By: Erica Shelley Nelson and Sarah Burke
In Celis v. City of Lakewood, a Hispanic officer alleged that he was constructively discharged after he resigned pending a disciplinary determination after his Loudermill hearing. The Court found that the officer’s fear of potential termination and decommission was not enough to amount to constructive discharge and granted the City’s motion for summary judgment.
Victor Celis was a Hispanic police officer with the Lakewood Police Department (LPD). In October 2010, Celis and his wife were at Oktoberfest in Leavenworth, Washington. After having a bit too much to drink, Celis got into an altercation with another man and had to be separated by Chelan County deputies. When the officers asked for identification, Celis repeatedly flashed his LPD badge and told the deputies he should “whoop all of [their] asses” and “just wait until you all come over to the Westside, you will be given the same treatment.”
Following these events, an LPD Sergeant led an investigation into Celis’ conduct. The LPD found that Celis had violated the code of personal conduct with his rudeness and threatening behavior, and by improperly displaying his badge. Celis received a Loudermill hearing and after the hearing Celis’ union representative called to advise him that it was his belief that the Department would terminate Celis and if Celis wanted to preserve his commission, he should resign.
Within two days of the Loudermill hearing, Celis resigned. Shortly thereafter, Celis received a memorandum from LPD stating it would not “proactively seek revocation of” his commission. After his resignation, Celis filed a lawsuit against Lakewood alleging wrongful termination based on race, involuntary resignation, and constructive discharge. After the trial court heard argument, the Court granted Lakewood’s summary judgment motion and Celis appealed.
Though there was evidence that Celis had experienced racial jokes made by his co-workers, he did not dispute that he resigned to avoid possible termination and preserve his commission. The Washington Court of Appeals found that Celis could not survive summary judgment on his claim of involuntary resignation because an employee’s resignation is presumed voluntary and Celis failed to rebut this presumption. The Court further found that Celis had also failed to establish constructive discharge because Washington is an “at-will” state, and Celis would need to show he was discharged in violation of a public policy to meet his burden.
In summary, the Court found that an officer who resigns to avoid possible termination did not have a claim for involuntary or constructive discharge. Celis presented no evidence that his working conditions were intolerable or that he was discharged due to discriminatory animus. Therefore, summary judgment in favor of the City was appropriate.
Constructive discharge is a tough claim to prove in Washington. The officer would have had to demonstrate that conditions were so intolerable that he had no other option than to leave the department, which is a pretty high standard. While there was evidence of racial jokes, the Court clearly found that it was not enough, especially in light of Celis’ admission that he resigned to avoid possible termination and loss of his commission.
This case also highlights why waiting until a final disciplinary decision is made may be best prior to making any drastic decisions. While termination was recommended prior to his Loudermill hearing, the final decision had not been issued when Celis resigned. While the advice of his union representative was not improper, it is also not a foregone conclusion that Celis would have lost his commission if he was terminated. The decision whether to take away a commission is discretionary. There are certainly circumstances where a terminated officer retains their commission and is able to find work in another department. It is unclear whether the union provided any analysis of the strength or weakness of any potential grievance, but that certainly may have played a part in the union’s resignation recommendation. If not, then that analysis probably should have been done before recommending that Celis resign.
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