Labor & Employment Law Daily Under fleshed-out constructive discharge analysis, school principal facing DUI charge voluntarily resigned
Wednesday, September 26, 2018

Under fleshed-out constructive discharge analysis, school principal facing DUI charge voluntarily resigned

By Lorene D. Park, J.D.

Affirming summary judgment against due process and other claims by an elementary school principal who, after being charged with a DUI offense, was given the choice of resigning immediately or facing pre-termination charges of immorality, the Third Circuit fleshed out its constructive discharge analysis, used a framework provided by the Eleventh Circuit, and concluded the employee’s resignation was voluntary. Her resignation was not obtained by coercion or duress because she was given an alternative (a pre-termination hearing), understood the nature of her choice, and had reasonable time to consider her alternatives. Though the remaining two factors (setting her own resignation date and having advice of counsel) weighed in her favor, that wasn’t enough to overcome the presumption that her resignation was voluntary. Summary judgment in favor of the school district and dismissal of the claims against individual defendants was affirmed (Judge v. Shikellamy School District, September 24, 2018, Hardiman, T.).

Suspected DUI. The employee, an elementary school principal, was pulled over by a state trooper on May 30, 2014. She admitted she had been drinking and was taken to the barracks where she was given a blood alcohol test. The test showed her blood alcohol content was .332, more than four times the legal limit. She was released without being informed of the results.

Choice to make. Three weeks later, having heard about the traffic stop, the superintendent walked into the employee’s office, shut the door, and began asking questions about the incident. Later that day, he presented her with a letter that stated: 1) he knew she was stopped on suspicion of drunk driving; 2) she had not disclosed those events until confronted 20 days later; and 3) she had a choice to make. He stated that the “underlying facts” required him to ask for her resignation. The letter continued: “If you do choose to resign then I will offer a neutral reference in the future upon inquiry. . . . [I]n the alternative, if you decide not to resign and DUI charges are filed against you then I will be forced to issue a written statement of charges for dismissal.” The employee was given until the next day at 12:30 p.m. to decide.

Employee resigns. She went home and spoke to her mother about the situation, but she did not contact a lawyer, though she had retained counsel to deal with possible criminal charges. She decided to resign. The next day, the employee met with the superintendent and presented him with a letter of resignation. Before handing it to him, she commented that she “was not even charged with DUI yet.” He then handed her some court documents indicating that, in fact, she had been charged. That was the first time she learned she had been charged with DUI and related moving violations.

Lawsuit. Nearly a year later, the employee sued the county and individual defendants for due process and equal protection violations, as well as breach of contract—all arising from her claim that the school district had constructively discharged her. The lower court held that the individual defendants were entitled to qualified immunity and dismissed them from the suit. It also granted summary judgment for the school district, finding the employee had voluntarily resigned so there was no constructive discharge to support her claims. The employee appealed.

Clarifying constructive discharge standard. On appeal, the Third Circuit noted that the employee’s procedural due process and breach of contract claims could not go to a jury unless there was a genuine dispute on whether she was constructively discharged or had voluntarily resigned. Circuit precedent “establishes a presumption that when employees resign, they do so freely,” explained the appeals court, so the onus was on the employee to produce evidence that her resignation was “involuntarily procured.” The standard is objective, so the question is not what the employee believed but was “whether a reasonable person under the circumstances ‘would have felt compelled to resign.’”

Noting that it had not yet explained how constructive discharge claims should be evaluated, the court found a framework provided by the Eleventh Circuit useful. That court explained that other circuits review the following factors in determining if a resignation was obtained by coercion or duress: (1) whether the employee was given some alternative to resignation; (2) whether she understood the nature of the choice given; (3) whether she was given a reasonable time in which to choose; (4) whether she was permitted to select the effective date of the resignation; and (5) whether she had the advice of counsel.

Resignation voluntary. Here, the Third Circuit agreed with the lower court that the balance of those factors did not overcome the presumption that the employee’s resignation was voluntary. For one thing, the employee was presented with a “reasonable alternative to immediate resignation, having [the superintendent] issue a ‘written statement of charges for dismissal,’ after which the terms of her employment contract entitled her to a hearing before she could actually be terminated.” Though she argued that this was illusory because the superintended lacked good cause, the appeals court disagreed. It explained that the state permits termination of tenured school employees for “immorality,” and given that the employee was charged with the highest DUI category, the superintendent could reasonably have believed there were circumstances making her arrest immoral and a valid basis for termination.

Second, any reasonable school principal in the employee’s position would have understood that her choice was between resignation and facing charges followed by a pre-termination hearing. Her contract, which she signed each year, stated she could only be terminated after written notice and a hearing. Even assuming she believed her options were to resign or be terminated immediately, her subjective state of mind was immaterial.

Gathering storm. As to the third factor, while the employee had less than 24 hours to make a decision after the superintendent’s ultimatum, she had already had three weeks after being arrested and that arrest put her on notice that she was at serious risk of being charged with a high-level DUI, and that termination for immorality might result. Thus, as the court below had observed, she had “more than two weeks to foresee the ‘gathering storm.’”

While the final two factors (ability to set her own resignation date and advice of counsel) favored the employee to some extent, in light of the other factors discussed, and considering that she made no attempt to seek advice from anyone but her mother over the course of two weeks, the appeals court agreed with the lower court that the final two factors did not carry her burden. Consequently, her resignation was voluntary, and no reasonable jury could find otherwise. That conclusion doomed her contract and procedural due process claims.

The employee’s remaining claims fared no better. “She has abandoned her equal protection and substantive due process arguments on appeal by allotting them only one sentence apiece in her opening brief,” said the appeals court. And because there was no basis to find a substantive constitutional violation, dismissal of the individual defendants based on qualified immunity was also affirmed.

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