Green v. Town of East Haven, No. 18-0143 (2d Cir. 2020)
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The Second Circuit vacated the district court's summary judgment dismissal of plaintiff's action against the Town, alleging that she was terminated from her employment based on age discrimination, in violation of the Age Discrimination in Employment Act of 1967. The district court granted summary judgment on the sole ground that plaintiff had failed to make out a prima facie case of any adverse employment action, because she chose to retire rather than attend a scheduled disciplinary hearing.
The court held that, viewed in the light most favorable to plaintiff, the evidence was sufficient to present genuine issues of fact as to whether a reasonable person in plaintiff's shoes would have felt compelled to retire. In this case, the district court failed to view evidence that the retirement was not voluntary because it was coerced by the threat of likely termination, and therefore plaintiff suffered a constructive-discharge adverse employment action. Accordingly, the court remanded for further proceedings.
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18 0143 Green v. Town of East Haven 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2018 5 (Argued: May 3, 2019 Decided: March 10, 2020) Docket No. 18 0143 6 7 _________________________________________________________ 8 DYANNA L. GREEN, Plaintiff Appellant, 9 v. 10 11 TOWN OF EAST HAVEN, Defendant Appellee, 12 13 14 15 EAST HAVEN POLICE DEPARTMENT, 16 Before: KEARSE, WESLEY, and CHIN, Circuit Judges. 17 Defendant. _________________________________________________________ Appeal from a judgment of the United States District Court for the 1 District of Connecticut, Vanessa L. Bryant, Judge, dismissing, on summary judgment, 2 plaintiff s action against defendant Town of East Haven ( Town ) alleging age 3 discrimination in the termination of her employment, in violation of the Age 4 Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 634, and state law. The 5 district court granted summary judgment on the sole ground that plaintiff had failed 6 to make out a prima facie case of any adverse employment action, because she chose 7 to retire rather than attend a scheduled disciplinary hearing the only merits based 8 challenge presented in the Town s summary judgment motion. See Green v. East 9 Haven Police Dep t, 3:16 cv 00321, 2017 WL 6498144 (D. Conn. Dec. 19, 2017). On 10 appeal, plaintiff contends that the court erred in failing to view her evidence that the 11 retirement was not voluntary but was coerced by the threat of likely termination and 12 hence constituted a constructive discharge in the light most favorable to her. We 13 agree that the evidence, viewed in the light most favorable to plaintiff, sufficed to 14 present genuine issues of fact as to whether a reasonable person in plaintiff s shoes 15 would have felt compelled to retire. We thus vacate the judgment and remand for 16 further proceedings. 17 Vacated and remanded. 2 1 2 3 4 KAREN R. KING, New York, New York (Jennifer X. Luo, Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York, on the brief), for Plaintiff Appellant. 5 6 7 LYNCH, TRAUB, KEEFE & ERRANTE, New Haven, Connecticut (Hugh F. Keefe, of counsel), submitted a brief for Defendant Appellee. 8 KEARSE, Circuit Judge: 9 Plaintiff Dyanna L. Green appeals from a judgment of the United States 10 District Court for the District of Connecticut, Vanessa L. Bryant, Judge, dismissing her 11 action against defendant Town of East Haven ( Town ) for alleged age discrimination 12 in terminating her employment, in violation of the Age Discrimination in 13 Employment Act of 1967, 29 U.S.C. §§ 621 634 ( ADEA ), and the Connecticut Fair 14 Employment Practices Act, Conn. Gen. Stat. § 46a 60 et seq. ( CFEPA ). The district 15 court granted summary judgment dismissing the action on the sole ground that 16 Green had failed to make out a prima facie case of any adverse employment action, 17 because she chose to retire rather than attend a scheduled disciplinary hearing the 18 only merits based challenge presented in the Town s summary judgment motion. On 3 1 appeal, Green contends that the court erred in failing to view her evidence that the 2 retirement was not voluntary but was coerced by the threat of likely termination and 3 hence constituted a constructive discharge in the light most favorable to her. We 4 agree that the evidence, viewed in the light most favorable to Green, sufficed to 5 present genuine issues of fact as to whether a reasonable person in Green s shoes 6 would have felt compelled to retire. Accordingly, we vacate the judgment and 7 remand for further proceedings. 8 I. BACKGROUND 9 Many of the following facts are undisputed, as indicated by the parties 10 statements submitted pursuant to Local Rule 56(a) as to undisputed and disputed 11 material facts ( Rule 56(a) Statements ). Other descriptions are, as indicated, 12 principally taken from the deposition testimony of the Town s Internal Affairs (or 13 I.A. ) Officer James Naccarato or from the affidavit submitted by Green in opposition 14 to the Town s motion for summary judgment. 4 1 A. Green s Employment at East Haven Police Department 2 From about May 2001 through December 2014, Green was an employee 3 of the Town, working at defendant East Haven Police Department ( EHPD or 4 Department ). She was one of two full time employees in EHPD s records division, 5 responsible for processing arrest and accident reports, typing search and arrest 6 warrants, typing misdemeanor and infraction tickets, and entering data into EHPD s 7 computer system. In 2012, EHPD Lieutenant David Emerman became supervisor of 8 the records division. (See Rule 56(a) Statements, undisputed ¶¶ 1 3; see also id. 9 undisputed ¶ 27.) 10 Also in 2012, Jennifer Ward was hired to work in the records division, 11 replacing Green s recently retired coworker. (See id. undisputed ¶ 6.) Green, 47 years 12 of age when she was hired, was 58 in 2012 (see Affidavit of Dyanna L. Green dated 13 September 6, 2017 ( Green Aff. or September 2017 Affidavit ), ¶¶ 4 5); Ward, in 14 2012, was approximately 30 years of age (see id. ¶ 7). Green asserted that after Ward 15 was hired, Green began to experience treatment from Emerman and EHPD Chief 16 Brent Larrabee that she believe[s] . . . was intended to create a hostile work 17 environment and cause [her] to retire. (Id. ¶ 12; see id. ¶ 17 ( I was singled out and 18 believe that I was subjected to deliberately disparate treatment and a hostile work 5 1 environment because of my age, which was intended to make my employment 2 intolerable and force me to resign or retire ).) 3 Green stated, inter alia, that from the time Ward arrived until Green left 4 EHPD, Green was made to feel marginalized in [her] role (id. ¶ 8), with Emerman 5 engag[ing] in a sustained and systematic pattern of publicly criticizing, 6 micromanaging and scrutinizing Green s work and subject[ing her] to harassing and 7 demeaning demands and questioning (id. ¶ 12). Emerman also prepared and filed 8 a number of criticisms of Green s work that Green viewed as unwarranted. (See id. 9 ¶ 13.) Meanwhile, Ward was given more desirable work assignments and training 10 opportunities that were denied to Green (see id. ¶¶ 8 11) and was treated by Emerman 11 and Chief Larrabee with obvious favoritism (id. ¶ 8). 12 B. The December 2014 Biscuits and Basket Incident 13 Shortly after 8 a.m. on December 5, 2014, Green went to the EHPD 14 kitchen/breakroom area to borrow a wire basket that was kept there, to use in an 15 upcoming holiday party. While there, she observed two canisters of Pillsbury 16 buttermilk biscuits dough that she had seen in the communal refrigerator since at 17 least Thanksgiving. Green took one of the canisters, put it and the basket in her tote 6 1 2 3 4 5 6 7 8 9 10 bag, and took them back to her desk. (See Green Aff. ¶¶ 21 22.) Shortly after noon that day, EHPD Lieutenant Joseph Murgo sent an email to EHPD employees stating as follows: We had two (2) canisters of Buttermilk flavored Pillsbury biscuits that was [sic] brought in on Thanksgiving by one of our officers. There is now one canister left, which means one canister grew legs and walked away. If YOU are in possession of Pillsbury Grands Flaky layers Buttermilk biscuits, please return them to their rightful owner. We work in a police department people. Too many things grow legs here. Thank you. 11 (December 5, 2014 email from Joseph Murgo to All Police Department Employees.) 12 After receiving that email, Green asked Lieutenant Emerman if there 13 were cameras in the kitchen. (Rule 56(a) Statements, undisputed ¶ 21.) Green then 14 went into the kitchen area, carrying the biscuits in a bag, intending to return them to 15 the refrigerator. (See id. undisputed ¶ 22.) When she arrived, Chief Larrabee was 16 there; and the refrigerator was sealed with, inter alia, yellow crime scene tape. 17 (Green Aff. ¶¶ 29, 27.) 18 Chief Larrabee asked Green what was in her bag; she responded only 19 that it contained her salad; she did not tell him that it also contained the biscuits, 20 which she had taken and was about to return to the refrigerator. (See, e.g., Rule 56(a) 21 Statements, undisputed ¶¶ 23 25.) Chief Larrabee then looked in the bag and saw 7 1 the canister of biscuit[s]. (Green Aff. ¶ 29.) Chief Larrabee took Green back to her 2 desk, as she attempted to explain that she had taken the biscuits with the intent of 3 baking them at home the communal kitchen at EHPD having no oven (see id. ¶ 22) 4 and bringing the baked biscuits back to the office for officers and staff (see id. ¶ 29). 5 Chief Larrabee refused to listen. Arriving at Green s desk, Chief Larrabee saw Green s 6 tote bag and asked what was in it. She showed him the wire basket and attempted 7 to explain that she was temporarily borrowing it for a holiday party, but again he 8 refused to listen. (See id.) 9 Green was immediately placed on administrative leave with pay, having 10 been found to have in her possession a basket that she admitted she had not asked 11 anyone whether she could borrow, and biscuits that she admitted she had not asked 12 anyone whether she could take. (See, e.g., Rule 56(a) Statements, undisputed ¶¶ 14, 13 18 20; December 11, 2014 Interview of Green by EHPD Internal Affairs Officer James 14 Naccarato ( Naccarato Interview of Green ) at 5 6.) 15 C. The Disciplinary Process and Green s Resignation 16 EHPD in 2014 had a Code of Conduct policy and a policy governing 17 internal affairs complaints. Under the policy governing the Internal Affairs Officer 8 1 [sic] and Complaints, the Chief of Police and Deputy Police Chief had the authority 2 to determine the merits of an investigation. (Rule 56(a) Statements, undisputed 3 ¶ 29.) Under that policy, the Chief of Police and Deputy Police Chief had the 4 authority to issue verbal reprimand[s], written reprimand[s], and suspension[s] ; but 5 for more serious allegations they were to forward the investigation to the Town s 6 Board of Police Commissioners ( Town BPC or BPC ); only the BPC had the 7 authority to terminate the employee. (Id. undisputed ¶¶ 30, 32 33.) The Town and 8 the BPC were subject to a federal consent decree, see Agreement for Effective and 9 Constitutional Policing, United States v. Town of East Haven, East Haven Board of Police 10 Commissioners, No. 3 12 CV 1652 (D. Conn. Dec. 21, 2012), Dkt. No. 11, which 11 required EHPD to follow a disciplinary matrix governing offenses for which an 12 EHPD employee could be discharged (Deposition of James Naccarato ( Naccarato 13 Dep. or Dep. ) at 111). They ha[d] to follow the matrix. (Id.) 14 In 2014, Naccarato was EHPD s I.A. Officer. In that position, he was 15 required to investigate alleged violations of policies and procedures by EHPD 16 personnel. He conducted an investigation with regard to potential Code of Conduct 17 violations by Green on December 5, 2014. (Rule 56(a) Statements, undisputed 18 ¶¶ 10 15.) 9 1 As part of his investigation, Naccarato interviewed Green on December 2 11 in the presence of her union representative. In that interview, Green admitted that, 3 as indicated above, she had taken the biscuits and the basket without asking anyone s 4 permission. She told Naccarato, as she had tried to tell Chief Larrabee on December 5 5, that she had merely been borrowing the basket for a Hanukkah party, and that she 6 had seen the biscuits in the refrigerator for more than a week and planned to bake 7 them at home and bring them back for officers and staff. When Naccarato asked why 8 she had tried to conceal the basket, Green stated that she was not concealing it. She 9 merely brought the tote bag because it made the basket easier to carry; and it had not 10 occurred to her to ask permission to borrow it, since for the past 13 years she and 11 others (she named two) had borrowed and returned such items as the basket without 12 asking anyone. (See Naccarato Interview of Green at 8, 10 12.) 13 Naccarato s report on his I.A. investigation of Green prepared over 14 several days time and signed on December 18 (see Naccarato Dep. 107, 109 10) 15 discussed whether Green had violated EHPD s Code of Conduct by, inter alia, 16 impair[ing] the operation or efficiency of the Department or any member or 17 [v]iolating any federal, state, and local laws, and concluded that she had done so by 18 engaging in premeditat[ed] . . . theft and purposely conceal[ing] the canister of 10 1 biscuits and the basket (EHPD Internal Affairs Investigation Report No. 2 IA1400000019 00039731 by James W. Naccarato, signed December 18, 2014 3 ( Naccarato s I.A. Report or I.A. Report ), at 1, 3 4). As described in Parts I.D. and 4 II.C.2. below, Naccarato testified in his deposition that he reached his conclusions 5 without interviewing the officer who owned the biscuits or the two persons identified 6 by Green as among those who previously had routinely borrowed baskets without 7 needing to ask permission (see Dep. 87 88, 94 96); he also testified as to what he may 8 have told Green he believed were her prospects for remaining employed at EHPD (see 9 id. at 35, 85 90). 10 A hearing into the charges against Green had been scheduled for 11 December 15, 2014. On that date, after receiving advice from her union representative 12 who had just met with Town representatives, including Chief Larrabee, she submitted 13 a letter stating, I Dyanna Green, hereby retire from the town of East Haven, effective 14 January 1st 2015. 15 D. The Present Action 16 In February 2016, Green, then proceeding pro se, commenced the present 17 action against EHPD and the Town. After counsel was appointed to represent her, 11 1 a First Amended Complaint ( Complaint ) was filed, asserting that her employment 2 had been constructively terminated because of her age in violation of the ADEA, 29 3 U.S.C. §§ 621 634, and CFEPA, Conn. Gen. Stat. § 46a 60 et seq. As Green had been 4 an employee of the Town, EHPD was dismissed from the action by stipulation. 5 In July 2017, after Green had taken the depositions of Emerman and 6 Naccarato, the Town moved for summary judgment dismissing the Complaint on the 7 ground, to the extent pertinent to this appeal, that Green had not made out a prima 8 facie case of discrimination. In so contending, the Town argued only that because 9 Green had chosen to resign rather than participate in a hearing before the Town BPC, 10 see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (a tenured public 11 employee is constitutionally entitled to, inter alia, a pretermination hearing at which 12 she is given an opportunity to present her position) ( Loudermill hearing ), she could 13 not establish that she had suffered an adverse employment action. 14 In opposition to the motion, Green disputed the claim that her 15 resignation had been voluntary, contending that she had essentially been forced to 16 resign because she was told that if she did not, she would be fired. In support of her 17 contention, she submitted her September 2017 Affidavit, stating in part as follows: 12 1 2 3 4 5 6 7 8 9 10 11 31. On December 11, 2014, I sat for an interview with Officer Naccarrato [sic] as part of the EHPD s formal investigation. . . . Following the conclusion of the interview, I . . . asked Officer Naccarato who held the position of Internal Affairs Officer, was obviously familiar with the EHPD s disciplinary procedure and matrix, and whose judgment I respected what was going to happen to me. Officer Naccarato responded in substance: (i) that I had stolen from the EHPD; (ii) that Chief Larrabee and other members of the EHPD no longer trusted me or wanted me to continue working at the EHPD; (iii) that I likely would be fired; and (iv) if there was a possibility of me resigning or retiring, I should do so. 12 13 14 15 32. Based on this conversation, I understood that as a result of Officer Naccarato s incorrect determination that I had engaged in a theft, it was inevitable that I would be fired under the EHPD s disciplinary matrix, and that my only option would be to retire. 16 17 18 19 33. On or about December 15, 2014, I was scheduled to appear with my union representatives, Sandy Santos and Tom Fascio, before representatives from the Town, including the Town s attorneys. 20 21 22 23 24 25 26 34. At the meeting, Mr. Fascio met individually with the Town s representatives. Mr. Fascio then advised me that the Town had no interest in speaking with or hearing from me. He then further advised that the Town s position was that I could either retire or move forward with a L[o]udermill hearing. He advised me that, based on his discussions with the Town s representatives, including Chief Larrabee, I would almost certainly lose a L[o]udermill hearing. 27 28 29 30 31 35. Based on the statements and advice of Officer Naccarato, as confirmed by my union representative s advice, I was forced to retire effective as of December 31, 2014. I did so under duress. It had been my intention to work for at least another nine years, until I was 70. 13 1 (Green Aff. ¶¶ 31 35 (emphases added).) 2 In support of the above statements that she had been advised by 3 Naccarato that she should resign because she was otherwise likely to be fired, Green 4 pointed, in part, to the following deposition testimony by Naccarato. Although no 5 one had suggested to Naccarato in substance, that we are going to try and fire 6 [Green] over this, he testified that 7 8 9 10 11 12 13 when you look at the disciplinary matrix, that violation falls in that category. Q. A fire able offense? A. Yes. Q. So it was your expectation that she was going to be fired over this? A. We have to follow the disciplinary matrix. 14 (Naccarato Dep. 89 (emphases added).) And after Naccarato said that on December 15 11, 2014, he probably had some discussion with Green that was not recorded in 16 her statement (id. at 33 34), he testified as follows: 17 18 Q. . . . [D]o you recall discussing with [Green] after the statement was taken what was going to happen to her? 19 20 A. I don t specifically remember but if she asked me, I would have told her what I thought. 14 1 Q. And what would you have told her? 2 A. It didn t look good, stealing in the police department. 3 4 5 Q. Did you tell her in substance that you recommended that she retire because nobody trusted her anymore? A. I don t remember saying that. 6 7 Q. Do you remember her asking you what you thought was going to happen to her? 8 9 A. I don t specifically remember but I couldn t say she didn t ask me. 10 Q. Okay. 11 A. And if she asked me, I would have told her. 12 Q. And what would you have told her? 13 14 15 A. That it s stealing from a police department, you have a potential to get fired for it. We have a disciplinary matrix that we go by and that s where it falls in there. 16 17 Q. Do you recall telling her that it was likely she was going to be fired unless she took retirement? 18 19 20 A. I don t recall specifically saying that but if she asked me what I thought, I would have told her. I would have been honest with her. I was always honest with her. 21 (Id. at 34 35 (emphases added).) 15 1 E. The District Court s Decision 2 The district court, in an opinion dated December 19, 2017, granted the 3 Town s motion to dismiss the action for lack of a prima facie case. See Green v. East 4 Haven Police Dep t, 3:16 cv 00321, 2017 WL 6498144, at *6 *9 (D. Conn. Dec. 19, 2017) 5 ( Green ). The court noted the burden shifting framework set forth in McDonnell 6 Douglas Corp. v. Green, 411 U.S. 792 (1973) ( McDonnell Douglas ), under which a prima 7 facie case of discrimination 8 9 10 11 consists of proof that a plaintiff (1) was within a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. 12 Green, 2017 WL 6498144, at *6 (emphasis added). Because the Town challenged only 13 the third McDonnell Douglas element and the parties did not address any of the others, 14 the court considered only whether Green adduced sufficient evidence to show a 15 triable issue as to whether she had suffered an adverse employment action. See id. 16 at *4, *7. It concluded that she had not. 17 The district court noted that an adverse employment action is one that 18 causes a materially adverse change in the terms and conditions of employment, that 19 [o]ne example of a materially adverse action is constructive discharge a work 16 1 condition so intolerable that when[] viewed as a whole . . . a reasonable person in the 2 employee s shoes would have felt compelled to resign and that [t]hreats of 3 termination can constitute evidence of constructive discharge. Id. at *7 (internal 4 quotation marks omitted) (citing, inter alia, Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 5 1188 (2d Cir. 1987) ( ample evidence demonstrated a triable issue of fact that plaintiff 6 was constructively discharged because plaintiff was notified he would be fired at the 7 end of the 90 day probationary period no matter what he did to improve his allegedly 8 deficient performance )). 9 However, the court also observed that a claim of constructive discharge 10 is not sufficiently supported merely by a showing that the plaintiff resign[ed] to 11 avoid facing disciplinary charges or simply fear[ed] termination. Green, 2017 WL 12 6498144, at *7. A plaintiff s failure to go through an available pre termination 13 hearing process is evidence that she was not constructively discharged, and this 14 often precludes a plaintiff s ability to survive summary judgment. Id. But evidence 15 [that] an employee was given the choice to either resign or be fired can be sufficient 16 to create a triable issue of fact. Id. When determining if a threat of termination is 17 sufficient, courts have relied on factors including whether the threats of termination 18 were repeated, direct, or involved additional adverse conduct. Id. (internal quotation 17 1 marks omitted). 2 The court found particularly illustrative the case of Gorham v. Town of 3 Trumbull Board of Education, 7 F.Supp.3d 218 (D. Conn. 2014) ( Gorham ), in which a 4 high school s night custodian had found a musical instrument in the trash and, 5 assuming that it was abandoned, took it home intending to donate it to his church. 6 He was summoned to a disciplinary hearing, charging him with theft of items belonging to a public entity, dishonesty and lying to [his] supervisors, and violation of the trust inherent in his position. . . . . He was informed that possible discipline included suspension or termination. . . . The Board of Education plant administrator was alleged to have told him at the disciplinary hearing, Lester, you re better off resigning right now; if not, we ll have you charged. . . . . The plaintiff also averred that his union representative stated, Lester, this is tough. If you don t . . . resign, they ll not only have you charged; even if you feel like you re right . . . you ll still be messed up. . . . . The plaintiff resigned on the day of the hearing. . . . The court found the evidence sufficient to constitute constructive discharge because a reasonable person in Gorham s shoes would have felt compelled to resign. . . . . In short, during the hearing one of the decision makers and his union representative essentially told Gorham the outcome of the hearing would be unfavorable and advised him to resign immediately before the decision was rendered. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Green, 2017 WL 6498144, at *8 (quoting Gorham, 7 F.Supp.3d at 225, 232 (emphases 25 ours)). 26 The district court here found that the facts leading to Green s resignation 18 1 did not measure up to the facts described in Gorham. It stated that, [i]n analyzing a 2 constructive discharge claim, the Court must carefully balance the facts to determine 3 whether a reasonable person would have considered the pre termination hearing a 4 meaningful process or a formality with a predetermined negative outcome. Green, 5 2017 WL 6498144, at *8 (emphases added). It concluded that its analysis of the facts in 6 this case reveals that the plaintiff chose she elected on her own to resign despite 7 having a viable pre termination hearing process . . . . for two reasons. Id. (emphases 8 added). 9 10 11 12 13 14 15 First, Plaintiff had no basis to prejudge the decision makers. Although Officer Naccarato found that she had violated the Code of Conduct, that she was found to have committed an act for which she could be terminated, that Chief Larrabee and others did not trust or want to work with her, and that he thought she should resign, neither he nor Chief Larrabee were decision makers. Neither . . . had the authority to terminate her. 16 Id. (emphases added). Second, despite Green s assertion that [b]ased on [her 17 December 11] conversation [with Naccarato], I understood that as a result of [his] 18 incorrect determination that I engaged in a theft, it was inevitable that I would be fired 19 under the EHPD s disciplinary matrix, and that my only option would be to retire, id. 20 (quoting Green Aff. ¶ 32 (emphases ours)), the court found such an understanding 21 unreasonable: 19 1 2 3 4 5 6 7 8 9 EHPD Policy Number 208.2 makes clear that only the BPC has the authority to terminate an employee and may do so only after a full evidentiary Board hearing. . . . At such a hearing Plaintiff could have offered the testimony of her longstanding coworkers demonstrating that her conduct was conventional. That process had not begun and no one advised Plaintiff of the likely outcome of that process. Indeed, a reasonable person in Plaintiff s shoes would not have concluded it was inevitable that she would be fired after speaking with someone uninvolved in the decisionmaking process. 10 Green, 2017 WL 6498144, at *8 ( inevitable emphasized in original; other emphases 11 added). The district court found it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 unavailing that [Green s] union representative advised her the Town s position was that [she] could either retire or move forward with a L[o]udermill hearing but that she would almost certainly lose a L[o]udermill hearing. [Green Aff.] ¶ 34. In light of the fact that there is no evidence Plaintiff s termination was automatic, the loss of a Loudermill hearing would not have inevitably led to termination. These statements appear to be nothing more than an educated guess about a certain outcome. Green, 2017 WL 6498144, at *8 (emphases ours). The court found that [u]nlike the plant administrator in Gorham, nobody gave Plaintiff an ultimatum or threatened her with criminal charges, and there is no evidence the final decision maker would have even terminated her employment. The Court finds that Plaintiff[] . . . cannot show constructive discharge because she elected on her own to forego a hearing made available to her. Id. (emphases added). 20 1 The court granted summary judgment in favor of the Town, concluding 2 that [i]n failing to establish an adverse employment action, Plaintiff cannot establish 3 a prima facie case for her ADEA or CFEPA claims. Id. at *9. II. DISCUSSION 4 5 On appeal, Green contends that the granting of summary judgment 6 against her for failure to show an adverse employment action was error because the 7 evidence, viewed in the light most favorable to her, showed that she was 8 constructively discharged by the Town because she believed, and objectively 9 reasonably believed, that if she did not resign she would be discharged. As this was 10 the only merits related argument presented to and considered by the court, we agree 11 that summary judgment was inappropriate. 12 A. ADEA Principles 13 The ADEA provides, in pertinent part, that as to a person over the age 14 of 40, see 29 U.S.C. § 631(a), [i]t shall be unlawful for an employer . . . to discharge 15 [the] individual . . . because of such individual s age, id. § 623(a)(1). In order to 21 1 establish a prima facie case of age discrimination, the plaintiff must show (1) that 2 she was within the protected age group, (2) that she was qualified for the position, (3) 3 that she experienced adverse employment action, and (4) that such action occurred 4 under circumstances giving rise to an inference of discrimination. Gorzynski v. 5 JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). As to the fourth element of the 6 prima facie case, the Supreme Court has made clear that a plaintiff bringing a 7 disparate treatment claim pursuant to the ADEA must prove, by a preponderance of 8 the evidence, that age was the but for cause of the challenged adverse employment 9 action and not just a contributing or motivating factor. Id. at 106 (quoting Gross v. 10 FBL Financial Services, Inc., 557 U.S. 167, 180 (2009)). Only the third element of the 11 prima facie case is at issue on this appeal, however, because the only merits related 12 basis for summary judgment presented by the Town s motion was that Green had 13 failed to show an adverse employment action, and that was the only such basis for 14 summary judgment considered by the district court, see Green, 2017 WL 6498144, at *4, 15 *7. 16 Plainly an employee s discharge, 29 U.S.C. § 623(a)(1), is an adverse 17 employment action. To satisfy the third element of the prima facie case, a discharge 18 may consist of either the employer s actual termination of the plaintiff s employment 22 1 or the existence of intolerable conditions, attributable to the employer, amounting to 2 a constructive discharge. See, e.g., Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 3 1998) ( Kirsch ); Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir. 1993) 4 ( Stetson ); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) ( Pena ). [T]he 5 plaintiff s burden of establishing a prima facie case in a discrimination suit is 6 de minimis. Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 90 (2d Cir. 7 1999) ( Chertkova ) (Title VII claim of gender discrimination) (internal quotation marks 8 omitted). 9 An employee s rights under federal antidiscrimination statutes may be 10 violated by either explicit or constructive alterations in the terms or conditions of 11 employment, and if constructive, the alterations, to be actionable, must be severe or 12 pervasive. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998) ( Ellerth ) 13 (emphasis added) (discussing Title VII principles announced in Meritor Savings Bank, 14 FSB v. Vinson, 477 U.S. 57, 65 (1986)); see, e.g., Pena, 702 F.2d at 325 (ADEA claim). A 15 discriminatorily abusive work environment . . . can . . . discourage employees from remaining 16 on the job . . . . Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993) (emphases added); 17 see, e.g., id. at 19 (after the company president s last sexually harassing comment, 18 Harris collected her paycheck and quit ). 23 1 2 3 4 A plaintiff may prove a constructive discharge by establishing that his employer, rather than acting directly, deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation, 5 Kirsch, 148 F.3d at 161 (ADEA claim) (internal quotation marks omitted (emphases 6 ours)), and such an intolerable condition may be shown by evidence that the 7 employer gave the plaintiff the choice of resigning or being fired, see, e.g., Lopez v. S.B. 8 Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) ( Lopez ) (claim of ethnic discrimination 9 in violation of 42 U.S.C. § 1981). 10 However, as the district court noted, a constructive discharge cannot be 11 shown simply by the fact that the employee was unhappy with the nature of her 12 assignments or criticism of her work, or where the employee found the working 13 conditions merely difficult or unpleasant. See Green, 2017 WL 6498144, at *7 (citing 14 Stetson, 995 F.2d at 360). Rather, the standard for assessing whether the alterations 15 have become intolerable is an objective one: 16 17 18 19 Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment an environment that a reasonable person would find hostile or abusive is beyond Title VII s purview. 20 Harris, 510 U.S. at 21 (emphases added). Accordingly, the principle we have 21 consistently applied is that a plaintiff makes a prima facie showing of an adverse 24 1 employment action if she adduces evidence from which a rational juror could infer 2 that the employer made her working condition, viewed as a whole, so difficult or 3 unpleasant that a reasonable person in the employee s shoes would have felt 4 compelled to resign. Kirsch, 148 F.3d at 161 (internal quotation marks omitted); see, 5 e.g., Chertkova, 92 F.3d at 89; Stetson, 995 F.2d at 361; Lopez, 831 F.2d at 1188; Pena, 702 6 F.2d at 325. 7 The fact that this substantive standard is an objective one, however, does 8 not necessarily mean that what a reasonable person in the plaintiff s shoes would 9 have felt compelled to do is determinable as a matter of law, for an objective question 10 is often fact specific. It hardly need be said that the determination of whether it was 11 objectively reasonable for an employee to feel compelled to resign in order to avoid 12 being fired requires at least an examination of the information possessed by the 13 employee. If any relevant facts are in dispute or subject to competing inferences as 14 to their effects, or if there is admissible evidence from which a rational juror could 15 infer that a reasonable employee would have felt so compelled, rejection of the 16 constructive discharge theory as a matter of law is impermissible. See, e.g., Kirsch, 148 17 F.3d at 161 62 (affirming denial of defendants posttrial motion for judgment as a 18 matter of law); Lopez, 831 F.2d at 1189 (reversing grant of defendant s motion for 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 summary judgment). In Lopez, for example, we observed that [t]he record in this case amply demonstrates that Lopez has raised a genuine issue of fact as to whether he was constructively discharged when, as he alleges, Hunsberger [a regional director who was Lopez s supervisor] told him he would be fired at the end of the 90 day probationary period no matter what he did to improve his allegedly deficient performance. A trier of fact might find that Hunsberger s statement alone suffices to establish a constructive discharge. See Welch v. University of Tex. & Its Marine Science Inst., 659 F.2d 531, 533 34 (5th Cir. 1981) (finding constructive discharge where employer clearly expressed his desire that employee resign because such a statement would force a reasonable person to resign). Lopez, 831 F.2d at 1188 89 (emphasis added). 15 In contrast, some cases present records so insubstantial that no rational 16 factfinder could infer that a reasonable employee in the plaintiff s shoes could have 17 felt compelled to resign. In Stetson, for example, we found the evidence insufficient 18 to show a prima facie case of constructive discharge where the employer never 19 mentioned retirement to Stetson and never either expressly or impliedly suggested 20 that Stetson s employment would be terminated. 995 F.2d at 361; see also Pena, 702 21 F.2d at 325 26 (reversing denial of the defendant s motion for a directed verdict for 22 lack of evidence of a constructive discharge where, although the plaintiff s role was 23 somewhat changed, she was not faced with loss of pay or change in title, and it was 26 1 her own understanding throughout the relevant period [t]aking her own 2 testimony in the light most favorable to her that [the employer] wished her to 3 remain in its employ). 4 B. Summary Judgment Principles 5 A motion for summary judgment may be granted only if the movant 6 shows that there is no genuine dispute as to any material fact and the movant is 7 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). On such a motion, 8 [t]he inquiry performed is the threshold inquiry of determining whether there is the 9 need for a trial whether, in other words, there are any genuine factual issues that 10 properly can be resolved only by a finder of fact because they may reasonably be 11 resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 12 (1986) ( Liberty Lobby ). Thus, in ruling on a motion for summary judgment, the 13 district court is required to resolve all ambiguities, and credit all factual inferences 14 that could rationally be drawn, in favor of the party opposing summary judgment. 15 Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 206 (2d Cir. 16 2006) (internal quotation marks omitted). 17 [A]t the summary judgment stage the judge s function is not himself to 27 1 weigh the evidence and determine the truth of the matter but to determine whether 2 there is a genuine issue for trial. Liberty Lobby, 477 U.S. at 249. Credibility 3 determinations, the weighing of the evidence, and the drawing of legitimate 4 inferences from the facts are jury functions, not those of a judge . . . ruling on a motion 5 for summary judgment . . . . Id. at 255. 6 These standards also govern our review on appeal. Where [s]ummary 7 judgment was granted for the employer, . . . we must take the facts alleged by the 8 employee to be true. Ellerth, 524 U.S. at 747. 9 C. The Present Case 10 In this case we have difficulties both with the substantive legal standard 11 adopted by the district court and with the court s treatment of the summary judgment 12 record. 13 1. The Substantive Legal Principle Adopted 14 In granting summary judgment against Green for lack of proof of any 15 adverse employment action, the district court stated in part that [u]nlike the 16 [decisionmaker] in Gorham, nobody gave Plaintiff an ultimatum [to resign or be fired] 28 1 or threatened her with criminal charges. Green, 2017 WL 6498144, at *8. But Gorham 2 merely discussed evidence of statements that were especially clear, authoritative, and 3 ominous, from which a constructive discharge could be inferred. That evidence did 4 not mark the minimum standard for what is actionable. 5 Abuses may take many forms and be delivered in many ways. The 6 district court s transmutation of the facts in Gorham into a substantive controlling 7 principle ruling that a plaintiff cannot show that a threat of termination constituted 8 a constructive discharge unless the threat (a) was a categorical ultimatum that if she 9 did not resign she would be fired, and (b) was delivered by an ultimate 10 decisionmaker as to firing imposed a legal standard at an unwarranted level of 11 specificity. 12 While the identity of the person delivering a termination threat or 13 prediction and the level of certainty expressed in such a threat or prediction are 14 considerations for a factfinder to weigh, neither an absolute statement nor a direct 15 communication by an ultimate decisionmaker is a sine qua non for evidence of a 16 constructive discharge. For example, in Lopez, in which the plaintiff was told by his 17 supervisor that he would be fired at the end of his probationary period regardless of 18 how well he performed, we stated that a factfinder could permissibly find that [that] 29 1 statement alone suffices to establish a constructive discharge, 831 F.2d at 1188; but 2 nothing in our opinion suggested that the supervisor was a decisionmaker with 3 respect to firing. In Stetson, in concluding that there was not sufficient evidence to 4 show a prima facie case of constructive discharge, we considered not just whether the 5 employer told Stetson expressly that his employment would be terminated, but 6 alternatively whether he so suggested impliedly, 995 F.2d at 361. And indeed, our 7 Lopez opinion indicated that a constructive discharge could properly be found where 8 an employer merely, albeit clearly[,] expressed his desire that [an] employee resign 9 because such a statement could cause a reasonable person to feel compelled to 10 resign, 831 F.2d at 1188 89 (emphasis added). 11 12 finding that Green s constructive discharge argument failed because her evidence was 13 less stark than that in Gorham, the established standard as discussed in Part II.A. 14 above, and indeed as reflected in Gorham itself is whether in light of the evidence as 15 a whole as to intolerable working circumstances, a reasonable person in the 16 employee s shoes would have felt compelled to resign, Kirsch, 148 F.3d at 161; 17 Chertkova, 92 F.3d at 89; Stetson, 995 F.2d at 361; Lopez, 831 F.2d at 1188; Pena, 702 F.2d 18 at 325; see Gorham, 7 F.Supp.3d at 232. Thus, contrary to the standard applied by the district court here in 30 1 2. The District Court s Assessment of the Record 2 In addition to imposing an unduly stringent standard for proof of a 3 constructive discharge, the district court engaged in a balanc[ing of] the facts, from 4 which the court inferred that a reasonable person in Green s shoes would not have felt 5 compelled to resign in order to avoid termination, and found that Green in fact 6 chose elected on her own to resign rather than to proceed with the Loudermill 7 hearing, Green, 2017 WL 6498144, at *8. But on a motion for summary judgment, the 8 court s job was not to weigh the evidence, but rather was to accept as true the facts 9 that were sworn to or undisputed, and with all permissible inferences therefrom 10 drawn in Green s favor, to determine whether a rational juror could find that a 11 reasonable employee would have felt so compelled. The record as a whole, viewed 12 in the light most favorable to Green, precluded the grant of summary judgment. 13 Preliminarily, we note that one of the Gorham facts that the district court 14 noted Green failed to match was that Gorham had been expressly threatened with 15 criminal prosecution, whereas Green was not so threatened. Although ordinarily one 16 might reasonably have no fear of being criminally prosecuted for taking a $2 $3 17 package of biscuit dough, EHPD s treatment of the biscuits affair was hardly 31 1 ordinary. The district court s suggestion that Green could have had no thought of 2 being prosecuted criminally ignored the facts that, on arriving in the EHPD kitchen 3 in her attempt to return the biscuits, Green had been confronted by Chief Larrabee 4 who, telling her it was a crime scene, barred her from opening the refrigerator, 5 which was covered with yellow crime scene tape (Green Aff. ¶¶ 27, 29). 6 More importantly, we have difficulty with the district court s view that 7 an employee in Green s shoes would not have had any reasonable belief that her 8 firing was inevitable (as her affidavit claimed), an inference drawn from the district 9 court s findings that no one advised Plaintiff of the likely outcome of a BPC hearing, 10 and that she thus had no basis to prejudge the [Loudermill hearing] decision makers, 11 Green, 2017 WL 6498144, at *8. The findings that no one had given Green such 12 advice and that there was no basis for her to believe that she would lose in a hearing 13 did not take into account all of the evidence in the record, and surely did not view the 14 evidence in the light most favorable to Green. First, the court characterized the 15 hearing scheduled for Green as a viable pretermination process, in which she could 16 have offered the testimony of her longstanding coworkers demonstrating that her 17 conduct was conventional, id. (emphases added). But Green had cited past customary 18 practices of herself and coworkers only to explain borrowing the basket; she did not 32 1 claim any longstanding practice with respect to taking the biscuits. Moreover, the 2 court did not mention either (a) the I.A. Report s findings that Green had committed 3 premeditat[ed] . . . theft and had purposely concealed the theft (I.A. Report at 3), 4 or (b) the undisputed fact that authority to determine the merits of an [I.A.] 5 investigation resided in the Chief of Police (Rule 56(a) Statements, undisputed ¶ 29 6 (emphasis added)). Thus, although Chief Larrabee was not an ultimate 7 decisionmaker as to whether Green should be fired, the record is contrary to the 8 district court s view that Green had a viable chance of having the Town BPC 9 overrule the Police Chief s I.A. determinations that Green had engaged in theft and 10 duplicity. 11 Second, there was evidence in the record that Green received advice from 12 knowledgeable persons, on both sides of the aisle, that the Loudermill hearing would 13 likely, and indeed almost certainly, result in her termination: 14 15 16 # EHPD was subject to a consent decree that required it to follow a disciplinary matrix governing circumstances under which a Department employee could be fired (see Naccarato Dep. 111); 17 18 19 # Naccarato, as EHPD s Internal Affairs Officer, was familiar with (see id. 114 16) and was understood by Green to be familiar with (see Green Aff. ¶ 31) the EHPD disciplinary matrix; 20 # Green stated that when she asked Naccarato what he thought 33 1 2 3 was going to happen to her, Naccarato told her that Chief Larrabee and other members of EHPD no longer trusted her and did not want her to continue working at EHPD (see Green Aff. ¶ 31); 4 5 6 # Naccarato advised Green that if the I.A. charges were upheld she, in accordance with the consent decree mandated disciplinary matrix, likely would be fired (id.); 7 8 # Green stated that Naccarato advised her that if she could resign[] or retir[e], she should do so (id.); 9 10 11 12 13 # Naccarato testified that he did not remember specifically Green s asking his view of what was going to happen to her (Dep. 34) or specifically advising her that she should resign or retire (id. at 35); but he testified that if she asked, he would have told her what he honestly thought (id.); 14 15 16 # Naccarato testified that he would have told Green that stealing from the police department falls into the disciplinary matrix category of a fire able offense (Dep. 35, 89); 17 18 19 # Naccarato testified that if I.A. charges showed a firing offense, the disciplinary matrix left the BPC very little room for an exercise of discretion (Dep. 111); and, finally, 20 21 22 23 24 25 26 # Green stated that on the day of the scheduled hearing, her union representative met initially with Town representatives, who said the Town did not want to hear from Green and that she could either have the Loudermill hearing or retire; and her union representative advised her, based on his discussions with the Town s representatives, including Chief Larrabee, that she would almost certainly lose at the hearing (Green Aff. ¶ 34). 27 The district court s view that there was no basis for a reasonable belief that Green 34 1 would lose a Loudermill hearing is contradicted by the evidence. 2 While the district court did note Green s statement that her union 3 representative advised her that she would almost certainly lose in a Loudermill 4 hearing, Green, 2017 WL 6498144, at *8, the court found that advice though 5 admittedly educated to be unavailing because there was no evidence that 6 termination was automatic or inevitable, id. This outright dismissal as to any value 7 or effect of advice from the union representative seems to indicate the court s belief 8 that, despite having received an I.A. officer s informed view that she has committed 9 a fire able offense, a reasonable employee, as a matter of law, cannot feel compelled 10 to resign rather than insist on a hearing when her union representative who is 11 presumably looking after her interests makes an educated prediction that she is 12 almost certain to lose in the hearing. We know of no authority supporting such a 13 principle of law. And to the extent that the court found the union representative s 14 advice unavailing simply as a matter of fact i.e., as outweighed by other evidence 15 as to what a reasonable employee in Green s shoes would have felt compelled to do, 16 id. the court so found by impermissibly conducting its own weighing of the evidence 17 and by drawing all inferences adversely to Green. 18 In sum, the evidence to be considered as to whether Green suffered a 35 1 constructive discharge adverse employment action, viewed in the light most 2 favorable to Green on this issue, included the facts that the 61 year old Green (1) had 3 admitted taking items from the EHPD kitchen without permission; (2) had admitted 4 initially lying to the Chief of Police about her actions; (3) had immediately been 5 caught by the Chief of Police in that lie; (4) was found in the Internal Affairs 6 investigation (a) to have stolen those items premeditatedly and (b) to have attempted 7 to conceal the theft; (5) had been told by the Internal Affairs Officer that the Chief of 8 Police and other members of the Department no longer trusted her and did not want 9 her to continue working at EHPD; (6) had been advised by the Internal Affairs Officer 10 (a) that if the I.A. Report were upheld she, in accordance with the EHPD consent 11 decree disciplinary matrix, likely would be fired, and (b) that if she could resign or 12 retire she should do so ; and (7) had been advised by her own union representative, 13 who had just conferred with the Town representatives, that she would almost 14 certainly lose at a Loudermill hearing. If this case were tried, a factfinder, applying 15 the correct legal standard to the issue of constructive discharge, could rationally find 16 that an employee in Green s shoes would have felt compelled to submit her 17 resignation stating that she was retiring, rather than face nearly certain termination. 18 The district court erred in granting summary judgment on the basis that 36 1 2 such a finding would be impermissible. CONCLUSION 3 We have considered all of the Town s appellate arguments in support of 4 summary judgment and have found them to be without merit. The judgment 5 dismissing Green s claims under the ADEA and CFEPA is vacated, and the matter is 6 remanded for further proceedings. As the Town s merits challenge to Green s action 7 focused only on the element of adverse employment action, we do not rule out the 8 possibility of further pretrial proceedings focusing on other elements. 9 10 If Green ultimately prevails on the merits of her action, she will be entitled to the costs of this appeal. 37
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