Filed: Mar. 06, 2019
Latest Update: Mar. 03, 2020
Summary: 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 COURT'S 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 EL
Summary: 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 COURT'S 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 ELE..
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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.
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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), 29 U.S.C. § 2601 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., 899 F.3d 163, 168 (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, 556 U.S. 662, 678 (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, 867 F.3d 298, 308 (2d Cir. 2017) (internal quotation
marks omitted); accord Green v. Brennan, 136 S. Ct. 1769, 1776 (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, 867 F.3d at 308 (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, 2013
WL 6068598, 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, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam) (applying Title VII framework to FMLA retaliation
claim); Hamilton v. Sirius Satellite Radio Inc., 375 F. Supp. 2d 269, 275 (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., 385 F.3d 210, 231 (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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