Karagozian v. USV Optical, Inc. , 186 Conn. App. 857 ( 2019 )

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OHAN KARAGOZIAN v. USV OPTICAL, INC.
(AC 40907)
DiPentima, C. J., and Lavine and Moll, Js.
Syllabus
The plaintiff, who had been employed by the defendant as a licensed optician
manager of the optical department that it owned and operated in a
department store, sought to recover damages for his alleged constructive
discharge from his employment. In his complaint, the plaintiff alleged,
inter alia, that from the beginning of his employment in June, 2014, to
when he resigned in October, 2014, the defendant, acting through its
supervisory personnel, required as part of his duties that he provide
optometric assistant services to the doctor of optometry in the store,
which violated certain public policies of the state, that he requested of
the defendant’s supervisory personnel that he not be required to perform
the duties assigned to him, that following the defendant’s refusal to
excuse him, he was compelled to resign from his position and that the
defendant thereby constructively discharged him in violation of the
public policy of the state. The trial court granted the defendant’s motion
to strike the complaint on the ground that the complaint insufficiently
alleged both elements of a claim of constructive discharge, finding that
the allegations in no way could fairly be construed to establish that the
defendant intentionally created an intolerable workplace or that there
was an intolerable workplace that would have compelled a reasonable
person to resign. Thereafter, the trial court granted the plaintiff’s motion
for judgment and rendered judgment in favor of the defendant. On the
plaintiff’s appeal to this court, held that the trial court properly granted
the defendant’s motion to strike the complaint and determined that the
plaintiff failed to state a claim for constructive discharge: the plaintiff
failed to allege in his complaint that the defendant intended to create
a work environment so intolerable that a reasonable person would have
been compelled to resign involuntarily, and the cases relied on by the
plaintiff in support of his claim were inapplicable, as they had nothing
to do with an employer’s intent to create intolerable working conditions
or to compel an employee to resign involuntarily; moreover, the plain-
tiff’s attempt to bootstrap his claim by comparing his working conditions
to those in Sheets v. Teddy’s Frost Foods, Inc. (179 Conn. 471) and
Faulkner v. United Technologies Corp. (240 Conn. 576) was unavailing,
those cases having concerned wrongful retaliatory discharge claims,
not constructive discharge, and the working environment in the subject
store was not comparable to the ones confronted by the plaintiffs in
either Sheets or Faulkner, as the plaintiff in the present case merely
alleged that he was assigned duties that allegedly violated public policy
and did not allege the consequences that may have befallen him by
performing the duties to which he was assigned.
Argued October 11, 2018—officially released January 8, 2019
Procedural History
Action to recover damages for the plaintiff’s alleged
constructive discharge from employment, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven at Meriden, where the court, Hon.
John F. Cronan, judge trial referee, granted the defen-
dant’s motion to strike the complaint; thereafter, the
court, Harmon, J., granted the plaintiff’s motion for
judgment and rendered judgment for the defendant,
from which the plaintiff 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
LAVINE, J. The plaintiff, Ohan Karagozian, appeals
from the judgment rendered by the trial court subse-
quent to its granting of the motion to strike the com-
plaint filed by the defendant, USV Optical, Inc. The
substance of the plaintiff’s claim on appeal is that the
court improperly concluded that he had failed to state
a claim for constructive discharge.1 We disagree and
affirm the judgment of the trial court.
The record discloses the following procedural his-
tory. The plaintiff commenced the present action on
September 12, 2016. The operative complaint for pur-
poses of the present appeal is the corrected revised
complaint (complaint) filed on December 19, 2016.
The complaint alleged, in relevant part, that the plain-
tiff is an optician licensed in Connecticut and that the
defendant owns and operates optical departments in
JCPenney stores. Between June and October, 2014, the
defendant employed the plaintiff as a licensed optician
manager in the JCPenney store in Trumbull (store).
From approximately June 28 through October 17, 2104,
the defendant, acting through its supervisory personnel,
required the plaintiff, as part of his duties, to provide
optometric assistant services to the doctor of optometry
in the store. The complaint further alleged that the
duties the plaintiff was required to perform violated the
public policies of the state,2 which prohibit employees
under the control of unlicensed third parties from per-
forming services for licensed optometrists,3 and pro-
hibit licensed opticians from performing the duties of
an optometric assistant and providing services for
optometrists by whom they are not employed.4 The
complaint also alleged that the duties the plaintiff was
required to perform violated General Statutes § 31-130
(i),5 which requires that the defendant or the store have
a staffing permit allowing either of them to provide
staffing services to a ‘‘doctor.’’ On September 20 and
October 3 and 16, 2014, and on other dates, the plaintiff
requested of the defendant’s supervisory personnel that
he not be required to perform the duties assigned to
him. The defendant refused to excuse the plaintiff as
he requested. As a result, the complaint alleged that
the plaintiff was compelled to resign from his position
and to suffer the attendant loss of income. Lastly, the
complaint alleged that the defendant constructively dis-
charged the plaintiff in violation of the public policy of
the state.
The defendant filed a motion to strike the complaint
on the grounds that (1) there is no private right of action
for the claim alleged and (2) the complaint failed to
allege a claim of constructive discharge. In its memoran-
dum of law in support of its motion to strike, the defen-
dant addressed each of the bases for the plaintiff’s
claimed violations of public policy and explained why
none of them created a private right of action. The
defendant argued that the only factual basis for the
plaintiff’s claim is the allegation that the defendant cre-
ated an intolerable work environment by requiring him
to provide optometric assistance services to the store
doctor of optometry from the day his employment com-
menced. The defendant argued that it defies logic to
claim that from the very first day of the plaintiff’s
employment the defendant intended to force him to
resign.
The plaintiff opposed the motion to strike, arguing
that ‘‘he was terminated because he declined to partici-
pate’’ in the duties he was required to perform and that
such termination violated Connecticut public policy.
He denied that the action was brought pursuant to § 31-
130 (i) and the two administrative rulings; rather, he
argued that the action sounds in the common-law
exception to the at-will employment doctrine articu-
lated in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn.
471, 427 A.2d 385 (1980). In Sheets, the employer dis-
charged the employee in retaliation for the employee’s
objection to the employer’s failure to comply with the
requirements of Connecticut’s Uniform Food, Drug and
Cosmetic Act (act), General Statutes § 19-211 et seq.
Id., 473. Our Supreme Court concluded that that plaintiff
had stated a cause of action under the common law for
retaliatory wrongful discharge. Id., 480. The plaintiff
in the present case argued that Sheets ‘‘has since been
applied to any termination in retaliation for refusing to
violate laws or regulations or for insisting upon compli-
ance therewith. See, e.g., Faulkner v. United Technolo-
gies Corp. 240 Conn. 576, 693 A.2d 293 (1997).’’
The defendant responded to the plaintiff’s opposition
by noting, in part, that the plaintiff failed to allege a
claim for wrongful termination or wrongful discharge.
Although the plaintiff asserted in his opposition to the
motion to strike that ‘‘he was terminated because he
declined to participate in . . . activities and that such
termination violated Connecticut public policy,’’ the
defendant correctly noted that the complaint specifi-
cally alleges that the ‘‘plaintiff was compelled to resign
his position with the defendant.’’ The defendant empha-
sized that it did not terminate the plaintiff’s employ-
ment. The defendant also argued that the plaintiff
misinterpreted the elements of a constructive discharge
claim, noting that in Brittell v. Dept. of Correction, 247
Conn. 148, 717 A.2d 1254 (1998), our Supreme Court
stated that the ‘‘[c]onstuctive discharge of an employee
occurs when an employer, rather than directly discharg-
ing an individual, intentionally creates an intolerable
work atmosphere that forces an employee to quit invol-
untarily.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 178, quoting Chertkova v. Connecti-
cut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).
It also pointed out that both Sheets and Faulkner were
cases alleging wrongful termination of employment, not
constructive discharge.
The trial court heard oral argument on the defen-
dant’s motion to strike and issued a memorandum of
decision on April 26, 2017, in which it granted the
motion. The court relied on Brittell as the legal basis
of its decision,6 finding that the complaint insufficiently
alleged both elements of constructive discharge. It
bluntly stated that ‘‘[i]n no way’’ can the allegations
fairly be construed to establish that the defendant
intentionally created an intolerable workplace or that
there was even an intolerable workplace that would
compel a reasonable person to resign. The court con-
cluded that although the complaint alleged constructive
discharge in violation of public policy, the plaintiff had
relied on cases dealing with wrongful termination of
employment rather than constructive discharge. The
plaintiff did not allege that he was wrongfully termi-
nated in retaliation for refusing to participate in activi-
ties that violated the law. Cf. Sheets v. Teddy’s Frosted
Foods, Inc., supra, 179 Conn. 480. The court, therefore,
granted the motion to strike.
The plaintiff declined to replead and asked the court
to render judgment in favor of the defendant. Following
the entry of judgment, the plaintiff appealed. On appeal,
the plaintiff claims that ‘‘[i]f an employer orders an
employee to engage in illegal activity, and the employee
resigns rather than break the law, the employee has
been constructively discharged in violation of public
policy and has a cause of action pursuant to the doctrine
of Sheets . . . .’’7 Although the plaintiff acknowledges
that Sheets is a wrongful termination case and that
Faulkner is a wrongful retaliatory discharge case, he
argues that in those cases, as in the present case, the
employees were required to engage in illegal activity.
He argues that whether an employer discharges an
employee directly under the Sheets doctrine or con-
structively discharges the employee, the effect on the
employee is the same and there cannot be any differ-
ence in the law’s prohibition.
The defendant again contends in its appellate brief
that the plaintiff failed to plead sufficient facts to sup-
port a claim for constructive discharge, noting that a
plaintiff must allege that instead of firing an employee
directly, the employer intentionally created ‘‘an intoler-
able work atmosphere that forces an employee to quit
involuntarily.’’ (Internal quotation marks omitted.) Brit-
tell v. Dept. of Correction, supra, 247 Conn. 178. It argues
that one cannot infer from the allegations of the com-
plaint that the defendant intended to create an intolera-
ble work atmosphere when it hired the plaintiff to
provide optometric assistant services to the doctor of
optometry in the store. The defendant states once again
that it is illogical to conclude that it intended from the
first day of the plaintiff’s employment to force him to
quit involuntarily.8 We agree with the defendant.
We briefly review the applicable legal principles and
our standard of review. ‘‘The purpose of a motion to
strike is to contest . . . the legal sufficiency of the
allegations of any complaint . . . to state a claim upon
which relief can be granted. . . . [S]ee Practice Book
§ 10-39. A motion to strike challenges the legal suffi-
ciency of a pleading, and consequently, requires no
factual findings by the trial court. . . . We take the
facts to be those alleged in the complaint . . . and we
construe the complaint in the manner most favorable
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. . . . A
motion to strike is properly granted if the complaint
alleges mere conclusions of law that are unsupported by
the facts alleged.’’ (Internal quotation marks omitted.)
Vazquez v. Buhl, 150 Conn. App. 117, 125, 90 A.3d 331(2014). Construction of a complaint is a question of
law. Edelman v. Page, 123 Conn. App. 233, 243, 1 A.3d
1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).
Our review of the court’s ruling on a motion to strike
is plenary. U.S. Bank National Assn. v. Blowers, 177
Conn. App. 622, 627, 172 A.3d 837 (2017), cert. granted
on other grounds, 328 Conn. 904, 177 A.3d 1160 (2018).
‘‘The constructive discharge concept originated in
the labor-law field in the [1930s]; the National Labor
Relations Board . . . developed the doctrine to
address situations in which employers coerced employ-
ees to resign, often by creating intolerable working con-
ditions, in retaliation for employees’ engagement in
collective activities. . . . Over the next two decades,
Courts of Appeals sustained the [National Labor Rela-
tions Board’s] constructive discharge rulings.’’ (Cita-
tions omitted.) Pennsylvania State Police v. Suders, 542
U.S. 129, 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004).
In Connecticut, ‘‘[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 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. . . . Brittell v. Dept. of
Correction, [supra, 247 Conn. 178]. A claim of construc-
tive discharge must be supported by more than the
employee’s subjective opinion that the job conditions
have become so intolerable that he or she was forced
to resign. Seery v. Yale-New Haven Hospital, 17 Conn.
App. 532, 540, 554 A.2d 757 (1989). Normally, an
employee who resigns is not regarded as having been
discharged, and thus would have no right of action for
abusive discharge. . . . Through the use of construc-
tive discharge, the law recognizes that an employee’s
voluntary resignation may be, in reality, a dismissal by
the employer. . . . Id. Moreover, [i]n order to meet
the high standard applicable to a claim of constructive
discharge, a plaintiff is required to show both (1) that
there is evidence of the employer’s intent to create an
intolerable environment that forces the employee to
resign, and (2) that the evidence shows that a reason-
able person would have found the work conditions so
intolerable that he would have felt compelled to resign.
. . . Irizarry v. Lily Transportation Corp., Docket No.
3:15-CV-1335 (DJS), 2017 WL 3037782, *4 (D. Conn. July
18, 2017), citing Adams v. Festival Fun Parks, LLC,
560 Fed. Appx. 47, 49 (2d Cir. 2014).’’ (Emphasis in
original; internal quotation marks omitted.) Horvath v.
Hartford, 178 Conn. App. 504, 510–11, 176 A.3d 592(2017). Notably, a constructive discharge cause of
action does not require that an employer violated a
public policy.
On the basis of our plenary review of the allegations in
the complaint, we conclude that the trial court properly
determined that the plaintiff failed to state a claim for
constructive discharge. There is no allegation in the
complaint that reasonably can be construed to claim
that the defendant intended to create conditions so
intolerable that a reasonable person would be com-
pelled to resign. See Brittell v. Dept. of Correction,
supra, 247 Conn. 178–79. The plaintiff denies the plain
language of Brittell, arguing that a more sensible read-
ing of Brittell would conclude 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. He looks to federal
cases to support his argument that, in cases applying
the doctrine of constructive discharge, courts did not
focus on the employer’s state of mind, but on the objec-
tive reality of the working conditions and the impact
of that objective reality, and not on the particular
employee in question, but on the hypothetical reason-
able person in the employee’s position.9 In his appellate
brief, the plaintiff provides the following quote: ‘‘ ‘To
find that an employee’s resignation amounted to a con-
structive discharge, the trier of fact must be satisfied
that the . . . working conditions would have been so
difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.’
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d
62, 73 (2d Cir. 2000) . . . .’’10 (Citation omitted.) See
also Pennsylvania State Police v. Suders, supra, 542
U.S. 147.11
We acknowledge the federal standard as to the condi-
tions that may compel an employee to resign involun-
tarily, which, as quoted, is no different from
Connecticut’s standard. The issues in the cases cited
by the plaintiff, however, had nothing to do with an
employer’s intent, whether it related to the creation of
intolerable working conditions or to compel an
employee to resign involuntarily. In Pennsylvania State
Police, the question concerned the burden of proof that
parties bear when a sexual harassment/constructive dis-
charge claim is asserted under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pennsylva-
nia State Police v. Suders, supra, 542 U.S. 133.12 That
case, therefore, is inapplicable.
The trial court in the present case also concluded
that the complaint failed to allege an intolerable work-
place that would compel an objectively reasonable
employee to resign. With respect to the workplace con-
ditions in the store, the plaintiff attempts to bootstrap
his claim by comparing his working conditions to those
in Sheets v. Teddy’s Frost Foods, Inc., supra, 179 Conn.
471, and Faulkner v. United Technologies Corp., supra,
240 Conn. 576. We reject his attempt. First of all, those
cases concerned wrongful retaliatory discharge claims,
not constructive discharge. Second, the circumstances
under which the plaintiff alleged he was employed in
the store are not comparable to those confronted by
the plaintiffs in either Sheets or Faulkner. The plaintiff
in the present case merely alleged that he was assigned
duties that allegedly violated public policy.13 Moreover,
he did not allege the consequences that may have
befallen him by performing the duties to which he was
assigned. ‘‘A claim of constructive discharge must be
supported by more than the employee’s subjective opin-
ion that the job conditions have become so intolerable
that he or she was forced to resign.’’ Seery v. Yale-New
Haven Hospital, 17 Conn. App. 532, 540, 554 A.2d 757(1989). Although Sheets and Faulkner are cases con-
cerning wrongful retaliatory discharges, we examine
them briefly to demonstrate the differences in work-
place conditions.
The plaintiff in Sheets was employed as the quality
control director and operations manager of Teddy’s
Frosted Foods, Inc., a producer of frozen food products.
Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn.
473. During the course of his employment, the plaintiff
noticed deviations from his employer’s standards and
labels, substandard vegetables, and underweight meat
components. Id. Such deviations meant that the employ-
er’s products violated the express representations on
its labels. Id. False or misleading labels violate the provi-
sions of the act. Id. The plaintiff communicated his
concern in writing to his employer and recommended
more selective purchasing and conforming compo-
nents. Id. His suggestions were ignored, and his employ-
ment was later terminated. Id. The plaintiff was
discharged in retaliation for his efforts to ensure his
employer’s products complied with applicable law. Id.Our Supreme Court stated that the act imposes criminal
penalties on anyone who violates it and that the criminal
sanctions do not depend on proof of intent to defraud.
Id., 478. The plaintiff’s position as quality control direc-
tor and operations manager may have exposed him to
criminal prosecution under the act. Id. The court also
found that the act was intended to safeguard public
health and to promote the public welfare by protecting
the public from injury due to merchandising deceit. Id.
In Faulkner, our Supreme Court noted that in Sheets
it stated that, ‘‘an employee should not be put to an
election whether to risk criminal sanction or to jeopar-
dize his continued employment.’’ (Internal quotation
marks omitted.) Faulkner v. United Technologies
Corp., supra, 240 Conn. 583. In Faulkner, our Supreme
Court was called upon to determine whether the forego-
ing proposition applied to situations in which the source
of criminal sanction was federal, rather than state, law.14
Id. The court perceived no difference between Sheets
and a situation in which an employee may be forced
to engage in conduct that exposes the employee to
federal criminal sanctions. The plaintiff in Faulkner
alleged that his employer discharged him in violation
of the public policy against government contract fraud.
Id., 581. At the time, the Major Frauds Act, 18 U.S.C.
§ 1031, provided for the imposition of fines up to
$10,000,000 and imprisonment up to ten years for a
violation. Id. The plaintiff was a ‘‘supplier quality assur-
ance representative.’’ Id., 578. His job required him to
inspect Blackhawk helicopter parts provided by various
suppliers to ensure that they met the employer’s engi-
neering specifications. Id. On numerous occasions, he
rejected defective parts despite pressure from the sup-
pliers and his superiors to accept them. Id. He reported
the existence of the defective parts to his superiors,
who did nothing to correct the situation but informed
the plaintiff that he might be disciplined for rejecting
parts in the future. Id. The defendant employer subse-
quently discharged the plaintiff on the ground that he
had engaged in misconduct. Id. In his complaint, the
plaintiff alleged that he was discharged for refusing to
accept substandard and defective helicopter parts. Id.,
579. Our Supreme Court held that the plaintiff had
stated a claim for wrongful discharge pursuant to the
public policy limitation established in Sheets. Id., 589.
In the present case, the plaintiff’s work environment
was not comparable to the one in either Sheets or
Faulkner.
For the foregoing reasons, we conclude that the trial
court properly granted the defendant’s motion to strike.
The plaintiff failed to allege that the defendant intended
to create an intolerable work atmosphere that would
compel a reasonable person to resign involuntarily.15
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his appellate brief, the plaintiff presented the following issue: ‘‘If an
employee is ordered by his employer to engage in illegal activities and
refuses to do so, and thereafter the employer on multiple occasions refuses
to excuse [the employee] from the requirement of engaging in the said illegal
activities, whereupon the employee resigns rather than violate the law, does
the employer’s conduct constitute constructive termination of employment
in violation of public policy?’’
The defendant contends that the issue presented by the plaintiff is a
hypothetical one. We review the claim on the basis of the judgment from
which the plaintiff has appealed and the underlying procedural facts.
2
The complaint alleged that the defendant required the plaintiff to perform
the following duties: obtain and record a patient’s preliminary case history;
maintain records; schedule appointments, perform bookkeeping, correspon-
dence and filing; prepare patients for vision examinations; assist in tests
for near and far acuity, depth perception, macula integrity, color perception,
and visual field, utilizing ocular testing apparatus; instruct patients in care
and use of glasses and contact lenses; work with patients in vision therapy;
assist patients in frame selection; adjust and repair glasses; modify contact
lenses; maintain an inventory of materials and cleaning instruments; assist
in fabrication of glasses and contact lenses; test and measure patients’
acuity, peripheral vision, depth perception, focus, ocular movement and
color as requested by the doctor; measure intraocular pressure of eyes using
glaucoma test; measure axial length of eye, using ultrasound equipment;
examine eyes for abnormalities of cornea and anterior or posterior chambers
using slit lamp; apply drops to anesthetize, dilate or medicate eyes; instruct
patients in eye care and use of glasses or contact lenses; adjust and repair
glasses using screwdrivers and pliers; and take money from patients and
record only those payments that are made with credit card and check on
the store cash register inside the optical store while keeping tendered cash
receipts from patients in an envelope under the cash drawer.
3
The complaint alleged that the public policy is articulated in a declaratory
ruling issued by the Connecticut Board of Examiners for Optometrists on
May 1, 2002, titled In re Petition of Lawrence Lefland, O.D., which was
attached to the complaint as an exhibit. The plaintiff was not a party to the
declaratory ruling, which concerns optometrists. The plaintiff alleged that
he is a licensed optician.
4
The complaint alleged that the public policy is articulated in a cease
and desist consent order issued jointly by the Connecticut Board of Examin-
ers for Optometrists and the Connecticut Board of Examiners for Opticians
in February, 2006, in regard to petition number 2003-0321-003-003. The cease
and desist order was attached to the complaint as an exhibit. The plaintiff
was not a party to the cease and desist order.
5
The complaint alleged that the relevant public policy is set forth in
General Statutes § 31-130 (i), which provides: ‘‘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. Application for such regis-
tration or for the annual renewal of such registration shall be on forms
furnished by the commissioner and shall be accompanied by a fee of one
hundred fifty dollars.’’
‘‘[T]he policy behind General Statutes §§ 31-129 to 31-131c is to protect
individual applicants (prospective employees) from unscrupulous employ-
ment agencies.’’ Monaco v. Turbomotive, Inc., 68 Conn. App. 61, 66, 789
A.2d 1099 (2002) (distinguishing between employment agencies that require
employer, not employee, to pay fee); see also id., 66 n.2 (registration fee,
not licensing fee, to prevent loss of state revenue). The defendant notes
that the plaintiff did not allege that the defendant charged a fee.
6
In Brittell, our Supreme Court was presented with a claim of sexual
harassment in violation of General Statutes §§ 46a-60 (a) (1) and (8) and
46a-70. Brittell v. Dept. of Correction, supra, 247 Conn. 161. In that case,
our Supreme Court stated that it looks to federal case law in interpreting
discrimination cases. Id., 164. ‘‘Constructive discharge of an employee occurs
when an employer, rather than directly discharging an individual, intention-
ally creates an intolerable work atmosphere that forces an employee to quit
involuntarily. . . . Working conditions are intolerable if they are so difficult
or unpleasant that a reasonable person in the employee’s shoes would have
felt compelled to resign. . . . Accordingly, [a] claim of constructive dis-
charge must be supported by more than the employee’s subjective opinion
that the job conditions have become so intolerable that he or she was forced
to resign.’’ (Citations omitted; internal quotation marks omitted.) Id., 178.
Our Supreme Court concluded that the plaintiff had failed to meet ‘‘her
burden of establishing an essential element of her claim, namely, the exis-
tence of an intolerable work atmosphere that would compel a reasonable
person in that situation to resign.’’ Id., 179.
7
The issue before our Supreme Court in Sheets was ‘‘whether to recognize
an exception to the traditional rules governing employment at will so as
to permit a cause of action for wrongful discharge where the discharge
contravenes a clear mandate of public policy.’’ Sheets v. Teddy’s Frosted
Foods, Inc., supra, 179 Conn. 474.
‘‘In Connecticut, an employer and employee have an at-will employment
relationship in the absence of a contract to the contrary. Employment at
will grants both parties the right to terminate the relationship for any reason,
or no reason, at any time without fear of legal liability.’’ (Internal quotation
marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn.
691, 697–98, 802 A.2d 731 (2002).
8
In Petrosino v. Bell Atlantic, 385 F.3d 210, 231 (2d Cir. 2004), the United
States Court of Appeals for the Second Circuit stated that the ‘‘law is clear
that a constructive discharge claim cannot be proved by demonstrating that
an employee is dissatisfied with the work assignments she receives within
her job title.’’ See Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir.
1993). Petrosino was cited frequently in the amicus curiae brief of the
Commission on Human Rights and Opportunities with respect to the nature
of an employer’s intent in a constructive discharge case, but it did not address
the quoted language. Neither the plaintiff nor the defendant addressed the
law stated in Stetson, i.e., ‘‘constructive discharge generally cannot be estab-
lished, however, simply through evidence that an employee was dissatisfied
with the nature of his assignments.’’ Id.9
The plaintiff claims that this is an issue of first impression. He did not,
however, raise this claim in the trial court when he opposed the defendant’s
motion to strike. The trial court, therefore, did not have an opportunity to
address it.
10
Whidbee concerned claims of a hostile work environment and construc-
tive discharge brought pursuant to 42 U.S.C. § 1981 and New York law
prohibiting inappropriate racial comments and tension created by one of
the plaintiffs’ coworkers. Whidbee v. Garzarelli Food Specialties, Inc., supra,
223 F.3d 67. The Court of Appeals reversed the District Court’s summary
judgment in favor of the defendants on the plaintiffs’ § 1981 claims regarding
a hostile work environment but affirmed the summary judgment with respect
to the constructive discharge claim against the defendants, concluding that
there was no evidence that the defendants ‘‘intentionally create[d] an intol-
erable work atmosphere that force[d] an employee to quit involuntarily.’’
(Emphasis added; internal quotation marks omitted.) Id., 74.
11
A fuller reading of Pennsylvania State Police, a hostile work environ-
ment case brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., discloses the following analysis. ‘‘The constructive
discharge here at issue stems from, and can be regarded as an aggravated
case of, sexual harassment or hostile work environment. For an atmosphere
of sexual harassment or hostility to be actionable, we reiterate . . . the
offending behavior must be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working envi-
ronment. . . . A hostile-environment constructive discharge claim entails
something more: A plaintiff who advances such a compound claim must
show working conditions so intolerable that a reasonable person would
have felt compelled to resign. See, e.g., Breeding v. Arthur Gallagher &
Co., 164 F.3d 1151, 1160 (8th Cir. 1999) ([A]lthough there may be evidence
from which a jury could find sexual harassment, . . . the fact alleged [for
constructive discharge must be] . . . so intolerable that a reasonable person
would be forced to quit.); Perry v. Harris Chernin, Inc., 126 F.3d 1010,
1015 (7th Cir. 1997) ([U]nless conditions are beyond ordinary discrimination,
a complaining employee is expected to remain on the job while seeking
redress.).’’ (Citation omitted; internal quotation marks omitted.) Pennsylva-
nia State Police v. Suders, supra, 542 U.S. 146–47.
12
Pennsylvania State Police concerned ‘‘an employer’s liability for one
subset of Title VII constructive discharge claims: constructive discharge
resulting from sexual harassment, or hostile work environment, attributable
to a supervisor.’’ (Internal quotation marks omitted.) Pennsylvania State
Police v. Suders, supra, 542 U.S. 143. There are ‘‘two categories of hostile
work environment claims: (1) harassment that culminates in a tangible
employment action for which employers are strictly liable . . . and (2)
harassment that takes place in the absence of a tangible employment action,
to which employers may assert an affirmative defense . . . .’’ (Citations
omitted; internal quotation marks omitted.) Id.; see Faragher v. Boca Raton,
524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1989) (when no tangible
employment action taken, employer may raise affirmative defense to liability
comprising two elements: employer exercised reasonable care to prevent
and correct promptly sexual harassing behavior and employee unreasonably
failed to take advantage of preventive or corrective opportunities provided
by employer or otherwise to avoid harm); Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1989) (same).
13
We need not determine whether the duties the plaintiff was assigned
violated public policy. But see footnotes 3, 4 and 5 of this opinion.
14
In Faulkner, the defendant, United Technologies Corporation, claimed
that the plaintiff could not state a cause of action pursuant to Sheets because
his complaint was not grounded in a state law or public policy. See Faulkner
v. United Technologies Corp., supra, 240 Conn. 584.
15
The Commission on Human Rights and Opportunities (commission)
submitted an amicus curiae brief. In its brief, the commission asserted that
it is responsible for investigating complaints that invoke the constructive
discharge theory and has an interest in decisions that may affect its decision-
making responsibilities. With respect to the present appeal, the commission
claims that the decision of the trial court is unclear and subject to different
interpretations. It, therefore, asks this court to address whether an employ-
er’s intent to create an intolerable work atmosphere is a necessary element
of a constructive discharge claim. It argues that our Supreme Court
attempted to resolve the role of an employer’s intent in Brittell v. Dept. of
Correction, supra, 247 Conn. 148, but did so unsuccessfully when it stated
‘‘[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 involuntarily. . . . Chert-
kova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996);
accord Serry v. Yale New Haven Hospital, [supra, 17 Conn. App. 540].’’
(Emphasis in original; internal quotation marks omitted.) Brittell v. Dept.
of Correction, supra, 178.
The commission recognizes the plaintiff’s argument that ‘‘a more sensible
reading of Brittell would conclude that it is the intent to create the work
atmosphere in question that matters, rather than an intent that such atmo-
sphere should force an employee to resign.’’ It acknowledges, however, that
the most recent constructive discharge decision of this court is Horvath v.
Hartford, supra, 178 Conn. App. 504, which adhered to the language in
Brittell. Id., 510.
We decline the commission’s request. As an intermediate court of appeal,
we are ‘‘unable to overrule, reevaluate, or reexamine controlling precedent
of our Supreme Court.’’ (Internal quotation marks omitted.) State v. Bran-
tley, 164 Conn. App. 459, 468, 138 A.3d 347, cert. denied, 321 Conn. 918, 136
A.3d 1276 (2016).