Teacher ‘Voluntarily’ Resigned: Constructive Discharge Claim Properly Dismissed
The trial court properly dismissed the plaintiff-teacher’s constructive discharge claim against the defendant-school district and its human resources director because the teacher’s resignation was “voluntary,” the Michigan Court of Appeals has ruled.
The plaintiff in Kosch v Traverse City Area Public Schools (Docket No. 364955) was employed for 27 years as a high school teacher with the defendant-Traverse City Area Public Schools. In 2020 when she was teaching class online during the pandemic, a video was inadvertently broadcast via the remote-learning platform that showed her discussing a student during a conversation with her husband – a conversation that was intended to be private. The video circulated across social media and was “viewed widely” by the community. The defendant-school district opened an investigation into the plaintiff’s alleged misconduct and suspended her with pay. The plaintiff subsequently resigned, but later asserted that she was pressured to resign. The plaintiff then sued the defendant and its human resources director in Grand Traverse County Circuit Court for constructive discharge. The trial court granted the defendants’ motion to dismiss the plaintiff’s claim.
The Court of Appeals affirmed the dismissal in a published opinion written by Judge Michael J. Riordan.
“[W]e conclude that plaintiff did not show that her resignation was involuntary because it was induced by reliance on a misrepresentation by defendants that there was a FERPA [Family Educational Rights and Privacy Act] violation,” the Court of Appeals said, citing the 6th U.S. Circuit Court of Appeals decision in Rhoads v Board of Education of Mad River Local School District, 103 F App’x 888 (6th Cir, 2004). “In the end, none of the arguments presented by plaintiff show that her resignation was involuntary, under either a misrepresentation theory or a coercion theory.”
Judge Michelle M. Rick and Judge Noah P. Hood joined the 18-page opinion.
Background
In her lawsuit, the plaintiff alleged breach of contract and intentional infliction of emotional distress. She also argued the defendants violated her federal and state procedural due process rights, claiming that she had a property right in continuing in her tenured teaching position.
The defendants filed a notice to remove the case to federal district court, asserting the plaintiff brought a federal procedural due process claim. The federal district court declined to exercise supplemental jurisdiction over the state law claims and retained only the federal due process claim. In 2023, the federal district court granted the defendants’ motion for summary judgment (see, Kosch v Traverse City Area Public Schools, 662 F Supp 3d 774 (WD Mich, 2023). The federal district court later dismissed the federal due process claim, finding the plaintiff 1) “was not deprived of any property interest” under the Teacher’s Tenure Act (TTA), MCL 38.71, et seq., because she “voluntarily” resigned; 2) was not constructively discharged under federal constructive discharge caselaw; 3) received adequate process; and 4) failed to exhaust her remedies under the union’s collective bargaining agreement (CBA).
In the meantime, the defendants also filed a motion for summary disposition on the plaintiff’s state law claims in the Grand Traverse County trial court. In response, the plaintiff asserted she was constructively discharged and the defendants violated her procedural due process rights because 1) she was forced to resign in light of the defendants’ “unlawful use of the [conversation] recording contrary to the eavesdropping statute,” MCL 750.539c; 2) the defendants refused to let her be accompanied by counsel during a meeting with the codefendant-director of human resources, Cindy Berck; 3) she was provided a union representative who opposed her interests; 4) the defendants lied to her about whether the statements to her husband violated FERPA; and 5) she would not have been terminated in the ordinary course of proceedings because she had an excellent teaching record. She further argued that she was not required to exhaust her administrative remedies under the CBA because she was not a member of the union, the union representative provided to her was hostile and she was “entitled to a variety of damages and awards that are not susceptible of being obtained through a grievance procedure.” Finally, the plaintiff claimed that codefendant Berck was not entitled to “qualified immunity” for her “egregious conduct” and that her conduct “constituted intentional infliction of emotional distress.”
The trial court granted the defendants’ motion for summary disposition. The plaintiff appealed.
No Due Process Violation
On appeal, the plaintiff argued the trial court wrongly dismissed her procedural due process claim.
“We disagree,” the Court of Appeals said.
The Court of Appeals explained the TTA “protect[s] tenured teachers from being demoted or discharged unless the board can show just and reasonable cause, and only after written charges are filed and the teacher has been furnished with notice of the date of a hearing” and “continued employment is a protected property interest, a termination of that interest requires conformity to the requirements of due process ….” Here, the defendants did not dispute the plaintiff had a property interest in continued tenure. Rather, the issue was whether the plaintiff was constructively discharged, such that the defendants “should be treated as having terminated her employment.”
According to the Court of Appeals, “Michigan courts apparently have not yet outlined a multifactor test for determining whether an employee was constructively discharged.” In this case, the federal district court had already considered “essentially the same” procedural due process argument that it was considering, the appeals court noted, pointing out the federal district court had relied on Logan v Denny’s Inc, 259 F3d 558 (6th Cir, 2001), and “identified the following factors for determining whether an employee was constructively discharged: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status.”
However, the Court of Appeals said the Logan factors were “not quite applicable” to the present case because Logan involved “an employee being confronted with alleged wrongdoing and resigning shortly thereafter.” Therefore, “we must consider the question of whether plaintiff involuntarily resigned.”
Addressing this question, the Court of Appeals turned to Rhoads, where the plaintiff had resigned her position as a school bus driver after failing a random drug test. The appeals court, quoting the Rhoads panel, stated: “In general, employee resignations are presumed to be voluntary. An employee may rebut this presumption by producing evidence indicating that the resignation was involuntarily procured. Whether an employee’s resignation was involuntary depends upon whether an objectively reasonable person would, under the totality of the circumstances, feel compelled to resign if he were in the employee’s position. Relevant to this inquiry are (1) whether the employee was given an alternative to resignation, (2) whether the employee understood the nature of the choice she was given, (3) whether the employee was given a reasonable time in which to choose, and (4) whether the employee could select the effective date of resignation. The mere fact that an employee is forced to choose between resignation and termination does not alone establish that a subsequent choice to resign is involuntary, provided that the employer had good cause to believe there were grounds for termination. On the other hand, an employee resigns involuntarily if, after being given a choice between resignation and termination, she is not granted sufficient time and opportunity to deliberate about the choice.”
Applying Rhoads, “we conclude that plaintiff’s resignation was voluntary,” the Court of Appeals said. “As to the misrepresentation theory, plaintiff argues that defendants lied to her by indicating that she violated FERPA. We acknowledge that such a misrepresentation, regardless of whether it was an intentional lie or an innocent misunderstanding, might suggest that her resignation was involuntary, thus establishing a violation of procedural due process. … However, here, the record does not show that defendants informed plaintiff that she violated FERPA. Rather, the record shows that defendants merely were investigating a possible violation of FERPA. In particular, [codefendant] Berck testified that she told plaintiff during the preliminary investigation that she ‘was concerned there may have been’ a violation of FERPA.”
In conclusion, the Court of Appeals said the plaintiff did now show that her resignation was involuntary, under either a misrepresentation or a coercion theory. “Moreover, our analysis of the … Rhoads factors leads to the conclusion that her resignation was voluntary. … First, plaintiff was given an alternative to resignation, namely, proceeding against possible tenure charges. Second, … there is nothing to suggest that plaintiff did not accurately understand the ramifications of resigning. Third, plaintiff was not required to decide whether to resign or proceed under any particular time frame. … Fourth, there is nothing to suggest that plaintiff could not select the effective date of her resignation. Indeed, the resignation letter indicates that its immediate effectiveness was the result of plaintiff’s own decision.”
Other Claims
The plaintiff also argued that reinstating her employment was not precluded, despite her failure to exhaust her administrative remedies.
The Court of Appeals disagreed. “We conclude that plaintiff was required to exhaust her administrative remedies under the CBA. … First, the union representative testified that she would represent all teachers covered by the CBA, regardless of whether the teacher was a member of the union. This testimony was uncontested. Indeed, our Supreme Court recently explained that a union is required to represent all covered employees in the grievance process, regardless of whether the employee is a member of the union, and that requiring a payment from a non-member in exchange for representation violates the duty of fair representation ….”
According to the Court of Appeals, “exhaustion of the grievance process would not unreasonably delay plaintiff an opportunity to have her issues judicially adjudicated. Indeed, if plaintiff had pursued the grievance process with success in 2020, this case likely would not be before us in 2024. In other words, failure to exhaust administrative remedies in this case may have had the impact of delaying resolution of the case, not expediting it. For these reasons, we conclude that plaintiff was required to exhaust her administrative remedies and, because she did not, her claims to reinstate her employment must be dismissed for that alternate reason.”
In addition, the Court of Appeals rejected the plaintiff’s intentional infliction of emotional distress claim. “[Codefendant] Berck’s conduct in this case did not exceed ‘all possible bounds of decency.’ It would have been a dereliction of duty for an individual in her position to fail to investigate the recorded conversation in light of the fact that it was known to the school administration and was spreading through the TCAPS community. Further, [codefendant] Berck contacted a union representative to represent plaintiff during the initial meeting about the matter. As previously noted, the record does not show that [codefendant] Berck misled plaintiff or pressured her to resign without an opportunity for reflection. Under these circumstances, while the investigation perhaps might have been handled somewhat differently in minor respects, Berck did not act so outrageously so as to constitute the tort of intentional infliction of emotional distress.”
Based on the foregoing, the trial court “did not err by granting summary disposition in favor of defendants,” the Court of Appeals concluded.
