U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

Standard Set: First Amendment Retaliation Constructive Discharge

In a recent ruling out of the Eleventh Circuit Court of Appeals, a panel of three justices reversed the lower court's dismissal on summary judgment in the First Amendment retaliation case, Rodriguez v. City of Doral et al. The case involved the alleged constructive termination of a police officer due to his support of a rival political candidate.

The reversal is significant not just for the plaintiff, but for the entire circuit. In issuing its ruling, the panel of judges explained:

"We have not previously identified the appropriate standard for determining the voluntariness of a public employee's resignation where a claim of First Amendment retaliation is involved. But we can see no reason why the test for voluntariness that applies in the context of due-process claims would not also apply in the context of First Amendment claims."

Facts of the Case and Ruling

Anthony Rodriguez filed a 42 USC 1983 action after he was allegedly forced to resign due to his support of a rival candidate for mayor. The lower court found that he had engaged in protected activity by expressing his support for the rival candidate. However, it dismissed the matter on summary judgment based on its determination that the termination was voluntary.

In reviewing the matter, the appellate court explained that the district court overstepped. That, the determination over whether Rodriguez resigned voluntarily, or due to coercion, was an issue that should have been decided by a jury, and not a judge. As the court explained: "Under the due-process voluntariness framework, we presume that a resignation is voluntary unless the employee points to 'sufficient evidence to establish that the resignation was involuntarily extracted.' "

In considering whether there was sufficient evidence of a forced resignation, the court looked at five factors, which it explained are non-exhaustive and merely guiding factors:

  1. Did the employee have an alternative to resignation?
  2. Did the employee understand the choice he was given?
  3. Did the employee have a reasonable amount of time to consider the decision?
  4. Could the employee select their own resignation date?
  5. Did the employee consult an attorney?

Most significantly, the court explained that in situations where an employee resigns to avoid an investigation, or criminal charges, there's a real alternative to resignation, and thus not a constructive discharge. However, here, Rodriguez had no alternative, very little time, and did not have a meaningful consultation with counsel.

Fun Fact: The appellate opinion quotes HBO's Game of Thrones and Shakespeare's MacBeth.

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