Green v. Town of East Haven, No. 18‐0143 (2d Cir. Mar. 10, 2020)

By Paul Mollica

The Second Circuit analyzes a claim that an ADEA plaintiff was “constructively discharged,” that is, compelled to retire or resign against their will. The panel holds that a threat of imminent termination for supposedly stealing a canister of poppin’ fresh biscuits was enough to support such a claim.

Green v. Town of East Haven, No. 18‐0143 (2d Cir. Mar. 10, 2020): The plaintiff had worked as a records clerk for 11 years and was age 58 in 2012 when her retired coworker in the office was replaced by a 30-year-old. From the point on, Green alleges, commanding officers Chief Larrabee and Lt. Emerman subjected her to a hostile work environment with the aim of forcing her to retire as well. According to the summary judgment record, the superiors began denigrating and micromanaging her work, while showing flagrant favoritism to the 30-year-old clerk.

In December 2014, plaintiff was discovered having removed a Pillsbury biscuit-dough cannister from the common refrigerator (she assumed it had been abandoned) and borrowing a basket from the kitchen. The commanding officers treated the event as a major crime, sending a memo throughout the office about the incident, ringing the kitchen area with yellow crime tape, and interrogating the plaintiff about it. “Green was immediately placed on administrative leave with pay, having been found to have in her possession a basket that she admitted she had not asked anyone whether she could borrow, and biscuits that she admitted she had not asked anyone whether she could take.”

The same day, Internal Affairs officer Naccarato opened an investigation into Green’s actions. The initial report charged Green with “impair[ing] the operation or efficiency of the Department or any memberʺ and ʺ[v]iolating any federal, state, and local lawsʺ by engaging in ʺpremeditat[ed] . . . theftʺ and ʺpurposely conceal[ing] the canister of biscuits and the basket.ʺ Naccarato testified that he reached his conclusions “without interviewing the officer who owned the biscuits or the two persons identified by Green as among those who previously had routinely borrowed baskets without needing to ask permission … he also testified as to what he may have told Green he believed were her prospects for remaining employed at EHPD.”

A hearing was convened for December 15, 2014, but Green instead gave her two-week notice or retirement. According to Green, Naccarato told her several days before “(i) that I had stolen from the EHPD; (ii) that Chief Larrabee and other members of the EHPD no longer trusted me or wanted me to continue working at the EHPD; (iii) that I likely would be fired; and (iv) if there was a possibility of me resigning or retiring, I should do so.” Everyone she asked in the department confirmed that she would probably be fired after the hearing under the “disciplinary matrix” then in effect.

Plaintiff sued under the ADEA and Connecticut’s own age-discrimination law. The district court held on summary judgment that Green did not make out a prima facie claim because she did not suffer an “adverse action,” but instead voluntarily retired. The judge held that “nobody gave Plaintiff an ultimatum or threatened her with criminal charges, and there is no evidence the final decision maker would have even terminated her employment.”

The Second Circuit reverses. After stating the legal standard for finding constructive discharge – that the employer “deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation” – the panel then considers whether the record here rose to the “severe or pervasive” level that would warrant a trial. The panel observes that the standard is an objective one, and yet it must be judged from the plaintiff’s vantage-point with the information they had at the time:

“[T]he determination of whether it was objectively reasonable for an employee to feel compelled to resign in order to avoid being fired requires at least an examination of the information possessed by the employee. If any relevant facts are in dispute or subject to competing inferences as to their effects, or if there is admissible evidence from which a rational juror could infer that a reasonable employee would have felt so compelled, rejection of the constructive‐discharge theory as a matter of law is impermissible.”

On summary judgment, the court must be careful to not to substitute it own perspective for the plaintiff’s.

The panel also holds that “[w]hile the identity of the person delivering a termination threat or prediction and the level of certainty expressed in such a threat or prediction are considerations for a factfinder to weigh,” it is not essential that the person making the threat be the ultimate decisionmaker. Although Larrabee was not a final decsionmaker, the district court erred in crediting the town’s argument “that Green had a ‘viable’ chance of having the Town [Board of Police Commissioners] overrule the Police Chiefʹs … determinations that Green had engaged in theft and duplicity.”

While the mere fact of facing a disciplinary hearing or even the possible risk of termination is not enough, the panel holds there was more in this case. One factor was the unusual attention given to a petty offense:

“Although ordinarily one might reasonably have no fear of being criminally prosecuted for taking a $2‐$3 package of biscuit dough, EHPDʹs treatment of the biscuits affair was hardly ordinary. The district courtʹs suggestion that Green could have had no thought of being prosecuted criminally ignored the facts that, on arriving in the EHPD kitchen in her attempt to return the biscuits, Green had been ‘confronted by Chief Larrabee’ who, telling her ‘it was a crime scene,’ barred her from opening the refrigerator, which was covered with ‘yellow ʹcrime sceneʹ tape.'”

Also “there was evidence in the record that Green received advice from knowledgeable persons, on both sides of the aisle, that the … hearing would ‘likely,’ and indeed ‘almost certainly,’ result in her termination,” including Internal Affairs officer Naccarato and her union representative. This was reinforced by plaintiff being “told by the Internal Affairs Officer that the Chief of Police and other members of the Department no longer trusted her and did not want her to continue working at EHPD.”