18-2153 Connolly v. Equity Servs., Inc.

18‐2153‐cv Connolly v. Equity Servs., Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of March, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

BRENDAN CONNOLLY, Plaintiff‐Appellant,

v. 18‐2153‐cv

EQUITY SERVICES, INC., NATIONAL LIFE INSURANCE CO., Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: David Bond, Strouse & Bond PLLC, Burlington, Vermont.

FOR DEFENDANTS‐APPELLEES: Robert S. Burke, Law Office of Robert S. Burke, Williston, Vermont.

Appeal from the United States District Court for the District of Vermont

(Sessions, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Brendan Connolly appeals from a judgment entered

July 24, 2018, dismissing his claim of constructive discharge brought under the Family

and Medical Leave Act (ʺFMLAʺ),

et seq. On appeal, Connolly argues

that the district court erred in concluding that he failed to plead a plausible constructive

discharge claim ‐‐ a claim precipitated by the decision of defendants‐appellees Equity

Services, Inc. and National Life Insurance Co. to reduce his annual bonus after Connolly

used extended paid leave to cope with the death of his wife and unborn child. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

We conduct a de novo review of a districtʹs court dismissal of a complaint

for failure to state a claim upon which relief can be granted. See, e.g., United States ex rel.

Wood v. Allergan, Inc.,

(2d Cir. 2018). To survive a motion to dismiss, a

complaint must contain sufficient factual matter, which if accepted as true, states a

claim to relief that is plausible on its face. Ashcroft v. Iqbal,

(2009).

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The allegations set forth in Connollyʹs complaint fail to state a plausible

claim that defendants created an intolerable environment or that a reasonable person

would have resigned after being notified of a potential reduction in bonus pay. To state

a claim for constructive discharge, an employee must allege facts indicating (1) ʺthe

employerʹs intent to create an intolerable environmentʺ and (2) ʺwork conditions so

intolerable that [a reasonable person] would have felt compelled to resign.ʺ Shultz v.

Congregation Shearith Israel of N.Y,

(2d Cir. 2017) (internal quotation

marks omitted); accord Green v. Brennan,

(2016).1

Here, Connolly claims he was constructively discharged ʺdue to the

intolerable restrictionsʺ defendants imposed upon him, and that he was ʺpenalize[d]ʺ

for his absences between March 22, 2015 and February 28, 2017, Compl. at 9, because

during his annual performance and compensation review, the company indicated his

annual bonus might be reduced and his ʺabsences [we]re no longer acceptable,ʺ Compl.

at 7.

1 Courts apply the same standard for evaluating Title VII and FMLA constructive discharge claims. See Shultz,

(Under Title VII, ʺ[t]he constructive‐discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employeeʹs position would have felt compelled to resign.ʺ) (internal quotation marks omitted); Stoler v. Inst. for Integrative Nutrition, No. 13‐cv‐1275,

, at *10 (S.D.N.Y. Nov. 18, 2013) (ʺTo establish a constructive discharge [for a FMLA claim], Plaintiffs must establish that Defendants deliberately made [plaintiffʹs] working conditions so intolerable that a reasonable person in her shoes would have felt compelled to resign.ʺ); cf. Potenza v. City of New York,

(2d Cir. 2004) (per curiam) (applying Title VII framework to FMLA retaliation claim); Hamilton v. Sirius Satellite Radio Inc.,

(S.D.N.Y. 2005) (same).

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Defendantsʹ signaling of a reduction in Connollyʹs discretionary bonus

pay, however, did not by itself indicate an intent to create an intolerable environment.

See Petrosino v. Bell Atl.,

(2d Cir. 2004) (ʺ[T]he law is clear that a

constructive discharge claim cannot be proved by demonstrating that an employee is

dissatisfied . . . with the failure to receive an anticipated raise . . . or a bonus after having

received one in previous years.ʺ) (citations omitted). Connollyʹs claim that a reasonable

person would have been compelled to resign is simply not plausible in the

circumstances alleged here. According to his complaint, defendants supported

Connollyʹs recovery for almost two years until his absences ʺcaused [his] coworkers to

have to cover [his] job duties.ʺ Compl. at 7. Further, Connolly alleges that ʺat no point

in the previous 20 months,ʺ during which he had weekly meetings with his manager,

did his manager ʺever address[] any issues that arose from his absences, whether they

involved approved vacation, therapist appointments, or were granted by [human

resources].ʺ Compl. at 7. Indeed, Connolly states that, during his absences, he received

his full salary, was not placed on official ‐‐ unpaid ‐‐ FMLA leave, and was not initially

required to use accrued vacation time to cover his bereavement leave as is permitted by

law. And approaching the anniversary of the death of his wife, his manager ʺinsistedʺ

that Connolly take paid time off from work. Compl. at 5.

Moreover, the allegations set forth in the complaint undermine Connollyʹs

assertion that the potential for a reduced bonus was the final straw for Connolly and his

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continued employment with the defendants. Connolly alleges that the day after his

review meeting, he expressed interest in remaining in the defendantsʹ employ if he

could be placed in the companyʹs Dallas, Texas office, and he did not resign until after

learning that a position in Dallas was unavailable. Furthermore, defendants ultimately

paid Connolly the full amount of the bonus, albeit not until after his employment

ended. Under these circumstances, we agree with the district courtʹs conclusion that

Connolly failed to plausibly allege that defendants intentionally created an intolerable

work environment that would compel a reasonable person to resign.

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We have considered Connollyʹs remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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