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*********************************************** 
OHAN KARAGOZIAN v. USV OPTICAL, INC.

(AC 40907)

DiPentima, C. J., and Lavine and Moll, Js.

Syllabus

The plaintiff, who had been employed by the defendant as a licensed optician

manager of the optical department that it owned and operated in a

department store, sought to recover damages for his alleged constructive

discharge from his employment. In his complaint, the plaintiff alleged,

inter alia, that from the beginning of his employment in June, 2014, to

when he resigned in October, 2014, the defendant, acting through its

supervisory personnel, required as part of his duties that he provide

optometric assistant services to the doctor of optometry in the store,

which violated certain public policies of the state, that he requested of

the defendant’s supervisory personnel that he not be required to perform

the duties assigned to him, that following the defendant’s refusal to

excuse him, he was compelled to resign from his position and that the

defendant thereby constructively discharged him in violation of the

public policy of the state. The trial court granted the defendant’s motion

to strike the complaint on the ground that the complaint insufficiently

alleged both elements of a claim of constructive discharge, finding that

the allegations in no way could fairly be construed to establish that the

defendant intentionally created an intolerable workplace or that there

was an intolerable workplace that would have compelled a reasonable

person to resign. Thereafter, the trial court granted the plaintiff’s motion

for judgment and rendered judgment in favor of the defendant. On the

plaintiff’s appeal to this court, held that the trial court properly granted

the defendant’s motion to strike the complaint and determined that the

plaintiff failed to state a claim for constructive discharge: the plaintiff

failed to allege in his complaint that the defendant intended to create

a work environment so intolerable that a reasonable person would have

been compelled to resign involuntarily, and the cases relied on by the

plaintiff in support of his claim were inapplicable, as they had nothing

to do with an employer’s intent to create intolerable working conditions

or to compel an employee to resign involuntarily; moreover, the plaintiff’s attempt to bootstrap his claim by comparing his working conditions

to those in Sheets v. Teddy’s Frost Foods, Inc. (179 Conn. 471) and

Faulkner v. United Technologies Corp. (240 Conn. 576) was unavailing,

those cases having concerned wrongful retaliatory discharge claims,

not constructive discharge, and the working environment in the subject

store was not comparable to the ones confronted by the plaintiffs in

either Sheets or Faulkner, as the plaintiff in the present case merely

alleged that he was assigned duties that allegedly violated public policy

and did not allege the consequences that may have befallen him by

performing the duties to which he was assigned.

Argued October 11, 2018—officially released January 8, 2019

Procedural History

Action to recover damages for the plaintiff’s alleged

constructive discharge from employment, and for other

relief, brought to the Superior Court in the judicial district of New Haven at Meriden, where the court, Hon.

John F. Cronan, judge trial referee, granted the defendant’s motion to strike the complaint; thereafter, the

court, Harmon, J., granted the plaintiff’s motion for

judgment and rendered judgment for the defendant,

from which the plaintiff appealed to this court.

Affirmed.

John R. Williams, for the appellant (plaintiff).
Robert M. Palumbos, pro hac vice, with whom was

Elizabeth M. Lacombe, for the appellee (defendant).

Scott Madeo and Brian Festa filed a brief for the

Commission on Human Rights and Opportunities as

amicus curiae.
Opinion

LAVINE, J. The plaintiff, Ohan Karagozian, appeals

from the judgment rendered by the trial court subsequent to its granting of the motion to strike the complaint filed by the defendant, USV Optical, Inc. The

substance of the plaintiff’s claim on appeal is that the

court improperly concluded that he had failed to state

a claim for constructive discharge.1 We disagree and

affirm the judgment of the trial court.

The record discloses the following procedural history. The plaintiff commenced the present action on

September 12, 2016. The operative complaint for purposes of the present appeal is the corrected revised

complaint (complaint) filed on December 19, 2016.

The complaint alleged, in relevant part, that the plaintiff is an optician licensed in Connecticut and that the

defendant owns and operates optical departments in

JCPenney stores. Between June and October, 2014, the

defendant employed the plaintiff as a licensed optician

manager in the JCPenney store in Trumbull (store).

From approximately June 28 through October 17, 2104,

the defendant, acting through its supervisory personnel,

required the plaintiff, as part of his duties, to provide

optometric assistant services to the doctor of optometry

in the store. The complaint further alleged that the

duties the plaintiff was required to perform violated the

public policies of the state,2 which prohibit employees

under the control of unlicensed third parties from performing services for licensed optometrists,3 and prohibit licensed opticians from performing the duties of

an optometric assistant and providing services for

optometrists by whom they are not employed.4 The

complaint also alleged that the duties the plaintiff was

required to perform violated General Statutes § 31-130

(i),5 which requires that the defendant or the store have

a staffing permit allowing either of them to provide

staffing services to a ‘‘doctor.’’ On September 20 and

October 3 and 16, 2014, and on other dates, the plaintiff

requested of the defendant’s supervisory personnel that

he not be required to perform the duties assigned to

him. The defendant refused to excuse the plaintiff as

he requested. As a result, the complaint alleged that

the plaintiff was compelled to resign from his position

and to suffer the attendant loss of income. Lastly, the

complaint alleged that the defendant constructively discharged the plaintiff in violation of the public policy of

the state.

The defendant filed a motion to strike the complaint

on the grounds that (1) there is no private right of action

for the claim alleged and (2) the complaint failed to

allege a claim of constructive discharge. In its memorandum of law in support of its motion to strike, the defendant addressed each of the bases for the plaintiff’s

claimed violations of public policy and explained why
none of them created a private right of action. The

defendant argued that the only factual basis for the

plaintiff’s claim is the allegation that the defendant created an intolerable work environment by requiring him

to provide optometric assistance services to the store

doctor of optometry from the day his employment commenced. The defendant argued that it defies logic to

claim that from the very first day of the plaintiff’s

employment the defendant intended to force him to

resign.

The plaintiff opposed the motion to strike, arguing

that ‘‘he was terminated because he declined to participate’’ in the duties he was required to perform and that

such termination violated Connecticut public policy.

He denied that the action was brought pursuant to § 31-

130 (i) and the two administrative rulings; rather, he

argued that the action sounds in the common-law

exception to the at-will employment doctrine articulated in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn.

471, 427 A.2d 385 (1980). In Sheets, the employer discharged the employee in retaliation for the employee’s

objection to the employer’s failure to comply with the

requirements of Connecticut’s Uniform Food, Drug and

Cosmetic Act (act), General Statutes § 19-211 et seq.

Id., 473. Our Supreme Court concluded that that plaintiff

had stated a cause of action under the common law for

retaliatory wrongful discharge. Id., 480. The plaintiff

in the present case argued that Sheets ‘‘has since been

applied to any termination in retaliation for refusing to

violate laws or regulations or for insisting upon compliance therewith. See, e.g., Faulkner v. United Technologies Corp. 240 Conn. 576, 693 A.2d 293 (1997).’’

The defendant responded to the plaintiff’s opposition

by noting, in part, that the plaintiff failed to allege a

claim for wrongful termination or wrongful discharge.

Although the plaintiff asserted in his opposition to the

motion to strike that ‘‘he was terminated because he

declined to participate in . . . activities and that such

termination violated Connecticut public policy,’’ the

defendant correctly noted that the complaint specifically alleges that the ‘‘plaintiff was compelled to resign

his position with the defendant.’’ The defendant emphasized that it did not terminate the plaintiff’s employment. The defendant also argued that the plaintiff

misinterpreted the elements of a constructive discharge

claim, noting that in Brittell v. Dept. of Correction, 247

Conn. 148, 717 A.2d 1254 (1998), our Supreme Court

stated that the ‘‘[c]onstuctive discharge of an employee

occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable

work atmosphere that forces an employee to quit involuntarily.’’ (Emphasis in original; internal quotation

marks omitted.) Id., 178, quoting Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).

It also pointed out that both Sheets and Faulkner were

cases alleging wrongful termination of employment, not
constructive discharge.

The trial court heard oral argument on the defendant’s motion to strike and issued a memorandum of

decision on April 26, 2017, in which it granted the

motion. The court relied on Brittell as the legal basis

of its decision,6

finding that the complaint insufficiently

alleged both elements of constructive discharge. It

bluntly stated that ‘‘[i]n no way’’ can the allegations

fairly be construed to establish that the defendant

intentionally created an intolerable workplace or that

there was even an intolerable workplace that would

compel a reasonable person to resign. The court concluded that although the complaint alleged constructive

discharge in violation of public policy, the plaintiff had

relied on cases dealing with wrongful termination of

employment rather than constructive discharge. The

plaintiff did not allege that he was wrongfully terminated in retaliation for refusing to participate in activities that violated the law. Cf. Sheets v. Teddy’s Frosted

Foods, Inc., supra, 179 Conn. 480. The court, therefore,

granted the motion to strike.

The plaintiff declined to replead and asked the court

to render judgment in favor of the defendant. Following

the entry of judgment, the plaintiff appealed. On appeal,

the plaintiff claims that ‘‘[i]f an employer orders an

employee to engage in illegal activity, and the employee

resigns rather than break the law, the employee has

been constructively discharged in violation of public

policy and has a cause of action pursuant to the doctrine

of Sheets . . . .’’7 Although the plaintiff acknowledges

that Sheets is a wrongful termination case and that

Faulkner is a wrongful retaliatory discharge case, he

argues that in those cases, as in the present case, the

employees were required to engage in illegal activity.

He argues that whether an employer discharges an

employee directly under the Sheets doctrine or constructively discharges the employee, the effect on the

employee is the same and there cannot be any difference in the law’s prohibition.

The defendant again contends in its appellate brief

that the plaintiff failed to plead sufficient facts to support a claim for constructive discharge, noting that a

plaintiff must allege that instead of firing an employee

directly, the employer intentionally created ‘‘an intolerable work atmosphere that forces an employee to quit

involuntarily.’’ (Internal quotation marks omitted.)Brittell v. Dept. of Correction, supra, 247 Conn. 178. It argues

that one cannot infer from the allegations of the complaint that the defendant intended to create an intolerable work atmosphere when it hired the plaintiff to

provide optometric assistant services to the doctor of

optometry in the store. The defendant states once again

that it is illogical to conclude that it intended from the

first day of the plaintiff’s employment to force him to

quit involuntarily.8 We agree with the defendant.
We briefly review the applicable legal principles and

our standard of review. ‘‘The purpose of a motion to

strike is to contest . . . the legal sufficiency of the

allegations of any complaint . . . to state a claim upon

which relief can be granted. . . . [S]ee Practice Book

§ 10-39. A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no

factual findings by the trial court. . . . We take the

facts to be those alleged in the complaint . . . and we

construe the complaint in the manner most favorable

to sustaining its legal sufficiency. . . . Thus, [i]f facts

provable in the complaint would support a cause of

action, the motion to strike must be denied. . . . A

motion to strike is properly granted if the complaint

alleges mere conclusions of law that are unsupported by

the facts alleged.’’ (Internal quotation marks omitted.)

Vazquez v. Buhl, 150 Conn. App. 117, 125, 90 A.3d 331

(2014). Construction of a complaint is a question of

law. Edelman v. Page, 123 Conn. App. 233, 243, 1 A.3d

1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).

Our review of the court’s ruling on a motion to strike

is plenary. U.S. Bank National Assn. v. Blowers, 177

Conn. App. 622, 627, 172 A.3d 837 (2017), cert. granted

on other grounds, 328 Conn. 904, 177 A.3d 1160 (2018).

‘‘The constructive discharge concept originated in

the labor-law field in the [1930s]; the National Labor

Relations Board . . . developed the doctrine to

address situations in which employers coerced employees to resign, often by creating intolerable working conditions, in retaliation for employees’ engagement in

collective activities. . . . Over the next two decades,

Courts of Appeals sustained the [National Labor Relations Board’s] constructive discharge rulings.’’ (Citations omitted.) Pennsylvania State Police v. Suders, 542

U.S. 129, 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004).

In Connecticut, ‘‘[c]onstructive discharge of an

employee occurs when an employer, rather than

directly discharging an individual,intentionally creates

an intolerable work atmosphere that forces an

employee to quit involuntarily. . . . Working conditions are intolerable if they are so difficult or unpleasant

that a reasonable person in the employee’s shoes would

have felt compelled to resign. . . . Brittell v. Dept. of

Correction, [supra, 247 Conn. 178]. A claim of constructive discharge must be supported by more than the

employee’s subjective opinion that the job conditions

have become so intolerable that he or she was forced

to resign. Seery v. Yale-New Haven Hospital, 17 Conn.

App. 532, 540, 554 A.2d 757 (1989). Normally, an

employee who resigns is not regarded as having been

discharged, and thus would have no right of action for

abusive discharge. . . . Through the use of constructive discharge, the law recognizes that an employee’s

voluntary resignation may be, in reality, a dismissal by

the employer. . . . Id. Moreover, [i]n order to meet
the high standard applicable to a claim of constructive

discharge, a plaintiff is required to show both (1) that

there is evidence of the employer’s intent to create an

intolerable environment that forces the employee to

resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so

intolerable that he would have felt compelled to resign.

. . . Irizarry v. Lily Transportation Corp., Docket No.

3:15-CV-1335 (DJS), 2017 WL 3037782, *4 (D. Conn. July

18, 2017), citing Adams v. Festival Fun Parks, LLC,

560 Fed. Appx. 47, 49 (2d Cir. 2014).’’ (Emphasis in

original; internal quotation marks omitted.) Horvath v.

Hartford, 178 Conn. App. 504, 510–11, 176 A.3d 592

(2017). Notably, a constructive discharge cause of

action does not require that an employer violated a

public policy.

On the basis of our plenary review of the allegations in

the complaint, we conclude that the trial court properly

determined that the plaintiff failed to state a claim for

constructive discharge. There is no allegation in the

complaint that reasonably can be construed to claim

that the defendant intended to create conditions so

intolerable that a reasonable person would be compelled to resign. See Brittell v. Dept. of Correction,

supra, 247 Conn. 178–79. The plaintiff denies the plain

language of Brittell, arguing that a more sensible reading of Brittell would conclude that it is the employer’s

intent to create the work atmosphere in question that

matters, rather than an intent that such atmosphere

should force an employee to resign. He looks to federal

cases to support his argument that, in cases applying

the doctrine of constructive discharge, courts did not

focus on the employer’s state of mind, but on the objective reality of the working conditions and the impact

of that objective reality, and not on the particular

employee in question, but on the hypothetical reasonable person in the employee’s position.9

In his appellate

brief, the plaintiff provides the following quote: ‘‘ ‘To

find that an employee’s resignation amounted to a constructive discharge, the trier of fact must be satisfied

that the . . . working conditions would have been so

difficult or unpleasant that a reasonable person in the

employee’s shoes would have felt compelled to resign.’

Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d

62, 73 (2d Cir. 2000) . . . .’’10 (Citation omitted.) See

also Pennsylvania State Police v. Suders, supra, 542

U.S. 147.11

We acknowledge the federal standard as to the conditions that may compel an employee to resign involuntarily, which, as quoted, is no different from

Connecticut’s standard. The issues in the cases cited

by the plaintiff, however, had nothing to do with an

employer’s intent, whether it related to the creation of

intolerable working conditions or to compel an

employee to resign involuntarily. In Pennsylvania State

Police, the question concerned the burden of proof that
parties bear when a sexual harassment/constructive discharge claim is asserted under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pennsylvania State Police v. Suders, supra, 542 U.S. 133.12 That

case, therefore, is inapplicable.

The trial court in the present case also concluded

that the complaint failed to allege an intolerable workplace that would compel an objectively reasonable

employee to resign. With respect to the workplace conditions in the store, the plaintiff attempts to bootstrap

his claim by comparing his working conditions to those

in Sheets v. Teddy’s Frost Foods, Inc., supra, 179 Conn.

471, and Faulkner v. United Technologies Corp., supra,

240 Conn. 576. We reject his attempt. First of all, those

cases concerned wrongful retaliatory discharge claims,

not constructive discharge. Second, the circumstances

under which the plaintiff alleged he was employed in

the store are not comparable to those confronted by

the plaintiffs in either Sheets or Faulkner. The plaintiff

in the present case merely alleged that he was assigned

duties that allegedly violated public policy.13 Moreover,

he did not allege the consequences that may have

befallen him by performing the duties to which he was

assigned. ‘‘A claim of constructive discharge must be

supported by more than the employee’s subjective opinion that the job conditions have become so intolerable

that he or she was forced to resign.’’ Seery v. Yale-New

Haven Hospital, 17 Conn. App. 532, 540, 554 A.2d 757

(1989). Although Sheets and Faulkner are cases concerning wrongful retaliatory discharges, we examine

them briefly to demonstrate the differences in workplace conditions.

The plaintiff in Sheets was employed as the quality

control director and operations manager of Teddy’s

Frosted Foods, Inc., a producer of frozen food products.

Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn.

473. During the course of his employment, the plaintiff

noticed deviations from his employer’s standards and

labels, substandard vegetables, and underweight meat

components. Id. Such deviations meant that the employer’s products violated the express representations on

its labels. Id. False or misleading labels violate the provisions of the act. Id. The plaintiff communicated his

concern in writing to his employer and recommended

more selective purchasing and conforming components. Id. His suggestions were ignored, and his employment was later terminated. Id. The plaintiff was

discharged in retaliation for his efforts to ensure his

employer’s products complied with applicable law. Id.

Our Supreme Court stated that the act imposes criminal

penalties on anyone who violates it and that the criminal

sanctions do not depend on proof of intent to defraud.

Id., 478. The plaintiff’s position as quality control director and operations manager may have exposed him to

criminal prosecution under the act. Id. The court also

found that the act was intended to safeguard public
health and to promote the public welfare by protecting

the public from injury due to merchandising deceit. Id.

In Faulkner, our Supreme Court noted that in Sheets

it stated that, ‘‘an employee should not be put to an

election whether to risk criminal sanction or to jeopardize his continued employment.’’ (Internal quotation

marks omitted.) Faulkner v. United Technologies

Corp., supra, 240 Conn. 583. In Faulkner, our Supreme

Court was called upon to determine whether the foregoing proposition applied to situations in which the source

of criminal sanction was federal, rather than state, law.14

Id. The court perceived no difference between Sheets

and a situation in which an employee may be forced

to engage in conduct that exposes the employee to

federal criminal sanctions. The plaintiff in Faulkner

alleged that his employer discharged him in violation

of the public policy against government contract fraud.

Id., 581. At the time, the Major Frauds Act, 18 U.S.C.

§ 1031, provided for the imposition of fines up to

$10,000,000 and imprisonment up to ten years for a

violation. Id. The plaintiff was a ‘‘supplier quality assurance representative.’’ Id., 578. His job required him to

inspect Blackhawk helicopter parts provided by various

suppliers to ensure that they met the employer’s engineering specifications. Id. On numerous occasions, he

rejected defective parts despite pressure from the suppliers and his superiors to accept them. Id. He reported

the existence of the defective parts to his superiors,

who did nothing to correct the situation but informed

the plaintiff that he might be disciplined for rejecting

parts in the future. Id. The defendant employer subsequently discharged the plaintiff on the ground that he

had engaged in misconduct. Id. In his complaint, the

plaintiff alleged that he was discharged for refusing to

accept substandard and defective helicopter parts. Id.,

579. Our Supreme Court held that the plaintiff had

stated a claim for wrongful discharge pursuant to the

public policy limitation established in Sheets. Id., 589.

In the present case, the plaintiff’s work environment

was not comparable to the one in either Sheets or

Faulkner.

For the foregoing reasons, we conclude that the trial

court properly granted the defendant’s motion to strike.

The plaintiff failed to allege that the defendant intended

to create an intolerable work atmosphere that would

compel a reasonable person to resign involuntarily.15

The judgment is affirmed.

In this opinion the other judges concurred.

1

In his appellate brief, the plaintiff presented the following issue: ‘‘If an

employee is ordered by his employer to engage in illegal activities and

refuses to do so, and thereafter the employer on multiple occasions refuses

to excuse [the employee] from the requirement of engaging in the said illegal

activities, whereupon the employee resigns rather than violate the law, does

the employer’s conduct constitute constructive termination of employment

in violation of public policy?’’

The defendant contends that the issue presented by the plaintiff is a

hypothetical one. We review the claim on the basis of the judgment from
which the plaintiff has appealed and the underlying procedural facts.

2 The complaint alleged that the defendant required the plaintiff to perform

the following duties: obtain and record a patient’s preliminary case history;

maintain records; schedule appointments, perform bookkeeping, correspondence and filing; prepare patients for vision examinations; assist in tests

for near and far acuity, depth perception, macula integrity, color perception,

and visual field, utilizing ocular testing apparatus; instruct patients in care

and use of glasses and contact lenses; work with patients in vision therapy;

assist patients in frame selection; adjust and repair glasses; modify contact

lenses; maintain an inventory of materials and cleaning instruments; assist

in fabrication of glasses and contact lenses; test and measure patients’

acuity, peripheral vision, depth perception, focus, ocular movement and

color as requested by the doctor; measure intraocular pressure of eyes using

glaucoma test; measure axial length of eye, using ultrasound equipment;

examine eyes for abnormalities of cornea and anterior or posterior chambers

using slit lamp; apply drops to anesthetize, dilate or medicate eyes; instruct

patients in eye care and use of glasses or contact lenses; adjust and repair

glasses using screwdrivers and pliers; and take money from patients and

record only those payments that are made with credit card and check on

the store cash register inside the optical store while keeping tendered cash

receipts from patients in an envelope under the cash drawer.

3 The complaint alleged that the public policy is articulated in a declaratory

ruling issued by the Connecticut Board of Examiners for Optometrists on

May 1, 2002, titled In re Petition of Lawrence Lefland, O.D., which was

attached to the complaint as an exhibit. The plaintiff was not a party to the

declaratory ruling, which concerns optometrists. The plaintiff alleged that

he is a licensed optician.

4 The complaint alleged that the public policy is articulated in a cease

and desist consent order issued jointly by the Connecticut Board of Examiners for Optometrists and the Connecticut Board of Examiners for Opticians

in February, 2006, in regard to petition number 2003-0321-003-003. The cease

and desist order was attached to the complaint as an exhibit. The plaintiff

was not a party to the cease and desist order.

5 The complaint alleged that the relevant public policy is set forth in

General Statutes § 31-130 (i), which provides: ‘‘No person shall engage in

the business of procuring or offering to procure employees for persons

seeking the services of employees or supplying employees to render services

where a fee or other valuable thing is exacted, charged or received from the

employer for procuring or assisting to procure or supplying such employees

unless he registers with the Labor Commissioner. Application for such registration or for the annual renewal of such registration shall be on forms

furnished by the commissioner and shall be accompanied by a fee of one

hundred fifty dollars.’’

‘‘[T]he policy behind General Statutes §§ 31-129 to 31-131c is to protect

individual applicants (prospective employees) from unscrupulous employment agencies.’’ Monaco v. Turbomotive, Inc., 68 Conn. App. 61, 66, 789

A.2d 1099 (2002) (distinguishing between employment agencies that require

employer, not employee, to pay fee); see also id., 66 n.2 (registration fee,

not licensing fee, to prevent loss of state revenue). The defendant notes

that the plaintiff did not allege that the defendant charged a fee.

6

In Brittell, our Supreme Court was presented with a claim of sexual

harassment in violation of General Statutes §§ 46a-60 (a) (1) and (8) and

46a-70. Brittell v. Dept. of Correction, supra, 247 Conn. 161. In that case,

our Supreme Court stated that it looks to federal case law in interpreting

discrimination cases. Id., 164. ‘‘Constructive discharge of an employee occurs

when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit

involuntarily. . . . Working conditions are intolerable if they are so difficult

or unpleasant that a reasonable person in the employee’s shoes would have

felt compelled to resign. . . . Accordingly, [a] claim of constructive discharge must be supported by more than the employee’s subjective opinion

that the job conditions have become so intolerable that he or she was forced

to resign.’’ (Citations omitted; internal quotation marks omitted.) Id., 178.

Our Supreme Court concluded that the plaintiff had failed to meet ‘‘her

burden of establishing an essential element of her claim, namely, the existence of an intolerable work atmosphere that would compel a reasonable

person in that situation to resign.’’ Id., 179.

7 The issue before our Supreme Court in Sheets was ‘‘whether to recognize

an exception to the traditional rules governing employment at will so as

to permit a cause of action for wrongful discharge where the discharge
contravenes a clear mandate of public policy.’’ Sheets v. Teddy’s Frosted

Foods, Inc., supra, 179 Conn. 474.

‘‘In Connecticut, an employer and employee have an at-will employment

relationship in the absence of a contract to the contrary. Employment at

will grants both parties the right to terminate the relationship for any reason,

or no reason, at any time without fear of legal liability.’’ (Internal quotation

marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn.

691, 697–98, 802 A.2d 731 (2002).

8

In Petrosino v. Bell Atlantic, 385 F.3d 210, 231 (2d Cir. 2004), the United

States Court of Appeals for the Second Circuit stated 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.’’ See Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir.

1993). Petrosino was cited frequently in the amicus curiae brief of the

Commission on Human Rights and Opportunities with respect to the nature

of an employer’s intent in a constructive discharge case, but it did not address

the quoted language. Neither the plaintiff nor the defendant addressed the

law stated in Stetson, i.e., ‘‘constructive discharge generally cannot be established, however, simply through evidence that an employee was dissatisfied

with the nature of his assignments.’’ Id.

9 The plaintiff claims that this is an issue of first impression. He did not,

however, raise this claim in the trial court when he opposed the defendant’s

motion to strike. The trial court, therefore, did not have an opportunity to

address it.

10 Whidbee concerned claims of a hostile work environment and constructive discharge brought pursuant to 42 U.S.C. § 1981 and New York law

prohibiting inappropriate racial comments and tension created by one of

the plaintiffs’ coworkers. Whidbee v. Garzarelli Food Specialties, Inc., supra,

223 F.3d 67. The Court of Appeals reversed the District Court’s summary

judgment in favor of the defendants on the plaintiffs’ § 1981 claims regarding

a hostile work environment but affirmed the summary judgment with respect

to the constructive discharge claim against the defendants, concluding that

there was no evidence that the defendants ‘‘intentionally create[d] an intolerable work atmosphere that force[d] an employee to quit involuntarily.’’

(Emphasis added; internal quotation marks omitted.) Id., 74.

11 A fuller reading of Pennsylvania State Police, a hostile work environment case brought pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., discloses the following analysis. ‘‘The constructive

discharge here at issue stems from, and can be regarded as an aggravated

case of, sexual harassment or hostile work environment. For an atmosphere

of sexual harassment or hostility to be actionable, we reiterate . . . the

offending behavior must be sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment. . . . A hostile-environment constructive discharge claim entails

something more: A plaintiff who advances such a compound claim must

show working conditions so intolerable that a reasonable person would

have felt compelled to resign. See, e.g., Breeding v. Arthur Gallagher &

Co., 164 F.3d 1151, 1160 (8th Cir. 1999) ([A]lthough there may be evidence

from which a jury could find sexual harassment, . . . the fact alleged [for

constructive discharge must be] . . . so intolerable that a reasonable person

would be forced to quit.); Perry v. Harris Chernin, Inc., 126 F.3d 1010,

1015 (7th Cir. 1997) ([U]nless conditions are beyond ordinary discrimination,

a complaining employee is expected to remain on the job while seeking

redress.).’’ (Citation omitted; internal quotation marks omitted.) Pennsylvania State Police v. Suders, supra, 542 U.S. 146–47.

12 Pennsylvania State Police concerned ‘‘an employer’s liability for one

subset of Title VII constructive discharge claims: constructive discharge

resulting from sexual harassment, or hostile work environment, attributable

to a supervisor.’’ (Internal quotation marks omitted.) Pennsylvania State

Police v. Suders, supra, 542 U.S. 143. There are ‘‘two categories of hostile

work environment claims: (1) harassment that culminates in a tangible

employment action for which employers are strictly liable . . . and (2)

harassment that takes place in the absence of a tangible employment action,

to which employers may assert an affirmative defense . . . .’’ (Citations

omitted; internal quotation marks omitted.) Id.; see Faragher v. Boca Raton,

524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1989) (when no tangible

employment action taken, employer may raise affirmative defense to liability

comprising two elements: employer exercised reasonable care to prevent

and correct promptly sexual harassing behavior and employee unreasonably

failed to take advantage of preventive or corrective opportunities provided
by employer or otherwise to avoid harm); Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1989) (same).

13 We need not determine whether the duties the plaintiff was assigned

violated public policy. But see footnotes 3, 4 and 5 of this opinion.

14 In Faulkner, the defendant, United Technologies Corporation, claimed

that the plaintiff could not state a cause of action pursuant to Sheets because

his complaint was not grounded in a state law or public policy. See Faulkner

v. United Technologies Corp., supra, 240 Conn. 584.

15 The Commission on Human Rights and Opportunities (commission)

submitted an amicus curiae brief. In its brief, the commission asserted that

it is responsible for investigating complaints that invoke the constructive

discharge theory and has an interest in decisions that may affect its decisionmaking responsibilities. With respect to the present appeal, the commission

claims that the decision of the trial court is unclear and subject to different

interpretations. It, therefore, asks this court to address whether an employer’s intent to create an intolerable work atmosphere is a necessary element

of a constructive discharge claim. It argues that our Supreme Court

attempted to resolve the role of an employer’s intent in Brittell v. Dept. of

Correction, supra, 247 Conn. 148, but did so unsuccessfully when it stated

‘‘[c]onstructive discharge of an employee occurs when an employer, rather

than directly discharging an individual, intentionally creates an intolerable

work atmosphere that forces an employee to quit involuntarily. . . . Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996);

accord Serry v. Yale New Haven Hospital, [supra, 17 Conn. App. 540].’’

(Emphasis in original; internal quotation marks omitted.) Brittell v. Dept.

of Correction, supra, 178.

The commission recognizes the plaintiff’s argument that ‘‘a more sensible

reading of Brittell would conclude that it is the intent to create the work

atmosphere in question that matters, rather than an intent that such atmosphere should force an employee to resign.’’ It acknowledges, however, that

the most recent constructive discharge decision of this court is Horvath v.

Hartford, supra, 178 Conn. App. 504, which adhered to the language in

Brittell. Id., 510.

We decline the commission’s request. As an intermediate court of appeal,

we are ‘‘unable to overrule, reevaluate, or reexamine controlling precedent

of our Supreme Court.’’ (Internal quotation marks omitted.) State v. Brantley, 164 Conn. App. 459, 468, 138 A.3d 347, cert. denied, 321 Conn. 918, 136

A.3d 1276 (2016).