Karagozian v. USV Optical, Inc. ( 2020 )

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OHAN KARAGOZIAN v. USV OPTICAL, INC.
(SC 20257)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff employee sought to recover damages from the defendant
employer, alleging that he was constructively discharged in violation of
public policy. The plaintiff had been employed as a licensed optician
manager in the defendant’s optical department in a JCPenney store and
alleged that the defendant improperly required him to provide optomet-
ric assistance services to the doctor of optometry in the store. The
plaintiff claimed that, under a declaratory ruling issued by the Board
of Examiners for Optometrists and a cease and desist consent order
issued by the Board of Examiners for Opticians, employees, including
opticians, under the control of unlicensed third parties were prohibited
from performing services for licensed optometrists. The plaintiff also
alleged that his duties violated the public policy embodied in the statute
(§ 31-130 (i)) requiring JCPenney and the defendant to have a staffing
permit before providing staffing services to the optometrist. The plaintiff
further alleged that he was forced to resign when the defendant refused
his requests to be excused from these duties. The defendant moved to
strike the plaintiff’s complaint on the ground that its allegations could
not satisfy the requirements of a constructive discharge claim. The
defendant asserted that the declaratory ruling and the cease and desist
order were not binding and did not create a private right of action for
optometric assistants. The defendant also alleged that the plaintiff’s
reliance on § 31-130 (i) was misplaced because the plaintiff did not allege
that optometrists employed by the defendant charged the defendant for
hiring opticians. The trial court, relying on Brittell v. Dept. of Correction
(247 Conn. 148), determined that, to prevail on his constructive discharge
claim, the plaintiff was required to demonstrate that the defendant
intended to force him to resign. The trial court granted the defendant’s
motion to strike the plaintiff’s complaint and rendered judgment for the
defendant. The plaintiff appealed to the Appellate Court, which affirmed
the trial court’s judgment. The Appellate Court, interpreting and applying
Brittell in the same manner as the trial court, concluded, inter alia, that
there was no allegation in the plaintiff’s complaint that reasonably could
be construed to claim that the defendant intended to create conditions
so intolerable that a reasonable person in the plaintiff’s shoes would
be compelled to resign. On the granting of certification, the plaintiff
appealed to this court. Held:
1. The Appellate Court incorrectly interpreted the standard set forth in
Brittell to require the plaintiff to assert facts demonstrating that the
defendant intended to force him to resign, Brittell having required the
plaintiff to establish only that the defendant intended to create an intoler-
able work atmosphere; the Brittell standard for constructive discharge
requires a subjective inquiry into whether the employer intended to
create the complained of employment atmosphere or condition and an
objective inquiry into whether that atmosphere or condition would have
led a reasonable person in the employee’s shoes to feel compelled to
resign, and that standard does not require the employee to allege facts
showing that the employer intended to force the employee to resign.
2. Although the Appellate Court incorrectly applied the standard for con-
structive discharge in Brittell, that court correctly upheld the trial court’s
granting of the defendant’s motion to strike the plaintiff’s complaint
on the alternative ground that the plaintiff had failed to allege facts
establishing that his work atmosphere was so difficult or unpleasant
that a reasonable person in his shoes would have felt compelled to resign,
and, accordingly, this court affirmed the judgment of the Appellate
Court: nothing in the plaintiff’s complaint established that the defendant
required him to violate the law, as the declaratory ruling evaluated the
circumstances under which an optometrist would be considered an
employee of an unlicensed person or entity, and the plaintiff was
employed as an optician rather than an optometrist, the declaratory rul-
ing was binding only on those, unlike the plaintiff, who participated in
the hearing that led to the ruling, and the ruling, which was intended
to provide guidance to optometrists, did not establish criminal liability
or inflict repercussions for specific conduct that would compel a reason-
able optician in the plaintiff’s shoes to resign; moreover, the plaintiff
failed to demonstrate that the cease and desist order either applied to
him or bound the defendant, as the order required that a store different
from the one in which the plaintiff worked not permit a licensed optician
to act in the capacity of an optometric assistant to an independent
optometrist leasing space in the store, and also failed to demonstrate
how the consent order functionally created a work condition so intolera-
ble that a person in the plaintiff’s shoes would have been justified in
walking off the job as if he had been fired; furthermore, contrary to the
plaintiff’s claim, § 31-130 (i) was inapplicable, as it requires only that a
person who procures or offers to procure employees for employers
register with the Commissioner of Labor, and the allegations of the
plaintiff’s complaint did not suggest that the defendant intended to
create conditions different from what the plaintiff would have expected
when he agreed to work as a licensed optician manager for the defendant.
Argued December 12, 2019—officially released April 15, 2020*
Procedural History
Action to recover damages for the plaintiff’s alleged
constructive discharge from employment, brought to
the Superior Court in the judicial district of New Haven
at Meriden, where the court, Hon. John F. Cronan,
judge trial referee, granted the defendant’s motion to
strike the revised complaint; thereafter, the court, Har-
mon, J., granted the plaintiff’s motion for judgment and
rendered judgment for the defendant, from which the
plaintiff appealed to the Appellate Court, DiPentima,
C. J., and Lavine and Moll, Js., which affirmed the judg-
ment of the trial court, and the plaintiff, on the grant-
ing of certification, appealed to this court. Affirmed.
John R. Williams, for the appellant (plaintiff).
Robert M. Palumbos, pro hac vice, with whom was
Elizabeth M. Lacombe, for the appellee (defendant).
Scott Madeo and Brian Festa filed a brief for the
Commission on Human Rights and Opportunities as
amicus curiae.
Opinion
D’AURIA, J. The plaintiff, Ohan Karagozian, an opti-
cian formerly employed by the defendant, USV Optical,
Inc.,1 brought this action for constructive discharge,
alleging that (1) the defendant required him to provide
optometric assistance services to a doctor of optometry
in violation of the public policy of the state of Connecti-
cut, (2) the defendant refused and failed to excuse the
plaintiff from those duties, and (3) ‘‘[a]s a result, the
plaintiff was compelled to resign his position with the
defendant . . . .’’ The defendant moved to strike the
plaintiff’s corrected revised complaint on the ground
that the allegations in the complaint could not, as a
matter of law, satisfy the requirements of a constructive
discharge claim.2 The trial court granted the defendant’s
motion to strike, relying on Brittell v. Dept. of Correc-
tion, 247 Conn. 148, 178, 717 A.2d 1254 (1998), for the
proposition that a claim of constructive discharge
requires a plaintiff to demonstrate that the employer
intended to force the employee to resign. The trial court
determined that the plaintiff had not only failed to allege
this intent requirement in his complaint, but also failed
to allege the second requirement of a constructive dis-
charge claim—that his work conditions became so
intolerable that a reasonable person in his shoes would
have felt compelled to resign.
Interpreting and applying our decision in Brittell in
the same fashion as the trial court, the Appellate Court
affirmed the trial court’s judgment, concluding that
there was ‘‘no allegation in the complaint that reason-
ably [could] be construed to claim that the defendant
intended to create conditions so intolerable that a rea-
sonable person would be compelled to resign.’’ (Empha-
sis in original.) Karagozian v. USV Optical, Inc., 186
Conn. App. 857, 867–68, 201 A.3d 500 (2019). We dis-
agree with the Appellate Court’s interpretation of Brit-
tell, although we affirm its judgment on the alternative
ground it identified.
To plead a prima facie case of constructive discharge,
a plaintiff must allege that (1) the employer intention-
ally created the complained of work atmosphere, (2) the
work atmosphere was so difficult or unpleasant that a
reasonable person in the employee’s shoes would have
felt compelled to resign, and (3) the plaintiff in fact
resigned. Brittell does not, as the Appellate Court has
ruled in several cases, require a plaintiff claiming con-
structive discharge to allege that the employer intended
to force the employee to quit, but only to allege that
the employer intended to create the conditions that the
plaintiff claims compelled the employee to quit. How-
ever, in the present case, we agree with the Appellate
Court and the defendant that the plaintiff failed to suffi-
ciently allege the second requirement of a constructive
discharge claim in his complaint. Specifically, the plain-
tiff’s complaint fails as a matter of law to allege that
the defendant created a work atmosphere so difficult
or unpleasant that a reasonable person in the plaintiff’s
shoes would have felt compelled to resign.
The following facts and procedural history, as contained
in the record and in the Appellate Court’s decision, are
relevant to this appeal. The plaintiff’s complaint alleged
that the plaintiff began working in an optical depart-
ment operated by the defendant and located in a JCPen-
ney store in Trumbull. As a licensed optician manager,
the plaintiff’s role involved providing optometric assis-
tant services to the doctor of optometry at the store.
His specific duties included, but were not limited to,
maintaining records, scheduling appointments, prepar-
ing patients for vision examinations, adjusting and
repairing glasses, modifying contact lenses, measuring
intraocular pressure of eyes using a glaucoma test, and
measuring the axial length of eyes using ultrasound
equipment. About three months into his employment,
the plaintiff asked his supervisors that ‘‘he not be
required to perform such duties . . . .’’ According to
the plaintiff, he made this request on at least three
separate occasions on the basis of his belief that these
duties violated the public policy of the state of Con-
necticut.
As support for his belief that these duties violated
the state’s public policy, the plaintiff attached to his
complaint copies of a declaratory ruling issued by the
Board of Examiners for Optometrists on May 1, 2002,
and a cease and desist consent order issued by the
Board of Examiners for Optometrists and the Board of
Examiners for Opticians in February, 2006. In the plain-
tiff’s view, the declaratory ruling ‘‘prohibits employees
under the control of unlicensed third parties from per-
forming services for licensed optometrists.’’ The cease
and desist consent order, the plaintiff alleged, provided
that Walmart, Inc., had agreed not to permit licensed
opticians to perform the duties of an optometric assis-
tant or to perform services for optometrists by whom
they were not employed. Additionally, the plaintiff
alleged that his duties violated public policy, as set forth
in General Statutes § 31-130 (i),3 in that ‘‘neither the
defendant nor JCPenney had a staffing permit allowing
either of them to provide staffing services to the doc-
tor.’’ The plaintiff’s complaint alleged that the defendant
refused the plaintiff’s requests and failed to excuse him
from these duties. As a result, the plaintiff claimed, he
was compelled to resign his position. He then brought
this action for constructive discharge.
The defendant moved to strike the complaint on the
ground that the plaintiff’s allegations did not, as a matter
of law, satisfy the requirements of a constructive dis-
charge claim. Specifically, the defendant argued, the
documents on which the plaintiff relied—the declara-
tory ruling and the cease and desist consent order—
were not binding on the parties in the present case and
did not create a private right of action for optometric
assistants. The defendant also contended that the plain-
tiff’s reliance on § 31-130 (i) was misplaced because his
complaint made no allegation that optometrists
employed by the defendant charged the defendant for
hiring opticians. As to the elements of a constructive
discharge claim, the defendant argued that the plain-
tiff’s complaint failed to establish that the employer
intentionally created an intolerable work atmosphere
that forced the plaintiff to quit.
The trial court agreed with the defendant and granted
the motion to strike the complaint. The plaintiff declined
to replead and, instead, after the court rendered judg-
ment in favor of the defendant, appealed to the Appel-
late Court, which affirmed the judgment of the trial
court. The Appellate Court’s decision relied on its inter-
pretation of the standard we established in Brittell for
a constructive discharge claim. The plaintiff then peti-
tioned this court for certification to appeal, which we
granted on one issue: ‘‘Did the Appellate Court correctly
construe and apply Brittell v. Dept. of Correction, [supra,
247 Conn. 148], in holding that an action for constructive
discharge in violation of public policy requires that the
plaintiff allege and prove not only that the employer
intended to create an intolerable work atmosphere but
that the employer intended thereby to force the plain-
tiff to resign?’’ Karagozian v. USV Optical, Inc., 331
Conn. 904, 201 A.3d 1023 (2019).
On appeal to this court, the plaintiff reasserts his
position that a constructive discharge allegation should
not focus on the ‘‘employer’s state of mind but on the
objective reality of the working conditions and the
impact of that objective reality, not upon the particular
worker in question, but upon a hypothetical reasonable
person in the worker’s position. . . . By requiring the
employee to prove . . . that the employer intended to
force him to resign, the Appellate Court . . . imposed
a requirement that defeats the very purpose of the con-
structive discharge doctrine.’’ (Citations omitted;
emphasis omitted.) Accordingly, the plaintiff urges this
court to reverse the Appellate Court’s judgment uphold-
ing the trial court’s decision to strike his complaint.
I
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no fac-
tual findings by the trial court, our review of the court’s
ruling . . . is plenary. . . . We take the facts to be
those alleged in the complaint that has been stricken and
we construe the complaint in the manner most favor-
able to sustaining its legal sufficiency. . . . Thus, [i]f
facts provable in the complaint would support a cause
of action, the motion to strike must be denied.’’ (Internal
quotation marks omitted.) Geysen v. Securitas Security
Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227(2016).
To evaluate whether the Appellate Court properly
upheld the trial court’s ruling that the plaintiff failed to
allege facts sufficient to support a claim for constructive
discharge, we first must determine whether the Appel-
late Court properly applied the constructive discharge
standard that we described in Brittell v. Dept. of Cor-
rection, supra, 247 Conn. 148: ‘‘Constructive discharge
of an employee occurs when an employer, rather than
directly discharging an individual, intentionally cre-
ates an intolerable work atmosphere that forces an
employee to quit involuntarily. . . . Working condi-
tions are intolerable if they are so difficult or unpleasant
that a reasonable person in the employee’s shoes would
have felt compelled to resign.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 178, quoting Chertkova v. Connecticut General Life
Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).
The parties in the present case disagree in their inter-
pretation of the Brittell standard, specifically as to the
element of intent. The defendant candidly suggests that
two different interpretations of the standard are plau-
sible—either that the employer intended to create an intol-
erable work atmosphere or that the employer intended
to create the intolerable work atmosphere and thereby
intended to force the employee to quit. The defendant
argues that a plaintiff claiming that he was construc-
tively discharged should be required to show that the
employer intended to force the employee to resign. As
support for its claim, the defendant points to Appellate
Court and Superior Court cases that ‘‘have consistently
applied Brittell to require that the employer intend to
force the employee to resign.’’4 According to the defen-
dant, the Appellate Court in the present case correctly
applied the standard in concluding that the plaintiff
had failed to assert facts showing that the defendant
intended to force his resignation.
The plaintiff, on the other hand, asserts that the
proper interpretation of Brittell is that an employer’s
intent matters only in regard to the creation of the
intolerable work atmosphere. He argues that the Appel-
late Court incorrectly interpreted the standard in Brit-
tell by forcing him to show that the employer intended
to force him to resign.
We agree with the plaintiff. An examination of our
decision in Brittell reveals that we required that the
plaintiff establish only that the employer intended to
create the intolerable work atmosphere, not that the
employer intended to compel the plaintiff to quit. Recent
United States Supreme Court precedent, applying fed-
eral law on which we relied in Brittell, supports our
determination.
In Brittell, about one year into her employment, the
plaintiff, a female correction officer employed by the
Department of Correction (department) and assigned
to one of its correctional centers, reported to her super-
visors several incidents of inmates making obscene
comments about her sexuality. Brittell v. Dept. of Cor-
rection, supra, 247 Conn. 150–51. On the basis of one
of the plaintiff’s reports, the deputy warden met with
her and thereafter issued a memorandum to the warden,
noting ‘‘that all staff had been admonished regarding
. . . possible consequences of any harassing state-
ments or actions made to or about fellow staff [persons]
. . . that he had advised the plaintiff to report any con-
tinued harassing behavior to her supervisors . . . and
report[ing] that the plaintiff had declined the help of
the employee assistance program . . . .’’ (Footnotes
omitted.) Id., 153.
About seven months later, another incident occurred.
Id., 154. The plaintiff reported the matter to a major,
who ‘‘issued a notice to all employees that defined sex-
ual harassment . . . . A similar notice was read at roll
call for seven consecutive days.’’ Id. The plaintiff then
filed a written complaint with the warden and informed
the major that she had sought psychiatric help. Id., 155.
The major thereafter informed her that she should not
return to work, and she was placed on medical leave.
Id., 157. The plaintiff also contacted the department’s
affirmative action unit and filed a formal complaint. Id.,
158. The affirmative action unit ‘‘offered to recommend
a transfer for the plaintiff to any institution of her choice
within the department . . . . The plaintiff, however,
was not amenable to this suggestion.’’ Id., 159. The
plaintiff declined the idea of a transfer on three other
occasions: (1) at the suggestion of the affirmative action
unit, stating as reasons that she had a new apartment,
she did not have a car, and her mother lived nearby;
(2) at the suggestion of an employee in the department’s
personnel department, citing as reasons certain medical
problems and that she did not own a car; and (3) at
the suggestion of the warden, voicing concern over the
possibility that correction officers and inmates from
the correctional facility also might be transferred to the
same institution, which could lead to a recurrence of
the rumors. Id., 159–60. The plaintiff applied for medical
leave and continued on unpaid medical leave until she
failed to submit necessary medical documentation. Id.,160–61. At that point, her employer considered her to
have resigned. Id., 161.
The plaintiff thereafter brought an action in which
she alleged that she had been constructively discharged
‘‘because the working conditions that she faced became
so difficult that a reasonable person similarly situated
would have felt compelled to leave . . . .’’ Id., 162. The
trial court, after a court trial, rejected her constructive
discharge claim ‘‘on the ground that the defendant had
offered the plaintiff the opportunity to transfer to any
one of a number of other correctional institutions within
the general vicinity of her home, but the plaintiff had
declined these offers.’’ Id., 163. On appeal to this court,
the plaintiff claimed that, ‘‘by failing to put an end to
the harassment she faced at work for nearly two years,
[the department] created a work environment so hostile
that any reasonable person in her position would have
left.’’ Id., 178. This court, for the first time, set forth the
now oft quoted standard for constructive discharge:
‘‘Constructive discharge of an employee occurs when an
employer, rather than directly discharging an individual,
intentionally creates an intolerable work atmosphere
that forces an employee to quit involuntarily. . . .
Working conditions are intolerable if they are so diffi-
cult or unpleasant that a reasonable person in the employ-
ee’s shoes would have felt compelled to resign.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Id. This quoted language came word
for word from a then recent case from the United States
Court of Appeals for the Second Circuit, with only one
difference—we italicized the word ‘‘intentionally.’’ See
Chertkova v. Connecticut General Life Ins. Co., supra,92 F.3d 89 (concluding that plaintiff met burden of
establishing prima facie case of constructive discharge
due to harassment on basis of gender under Title VII
of Civil Rights Act of 1964, as amended by Title VII of
Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.).5
In the context of the facts in Brittell, our emphasis
on intent makes sense. The plaintiff in Brittell had
claimed that the department’s failure to remedy the
hostile work environment equated to its intentionally
having created the work environment of which she com-
plained. See Brittell v. Dept. of Correction, supra, 247
Conn. 178. Contrary to her argument, the trial court
found that the facts supported the department’s argu-
ment that it had in fact made efforts to remedy the
situation and to provide the plaintiff with alternatives.
For example, the employer on several occasions offered
to transfer the plaintiff to the location of her choice.
Id., 159–60. We specifically stated: ‘‘Even if we assume,
arguendo, that an employer’s failure to remedy a hostile
working environment may be considered the intentional
creation of an intolerable work atmosphere . . . the
plaintiff has not met her burden of establishing an essen-
tial element of her claim, namely, the existence of an
intolerable work atmosphere that would compel a rea-
sonable person in that situation to resign. Had the plain-
tiff established that she was given the choice either to
continue working with the officers and inmate popula-
tion at the correctional center or to leave the employ
of the defendant, she might well have prevailed on this
element of her claim.’’ (Citation omitted; emphasis omit-
ted.) Id., 179.
Said another way, if the department had intentionally
created the intolerable work atmosphere by refusing
to address the issue, refusing to make any alteration in
the plaintiff’s work conditions, or refusing to offer her
any relief (i.e., by forcing her to remain at the correc-
tional facility or to quit), the plaintiff could have suc-
ceeded on her constructive discharge claim. The trial
court in Brittell found that the opposite was true. In
fact, the department intentionally attempted to improve
the work atmosphere for the plaintiff by giving her the
choice of transferring to another correctional institu-
tion, away from the correction officers and inmates
who had made the work atmosphere intolerable. In
light of our analysis of the facts in Brittell, it is clear
that our emphasis of the word ‘‘intentionally’’ within
the quotation from Chertkova v. Connecticut General
Life Ins. Co., supra, 92 F.3d 89, manifested an intent
that ‘‘intentionally’’ modify the requirement that the
employer created the complained of environment. Nota-
bly, by contrast, nowhere in Brittell did we require or
allude to a requirement that the plaintiff establish that
the department had intended to force her to quit.
To clarify the intent element of a constructive dis-
charge claim for future cases, the phrase under exami-
nation—’’[c]onstructive discharge of an employee occurs
when an employer, rather than directly discharging an
individual, intentionally creates an intolerable work
atmosphere that forces an employee to quit involun-
tarily’’—should be understood to refer to the employer’s
intent to create the intolerable work atmosphere itself.
Thus, to plead a prima facie case of constructive dis-
charge, a plaintiff must allege that (1) the employer
intentionally created the complained of work atmo-
sphere, (2) the work atmosphere was so difficult or
unpleasant that a reasonable person in the employee’s
shoes would have felt compelled to resign, and (3) the
plaintiff in fact resigned. This standard does not require
that the plaintiff allege facts to show that the employer
intended to force the employee to resign, only that a
reasonable employee would feel compelled to resign.
See Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir.
2004) (stating that Second Circuit ‘‘has not expressly
insisted on proof of specific intent,’’ although in some
constructive discharge cases, ‘‘where such evidence
exists, the mens rea requirement is easily established’’).
In addition to being consistent with Brittell itself,
recent United States Supreme Court precedent regard-
ing constructive discharge does not dissuade us, as the
plaintiff and the amicus argue, from our interpretation
of the intent element. In Green v. Brennan, U.S.
, 136 S. Ct. 1769, 195 L. Ed. 2d 44 (2016), the court
explained: ‘‘The whole point of allowing an employee
to claim ‘constructive’ discharge is that in circum-
stances of discrimination so intolerable that a reason-
able person would resign, we treat the employee’s resig-
nation as though the employer actually fired him. . . .
We do not also require an employee to come forward
with proof—proof that would often be difficult to allege
plausibly—that not only was the discrimination so bad
that he had to quit, but also that his quitting was his
employer’s intent all along.’’ (Citation omitted; footnote
omitted.) Id., 1779–80, citing Pennsylvania State Police
v. Suders, 542 U.S. 129, 141–43, 124 S. Ct. 2342, 159 L.
Ed. 2d 204 (2004).
Quoting the same language, the Commission on
Human Rights and Opportunities (commission) filed an
amicus brief in the present case, positing that we should
eliminate the element of intent altogether and adopt a
completely objective standard. We do not agree with
the commission that the court in Green completely
eliminated the element of intent for a constructive dis-
charge claim. A constructive discharge claim under
Title VII requires a plaintiff to prove discrimination by
an employer—inherently necessitating proof of an ele-
ment of intent in creating the workplace condition. See
Pennsylvania State Police v. Suders, supra, 542 U.S.
133 (‘‘[t]o establish [a] hostile work environment [under
Title VII], plaintiffs like Suders must show harassing
behavior sufficiently severe or pervasive to alter the
conditions of [their] employment’’ (internal quotation
marks omitted)).
In Green, the plaintiff alleged that he was denied a
promotion because of race and alleged that his supervi-
sors threatened to bring criminal charges against him
in retaliation for his complaint, thereby forcing his resig-
nation in violation of Title VII. Green v. Brennan, supra,136 S. Ct. 1774–75. The case turned on the question
of whether the forty-five day limitation period for a
constructive discharge claim by a federal civil servant
begins to run after the last discriminatory act or when
the employee resigns. Id.; see 29 C.F.R. § 1614.105 (a)
(1) (2012) (federal civil servants, prior to filing com-
plaint, were required to initiate contact with counselor
at their agency within forty days of date of matter
alleged to be discriminatory). To answer the question,
the court set out the basic elements of a constructive
discharge claim. ‘‘A plaintiff must prove first that he
was discriminated against by his employer to the point
where a reasonable person in his position would have
felt compelled to resign . . . [and] he must also show
that he actually resigned.’’ (Citation omitted.) Green v.
Brennan, supra, 1777. On the basis of, in part, the fact
that a constructive discharge claim requires that the
employee actually resign, the court concluded that the
limitation period should begin to run when the employee
resigns. Id., 1776–77.
In a concurring opinion, Justice Alito stated that the
majority ignored a bedrock principle of Title VII cases:
‘‘An act done with discriminatory intent must have
occurred within the [limitation] period.’’ Id., 1782 (Alito,
J., concurring in the judgment). In accordance with
this principle, Justice Alito concluded, an employee’s
resignation triggers a fresh [limitation] period when
‘‘the employer makes conditions intolerable with the
specific discriminatory intent of forcing the employee
to resign.’’ (Emphasis in original.) Id., 1785 (Alito, J.,
concurring in the judgment). However, ‘‘[i]f the
employer lacks that intent . . . the [limitation] period
[should run] from the discriminatory act that precipi-
tated the resignation.’’ Id. The majority responded:
‘‘This sometimes-a-claim-sometimes-not theory of con-
structive discharge is novel and contrary to the con-
structive discharge doctrine. . . . We do not . . .
require an employee to [prove] . . . that not only was
the discrimination so bad that he had to quit, but also
that his quitting was his employer’s plan all along.’’
(Citation omitted; footnote omitted.) Id., 1779–80. The
majority rejected requiring that a plaintiff alleging con-
structive discharge prove specifically that the employer
intended to force the employee to resign. See id. The
court did not reject the requirement that a plaintiff
prove some kind of discrimination, however. Rather,
the required discrimination speaks to the first require-
ment under our standard in Brittell—the employer’s
intent in creating the work condition of which the plain-
tiff complains. In Green, the employer created the com-
plained of condition by promising not to pursue criminal
charges against the plaintiff in exchange for his promise
to retire or take a position with a considerably lower
salary, thereby forcing him to involuntarily resign.
Id., 1783.
The constructive discharge requirements in Green
are not purely objective and align with the standard we
established in Brittell. If not made perfectly clear in
that case, we are now afforded an opportunity to clarify
that standard in the present case.6 The standard con-
tains a subjective inquiry (did the employer intend to
create the working condition) and an objective inquiry
(the impact the working conditions would have on a
reasonable person). To evaluate the working condi-
tions, we evaluate whether a reasonable person in the
employee’s shoes would have felt compelled to resign.
The defendant in the present case argues that the stan-
dard should go one step further. It contends that the
plaintiff must show that the defendant in fact subjec-
tively intended that a specific employee resign under
conditions deemed intolerable by an objectively rea-
sonable person. That kind of showing would be difficult
to allege and inconsistent with the aims of the objec-
tive requirement. We decline the defendant’s request
to require that a constructive discharge claim allege
facts establishing that the employer intended for the
employee to resign.
II
Having set forth the requirements to establish a prima
facie case for constructive discharge, we turn to the
Appellate Court’s analysis in the present case and con-
sider whether the Appellate Court properly upheld the
trial court’s granting of the defendant’s motion to strike
the complaint in its entirety.
Although the Appellate Court quoted the proper stan-
dard for a constructive discharge claim, we conclude
that the court incorrectly applied the standard. In apply-
ing the standard, the Appellate Court upheld the trial
court’s judgment on the basis of, in part, the plaintiff’s
failure to allege facts that the defendant intended to
force him to quit. See Karagozian v. USV Optical, Inc.,
supra, 186 Conn. App. 867–68. Specifically, the Appel-
late Court stated: ‘‘The plaintiff denies the plain lan-
guage of Brittell, arguing that a more sensible reading
of Brittell would [lead to the conclusion] that it is the
employer’s intent to create the work atmosphere in
question that matters, rather than an intent that such
atmosphere should force an employee to resign.’’ Id.,
868. On this point, we conclude that the Appellate Court
incorrectly applied Brittell, and we reiterate that Brit-
tell requires only that plaintiffs allege facts showing
that the employer intended to create the conditions of
which a plaintiff complains. See part I of this opinion.
On an alternative ground, the Appellate Court upheld
the trial court’s striking of the plaintiff’s complaint,
reasoning that the plaintiff had failed to satisfy the
second requirement of a constructive discharge claim—
he failed to allege facts establishing that the work atmo-
sphere was so difficult or unpleasant that a reasonable
person in his shoes would have felt compelled to resign.
Karagozian v. USV Optical, Inc., supra, 186 Conn. App.
870. We agree. Even when the allegations of the com-
plaint are construed in the light most favorable to sus-
taining the complaint, we conclude that the plaintiff’s
allegations do not meet this standard.
In support of his allegation of intolerable work condi-
tions, the plaintiff relied on the declaratory ruling issued
by the Board of Examiners for Optometrists, the cease
and desist consent order issued by the Board of Exam-
iners for Optometrists and the Board of Examiners for
Opticians, and § 31-130 (i). In his brief to this court,
he explained: ‘‘No employer may require its employ-
ees to violate the law. A reasonable employee, having
been instructed to do so, would refuse and resign. The
employer is responsible for that resignation, since the
sole proximate cause of the resignation was the employ-
er’s illegal job requirement.’’ Contrary to the plaintiff’s
assertion, however, nothing in his complaint establishes
that the defendant required him to violate the law. The
declaratory ruling evaluated the circumstances under
which an optometrist would be considered an employee,
and not an independent contractor, of an unlicensed
person, firm, or organization so as to comply with Gen-
eral Statutes § 20-133a.7 We agree with the defendant
that the plaintiff cannot rely on the declaratory ruling
because the ruling itself provides that it is only ‘‘binding
upon those who participate[d] in the hearing’’ that
resulted in the ruling. The plaintiff did not participate
in the hearing. Moreover, the ruling concerned optome-
trists. Even if we were to credit the plaintiff’s argument
that the ruling established a public policy regarding
optometrists, the plaintiff’s tasks could not have vio-
lated that particular policy because he was employed
as an optician, not an optometrist. Furthermore, the
ruling ‘‘[was] intended to provide guidance’’ to individ-
ual licensed optometrists. It did not establish criminal
liability or inflict repercussions or potential sanctions
for any specific conduct that would compel a reason-
able optician in the plaintiff’s shoes to resign. See Sheets
v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427
A.2d 385 (1980) (‘‘an employee should not be put to an
election whether to risk criminal sanction or to jeopar-
dize his continued employment’’).
Similarly, the plaintiff’s complaint failed to show how
the cease and desist consent order either applied to the
plaintiff or bound the defendant. The order required
that Walmart, Inc., not permit a licensed optician to act
in the capacity of an optometric assistant to an indepen-
dent optometrist leasing space in a store owned by Wal-
mart, Inc. We fail to see, because the plaintiff failed to
allege, how the cease and desist consent order function-
ally created a working condition so intolerable that a
person in his shoes would have been justified in walking
off the job as if they had been fired. We also fail to
understand how the defendant—which was not a party
to the cease and desist consent order—could be bound
by Walmart, Inc.’s agreement that, without admitting
any fault, it would change its employment practices.
The statute the plaintiff relies on is also inapplicable.
Section 31-130 (i) requires that persons engaged in the
business of procuring or offering to procure employees
for employers must register with the Commissioner of
Labor before they may charge employers for their ser-
vices. The plaintiff did not allege that the doctor of
optometry charged a fee from the defendant for hiring
the plaintiff as an assistant. Accordingly, the statute
does not implicate the defendant.
Finally, we are not persuaded that the plaintiff’s alle-
gations suggest that the defendant intended to create
conditions different from what the plaintiff would have
expected when he agreed to work as a licensed optician
manager at the defendant’s operation. The plaintiff’s
complaint centered around the duties he was in fact
hired to perform, not some intolerable work atmo-
sphere that forced him to quit involuntarily. The defen-
dant contends that the plaintiff’s allegations included
that ‘‘he was asked to provide optometric assistant ser-
vices to the on-site doctor of optometry from day one.
It defies logic to conclude that, from the very first day
of [the] plaintiff’s employment, [the defendant] had
intended to force [the] plaintiff to quit involuntarily.’’
(Emphasis in original.) We agree with the defendant.
The complaint does not allege that any of the plain-
tiff’s assigned tasks changed between his hire date in
June, 2014, and September, 2014, when he first com-
plained to his supervisors. All we know from the com-
plaint is that the plaintiff began working for the defen-
dant in June, 2014, and that the defendant required him
to perform the tasks he complains of from ‘‘approxi-
mately June 28, 2014, to approximately October 17, 2014
. . . .’’ The complaint does not allege that the plaintiff
was unaware of the duties he would be required to
perform or that the defendant changed his responsibili-
ties after he was hired. Nor does the complaint suggest
that anything changed from what he agreed to perform
within the scope of his employment and what he now
asserts violates public policy. ‘‘In general . . . an
employee’s dissatisfaction with his job responsibilities
and assignments do not suffice to establish a claim of
constructive discharge.’’ Zephyr v. Ortho McNeil Phar-
maceutical, 62 F. Supp. 2d 599, 608 (D. Conn. 1999)
(finding that plaintiff failed to establish that he was
constructively discharged).
By failing to establish that his work conditions were
so intolerable that a reasonable person in the plaintiff’s
shoes would have felt compelled to resign, the plaintiff’s
complaint fails. The Appellate Court correctly upheld
the trial court’s striking of the plaintiff’s complaint in
its entirety.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* April 15, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The plaintiff alleged that USV Optical, Inc., is a Texas corporation head-
quartered in New Jersey that owns and operates optical departments in
JCPenney stores at various locations in Connecticut.
2
The operative complaint for purposes of the present appeal is the cor-
rected revised complaint filed on December 19, 2016. The defendant also
moved to strike the plaintiff’s complaint on the ground that the plaintiff
asserted a claim for which no private right of action exists. The trial court
did not address that issue, and the parties did not raise it on appeal.
3
General Statutes § 31-130 (i) provides in relevant part: ‘‘No person shall
engage in the business of procuring or offering to procure employees for
persons seeking the services of employees or supplying employees to render
services where a fee or other valuable thing is exacted, charged or received
from the employer for procuring or assisting to procure or supplying such
employees unless he registers with the Labor Commissioner. . . .’’
4
For example, the defendant relies on Boucher v. Saint Francis GI Endos-
copy, LLC, 187 Conn. App. 422, 202 A.3d 1056, cert. denied, 331 Conn. 905,
201 A.3d 1023 (2019), in which the Appellate Court, interpreting Brittell,
stated that ‘‘the plaintiff has presented no evidence from which it can be
inferred that the defendant deliberately sought to force the plaintiff to quit.’’
Id., 433; see also Horvath v. Hartford, 178 Conn. App. 504, 510–11, 176 A.3d
592 (2017) (‘‘to meet the high standard applicable to a claim of constructive
discharge, a plaintiff is required to show . . . that there is evidence of
the employer’s intent to create an intolerable environment that forces the
employee to resign’’). In fact, the Appellate Court panel in the present case
was following Horvath. See Karagozian v. USV Optical, Inc., supra, 186
Conn. App. 873 n.15.
The defendant also relies on a Superior Court case in which the court
set out the standard for a constructive discharge claim as follows: ‘‘To plead
a prima facie case of constructive discharge, a plaintiff must allege two
elements. First, the plaintiff must show that the defendant acted deliberately
to create an intolerable work environment. Deliberateness exists only if the
actions complained of were intended by the employer as an effort to force
the employee to quit . . . .’’ Harrelle v. Wendy’s Old Fashioned Hamburgers
of New York, Inc., Docket No. CV-XX-XXXXXXX-S, 2017 WL 715754, *7 (Conn.
Super. January 10, 2017). Applying that standard, the court found that a
genuine issue of material fact existed as to whether the employer transferred
the employee ‘‘for legitimate business reasons or to force the [employee]
to quit.’’ Id., *8. In light of our holding today, to the extent that those cases
incorrectly applied the Brittell standard, we disavow that application.
5
‘‘We look to federal law for guidance in interpreting state employment
discrimination law, and analyze claims under [the Connecticut Fair Employ-
ment Practices Act, General Statutes § 46a-51 et seq., the state counterpart
to Title VII] in the same manner as federal courts evaluate federal discrimina-
tion claims.’’ (Internal quotation marks omitted.) MacDermid, Inc. v.
Leonetti, 310 Conn. 616, 636 n.11, 79 A.3d 60 (2013).
6
Although the plaintiff in the present case did not allege a Title VII viola-
tion, we perceive no justification for altering the requirements for a construc-
tive discharge claim depending on whether the claim is one for a constructive
discharge resulting from race discrimination; Grey v. Norwalk Board of
Education, 304 F. Supp. 2d 314, 320–21 (D. Conn. 2004); gender discrimina-
tion; Usherenko v. Bertucci’s Corp., Docket No. 3:05-CV-756 (JCH), 2006
WL 3791389, *1 (D. Conn. December 21, 2006); a sexually hostile work
environment; Brittell v. Dept. of Correction, supra, 247 Conn. 150; whistle-
blowing activities; Horvath v. Hartford, 178 Conn. App. 504, 506, 176 A.3d
592 (2017); or any other intentionally created circumstance resulting in work
conditions that would compel a reasonable person to resign.
7
General Statutes § 20-133a provides in relevant part: ‘‘No licensed optom-
etrist shall practice his profession as an employee of any unlicensed person,
firm or corporation, provided that said prohibition shall not apply to health
service organizations, hospitals, other optometrists or ophthalmologists.
. . . No rule of the board shall prohibit the practice of optometry on a
lessee or sublessee basis in or on the premises of a retail, commercial or
mercantile establishment.’’