by Joe Miller and Hayley Loufek
The United States Constitution requires a government to give a soon-to-be-ex-employee notice of their impending termination and a hearing beforehand. But what happens if the employee resigns instead? An Illinois Appellate Court recently made clear that such an employee cannot sue alleging that their due process rights were violated.
In McElroy v. Oswego Fire Protection District, the plaintiff was a full-time firefighter/paramedic who discovered that he had been working for six months with an expired paramedic’s license. Since having a valid license was required, the plaintiff was placed on administrative leave and told to report for meeting with command staff on his next duty day.
The plaintiff testified that prior to this meeting, someone else had expressed concern that he would receive criminal charges, and that the district had been informed by their counsel that plaintiff faced potential criminal liability. At the meeting, the plaintiff was told by a chief officer that he had two choices: he could go through the termination process, or he could resign. The plaintiff chose to resign.
Mere weeks later, the plaintiff filed a lawsuit against the district. He contended that he was deprived of his procedural due process rights and constructively discharged without an opportunity to be heard. The plaintiff also argued that his resignation was not voluntary because he had been advised that an investigation into his expired license could lead to criminal charges.
The circuit court granted summary judgment in favor of the district and its fire chief. The plaintiff appealed the dismissal of his case, but the Appellate Court affirmed.
The Appellate Court reasoned that there were two ways the plaintiff could have prevailed on an involuntary discharge claim: coerced resignation or constructive discharge. Constructive discharge is a “Hobson’s choice” between resignation or severe consequences, like criminal charges. Critically, though, a choice between resignation and discipline is insufficient.
Further, the court rejected the plaintiff’s argument that he was coerced into resigning. For one, he did not need to make an immediate decision; his union had offered to buy the plaintiff more time to consider his options.
The court also cited Palka v. Shelton, where the court held that the disciplinary process for employees satisfies due process requirements, and officials are not liable when an employee chooses not to avail themselves of its protections by resigning voluntarily prior to a hearing. 623 F.3d 447 (7th Cir. 2010). That a disciplinary proceeding may have unfavorable results for the employee does not render the choice between resignation and the disciplinary proceeding involuntary. Id.
Ultimately, the Appellate Court concluded that, because the plaintiff could not demonstrate that his resignation was involuntary, he was not entitled to assert afterwards that he was deprived of procedural due process rights.
The McElroy decision stands as a reminder that full-time, non-probationary firefighters are entitled to notice and an opportunity to be heard before they are terminated. In most cases, these due process requirements are met by following the commission process or grievance arbitration. However, in cases where an employee decides not to avail themselves of such mechanisms and instead resigns, they cannot complain about it later.