a constructive discharge depends upon whether a reasonable person under the same or similar circumstances would view the new working conditions as intolerable, and not upon the subjective view of the individual employee.” Id. at 1259, 60.
The court of appeals decision merely concludes that Zeckser’s actions were deliberate. Necessary elements of constructive discharge are ignored. The decision does not address whether Zeckser imposed new working conditions upon Price, and whether these conditions were intolerable. The court of appeals, after finding facts not supported by the record, determined that Price was constructively discharged. The standard of review for a J.N.O.V. requires the appellate court to view the evidence in the light most favorable to the nonmoving party, but it does not allow the appellate court to find facts which cannot be legitimately drawn from the record.
The evidence may be in conflict as to whether Zeckser knew of Price’s impaired condition, but no evidence supports a finding that Zeckser deliberately imposed new working conditions that were so intolerable that Price had no choice but to resign. Assuming that a reasonable jury could find that Zeckser knew of Price’s impaired condition and that he acted with deliberation, a reasonable jury could not have found that Zeckser imposed new conditions, or that they were intolerable. No evidence appears in the record to support such findings.2
The conditions required of Price by Zeck-ser were duties that every teacher at Casey Junior High School was required to perform. Price’s duties were standard administrative tasks that had been required of him since the beginning of the school year, but which he had failed to meet.3 The evidence does not establish or even indicate that Zeckser imposed new or unique conditions upon Price. The evidence is also insufficient to prove that the conditions imposed on Price and the other school teachers were so difficult or intolerable that, when viewed by a reasonable person under the same circumstances, would have provided no other choice but to resign. See Wilson, 703 P.2d at 1259, 1260.
The court of appeals concluded that although it would appear that Wilson requires an “exclusively objective analysis, the theory of constructive discharge countenances consideration of factors peculiar to the particular employee and the circumstances of his work to determine the larger question of whether the employee’s resignation was voluntary.” Price, 782 P.2d 821, 824. I reject that conclusion because it improperly interprets Wilson's same or “similar circumstances” require*1102ment to include not only the working conditions of the employee, but also the employee’s particular psychological mindset. No support for such an extension of the law can be found in Wilson or any other Colorado case. Such an extension of the law would require all employers to assume responsibility for the resolution of the emotional and physical impairment of all employees.
The trial court, in my view, properly found that the jury had reached a verdict that was not supported by sufficient or competent evidence. J.N.O.V. was properly entered by the trial judge.
Accordingly, I concur in part and dissent in part.
. In granting J.N.O.V., the trial court made findings and stated the pertinent conclusions of law and reasons and the basis for its action:
Defendants argue that the evidence presented on plaintiff’s claim for constructive discharge is insufficient as a matter of law. The elements of a claim for constructive discharge in Colorado are recited in Wilson v. Bd. of County Com’r's of County of Adams, 703 P.2d 1257 (Colo.1985). The court held that:
To prove a constructive discharge, a plaintiff must present sufficient evidence establishing deliberate action on the part of an employer which makes or allows an employee's working conditions to become so difficult or intolerable that the employee has no other choice but to resign. The determination of whether the action of an employer amount[sic] to constructive discharge depends upon whether a reasonable person under the same or similar circumstances would view the new working conditions as intolerable, and not upon the subjective view of the individual employee. 703 P.2d at 1259.
Plaintiff argues that the court should interpret Wilson to include a situation in which the employer requires an employee to do no more than any other similarly situated employee and which would not be considered intolerable by any reasonable person without plaintiff's psychological difficulties but which is intolerable from the point of view of a reasonable person with plaintiff's psychological difficulties. Plaintiff asks the court to interpret Wilson's “same or similar circumstances” requirement to include not only the working conditions themselves, but also plaintiff’s psychological mindset.
Plaintiff's theory would require all employers to assume responsibility for the incorrect handling of a myriad of sophisticated emotional and physical conditions of employees without requiring that the employer be given specific information. There is no evidence Dr. Zeckser was told by anyone that persons with Mr. Price's illness should or should not be required to perform their normal duties or that requiring such performance would force the plaintiff to resign. It is irrational to hold employers to a standard which requires knowledge they do not possess.
More importantly, plaintiff's theory would greatly expand the tort of constructive discharge. Although the court in Wilson explicitly rejects a subjective standard for working conditions, plaintiff would substitute a standard which shifts from plaintiff to plaintiff not based upon various job circumstances, but based upon various employee characteristics. Under plaintiffs theory requiring an employee with one set of physical and mental characteristics to perform a particular task would not constitute a constructive discharge but requiring a different employee to perform precisely the same task would create a constructive discharge. The court believes Wilson rejects the extension of the law of constructive discharge into such a vague and un-reviewable area. Plaintiff has cited no authority from any jurisdiction which would so extend the law. Under Wilson, plaintiffs theory is not sustainable.
. On October 19, 1979, Price presented Zeckser with a letter explaining his intent to "actively look for other employment in the period before the semester break, hoping to make a job change at that time.” The letter was in partial response to an earlier meeting between Price and Zeckser where Zeckser explained the standard and uniformly imposed duties that Price was not fulfilling. The letter discusses Price’s disillusionment with teaching and that changing attitudes and values on his part were the principle causes for his intent not to continue in the teaching profession. The letter did not give any indication that the duties required of Price were intolerable. In fact, the letter stated that Price would take care of the immediate problems over the coming weekend.
. In two separate letters dated October 3, 1979, and October 12, 1979, Zeckser requested that Price:
(a) return the keys, gradebook and file drawer to Platt Junior High, where Price had previously taught;
(b) submit weekly lesson plans (forms were provided by the school);
(c) adhere to the minimum teacher duty day of 7:45 a.m. to 3:15 p.m., and not leave the building or grounds without administrative permission during the duty day;
(d) submit a brief autobiography for inclusion in the school paper;
(e) submit a Personal/Professional Growth Plan;
(f) submit course outlines for Individual Composition and Creative Writing classes;
(g) attend required faculty meetings;
(h) adequately report attendance.