Notice of Motion, Affirmation of Michael R. O’Neill, Esq., Assistant
Attorney General, Affidavit of G. Russell Oechsle, with Exhibits 1,2,3
Memorandum of Law (in support of motion) 4
Memorandum of Law (in opposition) 5
Reply Affirmation 6
Filed Papers: Claim.
In his filed claim, claimant alleges that he was constructively discharged from
his position as Deputy Chief Clerk II in the Ithaca City Court. In this motion,
defendant seeks dismissal of the claim, contending that claimant has failed to
allege a cognizable cause of action. The following facts are not disputed.
In 2005 claimant, a long-time employee with the Unified Court System, was
employed as a Supreme and County Court Clerk, Grade 18, in Monroe County. He
had been employed in this position for several years. In the fall of 2005, the
position of Deputy Chief Clerk II, Grade 21, in the Ithaca City Court
became available. Claimant applied for that job, was nominated for appointment,
and was approved for this position. Claimant began serving in this new position
in the Ithaca City Court on January 26, 2006.
It is noted that claimant’s prior position (Supreme and County Court
Clerk, Grade 18) was a competitive class position, and that the position of
Deputy Chief Clerk II, Grade 21, was an exempt class position, pursuant to the
Rules of the Chief Judge.
As permitted by the Rules of the Chief Judge (§ 25.22[d]), claimant took a
one-year leave of absence from his prior job as Supreme and County Court Clerk
in Monroe County, prior to commencing his duties in his new position at Ithaca
As he neared completion of his one year probationary status in his new position
as Deputy Chief Clerk II (as well as approaching the end of his one year leave
of absence from his prior position as Supreme and County Court Clerk in Monroe
County), claimant alleges in his claim that on January 4, 2007, he a meeting
with his immediate supervisor (James Jecen, Chief Clerk of Ithaca City
Court). Claimant further alleges that in this meeting, claimant was advised by
Mr. Jecen that his working conditions would be drastically altered, and his
required working hours would be substantially increased. As a result of this
meeting, claimant left his position as Deputy Chief Clerk II on January 24,
2007, and returned to his former position in Monroe County. Claimant alleges
that he was constructively discharged from this position based upon the
statements made by Mr. Jecen, his immediate supervisor, in the meeting of
January 4, 2007.
It is well settled that in determining a motion to dismiss, a Court must
“accept the facts as alleged in the complaint as true, accord plaintiffs
the benefit of every possible favorable inference, and determine only whether
the facts as alleged fit within any cognizable legal theory” (Leon v
Martinez, 84 NY2d 83, 87-88).
A constructive discharge occurs “only when an employer
‘deliberately makes an employee’s working conditions so intolerable
that the employee is forced into an involuntary resignation’ ”
(Fischer v KPMG Peat Marwick, f/k/a Peat Marwick Main & Co., 195 AD2d
222, 225, quoting Pena v Brattleboro Retreat, 702 F 2d 322, 325). Since
the issue is whether an employer has made working conditions so difficult that a
reasonable person would feel forced to resign, and what a reasonable person
would or would not do under such circumstances is a question of fact, the issue
of constructive discharge normally is left to the tryer of fact (Fischer v
KPMG Peat Marwick, supra, citing Bailey v Binyon, 583 F Supp 923).
In this particular matter, however, claimant, in his position as Deputy Chief
Clerk II in the Ithaca City Court, was in the exempt class category, essentially
making him an “at-will” employee. As an at-will employee, claimant
could be fired “for good cause, bad cause, or no cause at all”
(Lazaro v Good Samaritan Hosp., 54 F Supp 2d 180, 185, quoting Fadeyi
v Planned Parenthood Ass’n of Lubbock, Inc., 160 F 3d 1048, 1051), as
long as claimant was not fired for an illicit cause. In his claim, claimant
does not allege any discrimination based upon age, race, gender, or disability
pursuant to Executive Law § 296(1)(a), or that he was constructively
discharged from his employment in the Ithaca City Court on the basis of any
unlawful discriminatory practice (Peters v Citibank, N.A., 253 AD2d 803).
This claim of constructive discharge is based entirely upon claimant’s
meeting with his immediate supervisor and statements made by Mr. Jecen at this
meeting, none of which contain any suggestion of unlawful discriminatory
practice. As stated by Chief Judge Kaye, “animosity on the job is not
actionable” (Forrest v Jewish Guild for the Blind, 3 NY3d 295,
Based upon the foregoing, the Court finds that claimant has failed to allege a
cognizable cause of action, and his claim must be dismissed.
Therefore, it is
ORDERED, that Motion No. M-73506 is hereby GRANTED; and it is further
ORDERED, that Claim No. 113606 is hereby DISMISSED.