Employment Law Daily Officer ‘targeted’ for association with mayor’s ‘political enemy’ did not voluntarily resign
Friday, July 21, 2017

Officer ‘targeted’ for association with mayor’s ‘political enemy’ did not voluntarily resign

By Ronald Miller, J.D.

A police officer who left his position when he agreed to resign, rather than being fired, did not voluntarily leave his employment, but was effectively terminated, ruled the Eleventh Circuit. Here, the employee alleged that he was “targeted” by the city’s mayor because of his political association with a city councilwoman, who was a “political enemy” of the mayor. After first establishing the standard for determining the voluntariness of an employee’s resignation, the appeals court reversed a district court’s grant of summary judgment in favor of the city on the employee’s First Amendment retaliation claim. Judge Jordan filed a separate concurring opinion (Rodriguez v. City of Doral, July 19, 2017, Rosenbaum, R.).

Political alliance. In 2007, the city created its own police force. The employee was encouraged to apply for a position by a councilwoman, and was hired in January 2008. He served as a detective. Over time, the employee developed a friendship with the councilwoman. They shared a political affinity. He volunteered time for her and attended public and private gatherings with her and for her. He also educated her about issues important to law enforcement. The employee was aware that she intended to run for mayor and he wanted to support her in that endeavor.

Targeting. The incumbent mayor, however, had a problem with the employee’s association with the councilwoman and he did not like the councilwoman having a friend in the police department. The mayor allegedly told the police chief that he needed to do something about the employee, or the mayor would. Thereafter, the employee was warned that he was being targeted. Further, the employee was warned by the police chief that he was to only have loyalty for the chief and the mayor. The mayor described the employee as a spy in the police department.

The employee relied on four incidents to show that he was, in fact, “targeted.” The first two incidents involved investigations that resulted in “bogus” disciplinary action against the employee. In a third incident, the police chief changed an evaluation of the employee by his supervisor to reflect a more negative score. Finally, the employee was given a letter of resignation which offered no reason for his termination. After first attempting to rescind his resignation, the city denied all requests by the employee to appeal his resignation.

The employee brought suit under 42 U.S.C. § 1983, claiming the city and the mayor violated his First Amendment rights by arranging his termination because he supported the councilwoman, who was a political enemy of the mayor. Though the district court concluded that the employee had engaged in protected activity, it nonetheless granted summary judgment in favor of the city and mayor, finding that he had not suffered an adverse employment action because he voluntarily left his position when he agreed to resign instead of being fired.

First Amendment protections. “The First Amendment protects political association as well as political expression.” To ensure that public employees enjoy their right to freedom of political association, the Supreme Court has held that a government may not fire a public employee solely because of his political association or beliefs unless “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”

Here, the parties agreed that the employee’s political affiliation was irrelevant to his ability to properly execute his responsibilities as a police detective. Consequently, the Eleventh Circuit had to determine whether he presented sufficient evidence to allow a reasonable jury to conclude that the city discharged or constructively discharged him because of his political affiliation with the councilwoman in violation of the employee’s First and Fourteenth Amendment rights.

To prevail on his First Amendment political-association claim, a plaintiff must show that (1) he engaged in constitutionally protected political affiliation or held constitutionally protected political beliefs, and (2) his protected conduct was a “substantial or motivating factor” in the decision to take adverse action against the plaintiff. With regard to the first element, the parties did not dispute the district court’s determination that he participated in constitutionally protected activity. Rather, the district court rested its ruling on the employee’s failure to establish that he had suffered an adverse employment action.

Adverse employment action. As an initial matter, the appeals court was not persuaded by the employee’s theory of liability that he was terminated instantly upon receipt of the termination letter. That theory asked the court to ignore everything that happened after he received the letter of termination. Rather, the events that happened after the police chief gave him the termination letter necessarily raised the question of whether his resignation was voluntary. The court next turned to consider the two remaining theories: whether he suffered an adverse employment action, and whether he could prevail on his First Amendment unlawful retaliation claim.

Voluntariness of resignation. The appeals court first noted that it had not previously identified the appropriate standard for determining the voluntariness of an employee’s resignation. It concluded that the test for voluntariness that applies in the context of due-process claims should also apply in the context of First Amendment claims. Under the due-process voluntariness framework, it is presumed that a resignation is voluntary unless the employee points to “sufficient evidence to establish the resignation was involuntarily extracted.”

In this instance, the employee alleged that he was under duress, and the defendants coerced him to resign. Based on a non-exhaustive list of five factors, the appeals court concluded that under the totality of the circumstances, the defendants’ conduct in obtaining the employee’s resignation deprived him of free will in choosing to resign. First, the employee had no “real alternatives” to termination. He was accused on no wrongdoing, so resignation did not save him from investigation or criminal proceedings. Second, the employee did not learn of his firing until the moment that he received his letter of termination. He was then given a mere five minutes to agree to submit his resignation.

Further, because the employee was not fired for violating the city’s code of conduct, the city’s appeal process did not apply to his situation. Moreover, the fact that the employee had an opportunity to speak with staff counsel for the police union was insufficient to overcome the coercive atmosphere and other circumstances that precipitated his signing of the letter of resignation. Thus, the appeals court vacated the judgment of the district court.

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