Cass v. Airgas USA, LLC

Filing 29

ORDER denying 27 Motion for Reconsideration Re: 26 Order on Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David F. Cass, Sr.
v.

Civil No. 17-cv-313-JD
Opinion No. 2018 DNH 182

Airgas USA, LLC
O R D E R
David Cass moves for reconsideration of the order that
granted in part and denied in part Airgas’s motion for summary
judgment.

In support, Cass contends that the court erred in

concluding that he could not prove constructive discharge or a
hostile work environment.

Airgas objects to the motion for

reconsideration.
Standard of Review
“‘[M]otions for reconsideration are appropriate only in a
limited number of circumstances:

if the moving party presents

newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.’”

United States v. Zimny, 846 F.3d 458, 467

(1st Cir. 2017) (quoting United States v. Allen, 573 F.3d 42, 53
(1st Cir. 2009)).

Reconsideration is not “a vehicle for a party

to undo its own procedural failures” or a means to “advance
arguments that could and should have been presented to the

district court prior to” the decision being issued.
City of Boston, 452 F.3d 94, 104 (1st Cir. 2006).

Iverson v.
Further,

reconsideration does not permit a party to “regurgitate old
arguments previously considered and rejected.”

Biltcliffe v.

CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).
Discussion
In the order on summary judgment, the court concluded that
Cass could not prove constructive discharge or a hostile work
environment as the adverse employment actions taken against him.
For purposes of constructive discharge, the court concluded that
Cass had not shown a triable issue as to whether Airgas’s
fitness-for-duty requirements met the standard or whether
Airgas’s actions were illegal under 42 U.S.C. § 12112(d)(4).
The court also concluded that Cass resigned prematurely.

With

respect to a hostile work environment, the court found that Cass
had not demonstrated at least a triable issue, based on an
objective standard, as to whether Airgas’s fitness-for-duty
requirements were sufficiently severe and pervasive so as to
alter his employment.
A.

Cass challenges those determinations.

Constructive Discharge
Cass contends that the court put too much weight on the

incidents when he fell asleep while working.

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He contends that

because he fell asleep only twice in 2014 and once the year
before he did not have a problem with falling asleep at work due
to his sleep apnea.

He argues that Airgas’s fitness-for-duty

requirements were illegal and that he was not required to meet
with an Airgas representative before resigning.
As provided in the summary judgment order, “[c]onstructive
discharge typically refers to harassment so severe and
oppressive that staying on the job while seeking redress—the
rule save in exceptional cases—is intolerable.”

Gerald v. Univ.

of P.R., 707 F.3d 7, 25 (1st Cir. 2013) (internal quotation
marks omitted).

“A successful constructive discharge claim

requires ‘working conditions so intolerable that a reasonable
person would have felt compelled to resign.’”

Id. (quoting

Penn. St. Police v. Suders, 542 U.S. 129, 147 (2004)); see also
E.E.O.C. v. Kohl’s Dept. Stores, Inc., 774 F.3d 127, 134 (1st
Cir. 2014); Porter, 151 N.H. at 42 (“Constructive discharge
occurs when an employer renders an employee’s working conditions
so difficult and intolerable that a reasonable person would feel
forced to resign.”).

Further, “[t]he standard to meet is an

objective one, it cannot be triggered solely by an employee’s
subjective beliefs, no matter how sincerely held.”
F.3d at 25 (internal quotation marks omitted).

Gerald, 707

The court

concluded that Airgas’s fitness-for-duty requirements did not on
their own rise to the level of constructive discharge.
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1.

Cleared for Work

Cass asserts that the import of his fatigue and falling
asleep at work was exaggerated.

He contends that he was cleared

to return to work so that any further requirements to address
his fatigue were harassing and illegal.
that would be the case, however.

He does not explain why

In addition, the evidence he

cites does not support his theory.
In his motion, Cass states that “[t]he July 23, 2014,
doctor’s note cleared him to return to all essential functions
of his work so that Airgas’s additional evaluation requirements
were illegal.”

Contrary to Cass’s representation, there is no

doctor’s note dated July 23, 2014, in the record.
There is an evaluation report dated July 23, 2014,
completed by a lab technician, that indicates that Cass could
“perform the essential job functions as listed in the provided
job description [which was not provided]” but also recommends
that he be reevaluated in four to six weeks by a specialist.

In

response to that recommendation, Cass scheduled an appointment
with his own doctor who provided a statement on September 17,
2014.

In the statement, Cass’s doctor wrote that he was

concerned about Cass’s sleep apnea and was concerned that
without adequate treatment Cass would have daytime fatigue and

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should not drive a forklift.

Cass admitted his fatigue at work

to his supervisor and admitted that he had not been using his
prescribed CPAP machine.
Cass has not shown that the issue of his fatigue and
falling asleep at work was considered improperly.
2.

Objectively Intolerable Conditions

Cass also asserts that the fitness-for-duty requirements
were “subjectively and objectively unreasonable.”

The

reasonableness of the requirements, however, is not the standard
for purposes of showing constructive discharge.
requirements must be objectively intolerable.

The

Cass does not

argue or more importantly show that that the fitness-for-duty
requirements, which were also prescribed by his treating
doctors, were objectively intolerable.
3.

Illegal under 42 U.S.C. § 12112(d)(4)

Cass argues, as he did in opposition to the motion for
summary judgment, that the fitness-for-duty requirements were
illegal under § 12112(d)(4), making them per se grounds for
constructive discharge.

Whether or not his theory that an

illegal act always constitutes grounds for constructive
discharge, the court determined that Airgas met its burden to
show that the requirements were not illegal under § 12212(d)(4).

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Cass has not shown that determination was the result of a
manifest error of law.
The court also noted in the summary judgment order that
Cass did not allege a claim under § 12112(d)(4).

In his motion

for reconsideration, Cass argues that the court should construe
his general allegation of disability discrimination “contrary to
‘NH RSA 354-A’, and ‘ADA/ADAAA, 42 U.S.C. § 12101 et seq.” to
include a claim that Airgas violated § 12112(d)(4), despite the
lack of any cite to the statute or supporting allegations.

Cass

is represented by counsel and, therefore, is not entitled to the
broad view that might allow pro se parties the benefit of the
doubt.

Instead, Cass is expected to allege “a short and plain

statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

He did not allege a claim

under § 12112(d)(4).
4.

Paid Leave

To the extent Cass argues that he was not paid during his
month leave of absence and that the lack of pay constituted
constructive discharge, his argument is too little and too late.
In the summary judgment order, the court noted that Cass
referred to a lack of compensation in passing but found that he
had not made those allegations in his complaint.

In addition,

that part of Cass’s affidavit cited in support of that

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representation, states that he was paid and that he was told to
complete Family Medical Leave Act paperwork to receive
additional payments, which he apparently did not do.

Therefore,

Cass cannot claim that a lack of pay during his leave caused him
to resign several months later.
5.

Premature Resignation

As an additional reason for concluding that Cass could not
prove constructive discharge, the court noted that Cass resigned
before discussing his concerns with an Airgas representative
when a meeting had been scheduled and then postponed.

Cass

argues, in a non sequitur, that a discrimination claim does not
require an employee to meet with his employer.

For purposes of

showing an adverse employment action, however, an employee
cannot show constructive discharge if he “assume[d] the worst”
rather than accepting an opportunity to talk with his employer.
Kohl’s, 774 F.3d at 134.
Cass argues, nevertheless, that a reasonable jury could
find that his resignation was reasonable.
is not the standard.
intolerable.

Again, reasonableness

The conditions must be objectively

Cass has not shown a manifest error of law.

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B.

Hostile Work Environment
Cass contends that the court also erred in finding that he

could not prove that he was subjected to a hostile work
environment.

As provided in the summary judgment order, a

hostile work environment theory requires “evidence that the
discriminatory [or retaliatory] conduct was sufficiently severe
or pervasive so as to alter the conditions of employment and
create an abusive work environment.”

Murray v. Warren Pumps,

LLC, 821 F.3d 77, 86 (1st Cir. 2016); Noviello v. City of
Boston, 398 F.3d 76, 90 (1st Cir. 2005).

To constitute an

adverse employment action, the harassment must be both
“objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, and one that the victim in
fact did perceive to be so.”

Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998).
Cass argues that the fitness-for-duty requirements met the
standard for a hostile work environment, again arguing that the
requirements were illegal under § 12112(d)(4).

Because Cass has

not shown that Airgas acted illegally under § 12112(d)(4), that
theory fails.

He has not otherwise shown that the court’s

analysis of his hostile work environment evidence was based on a
manifest error of law.

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Conclusion
For the foregoing reasons, the plaintiff’s motion for
reconsideration (document no. 27) is denied.
SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 11, 2018
cc:

Francis J. Bingham, Esq.
Leslie H. Johnson, Esq.
Christopher B. Kacamarek, Esq.

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