Firefighter Not Coerced Into Resigning

Kelvin Ross, who is African-American, was a firefighter for the City of Perry, Georgia. A fellow firefighter, Renee Kitchens, complained to Ross that a supervisor wore a T-shirt that offended her. The T-shirt depicted a firefighter laying on the front of a fire truck, dressed in shorts, slippers, a hat, and a shirt pulled up exposing his stomach. His legs were spread apart and something appeared to be in his mouth. Above the picture were the words “Stop it before it spreads,” and beneath the picture was a caption that said “Just Say No.”

More than two weeks after the incident, Kitchens wrote a grievance about the T-shirt and had Ross proofread the grievance. She also had Ross put the envelope containing the grievance under the door of the Deputy Chief’s office. Kitchens earlier had filed a sexual harassment lawsuit against the previous Deputy Chief.

Upon receiving the grievance, the Deputy Chief informed the Fire Chief about it. Though the Chief did not personally find the T-shirt offensive, he ordered an internal affairs investigation given Kitchens’ earlier issues with harassment. The appointed investigators interviewed Ross as part of the investigation. Ross initially told investigators that he had not read Kitchens’s letter but later admitted that he had proofread it for her. Ross also admitted that, although Kitchens found the T-shirt “offensive,” he only thought it “unprofessional.”

Upon completion of the investigation, the investigators determined that Ross had lied in a departmental investigation. The Chief informed Ross in a memorandum that he was considering terminating him, and that a show cause hearing would be conducted where Ross could present or discuss evidence pertinent to the charges. Ross presented no evidence at the hearing. The Chief gave him the choice between resigning voluntarily or being terminated. Immediately following the hearing, Ross resigned.

Ross then filed a race discrimination suit against the City, contending that he had been “constructively discharged,” and thus suffered an adverse employment action. A federal appeals court disagreed.

The Court found that under Title VII of the Civil Rights Act, an employee’s resignation is involuntary where the employer (1) forces the resignation by coercion or duress, or (2) obtains the resignation by deceiving or misrepresenting a material fact to the employee.

The Court was blunt in its rejection of Ross’ claims: “Ross was not coerced into resigning. Ross was given advance notice of his show cause hearing. By the notice, he was informed of the violations, the proposed act of termination, and his opportunity to defend against the accusations. Although the Chief told him to sign a resignation letter at the hearing, the advance notice had given Ross reasonable time to think over his alternatives and strategies in response to a possible termination. But Ross presented no defenses, arguments, or explanations at his hearing. At the hearing, Ross also could have asked for more time to consider the choices and to seek help; but he did not do so.

“Nothing indicated that Ross failed to understand the nature of the choices he was given. Although Ross might have believed he had no choice but to resign, he did, in fact, have the choice to refuse to resign and could later have appealed the termination to the city manager.”

Ross v. City of Perry, Ga., 2010 WL 3667023 (11th Cir. 2010).

This article appears in the November 2010 issue