IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-40325 (Summary Calendar) _________________________
TOMMY STEVEN MACKLIN, Plaintiff/Appellant,
versus
CITY OF BROOKSIDE VILLAGE, ET AL.,
Defendants,
CITY OF BROOKSIDE VILLAGE,
Defendant/Appellee.
__________________________________________________
Appeal from United States District Court for the Southern District of Texas (G-94-CV-297) __________________________________________________
January 2, 1996 Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Tommy Steven Macklin, appeals the district court’s dismissal of his complaint because he
claims that he has stated a cause of action for constructive discharge from the Brookside Village
Police Department which violated his procedural and substantive due process rights. He challenges
the district court’s findings that he waived his procedural due process claims and that the employment
did not violate his substantive due process rights. We find that the plaintiff was not constructively
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
1 discharged, and that he has failed to state a cause of action regarding violations to his procedural and
substantive due process rights. Therefore, we affirm the district court’s judgment of dismissal.
FACTS
Macklin, a part-time police officer with the Brookside Village Police Department, came under
investigation after a woman complained about Macklin. During the course of its investigation, the
City obtained various statements from witnesses who claimed that Macklin, engaged in sexual
discussions with various females while in uniform. On October 6, 1993, Gregg Meade, chief of
police, met with Macklin and informed him of the complaints and the subsequent investigation.
Meade gave Macklin copies of the witnesses’ statements alleging sexual misconduct. When Meade
questioned Macklin about the truth of the allegations, he responded that the vast majority were
fabricated. Meade then advised Macklin to resign because if Macklin was terminated because of
sexual harrassment, he would have difficulty finding employment.
On October 20, 1993, Meade again met with Macklin and questioned him about the
allegations. When Macklin said he would not respond without his attorney being present, Meade
terminated Macklin and ordered him to return all city property in his possession. Later the same day,
Macklin asked Meade if he could resign so that he would not lose his state commission as a peace
officer. Meade granted Macklin’s request, but prohibited him from working for the City or doing
security work until after the effective date of the termination. Macklin resigned.
Although the City had written policies and procedures for employees to challenge their
supervisors’ decisions and provided a means for appeal, the City was silent regarding the procedures
for a terminated employee to contest or appeal an employment decision. After Macklin resigned, he
found no means to dispute the charges brought against him. Accordingly, he filed suit alleging that
he was constructively discharged in violation of his procedural and substantive due process rights
Macklin voluntarily dismissed Meade from the case. The City moved to dismiss Macklin’s
complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted the City’s
motion and Macklin appealed.
2 DISCUSSION
A. STANDARD OF REVIEW.
We review de novo the granting of a motion to dismiss, accepting as true all well pleaded
assertions in the light most favorable to the plaintiff. See American Waste & Pollution Control Co.
v. Browning-Ferris, 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is appropriate only if the district
court could not afford relief to the plaintiff under any set of facts consistent with the allegations in
the complaint. Id. Accordingly, we will uphold the dismissal only if it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In viewing the facts
in favor of the plaintiff, we need not strain to find inferences favorable to the plaintiff. Therefore, we
will view the facts in Macklin’s favor, and Macklin is entitled to all inferences that surface from a fair
and reasonable reading of the pleadings.
B. CONSTRUCTIVE DISCHARGE.
Macklin challenges t he district court’s finding that his resignation was a voluntary action.
Macklin claims that it was only after his employment terminated that he sought a course of action to
preserve his ability to work in the law enforcement field.
The City counters that Macklin knowingly and voluntarily chose to resign from the police
force. Further, the City maintains that the constructive discharge doctrine does not apply because
it did not force Macklin to resign in order to avoid affording him pre-termination procedures.
We have previously enunciated the constructive discharge standard in Young v. Southwestern
Savings & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975). If an employee is subject d to intolerable e
working conditions that compel resignation, we will treat the resignation as a formal discharge. The
standard is as follows:
The general rule is that if an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is liable for any illegal conduct involved therein as if it had formally discharged the aggrieved
3 employee.
Young, 509 F.2d at 144. The intolerable situation must place the employee “between the Scylla of
voluntary resignation and the Charbydis of forced termination” in order for us to find constructive
discharge. Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir. 1986). The
intolerableness is judged under a reasonable employee standard. Bourque v. Powell Elec. Mfg. Co.,
617 F.2d 61, 65 (5th Cir. 1980) (“the working conditions would have been so difficult or unpleasant
that a reasonable person in the employee’s sho es would have felt compelled to resign”). The
employee has the burden of proving constructive discharge. Jurgens v. EEOC, 903 F.2d 386, 390
(5th Cir. 1990).
Accordingly, we must determine whether Macklin proved that his working conditions were
made so intolerable that he was compelled to resign. Macklin was actually terminated on October
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-40325 (Summary Calendar) _________________________
TOMMY STEVEN MACKLIN, Plaintiff/Appellant,
versus
CITY OF BROOKSIDE VILLAGE, ET AL.,
Defendants,
CITY OF BROOKSIDE VILLAGE,
Defendant/Appellee.
__________________________________________________
Appeal from United States District Court for the Southern District of Texas (G-94-CV-297) __________________________________________________
January 2, 1996 Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Tommy Steven Macklin, appeals the district court’s dismissal of his complaint because he
claims that he has stated a cause of action for constructive discharge from the Brookside Village
Police Department which violated his procedural and substantive due process rights. He challenges
the district court’s findings that he waived his procedural due process claims and that the employment
did not violate his substantive due process rights. We find that the plaintiff was not constructively
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
1 discharged, and that he has failed to state a cause of action regarding violations to his procedural and
substantive due process rights. Therefore, we affirm the district court’s judgment of dismissal.
FACTS
Macklin, a part-time police officer with the Brookside Village Police Department, came under
investigation after a woman complained about Macklin. During the course of its investigation, the
City obtained various statements from witnesses who claimed that Macklin, engaged in sexual
discussions with various females while in uniform. On October 6, 1993, Gregg Meade, chief of
police, met with Macklin and informed him of the complaints and the subsequent investigation.
Meade gave Macklin copies of the witnesses’ statements alleging sexual misconduct. When Meade
questioned Macklin about the truth of the allegations, he responded that the vast majority were
fabricated. Meade then advised Macklin to resign because if Macklin was terminated because of
sexual harrassment, he would have difficulty finding employment.
On October 20, 1993, Meade again met with Macklin and questioned him about the
allegations. When Macklin said he would not respond without his attorney being present, Meade
terminated Macklin and ordered him to return all city property in his possession. Later the same day,
Macklin asked Meade if he could resign so that he would not lose his state commission as a peace
officer. Meade granted Macklin’s request, but prohibited him from working for the City or doing
security work until after the effective date of the termination. Macklin resigned.
Although the City had written policies and procedures for employees to challenge their
supervisors’ decisions and provided a means for appeal, the City was silent regarding the procedures
for a terminated employee to contest or appeal an employment decision. After Macklin resigned, he
found no means to dispute the charges brought against him. Accordingly, he filed suit alleging that
he was constructively discharged in violation of his procedural and substantive due process rights
Macklin voluntarily dismissed Meade from the case. The City moved to dismiss Macklin’s
complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted the City’s
motion and Macklin appealed.
2 DISCUSSION
A. STANDARD OF REVIEW.
We review de novo the granting of a motion to dismiss, accepting as true all well pleaded
assertions in the light most favorable to the plaintiff. See American Waste & Pollution Control Co.
v. Browning-Ferris, 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is appropriate only if the district
court could not afford relief to the plaintiff under any set of facts consistent with the allegations in
the complaint. Id. Accordingly, we will uphold the dismissal only if it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In viewing the facts
in favor of the plaintiff, we need not strain to find inferences favorable to the plaintiff. Therefore, we
will view the facts in Macklin’s favor, and Macklin is entitled to all inferences that surface from a fair
and reasonable reading of the pleadings.
B. CONSTRUCTIVE DISCHARGE.
Macklin challenges t he district court’s finding that his resignation was a voluntary action.
Macklin claims that it was only after his employment terminated that he sought a course of action to
preserve his ability to work in the law enforcement field.
The City counters that Macklin knowingly and voluntarily chose to resign from the police
force. Further, the City maintains that the constructive discharge doctrine does not apply because
it did not force Macklin to resign in order to avoid affording him pre-termination procedures.
We have previously enunciated the constructive discharge standard in Young v. Southwestern
Savings & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975). If an employee is subject d to intolerable e
working conditions that compel resignation, we will treat the resignation as a formal discharge. The
standard is as follows:
The general rule is that if an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is liable for any illegal conduct involved therein as if it had formally discharged the aggrieved
3 employee.
Young, 509 F.2d at 144. The intolerable situation must place the employee “between the Scylla of
voluntary resignation and the Charbydis of forced termination” in order for us to find constructive
discharge. Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir. 1986). The
intolerableness is judged under a reasonable employee standard. Bourque v. Powell Elec. Mfg. Co.,
617 F.2d 61, 65 (5th Cir. 1980) (“the working conditions would have been so difficult or unpleasant
that a reasonable person in the employee’s sho es would have felt compelled to resign”). The
employee has the burden of proving constructive discharge. Jurgens v. EEOC, 903 F.2d 386, 390
(5th Cir. 1990).
Accordingly, we must determine whether Macklin proved that his working conditions were
made so intolerable that he was compelled to resign. Macklin was actually terminated on October
20, 1993 because of allegations and supporting evidence that Macklin had engaged in improper sexual
discussions while in uniform. Macklin’s resignation resulted from his employer’s benevolent
agreement to allow him to resign instead of facing the already rendered termination. The City was
doing Macklin a favor by letting him resign because resignation would allow him to keep his state
commission as a peace officer.
We find that an employee who has engaged in conduct justifying termination does not face
the “intolerable” working conditions contemplated by the constructive discharge doctrine. The
employee in that situation has made his own working condition intolerable and has resigned in order
to escape the employment situation with the least amount of damage to his employment history and/or
reputation. See Shawgo v. Spradlin, 701 F.2d 470, 482 (5th Cir.), cert. denied, 464 U.S. 965, 104
S. Ct. 404, 78 L. Ed. 2d 345 (1983) (refusing to find constructive discharge where the plaintiffs’
actions made their own situation intolerable). The constructive discharge doctrine was not created
to give a properly terminated o r terminable employee a cause of action. We hold that when an
employee has engaged in conduct justifying his termination and has been or will be terminated
because of that conduct, a resignation accepted by the employer in place of the termination cannot
4 be deemed a constructive discharge. We further hold that a resignation given under these
circumstances is voluntarily given and not compelled. Accordingly, we find that the district court
properly concluded that Macklin voluntarily resigned and, therefore, had not been constructively
discharged.
C. DUE PROCESS.
Our conclusion that Macklin was not constructively discharged obviates the need to discuss
the merits of Macklin’s arguments regarding the district court’s errors concerning his procedural and
substantive due process claims.
We further find that, under the circumstances, it would be a waste of judicial resources and
the resources of the parties to allow Macklin an opportunity to amend his complaint. His knowing
and voluntary resignation makes it impossible for him to allege a viable procedural or substantive due
process claim. A ruling allowing amendment would merely be an exercise in futility.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court dismissing the
plaintiff’s complaint.