                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0385n.06
                                                                                            FILED
                                            No. 10-4505
                                                                                       Apr 09, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


LISA SPANGLER,                                            )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellant,                               )        UNITED STATES DISTRICT
                                                          )        COURT     FOR     THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
LUCAS COUNTY, OHIO,                                       )
                                                          )
       Defendant-Appellee.                                )                           OPINION



BEFORE:        Cole and McKeague, Circuit Judges, and Zatkoff, District Judge.*

       Per Curiam. In 2005, Lisa Spangler began working as a clerk in the Electronic Monitoring

Department for the Lucas County, Ohio (“County”) court. As a clerk in the Electronic Monitoring

Department, Spangler was periodically assigned to be“on-call” from 4:30 p.m. until 8:30 a.m. While

“on-call,” Spangler was responsible for monitoring the location of convicted felons subject to the

County’s electric monitoring system. If an alarm sounded, Spangler was responsible for either

locating the felon or communicating the situation to a court security officer.

       On February 23, 2006, Spangler was on-call after her shift ended at 4:30 p.m. On her way

home, she picked up a twelve-pack because she had a “bad day.” R. 51-4, Spangler Dep. at 78. Once

home, Spangler’s bad day quickly turned worse: after drinking three beers in ninety minutes, she

fought with her daughter and called the police for assistance. The police ultimately arrested Spangler

       *
        The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 10-4505
Spangler v. Lucas Cnty.

for domestic violence and held her in jail overnight. While in jail, Spangler “realized . . . that [she]

had a great responsibility to [her] job as [she] was on-call.” Id. at 83-84. Spangler used her phone-

call to call her daughter’s father, Pat McDougall. Id. at 84. Spangler asked McDougall to “retrieve

the work folder and call Mark Lair,” one of her supervisors, to notify him that she was incarcerated.

Id. Spangler estimates that Lair received McDougall’s call shortly before 8 p.m. Id. at 85. By

alerting Lair that Spangler was incarcerated she resolved the oversight of the beeper because even

though only one person is on-call at a time,“there are two [beepers] so at all times two people have

one.” Id. at 85.

        Spangler was released from jail the next day, but because of the discharge process and court

proceedings, she did not return home until nearly 4:30 p.m. Id. at 86-87. Once home, Spangler

called work and spoke with Deb Gasser, the unit manager for the Electronic Monitoring Department.

Id. at 31, 87. Gasser gave Spangler the choice of coming into the office immediately or waiting to

deal with the situation until Spangler returned from a planned vacation. Id. at 88. Spangler opted

to wait until she returned from vacation. Id. Shortly thereafter, however, Gasser called back and told

Spangler: “Mark [Lair] wants to see you right now in the courthouse, can you come?” Id. Spangler

agreed, and Gasser told Spangler to bring “your IDs, your keys and the pager.” Id.

        At work, Spangler spoke with Gasser and Lair, her immediate supervisors. Id. at 90.

Spangler knew that she was “in trouble,” Id. at 88, but she also knew that Gasser and Lair were

supervised by the Judges of the Lucas County Common Pleas Court. Id. at 94. Accordingly, any

employment decision Gasser and Lair made was subject to the court’s review. See R. 54-2 (Lair

Dep.) at 38-39.

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Spangler v. Lucas Cnty.

       Lair began their talk by saying: “in lieu [sic] of the current situation and your insubordination

and everything that’s happening recently, I’m recommending termination.” R. 54-1. at 91. Lair

continued: “I want you to resign. If you don’t resign, it’s going to get ugly.” Id. At that point,

Spangler “didn’t know what to do.” Id. Lair then told Spangler that if she resigned, “nothing will

go in your file, nothing bad will be in there.” Id. In response, Spangler decided to resign. Id. Lair

typed up a letter of resignation. Id. at 93. Meanwhile, Spangler “got out a phone book and tried to

call” her attorney, but because “[i]t was after 5:00 he wasn’t there,” so Spangler hung up the phone

and went back into Lair’s office. Id. Spangler then signed her resignation letter. Id. at 94.

       On October 13, 2007, Spangler sued the County for constructive discharge and violating her

procedural due process rights in violation of 42 U.S.C. § 1983. The district court granted the

County’s motion for summary judgment in a thorough and well-reasoned opinion. Spangler timely

appealed. On appeal, Spangler argues the district court erred in granting the County summary

judgment. Appellant Br. at 10. In addition, Spangler seeks leave to amend her complaint pursuant

to Federal Rule of Civil Procedure 15(c)(1)(C) in light of her “possible error” in filing suit against

the wrong defendant. Id. at 27.

       We review a district court’s grant of summary judgment de novo. Bell v. United States, 355

F.3d 387, 391 (6th Cir. 2004). After careful review of the record and the applicable law, we share

the district court’s conclusion that Spangler “has fallen short of showing that her resignation was

involuntary, for several reasons.” Spangler v. Lucas Cnty. Bd. Of Comm’rs, No. 3:07 CV 3146,

2010 WL 4181451, at *3 (W.D. Ohio Oct. 19, 2010). To begin, we note that employee resignations

are presumed to be voluntary. Rhoads v. Bd. of Educ., 103 F. App’x 888, 894 (6th Cir. 2004). “A

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Spangler v. Lucas Cnty.

public employee with a property interest in continued employment is deprived of that interest by her

employer if the employer constructively discharges her by forcing her to resign involuntarily.” Id.

An employee can rebut the presumption of voluntariness by demonstrating that “an objectively

reasonable person would, under the totality of the circumstances, feel compelled to resign if he were

in the employee’s position.” Id. at 895. Relevant factors include: (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 date of resignation. Id. The 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 that 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.” Id. (internal citations omitted).

       Even after viewing the facts and drawing all reasonable inferences in the light most favorable

to Spangler, we find nothing in Spangler’s deposition that creates a genuine issue of material fact

as to whether her resignation was voluntary. As the district court explained:

       Although Plaintiff points to Lair’s comment that ‘things could get ugly’ in arguing
       that her resignation was involuntary, her own account of her meeting with Lair
       indicates that ‘she didn’t know what to do’ and was still unsure about resigning at
       that point in the meeting. It was Lair’s subsequent statement that Plaintiff’s
       personnel record would remain clean that, according to her own account, convinced
       Plaintiff to resign. It is also significant that Lair never actually threatened Plaintiff
       with termination. Rather, according to Plaintiff, Lair stated that he would
       recommend termination to the Common Pleas Judges who possessed the requisite


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Spangler v. Lucas Cnty.

       authority. Finally, it is significant that Plaintiff was given an opportunity to contact
       her attorney prior to signing her resignation letter.

Spangler, 2010 WL 4181451, at *3. We also note that, when Lair gave Spangler the option to resign

rather than subject herself to an investigation, Spangler made a choice that determined the date of

her resignation. Id. Further, the fact that Lair told Spangler that he was recommending termination

but urged her to resign does not make Spangler’s resignation involuntary; Spangler’s dereliction of

duty while incarcerated when she was supposed to be on-call gave Lair good cause to believe there

were reasonable grounds for termination. Rhoads, 103 F. App’x at 894. Finally, even while both

Spangler’s deposition and briefing indicate that she resigned “as a result of the defendant’s actions,”

this is not enough to overcome the presumption that she resigned of her own free will. Id. For all

these reasons, Spangler failed to rebut the presumption that her resignation was voluntary. Id. at 895.

Because we find that Spangler voluntarily resigned, she was not deprived of a property interest in

continued employment with the County. Id. at 894. Accordingly, we affirm the district court: both

Spangler’s constructive discharge and procedural due process claims fail, and her motion to amend

her complaint under Federal Rule of Civil Procedure 15(c) is denied as moot.




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