Alabama Chief Loses Constructive Discharge Case

A Montgomery chief officer who resigned in 2018 while facing domestic violence charges, has lost his suit alleging constructive discharge and due process violations. Chief of Operations Kenneth Bolling claims he was pressured into resigning immediately in order to preserve his retirement benefits.

Chief Bolling, a 33-year veteran of the Montgomery Fire Department, claimed the city’s constructive discharge violated his due process rights and breached his employment agreement. He filed suit in US District Court for the Middle District of Alabama. The events leading up to his resignation occurred on June 27, 2018, involved an ex-girlfriend, and led the Montgomery Police Department to issue a warrant for his arrest on June 28, 2018. Quoting from the decision:

  • Chief Jordan spoke with Bolling in the MFD parking garage as they were both reporting for duty. The two talked as they made their way to Chief of Staff John Petrey’s office to discuss next steps related to Bolling’s arrest. At this point, the facts relevant to the disposition of this lawsuit become heavily contested and diametrically opposed.
  • According to Chief Jordan, in the parking garage and on the way to Petrey’s office, Bolling kept repeating that he should not have gone over to his ex-girlfriend’s house. Chief Jordan also testified that the two did not talk about anything related to Bolling’s employment status at the time.
  • According to Bolling, the discussion was somewhat different. Per Bolling, Chief Jordan approached Bolling in the parking lot, hugged him, and told him, “They [are] going to fire you.” Chief Jordan also said, “Bolling, I’m talking to you like a brother…. [T]here ain’t no fighting this.”
  • Chief Jordan and Bolling’s testimony continued to differ as it concerned the meeting in Petrey’s office. Chief Jordan testified that he and Petrey informed Bolling that he was being placed on administrative leave per order from higher-ranked City officials due to the arrest.
  • Chief Jordan further testified that he never told Bolling that he was being terminated, that he should resign, or that he would lose his benefits if he did not resign. Simply put, according to Chief Jordan, they never discussed resignation or termination whatsoever during the meeting. This version of events was fully corroborated by Petrey, who reiterated in his testimony that Bolling was put on administrative leave without ever discussing resignation, retirement, or termination, and that Bolling acknowledged being put on administrative leave while an investigation into the arrest was conducted.
  • Bolling’s version of the office discussion is different. According to Bolling, Chief Jordan continued to double-down on his previous assertions that Bolling was going to be terminated. Specifically, Bolling testified that Chief Jordan told him: “Before I get back from my other meeting, to receive your letter of resignation, you could go across the street and sign your retirement papers, and that way they can’t take it.”
  • While their versions of what was discussed in the office differed, the series of events landed on the same final act—Bolling signed a form putting him on administrative leave with pay pending the outcome of the City’s investigation into Bolling’s arrest. Chief Jordan and Petrey ended the meeting and went to another engagement.
  • Bolling testified that after the meeting, Bolling went directly to the retirement office at the City and filled out his resignation paperwork. According to him, he resigned immediately because of the choice Chief Jordan had just given him—be terminated immediately and lose benefits or resign immediately and retain benefits.
  • Because Bolling resigned, he was not given a termination hearing. Additionally, because he resigned “effective immediately” without providing seven days’ notice of his resignation, the City did not pay him for accrued leave and sick time, per the City’s policies and regulations.
  • Having lost out on these benefits and later believing that he did not voluntarily resign but was constructively discharged, Bolling brought this action, which currently advances claims for constructive discharge and breach of contract.

The court proceeded to explain its credibility determination, which supported Chief Jordan and Chief of Staff Petrey, and did not support Chief Bolling’s version of events. As explained in the decision:

  • This case presents the quintessential he said/he said scenario, presenting the question as to whose version of events of June 28 and 29 are to be believed: Jordan and Petrey’s version or Bolling’s version.
  • The Court credits Chief Jordan and Petrey’s testimony for several reasons. First, the testimony is two against one: Chief Jordan and Petrey’s corroborated version against Bolling’s standalone version of facts.
  • Second, both Chief Jordan and Petrey were credible witnesses on the stand. Unlike Bolling, neither Chief Jordan or Petrey were inconsistent, shifting, evasive, unclear, or ambiguous in their testimony.
  • Third, Chief Jordan and Petrey’s version of events is logical. Chief Jordan and Petrey put Bolling on administrative leave, and Bolling admittedly signed a form acknowledging that he was being placed on administrative leave. If Chief Jordan and Petrey were attempting to force Bolling to resign, then there would be no need to put Bolling on administrative leave in the first place. And Bolling, armed with extensive knowledge about the employee discipline policies and process within the MFD, signed off on his administrative leave form.
  • Which leads to the fourth point: it defies credibility that Bolling, the CO and a pivotal official in the MFD employee disciplinary process, would believe Chief Jordan’s claimed false assertion that Bolling needed to resign to preserve his access to certain retirement benefits. Bolling as the CO would know that this was not possible under the MFD and City’s policies and regulations.
  • And finally, and perhaps most persuasively, on the morning he turned himself into the city police—before his parking lot discussion with Chief Jordan and before the Petrey office meeting—Bolling called city retirement specialist Kim Neese to obtain an estimate of retirement benefit payouts should he decide to retire immediately. This uncoerced, self-initiated action supports the inference that Bolling intended to resign (or at least was seriously considering it) prior to any discussion with Chief Jordan and Petrey about his termination and supposed loss of retirement benefits.
  • The Court therefore credits their testimony over Bolling’s contradictory testimony.

The court went on to conclude Chief Bolling was not constructively discharged, but rather knowingly and voluntarily resigned. Therefore, there was no deprivation of due process nor was the employment agreement breached.

Here is a copy of the complaint.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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