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May, 2019 WHAT IS A CONSTRUCTIVE DISCHARGE? Many times, work can seem unbearable. But the law does recognize certain limited circumstances where an employer’s conduct becomes so unreasonable that it provides a basis for a claim of a “forced resignation” called a “constructive discharge.” However, two recent cases from the Appellate Court, released within days of each other, illustrate that the bar to establish a “constructive discharge” is exceedingly high. In Connecticut, “constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily ….Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign …” Brittell v. Dept. of Correction, 247 Conn. 148, 178 (1998). But a claim of constructive discharge must be supported by more than the employee’s subjective opinion that the conditions were intolerable such that she was forced to resign. In the first Appellate Court case, Karagozian v. USV Optical, Inc., 186 Conn.App. 857 (Jan. 8, 2019), the plaintiff was employed as a licensed optician manager of the optical department owned and operated by the defendant USV Optical, Inc. in a JCPenney store. The defendant required the plaintiff, as part of his duties, to provide optometric assistant services to the doctor of optometry in the store. When the defendant refused the plaintiff’s request to not perform these additional duties, the plaintiff, as he alleged in his complaint, was “compelled to resign from his position.” The trial court granted the defendant’s motion to strike the complaint on the ground that the complaint insufficiently alleged the elements of a claim of constructive discharge. The Appellate Court agreed with the trial court, holding that the plaintiff failed to allege that defendant intentionally created an intolerable workplace or that there was an intolerable workplace that would have compelled a reasonable person to resign. In the second case, Boucher v. St. Francis GI Endoscopy, LLC, 187 Conn.App. 422 (Jan. 22, 2019), the plaintiff sought to recover damages from the defendant claiming that the defendant retaliated and constructively discharged three days after her complaint of being sexually harassed by a coworker. The trial court granted the defendant’s motion for summary judgment finding that the defendant took no adverse action against the plaintiff to support a retaliation claim. Additionally, the Appellate Court, in citing Second Circuit precedent, stated that a constructive discharge claim cannot be proven merely by evidence that an employee … preferred to not to continue working for that employer or that employee’s working conditions were difficult or unpleasant. Additionally, an employee claiming constructive discharge under retaliation must give the employer a reasonable chance to remedy any intolerable working conditions before quitting. In this case, the plaintiff’s supervisor tried to stop the plaintiff from quitting by asking her, “Are you sure you want to do this?” I did say the bar is quite high, right? In one case the Busca Law Firm was involved with, the plaintiff quit after her employer’s remedy to her sexual harassment complaint against her supervisor was for her to continue to work in close proximity to her supervisor under supervised arrangements. The court granted the defendant’s motion for summary judgment on the constructive discharge claim, stating that the plaintiff did not give this arrangement a chance to succeed. Other claims the plaintiff made survived summary judgment. What to take away from this case: before you quit your job because of an “unreasonable” employer, speak with a knowledgeable employment attorney.