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Cass v. Airgas USA, LLC

United States District Court, D. New Hampshire

September 11, 2018

David F. Cass, Sr.
v.
Airgas USA, LLC

          ORDER

          JOSEPH A. DICLERICO JR. UNITED STATES DISTRICT JUDGE

         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 No. 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. Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir. 2006). 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. Cass challenges those determinations.

         A. Constructive Discharge

         Cass contends that the court put too much weight on the incidents when he fell asleep while working. 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.” Gerald, 707 F.3d at 25 (internal quotation marks omitted). The court concluded that Airgas's fitness-for-duty requirements did not on their own rise to the level of constructive discharge.

         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. He does not explain why that would be the case, however. 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 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 ...


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