It is often the case that when an employee is confronted with an overwhelming amount of evidence to support termination from employment, the employee is willing to tender their resignation rather than face a Statement of Charges for their termination. Prior to a recent September 2018 Third Circuit Court of Appeals decision, school districts and municipalities were uncertain whether the process that was followed leading up to the resignation would withstand a future challenge by the employee that they were forced to resign under duress, and therefore, their resignation was not voluntary, but rather, they were constructively discharged.
In Judge v. Shikellamy School District, the Third Circuit recognized that “[c]ase law establishes a presumption that when employees resign, they do so freely, so the onus is on [the employee] to produce ‘evidence to establish that the resignation… was involuntarily procured.’” Other jurisdictions had established parameters to apply in a constructive discharge case. Before the Judge decision, the Third Circuit admitted that it had never adopted criteria to determine how claims of constructive discharge should be evaluated. For the first time, the Third Circuit adopted a framework for evaluating a constructive discharge claim, by applying a five point standard followed by other jurisdictions which took into consideration the following five factors:
- Whether the employee was given an alternative to resignation.
- Whether the employee understood the nature of the choice made available.
- Whether the employee was given a reasonable time in which to choose.
- Whether the employee was permitted to select the effective date of the resignation.
- Whether the employee had the advice of legal counsel.
When applied to the facts of the case, the Third Circuit determined that the employee’s resignation was voluntary, and the employee was not constructively discharged. Factually, Ms. Judge was an elementary school principal who had been arrested for a DUI with a blood alcohol level of .332. She failed to report her arrest, but a few weeks after the arrest, the Superintendent received information which prompted an immediate investigation. In a letter to Ms. Judge, the Superintendent offered her the opportunity to immediately resign and receive neutral letters of reference or to face charges for dismissal on grounds of immorality. The Third Circuit determined that this satisfied the first criteria by providing the employee with an alternative choice to resignation, namely to receive a Statement of Charges and a Hearing before the Board. Also, the Third Circuit determined, in satisfaction of the second criteria, that any reasonable school principal in Ms. Judge’s position would have understood the nature of the choices between resignation and charges followed by a pre-termination Hearing since, in Ms. Judge’s own employment contract, it stated that she could be terminated only after written notice and a Hearing. The Third Circuit stated that “her subjective state of mind is immaterial to the objective legal standard that applies in this case.”
Continuing with the facts, after receiving the Superintendent’s letter, Ms. Judge only consulted with her mother and offered her resignation the next day. Although she did not have legal counsel to satisfy the fifth criteria, the Third Circuit recognized that she made no attempt to secure counsel even though she had an attorney representing her in the DUI charges. Also, in satisfaction of the third criteria, it was the Third Circuit’s opinion that she had over two weeks from the date of the DUI arrest to her meeting with the Superintendent. According to the Third Circuit, this was found to be reasonable time. The only omission was that the employee was not permitted to select the effective date of her resignation. However, the Third Circuit acknowledged that this omission alone was not sufficient to overcome the voluntariness of her resignation. Based on the application of the five criteria to the facts, the Third Circuit agreed that her resignation was voluntary and that she had not been constructively discharged.
Based on the Third Circuit’s opinion, if your school district or municipality intends to request an employee’s resignation in lieu of termination, before making the request, time should be taken to confirm that each of the five criteria have been satisfied. If, in the midst of an investigation, the employee being investigated submits their resignation, before permitting the elected officials to accept the resignation, a final review of the five criteria should be taken to confirm that all five have been satisfied. By doing so, it will be difficult for the employee to succeed on a constructive discharge claim, and the courts will be more likely to confirm that the resignation was voluntary. Failing to do so could result in a similar lawsuit claiming deprivation of constitutional due process rights and constructive discharge. If you are faced with this situation and have any questions regarding compliance, our school and municipal law attorneys are available to answer any questions you may have.
