2d Circuit Affirms Dismissal of Constructive Discharge Claim

In Tulino v. City of New York, 2020 WL 2893548 (2d Cir. June 3, 2020) (Summary Order), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s granting of defendant’s motion for Judgment as a Matter of Law on plaintiff’s constructive discharge claim asserted under the New York City Human Rights Law (NYCHRL).

The court initially acknowledged that the standard for evaluating constructive discharge claims under the NYCHRL is unclear,[1]In a footnote, the Court cites a number of cases discussing the standard. but declined to certify the case to the New York Court of Appeals or reach or decide the question of of the proper standard, since (in its view) plaintiff’s constructive discharge claim “fails under any standard.”

Applying the law, the court explained:

On appeal Tulino acknowledges that any standard for constructive discharge relevant to this case will require deliberate actions taken by the employer sufficient to cause a reasonable person to feel compelled to resign. But here, the circumstances of Tulino’s employment were not such that a reasonable person would have felt compelled to resign. After complaining of Ali’s harassment, Tulino received scheduled raises, see JA 931, and remained at her job in her current title, see JA 931. Moreover, Tulino’s complaints resulted in the commencement of an EEO investigation, JA 933, and it is undisputed that the department assigned Tulino to a different supervisor, JA 704, and offered her employment in at least one other position where she would not be supervised by Ali, JA 790. Though Tulino complains that her work assignments were reduced, that is typically not considered enough to compel a reasonable person to resign. See Petrosino v. Bell Atl., 385 F.3d 210, 231 (2d Cir. 2004) (noting that “the law is clear that a constructive discharge claim cannot be proved by demonstrating that an employee is dissatisfied with the work assignments she receives within her job title” and that a reduction in responsibilities would not “support [an employee’s] constructive discharge claim”).3

While there is evidence that two SBS employees stated that Tulino had “offended the agency” and that she had “no place here” if she did not return to Ali’s division, JA 227, these remarks, in the context, inter alia, of the offers of employment in other departments, the lack of any active disciplinary investigations against Tulino, her civil service protections, and her transfer to a different supervisor, provide no basis on which a jury might reasonably conclude that the Defendants-Appellees undertook deliberate actions sufficient to compel resignation. See Petrosino, 385 F.3d at 231 (finding no constructive discharge claim where a transfer would not have diminished the plaintiff’s “job title, pay, or seniority” and “[a]t most … would have delayed [the plaintiff’s] opportunity to be promoted to a managerial position”). Nor is our recent decision in Green v. Town of New Haven, 952 F.3d 394, 407 (2d Cir. 2020), to the contrary.4

Tulino argues that the measures taken to address her complaints and any job security she might have enjoyed were illusory, since false accusations could have been fabricated to terminate her employment. But evidence indicates that the allegations made against Tulino were properly disregarded, JA 197–98, 233–34, and there is no evidence that further false accusations would have had any likelihood of success. The same is true for Tulino’s argument that the offer of transfer to other positions was made in bad faith. The evidence indicates that while Tulino did not want to leave her position (and could not be fired due to civil service protections), JA 303, 339, Tulino actually was offered at least one other position, JA 790. Given these circumstances, the district court was correct to grant judgment as a matter of law against Tulino on her constructive discharge claim.

1 In a footnote, the Court cites a number of cases discussing the standard.
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