United States District Court, D. New Hampshire
David F. Cass, Sr.
Airgas USA, LLC
A. DICLERICO JR. UNITED STATES DISTRICT JUDGE
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
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).
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.
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.
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.
Cleared for Work
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.
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.
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
has not shown that the issue of his fatigue and falling
asleep at ...