Green v. Town of East Haven

18‐0143
Green v. Town of East Haven
UNITED STATES COURT OF APPEALS
1
FOR THE SECOND CIRCUIT2
‐ ‐ ‐ ‐ ‐ ‐3
August Term, 20184
(Argued: May 3, 2019 Decided: March 10, 2020)5
Docket No. 18‐01436
_________________________________________________________7
DYANNA L. GREEN,8
Plaintiff‐Appellant,9
‐ v. ‐10
TOWN OF EAST HAVEN,11
Defendant‐Appellee,12
EAST HAVEN POLICE DEPARTMENT,13
Defendant.14
_________________________________________________________15
Before: KEARSE, WESLEY, and CHIN, Circuit Judges.16
Appeal from a judgment of the United States District Court for the17

District of Connecticut, Vanessa L. Bryant, Judge, dismissing, on summary judgment,1
plaintiffʹs action against defendant Town of East Haven (ʺTownʺ) alleging age2
discrimination in the termination of her employment, in violation of the Age3
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621‐634, and state law. The4
district court granted summary judgment on the sole ground that plaintiff had failed5
to make out a prima facie case of any adverse employment action, because she chose6
to retire rather than attend a scheduled disciplinary hearing‐‐the only merits‐based7
challenge presented in the Townʹs summary judgment motion. See Green v. East8
Haven Police Depʹt, 3:16‐cv‐00321, 2017 WL 6498144 (D. Conn. Dec. 19, 2017). On9
appeal, plaintiff contends that the court erred in failing to view her evidence that the10
retirement was not voluntary but was coerced by the threat of likely termination‐‐and11
hence constituted a constructive discharge‐‐in the light most favorable to her. We12
agree that the evidence, viewed in the light most favorable to plaintiff, sufficed to13
present genuine issues of fact as to whether a reasonable person in plaintiffʹs shoes14
would have felt compelled to retire. We thus vacate the judgment and remand for15
further proceedings.16
Vacated and remanded.17
2

KAREN R. KING, New York, New York (Jennifer X. 1
Luo, Paul, Weiss, Rifkind, Wharton &2
Garrison, New York, New York, on the brief),3
for Plaintiff‐Appellant.4
LYNCH, TRAUB, KEEFE & ERRANTE, New Haven, 5
Connecticut (Hugh F. Keefe, of counsel),6
submitted a brief for Defendant‐Appellee.7
KEARSE, Circuit Judge:8
Plaintiff Dyanna L. Green appeals from a judgment of the United States9
District Court for the District of Connecticut, Vanessa L. Bryant, Judge, dismissing her10
action against defendant Town of East Haven (ʺTownʺ) for alleged age discrimination11
in terminating her employment, in violation of the Age Discrimination in12
Employment Act of 1967, 29 U.S.C. §§ 621‐634 (ʺADEAʺ), and the Connecticut Fair13
Employment Practices Act, Conn. Gen. Stat. § 46a‐60 et seq. (ʺCFEPAʺ). The district14
court granted summary judgment dismissing the action on the sole ground that15
Green had failed to make out a prima facie case of any adverse employment action,16
because she chose to retire rather than attend a scheduled disciplinary hearing‐‐the17
only merits‐based challenge presented in the Townʹs summary judgment motion. On18
3

appeal, Green contends that the court erred in failing to view her evidence that the1
retirement was not voluntary but was coerced by the threat of likely termination‐‐and2
hence constituted a constructive discharge‐‐in the light most favorable to her. We3
agree that the evidence, viewed in the light most favorable to Green, sufficed to4
present genuine issues of fact as to whether a reasonable person in Greenʹs shoes5
would have felt compelled to retire. Accordingly, we vacate the judgment and6
remand for further proceedings.7
I. BACKGROUND8
Many of the following facts are undisputed, as indicated by the partiesʹ9
statements submitted pursuant to Local Rule 56(a) as to undisputed and disputed10
material facts (ʺRule 56(a) Statementsʺ). Other descriptions are, as indicated,11
principally taken from the deposition testimony of the Townʹs Internal Affairs (or12
ʺI.A.ʺ) Officer James Naccarato or from the affidavit submitted by Green in opposition13
to the Townʹs motion for summary judgment.14
4

A. Greenʹs Employment at East Haven Police Department1
From about May 2001 through December 2014, Green was an employee2
of the Town, working at defendant East Haven Police Department (ʺEHPDʺ or3
ʺDepartmentʺ). She was one of two full‐time employees in EHPDʹs records division,4
responsible for processing arrest and accident reports, typing search and arrest5
warrants, typing misdemeanor and infraction tickets, and entering data into EHPDʹs6
computer system. In 2012, EHPD Lieutenant David Emerman became supervisor of7
the records division. (See Rule 56(a) Statements, undisputed ¶¶ 1‐3; see also id.8
undisputed ¶ 27.)9
Also in 2012, Jennifer Ward was hired to work in the records division,10
replacing Greenʹs recently retired coworker. (See id. undisputed ¶ 6.) Green, 47 years11
of age when she was hired, was 58 in 2012 (see Affidavit of Dyanna L. Green dated12
September 6, 2017 (ʺGreen Aff.ʺ or ʺSeptember 2017 Affidavitʺ), ¶¶ 4‐5); Ward, in13
2012, was approximately 30 years of age (see id. ¶ 7). Green asserted that after Ward14
was hired, Green began to experience treatment from Emerman and EHPD Chief15
Brent Larrabee that she ʺbelieve[s] . . . was intended to create a hostile work16
environment and cause [her] to retire.ʺ (Id. ¶ 12; see id. ¶ 17 (ʺI was singled outʺ and17
ʺbelieve that I was subjected to deliberately disparate treatment and a hostile work18
5

environment because of my age, which was intended to make my employment1
intolerable and force me to resign or retireʺ).)2
Green stated, inter alia, that from the time Ward arrived until Green left3
EHPD, Green was made to feel ʺmarginalized in [her] roleʺ (id. ¶ 8), with Emerman4
ʺengag[ing] in a sustained and systematic pattern of publicly criticizing,5
micromanaging and scrutinizingʺ Greenʹs work and ʺsubject[ing her] to harassing and6
demeaning demands and questioningʺ (id. ¶ 12). Emerman also prepared and filed7
a number of criticisms of Greenʹs work that Green viewed as unwarranted. (See id.8
¶ 13.) Meanwhile, Ward was given more desirable work assignments and training9
opportunities that were denied to Green (see id. ¶¶ 8‐11) and was treated by Emerman10
and Chief Larrabee ʺwith obvious favoritismʺ (id. ¶ 8).11
B. The December 2014 Biscuits and Basket Incident12
Shortly after 8 a.m. on December 5, 2014, Green went to the EHPD13
kitchen/breakroom area to borrow a wire basket that was kept there, to use in an14
upcoming holiday party. While there, she observed two canisters of Pillsbury15
buttermilk biscuits dough that she had seen in the communal refrigerator since at16
least Thanksgiving. Green took one of the canisters, put it and the basket in her tote17
6

bag, and took them back to her desk. (See Green Aff. ¶¶ 21‐22.)1
Shortly after noon that day, EHPD Lieutenant Joseph Murgo sent an2
email to EHPD employees stating as follows:3
We had two (2) canisters of Buttermilk flavored Pillsbury4
biscuits that was [sic] brought in on Thanksgiving by one of our5
officers. There is now one canister left, which means one canister6
grew legs and walked away. If YOU are in possession of Pillsbury7
Grands Flaky layers Buttermilk biscuits, please return them to8
their rightful owner. We work in a police department people. 9
Too many things grow legs here. Thank you.10
(December 5, 2014 email from Joseph Murgo to All Police Department Employees.)11
After receiving that email, Green ʺasked Lieutenant Emerman if there12
were cameras in the kitchen.ʺ (Rule 56(a) Statements, undisputed ¶ 21.) Green then13
went into the kitchen area, carrying the biscuits in a bag, intending to return them to14
the refrigerator. (See id. undisputed ¶ 22.) When she arrived, Chief Larrabee was15
there; and the refrigerator was sealed with, inter alia, yellow ʺcrime sceneʺ tape. 16
(Green Aff. ¶¶ 29, 27.)17
Chief Larrabee asked Green what was in her bag; she responded only18
that it contained her salad; she did not tell him that it also contained the biscuits,19
which she had taken and was about to return to the refrigerator. (See, e.g., Rule 56(a)20
Statements, undisputed ¶¶ 23‐25.) ʺChief Larrabee then looked in the bag and saw21
7

the canister of biscuit[s].ʺ (Green Aff. ¶ 29.) Chief Larrabee took Green back to her1
desk, as she attempted to explain that she had taken the biscuits with the intent of2
baking them at home‐‐the communal kitchen at EHPD having no oven (see id. ¶ 22)‐‐3
and bringing the baked biscuits back to the office for officers and staff (see id. ¶ 29). 4
Chief Larrabee refused to listen. Arriving at Greenʹs desk, Chief Larrabee saw Greenʹs5
tote bag and asked what was in it. She showed him the wire basket and attempted6
to explain that she was temporarily borrowing it for a holiday party, but again he7
refused to listen. (See id.)8
Green was immediately placed on administrative leave with pay, having9
been found to have in her possession a basket that she admitted she had not asked10
anyone whether she could borrow, and biscuits that she admitted she had not asked11
anyone whether she could take. (See, e.g., Rule 56(a) Statements, undisputed ¶¶ 14,12
18‐20; December 11, 2014 Interview of Green by EHPD Internal Affairs Officer James13
Naccarato (ʺNaccarato Interview of Greenʺ) at 5‐6.)14
C. The Disciplinary Process and Greenʹs Resignation15
EHPD in 2014 had a Code of Conduct policy and a policy governing16
internal affairs complaints. ʺUnder the policy governing the Internal Affairs Officer17
8

[sic] and Complaints, the Chief of Police and Deputy Police Chief had the authority1
to determine the merits of an investigation.ʺ (Rule 56(a) Statements, undisputed2
¶ 29.) Under that policy, the Chief of Police and Deputy Police Chief had the3
authority to issue ʺverbal reprimand[s], written reprimand[s], and suspension[s]ʺ; but4
for more serious allegations they were to forward the investigation to the Townʹs5
Board of Police Commissioners (ʺTown BPCʺ or ʺBPCʺ); only the BPC had the6
authority to terminate the employee. (Id. undisputed ¶¶ 30, 32‐33.) The Town and7
the BPC were subject to a federal consent decree, see Agreement for Effective and8
Constitutional Policing, United States v. Town of East Haven, East Haven Board of Police9
Commissioners, No. 3‐12‐CV‐1652 (D. Conn. Dec. 21, 2012), Dkt. No. 11, which10
required EHPD to follow a ʺdisciplinary matrixʺ governing offenses for which an11
EHPD employee could be discharged (Deposition of James Naccarato (ʺNaccarato12
Dep.ʺ or ʺDep.ʺ) at 111). They ʺha[d] to follow the matrix.ʺ (Id.)13
In 2014, Naccarato was EHPDʹs I.A. Officer. In that position, he was14
required to investigate alleged violations of policies and procedures by EHPD15
personnel. He conducted an investigation with regard to potential Code of Conduct16
violations by Green on December 5, 2014. (Rule 56(a) Statements, undisputed17
¶¶ 10‐15.)18
9

As part of his investigation, Naccarato interviewed Green on December1
11 in the presence of her union representative. In that interview, Green admitted that,2
as indicated above, she had taken the biscuits and the basket without asking anyoneʹs3
permission. She told Naccarato, as she had tried to tell Chief Larrabee on December4
5, that she had merely been borrowing the basket for a Hanukkah party, and that she5
had seen the biscuits in the refrigerator for more than a week and planned to bake6
them at home and bring them back for officers and staff. When Naccarato asked why7
she had tried to conceal the basket, Green stated that she was not concealing it. She8
merely brought the tote bag because it made the basket easier to carry; and it had not9
occurred to her to ask permission to borrow it, since for the past 13 years she and10
others (she named two) had borrowed and returned such items as the basket without11
asking anyone. (See Naccarato Interview of Green at 8, 10‐12.)12
Naccaratoʹs report on his I.A. investigation of Green‐‐ prepared over13
several daysʹ time and signed on December 18 (see Naccarato Dep. 107, 109‐10)‐‐14
discussed whether Green had violated EHPDʹs Code of Conduct by, inter alia,15
ʺimpair[ing] the operation or efficiency of the Department or any memberʺ or16
ʺ[v]iolating any federal, state, and local laws,ʺ and concluded that she had done so by17
engaging in ʺpremeditat[ed] . . . theftʺ and ʺpurposely conceal[ing] the canister of18
10

biscuits and the basketʺ (EHPD Internal Affairs Investigation Report No.1
IA1400000019‐00039731 by James W. Naccarato, signed December 18, 20142
(ʺNaccaratoʹs I.A. Reportʺ or ʺI.A. Reportʺ), at 1, 3‐4). As described in Parts I.D. and3
II.C.2. below, Naccarato testified in his deposition that he reached his conclusions4
without interviewing the officer who owned the biscuits or the two persons identified5
by Green as among those who previously had routinely borrowed baskets without6
needing to ask permission (see Dep. 87‐88, 94‐96); he also testified as to what he may7
have told Green he believed were her prospects for remaining employed at EHPD (see8
id. at 35, 85‐90).9
A hearing into the charges against Green had been scheduled for10
December 15, 2014. On that date, after receiving advice from her union representative11
who had just met with Town representatives, including Chief Larrabee, she submitted12
a letter stating, ʺI Dyanna Green, hereby retire from the town of East Haven, effective13
January 1st 2015.ʺ14
D. The Present Action15
In February 2016, Green, then proceeding pro se, commenced the present16
action against EHPD and the Town. After counsel was appointed to represent her,17
11

a First Amended Complaint (ʺComplaintʺ) was filed, asserting that her employment1
had been constructively terminated because of her age in violation of the ADEA, 292
U.S.C. §§ 621‐634, and CFEPA, Conn. Gen. Stat. § 46a‐60 et seq. As Green had been3
an employee of the Town, EHPD was dismissed from the action by stipulation.4
In July 2017, after Green had taken the depositions of Emerman and5
Naccarato, the Town moved for summary judgment dismissing the Complaint on the6
ground, to the extent pertinent to this appeal, that Green had not made out a prima7
facie case of discrimination. In so contending, the Town argued only that because8
Green had chosen to resign rather than participate in a hearing before the Town BPC,9
see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (a tenured public10
employee is constitutionally entitled to, inter alia, a pretermination hearing at which11
she is given an opportunity to present her position) (ʺLoudermill hearingʺ), she could12
not establish that she had suffered an adverse employment action.13
In opposition to the motion, Green disputed the claim that her14
resignation had been voluntary, contending that she had essentially been forced to15
resign because she was told that if she did not, she would be fired. In support of her16
contention, she submitted her September 2017 Affidavit, stating in part as follows:17
12

31. On December 11, 2014, I sat for an interview with1
Officer Naccarrato [sic] as part of the EHPDʹs formal2
investigation. . . . Following the conclusion of the interview, I . . .3
asked Officer Naccarato‐‐who held the position of Internal Affairs4
Officer, was obviously familiar with the EHPDʹs disciplinary procedure5
and matrix, and whose judgment I respected‐‐what was going to6
happen to me. Officer Naccarato responded in substance: (i) that7
I had stolen from the EHPD; (ii) that Chief Larrabee and other8
members of the EHPD no longer trusted me or wanted me to continue9
working at the EHPD; (iii) that I likely would be fired; and (iv) if there10
was a possibility of me resigning or retiring, I should do so.11
32. Based on this conversation, I understood that as a result12
of Officer Naccaratoʹs incorrect determination that I had engaged13
in a theft, it was inevitable that I would be fired under the EHPDʹs14
disciplinary matrix, and that my only option would be to retire.15
33. On or about December 15, 2014, I was scheduled to16
appear with my union representatives, Sandy Santos and Tom17
Fascio, before representatives from the Town, including the18
Townʹs attorneys.19
34. At the meeting, Mr. Fascio met individually with the20
Townʹs representatives. Mr. Fascio then advised me that the Town21
had no interest in speaking with or hearing from me. He then further22
advised that the Townʹs position was that I could either retire or23
move forward with a L[o]udermill hearing. He advised me that,24
based on his discussions with the Townʹs representatives, including25
Chief Larrabee, I would almost certainly lose a L[o]udermill hearing.26
35. Based on the statements and advice of Officer27
Naccarato, as confirmed by my union representativeʹs advice, I28
was forced to ʺretireʺ effective as of December 31, 2014. I did so29
under duress. It had been my intention to work for at least30
another nine years, until I was 70.31
13

(Green Aff. ¶¶ 31‐35 (emphases added).)1
In support of the above statements that she had been advised by2
Naccarato that she should resign because she was otherwise likely to be fired, Green3
pointed, in part, to the following deposition testimony by Naccarato. Although no4
one had suggested to Naccarato ʺin substance,ʺ that ʺwe are going to try and fire5
[Green] over this,ʺ he testified that6
when you look at the disciplinary matrix, that violation falls in that7
category.8
Q. A fire‐able offense?9
A. Yes.10
Q. So it was your expectation that she was going to be fired11
over this?12
A. We have to follow the disciplinary matrix.13
(Naccarato Dep. 89 (emphases added).) And after Naccarato said that on December14
11, 2014, he ʺprobablyʺ had some discussion with Green ʺthat was not recordedʺ in15
her statement (id. at 33‐34), he testified as follows:16
Q. . . . [D]o you recall discussing with [Green] after the17
statement was taken what was going to happen to her?18
A. I donʹt specifically remember but if she asked me, I would19
have told her what I thought.20
14

Q. And what would you have told her?1
A. It didnʹt look good, stealing in the police department.2
Q. Did you tell her in substance that you recommended3
that she retire because nobody trusted her anymore?4
A. I donʹt remember saying that.5
Q. Do you remember her asking you what you thought was6
going to happen to her?7
A. I donʹt specifically remember but I couldnʹt say she didnʹt8
ask me.9
Q. Okay.10
A. And if she asked me, I would have told her.11
Q. And what would you have told her?12
A. That itʹs stealing from a police department, you have a13
potential to get fired for it. We have a disciplinary matrix that we go by14
and thatʹs where it falls in there.15
Q. Do you recall telling her that it was likely she was going16
to be fired unless she took retirement?17
A. I donʹt recall specifically saying that but if she asked me18
what I thought, I would have told her. I would have been honest with19
her. I was always honest with her.20
(Id. at 34‐35 (emphases added).)21
15

E. The District Courtʹs Decision1
The district court, in an opinion dated December 19, 2017, granted the2
Townʹs motion to dismiss the action for lack of a prima facie case. See Green v. East3
Haven Police Depʹt, 3:16‐cv‐00321, 2017 WL 6498144, at *6‐*9 (D. Conn. Dec. 19, 2017)4
(ʺGreenʺ). The court noted the burden‐shifting framework set forth in McDonnell5
Douglas Corp. v. Green, 411 U.S. 792 (1973) (ʺMcDonnell Douglasʺ), under which a prima6
facie case of discrimination7
consists of proof that a plaintiff (1) was within a protected class;8
(2) was qualified for her position; (3) was subject to an adverse9
employment action; and (4) the adverse action occurred under10
circumstances giving rise to an inference of discrimination.11
Green, 2017 WL 6498144, at *6 (emphasis added). Because the Town challenged only12
the third McDonnell Douglas element and the parties did not address any of the others,13
the court considered only whether Green adduced sufficient evidence to show a14
triable issue as to whether she had suffered an adverse employment action. See id.15
at *4, *7. It concluded that she had not.16
The district court noted that an ʺadverse employment actionʺ is one that17
causes a ʺmaterially adverse change in the terms and conditions of employment,ʺ that18
ʺ[o]ne example of a materially adverse action is constructive dischargeʺ‐‐a work19
16

condition so intolerable ʺthat when[] viewed as a whole . . . a reasonable person in the1
employeeʹs shoes would have felt compelled to resignʺ‐‐and that ʺ[t]hreats of2
termination can constitute evidence of constructive discharge.ʺ Id. at *7 (internal3
quotation marks omitted) (citing, inter alia, Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,4
1188 (2d Cir. 1987) (ʺample evidenceʺ demonstrated a triable issue of fact that plaintiff5
was constructively discharged because plaintiff was notified ʺhe would be fired at the6
end of the 90‐day probationary period no matter what he did to improve his allegedly7
deficient performanceʺ)).8
However, the court also observed that a claim of constructive discharge9
is not sufficiently supported merely by a showing that the plaintiff ʺresign[ed] to10
avoid facing disciplinary chargesʺ or simply ʺfear[ed] termination.ʺ Green, 2017 WL11
6498144, at *7. A ʺplaintiffʹs failure to go through an available pre‐termination12
hearing process is evidence that she was not constructively discharged,ʺ and this13
ʺoften precludes a plaintiffʹs ability to survive summary judgment.ʺ Id. But ʺevidence14
[that] an employee was given the choice to either resign or be fired can be sufficient15
to create a triable issue of fact.ʺ Id. ʺWhen determining if a threat of termination is16
sufficient, courts have relied on factors including whether the threats of termination17
were repeated, direct, or involved additional adverse conduct.ʺ Id. (internal quotation18
17

marks omitted).1
The court found particularly illustrative the case of Gorham v. Town of2
Trumbull Board of Education, 7 F.Supp.3d 218 (D. Conn. 2014) (ʺGorhamʺ), in which a3
high schoolʹs night custodian had found a musical instrument in the trash and,4
assuming that it was abandoned, took it home intending to donate it to his church. 5
He was summoned to6
a disciplinary hearing, charging him with ʺtheft of items7
belonging to a public entity,ʺ ʺdishonesty and lying to [his]8
supervisors,ʺ and ʺviolation of the trust inherent in his position.ʺ 9
. . . . He was informed that possible discipline included10
suspension or termination. . . . The Board of Education plant11
administrator was alleged to have told him at the disciplinary hearing,12
ʺLester, youʹre better off resigning right now; if not, weʹll have you13
charged.ʺ . . . . The plaintiff also averred that his union representative14
stated, ʺLester, this is tough. If you donʹt . . . resign, theyʹll not only15
have you charged; even if you feel like youʹre right . . . youʹll still be16
messed up.ʺ . . . . The plaintiff resigned on the day of the17
hearing. . . . The court found the evidence sufficient to constitute18
constructive discharge because ʺa reasonable person in Gorhamʹs shoes19
would have felt compelled to resign.ʺ . . . . In short, during the hearing20
one of the decision makers and his union representative essentially21
told Gorham the outcome of the hearing would be unfavorable and22
advised him to resign immediately before the decision was rendered.23
Green, 2017 WL 6498144, at *8 (quoting Gorham, 7 F.Supp.3d at 225, 232 (emphases24
ours)).25
The district court here found that the facts leading to Greenʹs resignation26
18

did not measure up to the facts described in Gorham. It stated that, ʺ[i]n analyzing a1
constructive discharge claim, the Court must carefully balance the facts to determine2
whether a reasonable person would have considered the pre‐termination hearing a3
meaningful process or a formality with a predetermined negative outcome.ʺ Green,4
2017 WL 6498144, at *8 (emphases added). It concluded that its ʺanalysis of the facts in5
this case reveals that the plaintiff choseʺ‐‐ʺshe elected on her ownʺ‐‐ʺto resign despite6
having a viable pre‐termination hearing process . . . . for two reasons.ʺ Id. (emphases7
added).8
First, Plaintiff had no basis to prejudge the decision makers. Although9
Officer Naccarato found that she had violated the Code of10
Conduct, that she was found to have committed an act for which11
she could be terminated, that Chief Larrabee and others did not12
trust or want to work with her, and that he thought she should13
resign, neither he nor Chief Larrabee were decision makers. Neither . . .14
had the authority to terminate her.15
Id. (emphases added). Second, despite Greenʹs assertion that ʺʹ[b]ased on [her16
December 11] conversation [with Naccarato], I understood that as a result of [his]17
incorrect determination that I engaged in a theft, it was inevitable that I would be fired18
under the EHPDʹs disciplinary matrix, and that my only option would be to retire,ʹʺ id.19
(quoting Green Aff. ¶ 32 (emphases ours)), the court found such an understanding20
unreasonable:21
19

EHPD Policy Number 208.2 makes clear that only the BPC has the1
authority to terminate an employee and may do so only after a full2
evidentiary Board hearing. . . . At such a hearing Plaintiff could have3
offered the testimony of her longstanding coworkers demonstrating that4
her conduct was conventional. That process had not begun and no5
one advised Plaintiff of the likely outcome of that process. Indeed, a6
reasonable person in Plaintiffʹs shoes would not have concluded it was7
inevitable that she would be fired after speaking with someone8
uninvolved in the decisionmaking process.9
Green, 2017 WL 6498144, at *8 (ʺinevitableʺ emphasized in original; other emphases10
added). The district court found it11
unavailing that [Greenʹs] union representative advised her ʺthe12
Townʹs position was that [she] could either retire or move forward13
with a L[o]udermill hearingʺ but that she ʺwould almost certainly14
lose a L[o]udermill hearing.ʺ [Green Aff.] ¶ 34. In light of the fact15
that there is no evidence Plaintiffʹs termination was automatic, the loss16
of a Loudermill hearing would not have inevitably led to termination. 17
These statements appear to be nothing more than an educated guess18
about a certain outcome.19
Green, 2017 WL 6498144, at *8 (emphases ours). The court found that20
[u]nlike the plant administrator in Gorham, nobody gave Plaintiff an21
ultimatum or threatened her with criminal charges, and there is no22
evidence the final decision maker would have even terminated her23
employment. The Court finds that Plaintiff[] . . . cannot show24
constructive discharge because she elected on her own to forego a25
hearing made available to her.26
Id. (emphases added).27
20

The court granted summary judgment in favor of the Town, concluding1
that ʺ[i]n failing to establish an adverse employment action, Plaintiff cannot establish2
a prima facie case for her ADEA or CFEPA claims.ʺ Id. at *9.3
II. DISCUSSION4
On appeal, Green contends that the granting of summary judgment5
against her for failure to show an adverse employment action was error because the6
evidence, viewed in the light most favorable to her, showed that she was7
constructively discharged by the Town because she believed, and objectively8
reasonably believed, that if she did not resign she would be discharged. As this was9
the only merits‐related argument presented to and considered by the court, we agree10
that summary judgment was inappropriate.11
A. ADEA Principles12
The ADEA provides, in pertinent part, that as to a person over the age13
of 40, see 29 U.S.C. § 631(a), ʺ[i]t shall be unlawful for an employer . . . to discharge14
[the] individual . . . because of such individualʹs age,ʺ id. § 623(a)(1). ʺIn order to15
21

establish a prima facie case of age discrimination,ʺ the plaintiff ʺmust show (1) that1
she was within the protected age group, (2) that she was qualified for the position, (3)2
that she experienced adverse employment action, and (4) that such action occurred3
under circumstances giving rise to an inference of discrimination.ʺ Gorzynski v.4
JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). As to the fourth element of the5
prima facie case, the Supreme Court has made ʺclear that ʹa plaintiff bringing a6
disparate‐treatment claim pursuant to the ADEA must prove, by a preponderance of7
the evidence, that age was the ʺbut‐forʺ cause of the challenged adverse employment8
actionʹ and not just a contributing or motivating factor.ʺ Id. at 106 (quoting Gross v.9
FBL Financial Services, Inc., 557 U.S. 167, 180 (2009)). Only the third element of the10
prima facie case is at issue on this appeal, however, because the only merits‐related11
basis for summary judgment presented by the Townʹs motion was that Green had12
failed to show an adverse employment action, and that was the only such basis for13
summary judgment considered by the district court, see Green, 2017 WL 6498144, at *4,14
*7.15
Plainly an employeeʹs ʺdischarge,ʺ 29 U.S.C. § 623(a)(1), is an adverse16
employment action. To satisfy the third element of the prima facie case, a discharge17
may consist of either the employerʹs actual termination of the plaintiffʹs employment18
22

or the existence of intolerable conditions, attributable to the employer, amounting to1
a ʺconstructiveʺ discharge. See, e.g., Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir.2
1998) (ʺKirschʺ); Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir. 1993)3
(ʺStetsonʺ); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (ʺPenaʺ). ʺ[T]he4
plaintiffʹs burden of establishing a prima facie case in a discrimination suit is5
de minimis.ʺ Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 90 (2d Cir.6
1999) (ʺChertkovaʺ) (Title VII claim of gender discrimination) (internal quotation marks7
omitted).8
An employeeʹs rights under federal antidiscrimination statutes may be9
ʺviolated by either explicit or constructive alterations in the terms or conditions of10
employment,ʺ and if constructive, the alterations, to be actionable, ʺmust be severe or11
pervasive.ʺ Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (ʺEllerthʺ)12
(emphasis added) (discussing Title VII principles announced in Meritor Savings Bank,13
FSB v. Vinson, 477 U.S. 57, 65 (1986)); see, e.g., Pena, 702 F.2d at 325 (ADEA claim). ʺA14
discriminatorily abusive work environment . . . can . . . discourage employees from remaining15
on the job . . . .ʺ Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993) (emphases added);16
see, e.g., id. at 19 (after the company presidentʹs last sexually harassing comment,17
ʺHarris collected her paycheck and quitʺ).18
23

A plaintiff may prove a constructive discharge by establishing that1
his employer, rather than acting directly, deliberately ma[de his]2
working conditions so intolerable that [he was] forced into an3
involuntary resignation, 4
Kirsch, 148 F.3d at 161 (ADEA claim) (internal quotation marks omitted (emphases5
ours)), and such an intolerable condition may be shown by evidence that the6
employer gave the plaintiff the choice of resigning or being fired, see, e.g., Lopez v. S.B.7
Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (ʺLopezʺ) (claim of ethnic discrimination8
in violation of 42 U.S.C. § 1981).9
However, as the district court noted, a constructive discharge cannot be10
shown simply by the fact that the employee was unhappy with the nature of her11
assignments or criticism of her work, or where the employee found the working12
conditions merely ʺdifficult or unpleasant.ʺ See Green, 2017 WL 6498144, at *7 (citing13
Stetson, 995 F.2d at 360). Rather, the standard for assessing whether the alterations14
have become intolerable is an objective one:15
Conduct that is not severe or pervasive enough to create an16
objectively hostile or abusive work environment‐‐an environment17
that a reasonable person would find hostile or abusive‐‐is beyond18
Title VIIʹs purview.19
Harris, 510 U.S. at 21 (emphases added). Accordingly, the principle we have20
consistently applied is that a plaintiff makes a prima facie showing of an adverse21
24

employment action if she adduces evidence from which a rational juror could infer1
that the employer made her working condition, viewed as a whole, ʺso difficult or2
unpleasant that a reasonable person in the employeeʹs shoes would have felt3
compelled to resign.ʺ Kirsch, 148 F.3d at 161 (internal quotation marks omitted); see,4
e.g., Chertkova, 92 F.3d at 89; Stetson, 995 F.2d at 361; Lopez, 831 F.2d at 1188; Pena, 7025
F.2d at 325.6
The fact that this substantive standard is an objective one, however, does7
not necessarily mean that what a reasonable person in the plaintiffʹs shoes would8
have felt compelled to do is determinable as a matter of law, for an objective question9
is often fact‐specific. It hardly need be said that the determination of whether it was10
objectively reasonable for an employee to feel compelled to resign in order to avoid11
being fired requires at least an examination of the information possessed by the12
employee. If any relevant facts are in dispute or subject to competing inferences as13
to their effects, or if there is admissible evidence from which a rational juror could14
infer that a reasonable employee would have felt so compelled, rejection of the15
constructive‐discharge theory as a matter of law is impermissible. See, e.g., Kirsch, 14816
F.3d at 161‐62 (affirming denial of defendantsʹ posttrial motion for judgment as a17
matter of law); Lopez, 831 F.2d at 1189 (reversing grant of defendantʹs motion for18
25

summary judgment). In Lopez, for example, we observed that1
[t]he record in this case amply demonstrates that Lopez has2
raised a genuine issue of fact as to whether he was constructively3
discharged when, as he alleges, Hunsberger [a regional director4
who was Lopezʹs supervisor] told him he would be fired at the end of5
the 90‐day probationary period no matter what he did to improve his6
allegedly deficient performance. A trier of fact might find that7
Hunsbergerʹs statement alone suffices to establish a constructive8
discharge. See Welch v. University of Tex. & Its Marine Science Inst.,9
659 F.2d 531, 533‐34 (5th Cir. 1981) (finding constructive discharge10
where employer clearly expressed his desire that employee resign11
because such a statement would force a reasonable person to12
resign).13
Lopez, 831 F.2d at 1188‐89 (emphasis added).14
In contrast, some cases present records so insubstantial that no rational15
factfinder could infer that a reasonable employee in the plaintiffʹs shoes could have16
felt compelled to resign. In Stetson, for example, we found the evidence insufficient17
to show a prima facie case of constructive discharge where the employer ʺnever18
mentioned retirement to Stetson and never either expressly or impliedly suggested19
that Stetsonʹs employment would be terminated.ʺ 995 F.2d at 361; see also Pena, 70220
F.2d at 325‐26 (reversing denial of the defendantʹs motion for a directed verdict for21
lack of evidence of a constructive discharge where, although the plaintiffʹs role was22
ʺsomewhatʺ changed, she was not faced with loss of pay or change in title, and it was23
26

her ʺown understanding throughout the relevant periodʺ‐‐ʺ[t]aking her own1
testimony in the light most favorable to herʺ‐‐ʺthat [the employer] wished her to2
remainʺ in its employ).3
B. Summary Judgment Principles4
A motion for summary judgment may be granted only ʺif the movant5
shows that there is no genuine dispute as to any material fact and the movant is6
entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). On such a motion,7
ʺ[t]he inquiry performed is the threshold inquiry of determining whether there is the8
need for a trial‐‐whether, in other words, there are any genuine factual issues that9
properly can be resolved only by a finder of fact because they may reasonably be10
resolved in favor of either party.ʺ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25011
(1986) (ʺLiberty Lobbyʺ). Thus, in ruling on a motion for summary judgment, ʺthe12
district court is required to resolve all ambiguities, and credit all factual inferences13
that could rationally be drawn, in favor of the party opposing summary judgment.ʺ 14
Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 206 (2d Cir.15
2006) (internal quotation marks omitted).16
ʺ[A]t the summary judgment stage the judgeʹs function is not himself to17
27

weigh the evidence and determine the truth of the matter but to determine whether1
there is a genuine issue for trial.ʺ Liberty Lobby, 477 U.S. at 249. ʺCredibility2
determinations, the weighing of the evidence, and the drawing of legitimate3
inferences from the facts are jury functions, not those of a judge . . . ruling on a motion4
for summary judgment . . . .ʺ Id. at 255.5
These standards also govern our review on appeal. Where ʺ[s]ummary6
judgment was granted for the employer, . . . we must take the facts alleged by the7
employee to be true.ʺ Ellerth, 524 U.S. at 747.8
C. The Present Case9
In this case we have difficulties both with the substantive legal standard10
adopted by the district court and with the courtʹs treatment of the summary judgment11
record.12
1. The Substantive Legal Principle Adopted13
In granting summary judgment against Green for lack of proof of any14
adverse employment action, the district court stated in part that ʺ[u]nlike the15
[decisionmaker] in Gorham, nobody gave Plaintiff an ultimatum [to resign or be fired]16
28

or threatened her with criminal charges.ʺ Green, 2017 WL 6498144, at *8. But Gorham1
merely discussed evidence of statements that were especially clear, authoritative, and2
ominous, from which a constructive discharge could be inferred. That evidence did3
not mark the minimum standard for what is actionable.4
Abuses may take many forms and be delivered in many ways. The5
district courtʹs transmutation of the facts in Gorham into a substantive controlling6
principle‐‐ruling that a plaintiff cannot show that a threat of termination constituted7
a constructive discharge unless the threat (a) was a categorical ultimatum that if she8
did not resign she would be fired, and (b) was delivered by an ultimate9
decisionmaker as to firing‐‐imposed a legal standard at an unwarranted level of10
specificity.11
While the identity of the person delivering a termination threat or12
prediction and the level of certainty expressed in such a threat or prediction are13
considerations for a factfinder to weigh, neither an absolute statement nor a direct14
communication by an ultimate decisionmaker is a sine qua non for evidence of a15
constructive discharge. For example, in Lopez, in which the plaintiff was told by his16
supervisor that he would be fired at the end of his probationary period regardless of17
how well he performed, we stated that a factfinder could permissibly ʺfind that [that]18
29

statement alone suffices to establish a constructive discharge,ʺ 831 F.2d at 1188; but1
nothing in our opinion suggested that the supervisor was a decisionmaker with2
respect to firing. In Stetson, in concluding that there was not sufficient evidence to3
show a prima facie case of constructive discharge, we considered not just whether the4
employer told Stetson ʺexpresslyʺ that his employment would be terminated, but5
alternatively whether he so ʺsuggestedʺ ʺimpliedly,ʺ 995 F.2d at 361. And indeed, our6
Lopez opinion indicated that a constructive discharge could properly be found where7
an employer merely, albeit ʺclearly[,] expressed his desire that [an] employee resign8
because such a statementʺ could cause a reasonable person to feel compelled to9
resign, 831 F.2d at 1188‐89 (emphasis added).10
Thus, contrary to the standard applied by the district court here in11
finding that Greenʹs constructive‐discharge argument failed because her evidence was12
less stark than that in Gorham, the established standard‐‐as discussed in Part II.A.13
above, and indeed as reflected in Gorham itself‐‐is whether in light of the evidence as14
a whole as to intolerable working circumstances, ʺa reasonable person in the15
employeeʹs shoes would have felt compelled to resign,ʺ Kirsch, 148 F.3d at 161;16
Chertkova, 92 F.3d at 89; Stetson, 995 F.2d at 361; Lopez, 831 F.2d at 1188; Pena, 702 F.2d17
at 325; see Gorham, 7 F.Supp.3d at 232.18
30

2. The District Courtʹs Assessment of the Record1
In addition to imposing an unduly stringent standard for proof of a2
constructive discharge, the district court engaged in a ʺbalanc[ing of] the facts,ʺ from3
which the court inferred that a reasonable person in Greenʹs shoes would not have felt4
compelled to resign in order to avoid termination, and found that Green in fact5
ʺchoseʺ‐‐ʺelected on her ownʺ‐‐to resign rather than to proceed with the Loudermill6
hearing, Green, 2017 WL 6498144, at *8. But on a motion for summary judgment, the7
courtʹs job was not to weigh the evidence, but rather was to accept as true the facts8
that were sworn to or undisputed, and with all permissible inferences therefrom9
drawn in Greenʹs favor, to determine whether a rational juror could find that a10
reasonable employee would have felt so compelled. The record as a whole, viewed11
in the light most favorable to Green, precluded the grant of summary judgment.12
Preliminarily, we note that one of the Gorham facts that the district court13
noted Green failed to match was that Gorham had been expressly threatened with14
criminal prosecution, whereas Green was not so threatened. Although ordinarily one15
might reasonably have no fear of being criminally prosecuted for taking a $2‐$316
package of biscuit dough, EHPDʹs treatment of the biscuits affair was hardly17
31

ordinary. The district courtʹs suggestion that Green could have had no thought of1
being prosecuted criminally ignored the facts that, on arriving in the EHPD kitchen2
in her attempt to return the biscuits, Green had been ʺconfronted by Chief Larrabeeʺ3
who, telling her ʺit was a crime scene,ʺ barred her from opening the refrigerator,4
which was covered with ʺyellow ʹcrime sceneʹ tapeʺ (Green Aff. ¶¶ 27, 29).5
More importantly, we have difficulty with the district courtʹs view that6
an employee in Greenʹs shoes would not have had any reasonable belief that her7
firing was inevitable (as her affidavit claimed), an inference drawn from the district8
courtʹs findings that ʺno one advised Plaintiff of the likely outcomeʺ of a BPC hearing,9
and that she thus ʺhad no basis to prejudge the [Loudermill hearing] decision makers,ʺ10
Green, 2017 WL 6498144, at *8. The findings that ʺno oneʺ had given Green such11
advice and that there was ʺno basisʺ for her to believe that she would lose in a hearing12
did not take into account all of the evidence in the record, and surely did not view the13
evidence in the light most favorable to Green. First, the court characterized the14
hearing scheduled for Green as a ʺviableʺ pretermination process, in which she ʺcould15
have offered the testimony of her longstanding coworkers demonstrating that her16
conduct was conventional,ʺ id. (emphases added). But Green had cited past customary17
practices of herself and coworkers only to explain borrowing the basket; she did not18
32

claim any longstanding practice with respect to taking the biscuits. Moreover, the1
court did not mention either (a) the I.A. Reportʹs findings that Green had committed2
ʺpremeditat[ed] . . . theftʺ and had ʺpurposely concealedʺ the theft (I.A. Report at 3),3
or (b) the undisputed fact that ʺauthority to determine the merits of an [I.A.]4
investigationʺ resided in the Chief of Police (Rule 56(a) Statements, undisputed ¶ 295
(emphasis added)). Thus, although Chief Larrabee was not an ultimate6
decisionmaker as to whether Green should be fired, the record is contrary to the7
district courtʹs view that Green had a ʺviableʺ chance of having the Town BPC8
overrule the Police Chiefʹs I.A. determinations that Green had engaged in theft and9
duplicity.10
Second, there was evidence in the record that Green received advice from11
knowledgeable persons, on both sides of the aisle, that the Loudermill hearing would12
ʺlikely,ʺ and indeed ʺalmost certainly,ʺ result in her termination:13
# EHPD was subject to a consent decree that required it to follow14
a disciplinary matrix governing circumstances under which a15
Department employee could be fired (see Naccarato Dep. 111);16
# Naccarato, as EHPDʹs Internal Affairs Officer, was familiar with17
(see id. 114‐16)‐‐and was understood by Green to be familiar with (see18
Green Aff. ¶ 31)‐‐the EHPD disciplinary matrix;19
# Green stated that when she asked Naccarato what he thought20
33

was going to happen to her, Naccarato told her that Chief Larrabee and1
other members of EHPD no longer trusted her and did not want her to2
continue working at EHPD (see Green Aff. ¶ 31);3
# Naccarato advised Green that if the I.A. charges were upheld4
she, in accordance with the consent‐decree‐mandated disciplinary5
matrix, ʺlikely would be firedʺ (id.);6
# Green stated that Naccarato advised her that if she could7
ʺresign[] or retir[e],ʺ she ʺshould do soʺ (id.);8
# Naccarato testified that he did not remember ʺspecificallyʺ9
Greenʹs asking his view of what was going to happen to her (Dep. 34) or10
ʺspecificallyʺ advising her that she should resign or retire (id. at 35); but11
he testified that ʺif she asked,ʺ he would have told her what he honestly12
thought (id.);13
# Naccarato testified that he would have told Green that stealing14
from the police department falls into the ʺdisciplinary matrixʺ category15
of a ʺfire‐able offenseʺ (Dep. 35, 89);16
# Naccarato testified that if I.A. charges showed a firing offense,17
the disciplinary matrix left the BPC ʺvery littleʺ room for an exercise of18
discretion (Dep. 111); and, finally,19
# Green stated that on the day of the scheduled hearing, her union20
representative met initially with Town representatives, who said the21
Town did not want to hear from Green and that she could either have22
the Loudermill hearing or retire; and her union representative advised23
her, ʺbased on his discussions with the Townʹs representatives, including24
Chief Larrabee,ʺ that she would ʺalmost certainlyʺ lose at the hearing25
(Green Aff. ¶ 34).26
The district courtʹs view that there was ʺno basisʺ for a reasonable belief that Green27
34

would lose a Loudermill hearing is contradicted by the evidence.1
While the district court did note Greenʹs statement that her union2
representative advised her that she would ʺʹalmost certainly loseʹʺ in a Loudermill3
hearing, Green, 2017 WL 6498144, at *8, the court found that advice‐‐though4
admittedly ʺeducatedʺ‐‐to be ʺunavailingʺ because there was no evidence that5
termination was automatic or inevitable, id. This outright dismissal as to any value6
or effect of advice from the union representative seems to indicate the courtʹs belief7
that, despite having received an I.A. officerʹs informed view that she has committed8
a fire‐able offense, a reasonable employee, as a matter of law, cannot feel compelled9
to resign rather than insist on a hearing when her union representative‐‐who is10
presumably looking after her interests‐‐makes an ʺeducatedʺ prediction that she is11
almost certain to lose in the hearing. We know of no authority supporting such a12
principle of law. And to the extent that the court found the union representativeʹs13
advice ʺunavailingʺ simply as a matter of fact‐‐i.e., as outweighed by other evidence14
as to what a reasonable employee in Greenʹs shoes ʺwouldʺ have felt compelled to do,15
id.‐‐the court so found by impermissibly conducting its own weighing of the evidence16
and by drawing all inferences adversely to Green.17
In sum, the evidence to be considered as to whether Green suffered a18
35

constructive‐discharge adverse employment action, viewed in the light most1
favorable to Green on this issue, included the facts that the 61‐year‐old Green (1) had2
admitted taking items from the EHPD kitchen without permission; (2) had admitted3
initially lying to the Chief of Police about her actions; (3) had immediately been4
caught by the Chief of Police in that lie; (4) was found in the Internal Affairs5
investigation (a) to have stolen those items premeditatedly and (b) to have attempted6
to conceal the theft; (5) had been told by the Internal Affairs Officer that the Chief of7
Police and other members of the Department no longer trusted her and did not want8
her to continue working at EHPD; (6) had been advised by the Internal Affairs Officer9
(a) that if the I.A. Report were upheld she, in accordance with the EHPD consent10
decree disciplinary matrix, ʺlikely would be fired,ʺ and (b) that if she could resign or11
retire she ʺshould do soʺ; and (7) had been advised by her own union representative,12
who had just conferred with the Town representatives, that she would ʺalmost13
certainlyʺ lose at a Loudermill hearing. If this case were tried, a factfinder, applying14
the correct legal standard to the issue of constructive discharge, could rationally find15
that an employee in Greenʹs shoes would have felt compelled to submit her16
resignation stating that she was retiring, rather than face nearly certain termination.17
The district court erred in granting summary judgment on the basis that18
36

such a finding would be impermissible.1
CONCLUSION2
We have considered all of the Townʹs appellate arguments in support of3
summary judgment and have found them to be without merit. The judgment4
dismissing Greenʹs claims under the ADEA and CFEPA is vacated, and the matter is5
remanded for further proceedings. As the Townʹs merits challenge to Greenʹs action6
focused only on the element of adverse employment action, we do not rule out the7
possibility of further pretrial proceedings focusing on other elements.8
If Green ultimately prevails on the merits of her action, she will be9
entitled to the costs of this appeal.10
37