Green v. Town of East Haven

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)
6 Docket No. 18‐0143
7 _________________________________________________________
8 DYANNA L. GREEN,
9 Plaintiff‐Appellant,
10 ‐ v. ‐
11 TOWN OF EAST HAVEN,
12 Defendant‐Appellee,
13 EAST HAVEN POLICE DEPARTMENT,
14 Defendant.
15 _________________________________________________________
16 Before: KEARSE, WESLEY, and CHIN, Circuit Judges.
17 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 plaintiffʹs action against defendant Town of East Haven (ʺTownʺ) 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 Townʹs summary judgment motion. See Green v. East
9 Haven Police Depʹt, 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 plaintiffʹs 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 KAREN R. KING, New York, New York (Jennifer X.
2 Luo, Paul, Weiss, Rifkind, Wharton &
3 Garrison, New York, New York, on the brief),
4 for Plaintiff‐Appellant.
5 LYNCH, TRAUB, KEEFE & ERRANTE, New Haven,
6 Connecticut (Hugh F. Keefe, of counsel),
7 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 (ʺTownʺ) 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 (ʺADEAʺ), and the Connecticut Fair
14 Employment Practices Act, Conn. Gen. Stat. § 46a‐60 et seq. (ʺCFEPAʺ). 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 Townʹs 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 Greenʹs 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 partiesʹ
10 statements submitted pursuant to Local Rule 56(a) as to undisputed and disputed
11 material facts (ʺRule 56(a) Statementsʺ). Other descriptions are, as indicated,
12 principally taken from the deposition testimony of the Townʹs Internal Affairs (or
13 ʺI.A.ʺ) Officer James Naccarato or from the affidavit submitted by Green in opposition
14 to the Townʹs motion for summary judgment.
4
1 A. Greenʹs 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 (ʺEHPDʺ or
4 ʺDepartmentʺ). She was one of two full‐time employees in EHPDʹs 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 EHPDʹs
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 Greenʹs 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 (ʺGreen Aff.ʺ or ʺSeptember 2017 Affidavitʺ), ¶¶ 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 ʺbelieve[s] . . . was intended to create a hostile work
17 environment and cause [her] to retire.ʺ (Id. ¶ 12; see id. ¶ 17 (ʺI was singled outʺ and
18 ʺbelieve 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 retireʺ).)
3 Green stated, inter alia, that from the time Ward arrived until Green left
4 EHPD, Green was made to feel ʺmarginalized in [her] roleʺ (id. ¶ 8), with Emerman
5 ʺengag[ing] in a sustained and systematic pattern of publicly criticizing,
6 micromanaging and scrutinizingʺ Greenʹs work and ʺsubject[ing her] to harassing and
7 demeaning demands and questioningʺ (id. ¶ 12). Emerman also prepared and filed
8 a number of criticisms of Greenʹs 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 ʺwith obvious favoritismʺ (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 bag, and took them back to her desk. (See Green Aff. ¶¶ 21‐22.)
2 Shortly after noon that day, EHPD Lieutenant Joseph Murgo sent an
3 email to EHPD employees stating as follows:
4 We had two (2) canisters of Buttermilk flavored Pillsbury
5 biscuits that was [sic] brought in on Thanksgiving by one of our
6 officers. There is now one canister left, which means one canister
7 grew legs and walked away. If YOU are in possession of Pillsbury
8 Grands Flaky layers Buttermilk biscuits, please return them to
9 their rightful owner. We work in a police department people.
10 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 ʺasked Lieutenant Emerman if there
13 were cameras in the kitchen.ʺ (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 ʺcrime sceneʺ 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.) ʺChief Larrabee then looked in the bag and saw
7
1 the canister of biscuit[s].ʺ (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 Greenʹs desk, Chief Larrabee saw Greenʹs
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 (ʺNaccarato Interview of Greenʺ) at 5‐6.)
15 C. The Disciplinary Process and Greenʹs Resignation
16 EHPD in 2014 had a Code of Conduct policy and a policy governing
17 internal affairs complaints. ʺUnder 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.ʺ (Rule 56(a) Statements, undisputed
3 ¶ 29.) Under that policy, the Chief of Police and Deputy Police Chief had the
4 authority to issue ʺverbal reprimand[s], written reprimand[s], and suspension[s]ʺ; but
5 for more serious allegations they were to forward the investigation to the Townʹs
6 Board of Police Commissioners (ʺTown BPCʺ or ʺBPCʺ); 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 ʺdisciplinary matrixʺ governing offenses for which an
12 EHPD employee could be discharged (Deposition of James Naccarato (ʺNaccarato
13 Dep.ʺ or ʺDep.ʺ) at 111). They ʺha[d] to follow the matrix.ʺ (Id.)
14 In 2014, Naccarato was EHPDʹs 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 anyoneʹs
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 Naccaratoʹs report on his I.A. investigation of Green‐‐ prepared over
14 several daysʹ time and signed on December 18 (see Naccarato Dep. 107, 109‐10)‐‐
15 discussed whether Green had violated EHPDʹs Code of Conduct by, inter alia,
16 ʺimpair[ing] the operation or efficiency of the Department or any memberʺ or
17 ʺ[v]iolating any federal, state, and local laws,ʺ and concluded that she had done so by
18 engaging in ʺpremeditat[ed] . . . theftʺ and ʺpurposely conceal[ing] the canister of
10
1 biscuits and the basketʺ (EHPD Internal Affairs Investigation Report No.
2 IA1400000019‐00039731 by James W. Naccarato, signed December 18, 2014
3 (ʺNaccaratoʹs I.A. Reportʺ or ʺI.A. Reportʺ), 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, ʺI Dyanna Green, hereby retire from the town of East Haven, effective
14 January 1st 2015.ʺ
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 (ʺComplaintʺ) 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) (ʺLoudermill hearingʺ), 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 31. On December 11, 2014, I sat for an interview with
2 Officer Naccarrato [sic] as part of the EHPDʹs formal
3 investigation. . . . Following the conclusion of the interview, I . . .
4 asked Officer Naccarato‐‐who held the position of Internal Affairs
5 Officer, was obviously familiar with the EHPDʹs disciplinary procedure
6 and matrix, and whose judgment I respected‐‐what was going to
7 happen to me. Officer Naccarato responded in substance: (i) that
8 I had stolen from the EHPD; (ii) that Chief Larrabee and other
9 members of the EHPD no longer trusted me or wanted me to continue
10 working at the EHPD; (iii) that I likely would be fired; and (iv) if there
11 was a possibility of me resigning or retiring, I should do so.
12 32. Based on this conversation, I understood that as a result
13 of Officer Naccaratoʹs incorrect determination that I had engaged
14 in a theft, it was inevitable that I would be fired under the EHPDʹs
15 disciplinary matrix, and that my only option would be to retire.
16 33. On or about December 15, 2014, I was scheduled to
17 appear with my union representatives, Sandy Santos and Tom
18 Fascio, before representatives from the Town, including the
19 Townʹs attorneys.
20 34. At the meeting, Mr. Fascio met individually with the
21 Townʹs representatives. Mr. Fascio then advised me that the Town
22 had no interest in speaking with or hearing from me. He then further
23 advised that the Townʹs position was that I could either retire or
24 move forward with a L[o]udermill hearing. He advised me that,
25 based on his discussions with the Townʹs representatives, including
26 Chief Larrabee, I would almost certainly lose a L[o]udermill hearing.
27 35. Based on the statements and advice of Officer
28 Naccarato, as confirmed by my union representativeʹs advice, I
29 was forced to ʺretireʺ effective as of December 31, 2014. I did so
30 under duress. It had been my intention to work for at least
31 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 ʺin substance,ʺ that ʺwe are going to try and fire
6 [Green] over this,ʺ he testified that
7 when you look at the disciplinary matrix, that violation falls in that
8 category.
9 Q. A fire‐able offense?
10 A. Yes.
11 Q. So it was your expectation that she was going to be fired
12 over this?
13 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 ʺprobablyʺ had some discussion with Green ʺthat was not recordedʺ in
16 her statement (id. at 33‐34), he testified as follows:
17 Q. . . . [D]o you recall discussing with [Green] after the
18 statement was taken what was going to happen to her?
19 A. I donʹt specifically remember but if she asked me, I would
20 have told her what I thought.
14
1 Q. And what would you have told her?
2 A. It didnʹt look good, stealing in the police department.
3 Q. Did you tell her in substance that you recommended
4 that she retire because nobody trusted her anymore?
5 A. I donʹt remember saying that.
6 Q. Do you remember her asking you what you thought was
7 going to happen to her?
8 A. I donʹt specifically remember but I couldnʹt say she didnʹt
9 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 A. That itʹs stealing from a police department, you have a
14 potential to get fired for it. We have a disciplinary matrix that we go by
15 and thatʹs where it falls in there.
16 Q. Do you recall telling her that it was likely she was going
17 to be fired unless she took retirement?
18 A. I donʹt recall specifically saying that but if she asked me
19 what I thought, I would have told her. I would have been honest with
20 her. I was always honest with her.
21 (Id. at 34‐35 (emphases added).)
15
1 E. The District Courtʹs Decision
2 The district court, in an opinion dated December 19, 2017, granted the
3 Townʹs motion to dismiss the action for lack of a prima facie case. See Green v. East
4 Haven Police Depʹt, 3:16‐cv‐00321, 2017 WL 6498144, at *6‐*9 (D. Conn. Dec. 19, 2017)
5 (ʺGreenʺ). The court noted the burden‐shifting framework set forth in McDonnell
6 Douglas Corp. v. Green, 411 U.S. 792 (1973) (ʺMcDonnell Douglasʺ), under which a prima
7 facie case of discrimination
8 consists of proof that a plaintiff (1) was within a protected class;
9 (2) was qualified for her position; (3) was subject to an adverse
10 employment action; and (4) the adverse action occurred under
11 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 ʺadverse employment actionʺ is one that
18 causes a ʺmaterially adverse change in the terms and conditions of employment,ʺ that
19 ʺ[o]ne example of a materially adverse action is constructive dischargeʺ‐‐a work
16
1 condition so intolerable ʺthat when[] viewed as a whole . . . a reasonable person in the
2 employeeʹs shoes would have felt compelled to resignʺ‐‐and that ʺ[t]hreats of
3 termination can constitute evidence of constructive discharge.ʺ 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) (ʺample evidenceʺ demonstrated a triable issue of fact that plaintiff
6 was constructively discharged because plaintiff was notified ʺhe would be fired at the
7 end of the 90‐day probationary period no matter what he did to improve his allegedly
8 deficient performanceʺ)).
9 However, the court also observed that a claim of constructive discharge
10 is not sufficiently supported merely by a showing that the plaintiff ʺresign[ed] to
11 avoid facing disciplinary chargesʺ or simply ʺfear[ed] termination.ʺ Green, 2017 WL
12 6498144, at *7. A ʺplaintiffʹs failure to go through an available pre‐termination
13 hearing process is evidence that she was not constructively discharged,ʺ and this
14 ʺoften precludes a plaintiffʹs ability to survive summary judgment.ʺ Id. But ʺevidence
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.ʺ Id. ʺWhen 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.ʺ 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) (ʺGorhamʺ), in which a
4 high schoolʹs 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
7 a disciplinary hearing, charging him with ʺtheft of items
8 belonging to a public entity,ʺ ʺdishonesty and lying to [his]
9 supervisors,ʺ and ʺviolation of the trust inherent in his position.ʺ
10 . . . . He was informed that possible discipline included
11 suspension or termination. . . . The Board of Education plant
12 administrator was alleged to have told him at the disciplinary hearing,
13 ʺLester, youʹre better off resigning right now; if not, weʹll have you
14 charged.ʺ . . . . The plaintiff also averred that his union representative
15 stated, ʺLester, this is tough. If you donʹt . . . resign, theyʹll not only
16 have you charged; even if you feel like youʹre right . . . youʹll still be
17 messed up.ʺ . . . . The plaintiff resigned on the day of the
18 hearing. . . . The court found the evidence sufficient to constitute
19 constructive discharge because ʺa reasonable person in Gorhamʹs shoes
20 would have felt compelled to resign.ʺ . . . . In short, during the hearing
21 one of the decision makers and his union representative essentially
22 told Gorham the outcome of the hearing would be unfavorable and
23 advised him to resign immediately before the decision was rendered.
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 Greenʹs resignation
18
1 did not measure up to the facts described in Gorham. It stated that, ʺ[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.ʺ Green,
5 2017 WL 6498144, at *8 (emphases added). It concluded that its ʺanalysis of the facts in
6 this case reveals that the plaintiff choseʺ‐‐ʺshe elected on her ownʺ‐‐ʺto resign despite
7 having a viable pre‐termination hearing process . . . . for two reasons.ʺ Id. (emphases
8 added).
9 First, Plaintiff had no basis to prejudge the decision makers. Although
10 Officer Naccarato found that she had violated the Code of
11 Conduct, that she was found to have committed an act for which
12 she could be terminated, that Chief Larrabee and others did not
13 trust or want to work with her, and that he thought she should
14 resign, neither he nor Chief Larrabee were decision makers. Neither . . .
15 had the authority to terminate her.
16 Id. (emphases added). Second, despite Greenʹs assertion that ʺʹ[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 EHPDʹs disciplinary matrix, and that my only option would be to retire,ʹʺ id.
20 (quoting Green Aff. ¶ 32 (emphases ours)), the court found such an understanding
21 unreasonable:
19
1 EHPD Policy Number 208.2 makes clear that only the BPC has the
2 authority to terminate an employee and may do so only after a full
3 evidentiary Board hearing. . . . At such a hearing Plaintiff could have
4 offered the testimony of her longstanding coworkers demonstrating that
5 her conduct was conventional. That process had not begun and no
6 one advised Plaintiff of the likely outcome of that process. Indeed, a
7 reasonable person in Plaintiffʹs shoes would not have concluded it was
8 inevitable that she would be fired after speaking with someone
9 uninvolved in the decisionmaking process.
10 Green, 2017 WL 6498144, at *8 (ʺinevitableʺ emphasized in original; other emphases
11 added). The district court found it
12 unavailing that [Greenʹs] union representative advised her ʺthe
13 Townʹs position was that [she] could either retire or move forward
14 with a L[o]udermill hearingʺ but that she ʺwould almost certainly
15 lose a L[o]udermill hearing.ʺ [Green Aff.] ¶ 34. In light of the fact
16 that there is no evidence Plaintiffʹs termination was automatic, the loss
17 of a Loudermill hearing would not have inevitably led to termination.
18 These statements appear to be nothing more than an educated guess
19 about a certain outcome.
20 Green, 2017 WL 6498144, at *8 (emphases ours). The court found that
21 [u]nlike the plant administrator in Gorham, nobody gave Plaintiff an
22 ultimatum or threatened her with criminal charges, and there is no
23 evidence the final decision maker would have even terminated her
24 employment. The Court finds that Plaintiff[] . . . cannot show
25 constructive discharge because she elected on her own to forego a
26 hearing made available to her.
27 Id. (emphases added).
20
1 The court granted summary judgment in favor of the Town, concluding
2 that ʺ[i]n failing to establish an adverse employment action, Plaintiff cannot establish
3 a prima facie case for her ADEA or CFEPA claims.ʺ Id. at *9.
4 II. DISCUSSION
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), ʺ[i]t shall be unlawful for an employer . . . to discharge
15 [the] individual . . . because of such individualʹs age,ʺ id. § 623(a)(1). ʺIn order to
21
1 establish a prima facie case of age discrimination,ʺ the plaintiff ʺmust 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.ʺ 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 ʺclear that ʹa plaintiff bringing a
7 disparate‐treatment claim pursuant to the ADEA must prove, by a preponderance of
8 the evidence, that age was the ʺbut‐forʺ cause of the challenged adverse employment
9 actionʹ and not just a contributing or motivating factor.ʺ 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 Townʹs 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 employeeʹs ʺdischarge,ʺ 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 employerʹs actual termination of the plaintiffʹs employment
22
1 or the existence of intolerable conditions, attributable to the employer, amounting to
2 a ʺconstructiveʺ discharge. See, e.g., Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir.
3 1998) (ʺKirschʺ); Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir. 1993)
4 (ʺStetsonʺ); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (ʺPenaʺ). ʺ[T]he
5 plaintiffʹs burden of establishing a prima facie case in a discrimination suit is
6 de minimis.ʺ Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 90 (2d Cir.
7 1999) (ʺChertkovaʺ) (Title VII claim of gender discrimination) (internal quotation marks
8 omitted).
9 An employeeʹs rights under federal antidiscrimination statutes may be
10 ʺviolated by either explicit or constructive alterations in the terms or conditions of
11 employment,ʺ and if constructive, the alterations, to be actionable, ʺmust be severe or
12 pervasive.ʺ Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (ʺEllerthʺ)
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). ʺA
15 discriminatorily abusive work environment . . . can . . . discourage employees from remaining
16 on the job . . . .ʺ Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993) (emphases added);
17 see, e.g., id. at 19 (after the company presidentʹs last sexually harassing comment,
18 ʺHarris collected her paycheck and quitʺ).
23
1 A plaintiff may prove a constructive discharge by establishing that
2 his employer, rather than acting directly, deliberately ma[de his]
3 working conditions so intolerable that [he was] forced into an
4 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) (ʺLopezʺ) (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 ʺdifficult or unpleasant.ʺ 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 Conduct that is not severe or pervasive enough to create an
17 objectively hostile or abusive work environment‐‐an environment
18 that a reasonable person would find hostile or abusive‐‐is beyond
19 Title VIIʹs 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, ʺso difficult or
3 unpleasant that a reasonable person in the employeeʹs shoes would have felt
4 compelled to resign.ʺ 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 plaintiffʹs 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 defendantsʹ posttrial motion for judgment as a
18 matter of law); Lopez, 831 F.2d at 1189 (reversing grant of defendantʹs motion for
25
1 summary judgment). In Lopez, for example, we observed that
2 [t]he record in this case amply demonstrates that Lopez has
3 raised a genuine issue of fact as to whether he was constructively
4 discharged when, as he alleges, Hunsberger [a regional director
5 who was Lopezʹs supervisor] told him he would be fired at the end of
6 the 90‐day probationary period no matter what he did to improve his
7 allegedly deficient performance. A trier of fact might find that
8 Hunsbergerʹs statement alone suffices to establish a constructive
9 discharge. See Welch v. University of Tex. & Its Marine Science Inst.,
10 659 F.2d 531, 533‐34 (5th Cir. 1981) (finding constructive discharge
11 where employer clearly expressed his desire that employee resign
12 because such a statement would force a reasonable person to
13 resign).
14 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 plaintiffʹs 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 ʺnever
19 mentioned retirement to Stetson and never either expressly or impliedly suggested
20 that Stetsonʹs employment would be terminated.ʺ 995 F.2d at 361; see also Pena, 702
21 F.2d at 325‐26 (reversing denial of the defendantʹs motion for a directed verdict for
22 lack of evidence of a constructive discharge where, although the plaintiffʹs role was
23 ʺsomewhatʺ changed, she was not faced with loss of pay or change in title, and it was
26
1 her ʺown understanding throughout the relevant periodʺ‐‐ʺ[t]aking her own
2 testimony in the light most favorable to herʺ‐‐ʺthat [the employer] wished her to
3 remainʺ in its employ).
4 B. Summary Judgment Principles
5 A motion for summary judgment may be granted only ʺif 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.ʺ Fed. R. Civ. P. 56(a). On such a motion,
8 ʺ[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.ʺ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
12 (1986) (ʺLiberty Lobbyʺ). Thus, in ruling on a motion for summary judgment, ʺthe
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.ʺ
15 Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 206 (2d Cir.
16 2006) (internal quotation marks omitted).
17 ʺ[A]t the summary judgment stage the judgeʹs 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.ʺ Liberty Lobby, 477 U.S. at 249. ʺCredibility
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 . . . .ʺ Id. at 255.
6 These standards also govern our review on appeal. Where ʺ[s]ummary
7 judgment was granted for the employer, . . . we must take the facts alleged by the
8 employee to be true.ʺ 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 courtʹs 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 ʺ[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.ʺ 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 courtʹs 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 ʺfind that [that]
29
1 statement alone suffices to establish a constructive discharge,ʺ 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 ʺexpresslyʺ that his employment would be terminated, but
6 alternatively whether he so ʺsuggestedʺ ʺimpliedly,ʺ 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 ʺclearly[,] expressed his desire that [an] employee resign
9 because such a statementʺ could cause a reasonable person to feel compelled to
10 resign, 831 F.2d at 1188‐89 (emphasis added).
11 Thus, contrary to the standard applied by the district court here in
12 finding that Greenʹs 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, ʺa reasonable person in the
16 employeeʹs shoes would have felt compelled to resign,ʺ 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.
30
1 2. The District Courtʹs 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 ʺbalanc[ing of] the facts,ʺ from
4 which the court inferred that a reasonable person in Greenʹs shoes would not have felt
5 compelled to resign in order to avoid termination, and found that Green in fact
6 ʺchoseʺ‐‐ʺelected on her ownʺ‐‐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 courtʹs 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 Greenʹs 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, EHPDʹs treatment of the biscuits affair was hardly
31
1 ordinary. The district courtʹs 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 ʺconfronted by Chief Larrabeeʺ
4 who, telling her ʺit was a crime scene,ʺ barred her from opening the refrigerator,
5 which was covered with ʺyellow ʹcrime sceneʹ tapeʺ (Green Aff. ¶¶ 27, 29).
6 More importantly, we have difficulty with the district courtʹs view that
7 an employee in Greenʹs 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 courtʹs findings that ʺno one advised Plaintiff of the likely outcomeʺ of a BPC hearing,
10 and that she thus ʺhad no basis to prejudge the [Loudermill hearing] decision makers,ʺ
11 Green, 2017 WL 6498144, at *8. The findings that ʺno oneʺ had given Green such
12 advice and that there was ʺno basisʺ 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 ʺviableʺ pretermination process, in which she ʺcould
16 have offered the testimony of her longstanding coworkers demonstrating that her
17 conduct was conventional,ʺ 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. Reportʹs findings that Green had committed
3 ʺpremeditat[ed] . . . theftʺ and had ʺpurposely concealedʺ the theft (I.A. Report at 3),
4 or (b) the undisputed fact that ʺauthority to determine the merits of an [I.A.]
5 investigationʺ 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 courtʹs view that Green had a ʺviableʺ chance of having the Town BPC
9 overrule the Police Chiefʹs 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 ʺlikely,ʺ and indeed ʺalmost certainly,ʺ result in her termination:
14 # EHPD was subject to a consent decree that required it to follow
15 a disciplinary matrix governing circumstances under which a
16 Department employee could be fired (see Naccarato Dep. 111);
17 # Naccarato, as EHPDʹs Internal Affairs Officer, was familiar with
18 (see id. 114‐16)‐‐and was understood by Green to be familiar with (see
19 Green Aff. ¶ 31)‐‐the EHPD disciplinary matrix;
20 # Green stated that when she asked Naccarato what he thought
33
1 was going to happen to her, Naccarato told her that Chief Larrabee and
2 other members of EHPD no longer trusted her and did not want her to
3 continue working at EHPD (see Green Aff. ¶ 31);
4 # Naccarato advised Green that if the I.A. charges were upheld
5 she, in accordance with the consent‐decree‐mandated disciplinary
6 matrix, ʺlikely would be firedʺ (id.);
7 # Green stated that Naccarato advised her that if she could
8 ʺresign[] or retir[e],ʺ she ʺshould do soʺ (id.);
9 # Naccarato testified that he did not remember ʺspecificallyʺ
10 Greenʹs asking his view of what was going to happen to her (Dep. 34) or
11 ʺspecificallyʺ advising her that she should resign or retire (id. at 35); but
12 he testified that ʺif she asked,ʺ he would have told her what he honestly
13 thought (id.);
14 # Naccarato testified that he would have told Green that stealing
15 from the police department falls into the ʺdisciplinary matrixʺ category
16 of a ʺfire‐able offenseʺ (Dep. 35, 89);
17 # Naccarato testified that if I.A. charges showed a firing offense,
18 the disciplinary matrix left the BPC ʺvery littleʺ room for an exercise of
19 discretion (Dep. 111); and, finally,
20 # Green stated that on the day of the scheduled hearing, her union
21 representative met initially with Town representatives, who said the
22 Town did not want to hear from Green and that she could either have
23 the Loudermill hearing or retire; and her union representative advised
24 her, ʺbased on his discussions with the Townʹs representatives, including
25 Chief Larrabee,ʺ that she would ʺalmost certainlyʺ lose at the hearing
26 (Green Aff. ¶ 34).
27 The district courtʹs view that there was ʺno basisʺ 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 Greenʹs statement that her union
3 representative advised her that she would ʺʹalmost certainly loseʹʺ in a Loudermill
4 hearing, Green, 2017 WL 6498144, at *8, the court found that advice‐‐though
5 admittedly ʺeducatedʺ‐‐to be ʺunavailingʺ 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 courtʹs belief
8 that, despite having received an I.A. officerʹs 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 ʺeducatedʺ 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 representativeʹs
14 advice ʺunavailingʺ simply as a matter of fact‐‐i.e., as outweighed by other evidence
15 as to what a reasonable employee in Greenʹs shoes ʺwouldʺ 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, ʺlikely would be fired,ʺ and (b) that if she could resign or
12 retire she ʺshould do soʺ; and (7) had been advised by her own union representative,
13 who had just conferred with the Town representatives, that she would ʺalmost
14 certainlyʺ 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 Greenʹs 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 such a finding would be impermissible.
2 CONCLUSION
3 We have considered all of the Townʹs appellate arguments in support of
4 summary judgment and have found them to be without merit. The judgment
5 dismissing Greenʹs claims under the ADEA and CFEPA is vacated, and the matter is
6 remanded for further proceedings. As the Townʹs merits challenge to Greenʹs 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 If Green ultimately prevails on the merits of her action, she will be
10 entitled to the costs of this appeal.
37