“In order to establish a prima facie case of retaliatory discharge [in a STAA claim], a complainant must demonstrate that 1) he was involved in a protected activity, 2) he was later subject to adverse employment action, and 3) there was a causal link between the protected activity and the adverse action.“ Castle Coal & Oil Co. v. Reich, 55 F.3d 41, 46 (2d Cir. 1995). See Calhoun, 576 F.3d at 209; Irizarry v. Lily Transportation Corp., 266 F.Supp.3d 600, 604 (D. Conn. 2017). After a plaintiff has established a prima facie case, “the burden shifts to the employer to provide evidence of a legitimate, non- retaliatory reason for the adverse employment action.
(Internal quotation marks omitted.) Irizarry v. Lily Transportation Corp. , 266 F.Supp.3d 600, 605, 2017 WL 3037782, *4 (2017), citing Adams v. Festival Fun Parks, LLC , 560 Fed. Appx. 47, 49 (2d Cir. 2014). We note that our courts have looked to federal employment discrimination standards, in the absence of authority to the contrary, in retaliatory discharge cases.
In his opposition, Plaintiff claims that the County terminated his employment without a hearing and that his termination was vacated in a New York state court, however, he has not amended his Complaint to assert this allegation. See Irizarryv.Lily Transp. Corp., 266 F.Supp.3d 600, 604 (D. Conn. 2017) (declining to consider “new allegations and claims” raised in opposition to motion for summary judgment because “[a] complaint cannot be amended merely by raising new facts and theories in . . . opposition papers[]”) (internal quotation marks and citation omitted); see also Gonzalez v. Dist. Council 37, AFSCME, AFL-CIO, SSEU Loc. 371, 843 Fed.Appx. 361, 363 (2d Cir. 2021) (summary order) (concluding “district court did not err in declining to address” plaintiffs claim that his termination was invalid “since the claim turned on an allegation not made in the amended complaint and was raised for the first time in opposition to the [defendant's] motion for summary judgment[]”).
With regard to plaintiff's constructive termination claim, defendant argues that when an employer gives the employee the opportunity to return to work, there is no constructive termination. See Irizarry v. Lily Transportation Corp., 266 F.Supp.3d 600, 606 (D. Conn. 2017). In Irizarry, the employer reached out to the employee after he resigned to offer him an opportunity to return to work.
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. , 266 F.Supp.3d 600, 605 (D. Conn. 2017), citing Adams v. Festival Fun Parks, LLC , 560 Fed. Appx. 47, 49 (2d Cir. 2014)." (Emphasis in original; internal quotation marks omitted.)
(Internal quotation marks omitted.) Irizarry v. Lily Transportation Corp., 266 F.Supp.3d 600, 605-06 (D.Conn. 2017). First, as a procedural matter, the defendant misapprehends its burden at summary judgment by seemingly pointing to a lack of evidence on the plaintiff’s part on the issue of whether she was constructively discharged.