UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David F. Cass, Sr.

v. Civil No. 17-cv-313-JD Opinion No.

Airgas USA, LLC

O R D E R

David Cass moves for reconsideration of the order that

granted in part and denied in part Airgas’s motion for summary

judgment. In support, Cass contends that the court erred in

concluding that he could not prove constructive discharge or a

hostile work environment. Airgas objects to the motion for

reconsideration.

Standard of Review

“‘[M]otions for reconsideration are appropriate only in a

limited number of circumstances: if the moving party presents

newly discovered evidence, if there has been an intervening

change in the law, or if the movant can demonstrate that the

original decision was based on a manifest error of law or was

clearly unjust.’” United States v. Zimny,

(1st Cir. 2017) (quoting United States v. Allen,

(1st Cir. 2009)). Reconsideration is not “a vehicle for a party

to undo its own procedural failures” or a means to “advance

arguments that could and should have been presented to the district court prior to” the decision being issued. Iverson v.

City of Boston,

(1st Cir. 2006). Further,

reconsideration does not permit a party to “regurgitate old

arguments previously considered and rejected.” Biltcliffe v.

CitiMortgage, Inc.,

(1st Cir. 2014).

Discussion

In the order on summary judgment, the court concluded that

Cass could not prove constructive discharge or a hostile work

environment as the adverse employment actions taken against him.

For purposes of constructive discharge, the court concluded that

Cass had not shown a triable issue as to whether Airgas’s

fitness-for-duty requirements met the standard or whether

Airgas’s actions were illegal under

(d)(4).

The court also concluded that Cass resigned prematurely. With

respect to a hostile work environment, the court found that Cass

had not demonstrated at least a triable issue, based on an

objective standard, as to whether Airgas’s fitness-for-duty

requirements were sufficiently severe and pervasive so as to

alter his employment. Cass challenges those determinations.

A. Constructive Discharge

Cass contends that the court put too much weight on the

incidents when he fell asleep while working. He contends that

2 because he fell asleep only twice in 2014 and once the year

before he did not have a problem with falling asleep at work due

to his sleep apnea. He argues that Airgas’s fitness-for-duty

requirements were illegal and that he was not required to meet

with an Airgas representative before resigning.

As provided in the summary judgment order, “[c]onstructive

discharge typically refers to harassment so severe and

oppressive that staying on the job while seeking redress—the

rule save in exceptional cases—is intolerable.” Gerald v. Univ.

of P.R.,

(1st Cir. 2013) (internal quotation

marks omitted). “A successful constructive discharge claim

requires ‘working conditions so intolerable that a reasonable

person would have felt compelled to resign.’”

(quoting

Penn. St. Police v. Suders,

(2004)); see also

E.E.O.C. v. Kohl’s Dept. Stores, Inc.,

(1st

Cir. 2014); Porter, 151 N.H. at 42 (“Constructive discharge

occurs when an employer renders an employee’s working conditions

so difficult and intolerable that a reasonable person would feel

forced to resign.”). Further, “[t]he standard to meet is an

objective one, it cannot be triggered solely by an employee’s

subjective beliefs, no matter how sincerely held.” Gerald,

(internal quotation marks omitted). The court

concluded that Airgas’s fitness-for-duty requirements did not on

their own rise to the level of constructive discharge.

3 1. Cleared for Work

Cass asserts that the import of his fatigue and falling

asleep at work was exaggerated. He contends that he was cleared

to return to work so that any further requirements to address

his fatigue were harassing and illegal. He does not explain why

that would be the case, however. In addition, the evidence he

cites does not support his theory.

In his motion, Cass states that “[t]he July 23, 2014,

doctor’s note cleared him to return to all essential functions

of his work so that Airgas’s additional evaluation requirements

were illegal.” Contrary to Cass’s representation, there is no

doctor’s note dated July 23, 2014, in the record.

There is an evaluation report dated July 23, 2014,

completed by a lab technician, that indicates that Cass could

“perform the essential job functions as listed in the provided

job description [which was not provided]” but also recommends

that he be reevaluated in four to six weeks by a specialist. In

response to that recommendation, Cass scheduled an appointment

with his own doctor who provided a statement on September 17,

2014. In the statement, Cass’s doctor wrote that he was

concerned about Cass’s sleep apnea and was concerned that

without adequate treatment Cass would have daytime fatigue and

4 should not drive a forklift. Cass admitted his fatigue at work

to his supervisor and admitted that he had not been using his

prescribed CPAP machine.

Cass has not shown that the issue of his fatigue and

falling asleep at work was considered improperly.

2. Objectively Intolerable Conditions

Cass also asserts that the fitness-for-duty requirements

were “subjectively and objectively unreasonable.” The

reasonableness of the requirements, however, is not the standard

for purposes of showing constructive discharge. The

requirements must be objectively intolerable. Cass does not

argue or more importantly show that that the fitness-for-duty

requirements, which were also prescribed by his treating

doctors, were objectively intolerable.

3. Illegal under

(d)(4)

Cass argues, as he did in opposition to the motion for

summary judgment, that the fitness-for-duty requirements were

illegal under § 12112(d)(4), making them per se grounds for

constructive discharge. Whether or not his theory that an

illegal act always constitutes grounds for constructive

discharge, the court determined that Airgas met its burden to

show that the requirements were not illegal under § 12212(d)(4).

5 Cass has not shown that determination was the result of a

manifest error of law.

The court also noted in the summary judgment order that

Cass did not allege a claim under § 12112(d)(4). In his motion

for reconsideration, Cass argues that the court should construe

his general allegation of disability discrimination “contrary to

‘NH RSA 354-A’, and ‘ADA/ADAAA,

et seq.” to

include a claim that Airgas violated § 12112(d)(4), despite the

lack of any cite to the statute or supporting allegations. Cass

is represented by counsel and, therefore, is not entitled to the

broad view that might allow pro se parties the benefit of the

doubt. Instead, Cass is expected to allege “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). He did not allege a claim

under § 12112(d)(4).

4. Paid Leave

To the extent Cass argues that he was not paid during his

month leave of absence and that the lack of pay constituted

constructive discharge, his argument is too little and too late.

In the summary judgment order, the court noted that Cass

referred to a lack of compensation in passing but found that he

had not made those allegations in his complaint. In addition,

that part of Cass’s affidavit cited in support of that

6 representation, states that he was paid and that he was told to

complete Family Medical Leave Act paperwork to receive

additional payments, which he apparently did not do. Therefore,

Cass cannot claim that a lack of pay during his leave caused him

to resign several months later.

5. Premature Resignation

As an additional reason for concluding that Cass could not

prove constructive discharge, the court noted that Cass resigned

before discussing his concerns with an Airgas representative

when a meeting had been scheduled and then postponed. Cass

argues, in a non sequitur, that a discrimination claim does not

require an employee to meet with his employer. For purposes of

showing an adverse employment action, however, an employee

cannot show constructive discharge if he “assume[d] the worst”

rather than accepting an opportunity to talk with his employer.

Kohl’s,

.

Cass argues, nevertheless, that a reasonable jury could

find that his resignation was reasonable. Again, reasonableness

is not the standard. The conditions must be objectively

intolerable. Cass has not shown a manifest error of law.

7 B. Hostile Work Environment

Cass contends that the court also erred in finding that he

could not prove that he was subjected to a hostile work

environment. As provided in the summary judgment order, a

hostile work environment theory requires “evidence that the

discriminatory [or retaliatory] conduct was sufficiently severe

or pervasive so as to alter the conditions of employment and

create an abusive work environment.” Murray v. Warren Pumps,

LLC,

(1st Cir. 2016); Noviello v. City of

Boston,

(1st Cir. 2005). To constitute an

adverse employment action, the harassment must be both

“objectively and subjectively offensive, one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so.” Faragher v. City of Boca Raton,

(1998).

Cass argues that the fitness-for-duty requirements met the

standard for a hostile work environment, again arguing that the

requirements were illegal under § 12112(d)(4). Because Cass has

not shown that Airgas acted illegally under § 12112(d)(4), that

theory fails. He has not otherwise shown that the court’s

analysis of his hostile work environment evidence was based on a

manifest error of law.

8 Conclusion

For the foregoing reasons, the plaintiff’s motion for

reconsideration (document no. 27) is denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

September 11, 2018

cc: Francis J. Bingham, Esq. Leslie H. Johnson, Esq. Christopher B. Kacamarek, Esq.

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