NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0385n.06 No. 10-4505 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

LISA S P ANG LER,
P laintif f-App ellant,

v. LUCAS COUNTY, OHIO, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO

O P I N I O N

BEFORE: Cole and McK eague, Circ uit Jud ges, and Zatkoff , District Judge. *
P er Curiam . I n 2005, L isa Spang ler beg an working as a cler k in the Electronic Monitoring Depa rtment for the L ucas County , Ohio (“County ”) court. As a cler k in the Electronic Monitoring Depa rtment, Spang ler was periodica lly assig ned to be“on- call” from 4:30 p.m. until 8:30 a.m. Whil e “on-c all,” S pang l er wa s responsible for monitoring the location of convicted felons s ubject to the County ’s elec tric monitoring sy stem. I f an alar m sounded, Spang ler wa s re s ponsible for either locating the fe lon or communicating the situation to a court sec urity office r. On Fe bruar

y 23, 2006, Spang ler wa s on-ca ll a fter her shift ended a t 4:30 p.m. On her wa y home, she picked up a twelve- pack beca use she had a “bad day .” R. 51-4, Spang ler Dep. at 78. Once home, Spang ler’s bad day quickly turned worse: afte r drinking three beer s in ninety minutes, she foug ht with her daug hter and called the police for assistance

. The police ultimately arr ested Spang ler

The Honora

ble L awr ence P. Za tkoff, United States District Judge f or the Easter

n District * of Michig an, sitting by

desig nation.No. 10-4505

Spangler v. Lucas Cnty. for domestic violence and held her in jail overnig ht. Whil e in jail, Spang ler “re alized

. . . that [she] had a g rea t responsibility to [her] job as [she] was on-ca ll.” Id. at 83-84. Spang ler used her phonecall to call her daug hter’s fathe r, Pat McDoug all. Id. at 84. Spang ler asked McDoug all to “re trieve the work folder and call Mark L air,” one of her supervisors, to notify him that she was incar cer ated. Id. Spang ler estimates that L air rec eived McDoug all’s ca l l s h o rt ly befor e 8 p.m. Id. at 85. By aler ting L air that Spang ler wa s incarc era ted she re solved the over sight of the beepe r bec ause e ven though only one person is on-ca ll at a time,“there are two [beepers] so at all times two people have one.” Id. at 85. Spang ler was rele ased from jail the next day , but beca use of the discharg e proce ss and court
proce eding s, she did not return home until near ly 4:30 p.m. Id. at 86-87. Once home, Spang ler called work and spoke with Deb Gasser , the unit manag er for the Electro n ic Monitoring Depa rtment. Id. at 31, 87. Gasser g ave Spang ler the choice of coming into the office immediately or waiting to deal with the situation until S pang ler re turned fr om a planned vacation. Id. at 88. Spang ler opted
to wait until she returne d from vacation. Id. Shortly there afte r, howeve r, Gasser called back and told Spang ler: “Mar

k [L air] wants to see y ou rig ht now in the courthouse, can y ou come? ” Id. Spang ler
ag ree d, and Ga sser told Spang ler to bring “y our I Ds, y our key s and the pa g er.” Id. At work, Spang ler spoke with Gasser and L air, her im m ed i at e s u p ervisors. Id. at 90. Spang ler knew that she was “in trouble, ” Id

. at 8 8 , but she also knew that Gasser and L air wer e supervised by the J udg es of the L ucas County Common P l eas Court. Id. at 94. Acc ording ly , any emplo y m en t decision Gasser and L air made was subject to the court’s revie w. See R. 54-2 (L air Dep.) at 38-39. - 2 -No. 10-4505

Spangler v. Lucas Cnty. L air beg an their talk by say ing: “in lieu [si c] of the curr ent situation and y our insubordination and ever y thing that’s happening rec ently , I ’m rec ommending term ination.” R. 54-1

. at 91. L air continued: “I want y ou to resig n. I f y ou don’t resig n, it’s g oing to g et ug ly .” Id

. At t h at point, Spang ler “didn’t know what to do.” Id. L air then told Spang ler that if she re signe d, “nothing will
g o in y our file, nothing bad will be in there .” Id. I n response , Spang ler decide d to resig n. Id. L air ty ped up a letter of resig nation. Id. at 93. Meanw hile, Spang ler “g ot out a phone book and tried to call” her attorney , but beca use “[i] t was afte r 5:00 he wasn’t there ,” so Spang ler hung up the phone and we nt back into L air’s of fice

. Id. Spang ler then sig ned her resig nation letter. Id. at 94. On October 13, 2007, Spang ler sued the County for constructive discharg e and violating her
proce dural due proce ss rig hts in violation of 42 U. S

. C

. § 1983. The district court g rante d the County ’s motion for summary judgme nt in a thoroug h and well-re asoned opinion. Spang ler timely
appea led. On appea l, Spang ler arg ues the d i s t ri ct court err ed in g ranting the County summary judgme nt. Appellant Br

. at 10. I n addition, Spang ler seeks leave to amend her complaint pursuant to F eder al Rule of Civil Procedur e 15(c) (1)( C) in light of he r “possible err or” in f iling suit a g ainst the wrong defe ndant. Id. at 27.
We revie w a district court’s g rant of summary judgme nt de novo. Bell v. United States , 355 F.3d 387, 391 (6th Cir. 2004). After car eful revie w of the rec ord and the applicable law, we share
t h e d i s trict court’s conclusion that Spang ler “has fallen short of showing that her resig nation was involuntary , for seve ra l re as o ns.” 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 beg in, we note that employ ee resig nations

are presumed to be voluntary

. Rhoads v. Bd. of E duc. , 103 F. App’x 888, 894 (6th Cir. 2004)

. “A - 3 -No. 10-4505

Spangler v. Lucas Cnty. public employ ee with a proper ty interest in continued employ ment is deprive d of that interest by her employ er if the employ er constructively discharg es her by forc ing her to resig n involuntarily .” Id.
An employ ee can rebut the presumption of voluntariness by demonstrating that “an o b j ectively

rea sonable person would, under the totality of the circ umstances, fee l compelled to resig n if he wer e in the employ ee’ s position.” Id. at 895. Relevant factors include: (1) whether the employ ee was g iven an alterna tive to resig nation; (2) whether the employ ee understood the nature of the choice she

was g iven; (3) whether the employ ee was g iven a rea sonable time in which to choose; and (4) whether the employ ee could selec t the date of resig nation. Id. The fac t that an employ ee “is forc ed
to choose betwee n resig nation and termination does not alone establish that a subsequent choice to resig n is involuntary , provided that the employ er had g ood cause to believe that there wer e g rounds for termination. On the other hand, an employ ee resig ns involuntarily if, afte r being g iven a choice betwee n resig nation and termination, she is not g rante d sufficie nt time and opportunity to delibera te about the choic e.” Id. (interna l citations omit ted).
Even afte r viewing the fac ts and draw ing all rea sonable infere nces in the light most favor able
to Spang ler, we find nothing in Spang ler’s deposition that cre ates a g enuine issue o f m at eria l fac t as to whethe r her

resig nation was voluntary . As the district court e x plained: Although Plaintiff points to L air’s c omment that ‘thing s could get ugly ’ i n arg uing that her resig nation was involuntary , her own acc ount o f her meeting with L air indicates that ‘she didn’t know what to do’ and was s t ill unsure about resig ning at that point in the meeting

. I t was L air’s subsequent stat em en t that Plaintiff’s personne l rec ord would rema in clea n that, acc ording to her own acc ount, convince d Plaintiff to resig n. I t is also signif icant that L air ne ver a ctually threa tened Plaintiff with termination. Rather, acc o rd i ng to Plaintiff, L air stated that he would rec ommend termination to the Common Pleas J udg es who possessed the requisite

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Spangler v. Lucas Cnty. authority

. Finally , it is signific ant that Plaintiff was g iven an opportunity to contac t her a ttorney

prior to sig ning he r re signa tion letter. Spangler , 2010 WL 4181451, at *3. We also note that, when L air g ave Spang ler the option to resig n rathe r t han subj ect herself to an investi g ation, Spang ler made a choice that dete rmined the da te of her resig nation. Id. Fur

ther, the fac t that L air told Spang ler that he was rec ommending termination but urg ed her to resig n does not make Spang ler’s resig nation involuntary ; Spang ler’s dere liction of duty while incar cer ated when she was supposed to be on-ca ll g ave L air g ood cause to believe there

wer e reasonable g rounds for termination. Rhoads , 103 F. App’ x at 894. Finally , even while both Spang ler’s deposition and briefing indicate that she resig ned “as a result of the defe ndant’s actions,” this is not e noug h to ove rcome the pre sumption t hat she re signe d of her own fre e will. Id

. For all these rea sons, Spang ler failed to rebut the presumption that her resig nation was voluntary

. I d

. a t 895.
Be cause we find that Spang ler volunt arily resig ned, she was not deprive d of a proper ty inte rest in continued employ

ment with the County

. Id. at 894. Acc ording ly , we aff irm the district court: both Spang ler’s constructive discharg e and proce dural due proce ss claims fail, and her motion to amend her c omplaint under F eder al Rule of Civil P roce dure 15( c) is denie d as moot.

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