In Sanders v. SUNY Downstate Medical Center et al, 22 CV 4139 (KAM) (CLP), 2024 WL 4680489 (E.D.N.Y. Nov. 5, 2024), the court, inter alia, granted plaintiff’s motion to amend her complaint to add an allegation of constructive discharge.
From the decision:
To establish constructive discharge, a plaintiff must show that rather than discharging her directly, her employer intentionally created a work atmosphere so intolerable that she was forced to quit involuntarily. … Case law generally breaks this standard into two elements: “the employer’s intentional conduct and the intolerable level of the work conditions.” Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004). The Second Circuit has not “expressly insisted on proof of [an employer’s] specific intent” to force an employee to quit to demonstrate constructive discharge; rather, a plaintiff needs to “at least demonstrate that the employer’s actions were ‘deliberate’ and not merely ‘negligent or ineffective.’ ” Id. at 229-230 (internal citation omitted). Plaintiff must also demonstrate that “the employer’s deliberate actions rendered the employee’s work conditions so intolerable as to compel resignation.” Id. at 230 (internal quotation marks omitted). The standard for asserting a constructive discharge claim is a “demanding one,” requiring more than that an employee merely “preferred not to continue working for that employer or that the employee’s working conditions were difficult or unpleasant.” Miller v. Praxair, Inc., 408 Fed. App’x. 408, 410 (2d Cir. Nov. 24, 2010) (internal citation and quotation marks omitted). Rather, [w]orking conditions are intolerable when, viewed as a whole, they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.
At this stage, plaintiff has sufficiently alleged that she was constructively discharged. Pursuant to various civil rights law, plaintiff’s First Amended Complaint brought claims of workplace discrimination, failure to accommodate, and retaliation based on her allegations that defendants: (1) refused her requests for reasonable accommodations to care for her son, including a request to work from home; (2) deliberately transferred her to an inpatient assignment, knowing of her son’s disability and despite the risks of exposing plaintiff and her son to COVID-19; and (3) denied plaintiff further accommodations based on plaintiff’s own disabilities. (See FAC ¶¶ 61-78, 79-102, 115-143, 144-158). She further alleged that defendants retaliated against her for making complaints about the treatment she had been receiving, and that this mistreatment was all because of plaintiff’s own disability and her association with a person with a disability.
In seeking to add the new allegations regarding her constructive discharge, plaintiff alleges that these deliberate actions of her employer were so intolerable as to compel a reasonable person to resign. In Berger v. New York State Office for People with Developmental Disabilities, the court granted a motion to amend where the plaintiff added a constructive discharge claim based on her allegation that she was “forced to work in a medical setting outside the scope of her training” based on gender. No. 16 CV 1277, 2019 WL 4805389, at *6 (N.D.N.Y. Sept. 30, 2019). Plaintiff brings analogous claims here. After she took protected FMLA leave to care for her son, plaintiff alleges that defendants retaliated against her by transferring her to an inpatient unit which was not only outside the scope of her training but also exposed her to greater risks of infection. She contends that defendants acted specifically with the intent to punish her on account of her status as a caregiver to a disabled child.
In addition, plaintiff alleges that defendants denied her requests for reasonable accommodations to work from home or be transferred to outpatient services, which increased her disabled son’s risk of being exposure to COVID-19. Although the body of case law specifically relating to COVID-19 is still developing, other courts have denied motions to dismiss constructive discharge claims brought under similar circumstances. See, e.g., Gayles v. Roswell Park Cancer Inst. Corp., No. 22 CV 750, 2023 WL 6304020, at *7 (W.D.N.Y. Sept. 28, 2023) (holding that, “although a close question, Plaintiff has plausibly alleged that Defendant disregarded her and her son’s health and safety by denying her requests to work remotely,” where plaintiff was required to work in person despite her fear of exposing her disabled child to COVID-19); Knight v. MTA New York City Transit Auth., No. 19 CV 1428, 2021 WL 10424509, at *11 (E.D.N.Y. Sept. 28, 2021) (granting plaintiff employee leave to add a constructive discharge claim based, in part, on alleged retaliation by defendant employer that included denying plaintiff’s “request to telecommute during the COVID-19 pandemic”); see also Madray v. Long Island Univ., 789 F. Supp. 2d 403, 403 (E.D.N.Y. 2011) (holding that if viewed in a light most favorable to plaintiff, it is plausible that “a reasonable person in her position would have felt that they had no other alternative than to resign…” where plaintiff was previously denied tenure twice then offered discretionary employment that would result in her termination if she unsuccessfully applied for tenure a third time).
[Citations and internal quotation marks omitted; cleaned up.]
The court proceeded to reject defendants’ contention that plaintiff’s allegations of constructive discharge, on the ground that she “freely admits that she voluntarily remained in her position for three and a half years after the challenged conduct occurred.”
Specifically, the court addressed the issue of “whether, as defendants assert, plaintiff’s continued employment for three and a half years following the transfer is dispositive evidence that the position was not intolerable.”
In resolving this issue, the court cited the principle that “[w]hile enduring consistent intolerable working conditions for an extended period may be strongly indicative that a constructive discharge claim is futile, [t]he passage of time by itself is not dispositive in a constructive discharge claim.”
The court explained:
Courts have considered a variety of reasons that employees might, for a time, tolerate working conditions that a reasonable person might find intolerable:
Financial constraints, protection of professional standing, the time it may require to line up other employment, institutional loyalties, and even deeply personal, emotional reasons may operate to render an immediate departure inopportune, even against the pressure of unpleasant working conditions.
In short, “an employee being shown the door by backhanded means should not be required to exhibit fresh boot marks on her back on the date of departure as the only way to prove that the employer made her feel unwanted and unwelcome.” Gonzalez v. Bratton, 147 F. Supp. 2d at 199.
Drawing all reasonable inferences in plaintiff’s favor, it is plausible that she had good reason to delay her departure. First, plaintiff spent the initial months following her transfer attempting to render her employment tolerable. See Petrosino v. Bell Atl., 385 F.3d at 231-32 (holding that “where an employee has within her power the means to eliminate the added condition that purportedly renders her employment intolerable and fails to pursue that option, she cannot demonstrate that she was compelled to resign”). Plaintiff submitted a request for accommodation to Downstate’s ADA office in October 2020, then appealed the decision in December 2020, and never received a second response. (FAC ¶¶ 122, 132, 133, 142). She filed a complaint with Downstate’s Office of Diversity and Inclusion (“ODI”) in November 2020, which was rejected in December 2020, and upheld on appeal in February 2021. (Id. ¶¶ 145, 148, 149, 151). Accordingly, the appropriate time window to consider is not the three and a half years between plaintiff’s transfer and resignation that defendants suggest (Defs.’ Opp. at 5), but the 2 years and 10 months between when plaintiff exhausted her administrative remedies and when plaintiff first informed her supervisor of her resignation. (Proposed SAC ¶¶ 151, 199). See, e.g., Albunio v. City of New York, 16 N.Y.3d 472, 475, 947 N.E.2d 135 (2011) (upholding a constructive discharge verdict where the plaintiffs delayed their resignation in order to achieve a pension milestone).
Second, plaintiff alleges that she would have left once it became apparent that defendants had “no intention of improving the working conditions which caused her health to deteriorate, but she had to stay in order to maintain health insurance for her son.” As noted above, plaintiff is the primary caregiver to her son, who lives with Ulcerative Colitis and has undergone extensive treatment for his condition, including an array of planned surgeries and an emergency life-saving surgery. Given her son’s medical issues and the corresponding expenses related thereto, plaintiff’s explanation that she could not leave her employment in the summer of 2020, particularly in light of the impact of the COVID-19 pandemic on jobs and the economy in general, is not only credible, but rational. Therefore, the Court finds that plaintiff has provided a plausible reason for why she did not immediately depart in the face of allegedly intolerable working conditions.
[Citations omitted.]
The court concluded that “[t]he issue, if any, of the timing of plaintiff’s departure is a fact-intensive inquiry more appropriate for consideration at the summary judgment stage.”