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Involuntary resignation

By Harvey Randall, Esq.

Involuntary resignation
Shoaf v Dept. of Agriculture, FedCir, 00-3148,

In the Shoaf case the U.S. Circuit Court of Appeals, Federal Circuit, set out its guidelines for determining whether a federal employee's resignation or retirement was voluntary or whether it should be deemed to be a "constructive discharge."

William Shoaf, an interdisciplinary team leader responsible for preparing large timber sales in southeast Alaska, retired from his position. Following his retirement he sued, alleging that his retirement constituted a constructive discharge and resulted from retaliatory actions that had been taken against him for making disclosures protected under the Whistleblower Protection Act, 5 USC 2308(b)(8).

Observing that "[e]mployees typically ground involuntary resignation or retirement assertions" on claims that the agency:

1. Imposed, or threatened to take, adverse personnel action against the employee;

2. Misinformed or deceived the employee; and, or

3. Coerced the employee to involuntarily resign or retire by creating working conditions so intolerable for the employee that he or she is driven to resign or retire.

The court decided that "Shoaf's claim falls into the 'coercion' category."

As a general rule, to establish "involuntariness on the basis of coercion" the Federal Circuit requires the individual to prove three elements:

1. The agency effectively imposed the terms resulting in the employee's resignation or retirement;

2. The employee had no realistic alternative but to resign or retire; and

3. The employee's resignation or retirement was the result of improper acts by the agency.

This "three-prong" test must be tailored to fit the circumstances of each case and ultimately depends on the court's finding that "working conditions were made so intolerable by the agency that a reasonable person in the employee's position would have felt compelled to resign."

Another factor, said the court, was that in making its determination, courts must consider the employee's entire work history rather than limit its inquiry to the most recent events that were the proximate cause of the employee's decision to resign or retire. Finding that the administrative judge failed to consider the "totality of the circumstances surrounding Shoaf's resignation," the Circuit Court remanded case to the administrative tribunal for a decision "comporting with the precepts delineated herein."

In contrast, suppose an employee entitled to pretermination "notice and hearing" is told that unless he or she immediately resigns from his or her position, he or she will be served with disciplinary charges. Does such a demand constitute unlawful coercion? This issue was considered by the New York State Court of Appeals in Rychlick v Coughlin, 63 NY2d 643.
Rychlick, a State corrections officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation. A few days later he asked to withdraw the resignation on the grounds that it had been "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

The Court of Appeals upheld the appointing authority's refusal to allow Rychlick to withdraw his resignation, ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

Implicit in the Shoaf decision is that his comments were protected under the federal Whistleblower's Act because they involved matters of public concern.

In Craven v University of Colorado Hospital Authority, CA10, 99-1519, decided August 13, 2001, the court held that a hospital safety employee's public comments concerning the disposal of medical waste that resulted in her termination involved issues that were of a professional rather than a public concern and thus not protected by Colorado's whistleblower statute.

In another "whistleblower" case, Huffman v Office of Personnel Management, CA Federal Circuit, 00-3184, decided August 15, 2001, the court ruled that an employee's complaints to his or her own supervisor about the supervisor's conduct were not protected by the federal Whistleblower Act although complaints to a supervisor about another employee's conduct may be protected speech within the meaning of the statute.

Full post as published by New York Public Personnel Law on March 18, 2008 (boomark / email).