An optician manager was not constructively discharged after claiming that public policy prevented him from assisting an optometrist on the job, a state appeals court said, because such a claim “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.”

A Connecticut Appellate Court panel decided that former optician manager Ohan Karagozian's complaint alleging constructive discharge against USV Optical must be stricken. The Jan. 8 decision affirmed Superior Court of New Haven at Meriden Judge John Cronan's 2017 ruling striking the complaint based on a finding that it had insufficiently alleged both elements of constructive discharge in Connecticut.

The unanimous appellate panel wrote that “the plaintiff in the present case merely alleged that he was assigned duties that allegedly violated public policy.” Moreover, Karagozian “did not allege the consequences that may have befallen him by performing the duties to which he was assigned,” the panel wrote.

''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,” the panel, composed of Chief Judge Alexandra DiPentima, Judge Douglas Lavine and Judge Ingrid Moll, said, quoting Seery v. Yale-New Haven Hospital.

The 2016 lawsuit alleged that Karagozian was a licensed optician working in a J.C. Penny in Trumbull for USV Optical, which operates optical departments in J.C. Penney stores, the panel wrote.

From June 28, 2014, to Oct. 17, 2014, supervisors at USV Optical required Karagozian to provide optometric assistant services to the doctor of optometry in the store, it was alleged. According to the panel, the complaint further claimed that requiring Karagozian to perform those duties violated state public policies that the complaint said prohibit employees controlled by unlicensed third parties from performing services for licensed optometrists; and prohibit licensed opticians from performing the duties of an optometric assistant and providing services for optometrists by whom they are not employed.

In addition, the complaint alleged that Karagozian's required duties violated General Statutes §31-130(i), which requires that the defendant or the store have a staffing permit allowing either of them to provide staffing services to a “doctor.”

Karagozian asked supervisors multiple times that he not be required to perform the assigned duties, but USV Optical refused to excuse him, the complaint also said, according to the panel.

The complaint alleged that, as a result, Karagozian was compelled to resign from his position and to suffer loss of income.

In addressing Karagozian's appeal of Cronan's 2017 ruling, the panel pointed out that in Connecticut, ''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,” quoting Brittell v. Dept. of Correction.

The panel wrote that “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,” citing Brittell.

Karagozian, relying on Sheets [v. Teddy's Frost Foods], argued on appeal that employees who resign rather than engage in illegal activity are held to be constructively discharged. The panel said that while Karagozian acknowledged that Sheets is a wrongful termination case, “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.”

Comparing Sheets with Karagozian's case, the court said the plaintiff in Sheets “was discharged in retaliation for his efforts to ensure his employer's products complied with applicable law.”

It also said that “the circumstances under which the plaintiff [Karagozian] alleged he was employed in the store are not comparable to those confronted” by the plaintiff in Sheets.

John Williams of John Williams and Associates in New Haven represented Karagozian. He said in a phone message Tuesday that the panel's ruling “is a decision that almost explicitly invites us to seek review in the state Supreme Court, and that is what we intend to do.” He also called the constructive discharge question presented in the case “important” and said it needs to be answered for the people of Connecticut.

Duane Morris partner Robert Palumbos represented USV Optical along with associate Elizabeth Lacombe, who said on Tuesday that they did not have an immediate comment.