Opinion
No. FST CV 08 4013437 S
October 22, 2008
MEMORANDUM OF DECISION ON INJUNCTIVE RELIEF
Plaintiff Howard Benedict began teaching English and coaching boys varsity lacrosse at New Canaan High School in 1973. He thus became the first and only lacrosse coach the school has had until the 2008 season and produced eight state and seven conference championships, one as recently as 2003, an undefeated season. This matter centers upon the 2008 end of his lacrosse career.
Mr. Benedict comes to this court seeking an injunction which would compel the Board of Education to afford him a hearing pursuant to C.G.S. § 10-222e.
C.G.S. § 10-222e provides "an opportunity to appeal to the board of education" to any coach of three years service when such a coach has been "terminated" by said board or "its duly authorized agent."
The case presents issues as to whether Benedict "resigned" or was terminated; whether a "resignation" was accepted by one authorized to do so; whether a resignation intended for immediate effect requires acceptance at all; whether his expressed effort to continue coaching represented an effective rescission of a resignation before a proper authorized acceptance; and whether the coach was constructively terminated. It also raises whether a rescission, aside from any acceptance-of-resignation issues, is to be deemed effective if occurring before the employer acts significantly in reliance on the resignation, and whether an employer must honor a rescission effort when to do so is sufficiently problematic as to merely re-create a relationship destined to fail.
The controversy can be said to have begun, although not without possibly germane history, on January 14, 2008, at 3:38 p.m., when the coach sent an e-mail to Mr. Jay Egan the school's athletic director, which stated, in its entirety:
It was interesting to learn that the athletic director bears responsibility for a sufficient number of male and female athletic programs to necessitate more than 100 coaches and assistants.
Dear Jay: I am not continuing as lacrosse coach at New Canaan High School. I am telling you now so that you can finish the scheduling, staffing and next step communications. The autonomy and leadership role that I require and have enjoyed have been undermined. The lack of staff in the building and in the program remains a burden to all. Sincerely yours, Howard Benedict.
(Exhibits 2 and 27).
On the next day, January 15, 2008 (at 3:47 p.m.) the athletic director responded, also via e-mail:
Howard, thank you for the timely notification of your decision not to continue as the Boy's lacrosse coach at New Canaan. I appreciate how difficult a decision this must have been for you. I am sure your realize that your many years of service to the New Canaan Lacrosse community have been greatly appreciated by all the players and families you have touched Best of Luck. Jay.
(Exhibit 2).
Before a Benedict e-mail of January 18, 2008 at 2:24 p.m. (which counsel for Benedict characterizes as an effective recission-before-acceptance, making for a void resignation) the A.D. and the coach exchanged a pair of e-mails. In the first of those two interim communications, (January 18, 2008, 9:26 a.m.) the coach feeds the A.D. Egan, a St. Anthony's coach's telephone number, and notes that "if you need any help scheduling any games, e-mail me, and I will help you."
In the second of these two communications preceding the alleged "rescission," the A.D. emailed the coach (January 18, 2008, 1:26 p.m.) thanking him for the telephone number the coach forwarded. The A.D. went on to state:
I have not spoken to anyone outside our school administration about your decision not to continue as boys lacrosse coach. I would like to know if you have a preference with respect to how I you (sic) would prefer me to represent you (sic) decision publicly. I guess what I am asking is do you want me to say you have decided to retire or that you have resigned. Please let me know your preference. Thanks, Jay.
Then later that same day came the coach's response, termed by his counsel a rescission of the January 14, 2008 "resignation" prior to any proper acceptance. It stated:
Jay. I would like to talk with you about continuing. To end without communicating — listening and speaking — is a mistake on my part. I see that help is arriving and I would like to lead it now that there are people to lead and to delegate some of the stuff — camps, scheduling, parents needs. Schede, Vin, Bob and Frank. Let me know what you think. I'll check my e-mail from home. Howard.
The above missives fairly comprise the core for decision. Mr. Benedict did have meetings subsequent thereto with athletic director Egan, principal Anthony Pavia and Dr. David Abbey, superintendent of schools. These have been uniformly characterized by these defendants as "courtesy" meetings at the coach's requests. At the end, the superintendent, with the coach's permission, discussed the matter with the Board of Education. The superintendent characterized his discussion with the Board as one in which he wanted to obtain the sense of the Board as to whether it felt the matter had been handled in a fashion unfair to the plaintiff coach. Dr. Abbey testified that the Board was without fairness — related complaint. (Plaintiff has not alleged due process violations here, probably in light of the permission given the superintendent by plaintiff for such a Board discussion.)
It does seem that the coach's arguable resignation was met with an alacrity lacking grace. The relationship between the athletic director and the legendary coach (every setting, no matter how small, produces "legends" on a scale that need not rise to Connie Mack, Knute Rockne level) was, shall one say, a bit strained.
It seems that the coach had bridled, over time, with parental pressure regarding recommendations for lacrosse "camps." These are settings, the evidence shows, of summer training for further polishing the skills of players from many high schools who have high potential. The best of said camps appear to be likely tracks to admission to the "better" colleges with lacrosse teams. It would seem natural (and here, actual) that an administrator would favor high responsiveness to parents while the coach, desirous of obtaining or preserving his reputation for attempting to place only those of clear merit, would be inclined to selectivity.
There were other issues, which to fully explore would unnecessarily burden this decision, wherein some pieces of conduct resulted in the need for apology by the coach, which however, was not begrudgingly withheld or resisted. Indeed at the end of the 2007 season it appears that the athletic director came close to not renewing the coach's contract. (The description assigned to the coach's purported shortcomings when he was under discussion was summarized thusly: "administration.")
This judicial official had never seen a lacrosse game at any level. In the belief that one might obtain a sense of the milieu in which a head coach must operate, shortly after trial an entire high school game was attended. (New Canaan High was not involved.) The action was fast, often looking chaotic. Goals were frequent (a 16-9 final) and seemed to be produced on a spectrum ranging from mad solo dashes to carefully staged quick passing efforts. One is left with no doubt that a coach who is able to fashion defenses as well as design scoring drives is possessed of significant talent.
It struck the court that a man who can do these things at a superior level for 34 years borders on the unique. To think that he did so while also carrying the class load of an English teacher brings it, in this court's view, to the level of astounding. (No witness cast a scintilla of denigration upon plaintiff's English teaching skills, either.)
One is reminded that (in the risk of dating oneself), when Fred Astaire's choreography and dance skill was subject of marvel, others point out that Ginger Rogers did it all in heels and backwards.
As this court watched the two coaches (and their assistants) operate, with exhortations, substitutions on the fly, outdoors on beautiful turf, often in harsh weather, it seems natural that there is likely a natural difference of outlook between the field and the administrative offices. The world of forms, permission slips and budgets may become irritants to a man of speed, contact, physical exertion and competition.
And so it likely came to pass that this veteran coach, in the moment of his fateful "I am not continuing" e-mail, spoke solely in the voice of the sport warrior, not employing the English teacher's frontal lobe. He thus e-mailed victimized by rather a tin ear as to its likely reception in the director's office. Such misapprehension might have been expected in a man who led boys to so many state crowns. It could not have been the water in New Canaan which prompted such excellence, but rather the motivational skills of this man at whose urging young (probably affluent) adolescents would run all afternoon at paces which would cause hearts to pound the chest wall.
His e-mail flew into hands ready to quickly react. A laser-focused English teacher might have said, "things cannot go on this way. Things must be addressed." A truly detached administrator, not chafed by the sandpaper of irritations overtime, might even have read the "I am not continuing" message that way. But this did not happen.
The court has determined that the "I am not continuing" e-mail of January 14, 2008 suffices as a resignation and even plaintiff's counsel appears to have abandoned contrary assertions.
However, in his last brief, plaintiff appears to resurrect the claim, saying plaintiff "vehemently denies resigning" in a response to defendants' citation of Radolf v. University of Connecticut, 364 F.Sup.2d 204 (D.Conn. 2005). The court notes, however, that plaintiff himself termed his January 14 communication a "resignation." (To Superintendent Egan, plaintiff wrote on January 29, 2008, "[T]hey prefer that I resign, which I did do earlier in frustration for three sleepless days, and then take a bow." (Exhibit 8.)
Also, the court does not feel that it must be determined that the athletic director was bound to an attempted rescission simply due to a lack of clear authority within him to accept the resignation. The cases urged upon the court all stem from settings more structured than this recent 2004 narrow statutory effort to provide a Board hearing for a terminated coach. No law pressed to the court would appear to suggest that any "resignation," in the days and weeks before a season opens, need wend its way, voidable the whole time until it lands on the desk of one clearly empowered to accept it, all before an attempted rescission. Indeed, there is a modest body of law suggesting that a frank resignation in a context silent as to requirements of acceptance, requires no acceptance. (See cases cited pages 17-18, defendants' brief, June 6, 2008. (E.g., Associated Hat Mfrs. v. Baird Unteidt Co., 88 Conn. 332, 347 (1914); Lackman v. Dineen, 1995 Conn.Super.LEXIS 2778 (Oct. 2, 1995, Cotter, J.) [ 15 Conn. L. Rptr. 183]; Gelson v. City of New York, 237 A.D. 889 (1933) and several others.
It may be so, as plaintiff urges, that the hiring power lives with the human resources director at board level. This is not absolutely clear, for the posting notice for the Director of Athletics, dated February 19, 2004, indicates that a qualification for the job include the "ability to hire and supervise staff and students." The job "description" for Athletic Director is likewise silent on the power to accept resignations but is, like the notice, suggestive as to the power to hire, in its reference to "recruitment, selection and coaching of staff . . ." It is true that on the same page said power appears somewhat diluted, as the "duties and responsibilities" section of said job description states that the athletics director " assists in the recruitment, screening, hiring . . . of coaching personnel."
All in all, the description of powers appears to place hiring power sufficiently close to or within the ambit of the athletic director, at least for the purpose of determining whether such official is authorized to merely accept a resignation. It does not seem to offend notions of fairness and equity to require less clearly-pronounced power for the "mere" acceptance of a resignation, an act rather completely in the hands of the one resigning.
As a result, the court has determined that a rationale for a plaintiff's claimed entitlement to a hearing with the Board ought not be that his resignation was not accepted by appropriate authority. That is, Mr. Egan is arguably given the larger power (to hire) such that his power to merely accept a resignation ought be seen as implicit. Even if the hiring power were not his, that should not be deemed to compel a holding that he could not accept a resignation.
The court has also determined that plaintiff was not "constructively" terminated given the requirements of essentially, an intention to drive him out. See, Brittel v. Department of Correction, 247 Conn. 148 (1998).
Thus, we are moved to the final claim of plaintiff which is that plaintiff rescinded his resignation before the employer acted to its detriment in reliance upon it.
A threshold inquiry within this issue is whether plaintiff rescinded at all. The court has concluded that he certainly attempted to do so. On January 18, 2008, after his "I am not continuing" e-mail, which was dated January 14, 2008, plaintiff Benedict wrote:
Jay, I would like to talk with you about continuing.
Had that been the extent of his communication, one would probably deem it short of rescission. However, Mr. Benedict went on to say:
To end without communicating — listening and speaking — is a mistake on my part. I see that help is arriving and I would like to lead it now that there are people to lead and to delegate some of the stuff . . .
The court feels this is a rather clear effort to undo the "I am not continuing" statement submitted days before, and was clearly designed to negate his recent resignation.
This leads us to examine whether this effort to rescind binds the employers, and that may hinge on the degree to which the employer has acted to its detriment upon learning of the "resignation." It will be seen that the court considers, too, the prospect of detriment to an employer upon honoring a rescission.
Plaintiff urges upon the court case law that suggests the need for inquiring into the conduct of the employer post-resignation. Before undertaking such a factual review, however, it would be well to examine the relative persuasive strength of cases suggesting the relevance.
Plaintiff puts to the court Alia v. Altobello Child Youth Services, a decision by the Board of Review of the Department of Labor's Employment Security Appeals Division. (Board Case No. 253-ER-87, August 31, 1987.) Therein, the Board fashioned a new rule in an effort to resolve differing results in Mauro and Vaughn, informed in part by some Pennsylvania decisions. The rule set out therein inclines rather toward an employee, but involves a factor not present here. The Alia holding states that one who "resigns" and rescinds soon thereafter will be deemed not to have resigned if a) the rescission occurs before the employer takes "substantial steps" to replace him, and b) the rescission occurs before the departure date set out in the resignation. This last factor is absent here as the January 14, 2008 e-mail is best read to take immediate effect. The opinion in Alia holds further that the "substantial steps" requirement would not be satisfied by merely interviewing prospective replacements. Further, that the burden of showing the depth or reach of the steps would rest upon the employer.
Mauro v. Administrator, 19 Conn.Sup. 362 (1954).
Vaughn v. Administrator, Docket No. 215027, New Haven, July 27, 1983.
In Britt v. Graphic Center, Inc., Board Case No. 559-BR-87, July 7, 1987, the Board of Review wrote:
We have repeatedly held that a claimant who quits in haste under the influence of strong emotions and who, upon reflection, immediately attempts to reclaim his job, has not voluntarily left his job at least where the employer has not already replaced the claimant at the time the claimant rescinds his resignation.
In Merriam Manufacturing Co. v. Administrator, 1995 Conn.Super.Lexis 2821 (October 5, 1995) (Stanley, J.) the court upheld a unemployment Board of Review holding in the employee's favor, and in doing so, cites as did the Board of Review, the Britt case, outlined above, to have held that "an individual who quits his job in haste and, upon reflection, attempts to reclaim his position within a reasonable time, may not have voluntarily severed the employment relationship." Judge Stanley also noted that the Board cited Alia, also outlined above.
The above body of law arises from a different setting, one in which the ramification is the flow of unemployment compensation and that it has been issued at administrative law levels and by one superior court utilizing said cases. No law has been cited interpreting the 2004 hearing statute here involved for this is apparently a case of first impression under it.
On the topic the court believes is the fulcrum, the "right" to soon rescind, the defendants press for consideration cases from courts rather than administrative agencies, mostly from foreign jurisdictions, inclined to holding final unconditional resignations.
"Where a resignation by its terms is effective immediately and the employee physically severs his employment duties, it is difficult to discern what purpose would be served by a requirement that his resignation must be accepted to be effective." Ryan v. Mansfield State College, 677 F.2d 344, 348 (3d. Cir. 1982).
Defendants begin this linchpin topic with the notion that if it is true that a resignation can carry finality even absent an acceptance (or an acceptance at a certain administrative level), then it follows that it ought not be unilaterally rendered void by the resigning party at some point thereafter.
It further follows, they suggest, that the employer must be thus entitled to rely upon the resignation, in proceeding forward. They additionally term this sound public policy.
Defendants cite cases that sit a bit alongside, rather than squarely upon our facts, including some contract employees and publicly elected officials. (See, defendant's brief of June 6, 2008, pgs. 19-21.)
This court had initially written this decision in plaintiff's favor. It seemed obviously the more "human" result and suggested that the hearing was a minimally intrusive last chance. Thinking, however, that the heart is not consistently the best guide through unchartered territory, the court scoured the briefs again.
In having done so, no longer did the court feel comfortable with making the legal determination that rescission is a unilateral option absent the employer's having undertaken substantial steps in reliance; in one case, this took the "open" period all the way to replacement.
In the situation at hand, we encounter a seasonal timing problem. In the several weeks before the lacrosse season was to begin, much appeared yet to be done. Games needed to be scheduled; the roster of six coaching positions was not yet completed, and it was a duty of the varsity head coach to fill them. The run-up to any opening game, practices and scrimmages, equip a head coach to rehearse plays, select players for roles, make cuts or demotions, etc.
Intra-conference games are set out by a centralized power. The remaining several games are left to coach — coach agreements.
The varsity lacrosse coach is responsible for staffing six positions, to cover varsity, junior varsity and freshman levels. The evidence did not reveal the number of vacancies.
The defendants note that the resignation decision was plaintiff's alone, and they would be without power to compel him to continue. They suggest that the balance of power must be at least partly readjusted by allowing employers to treat a clear resignation as final.
Credible testimony revealed at least a low-grade fear that if this resignation were negated, another might still occur. Messrs. Egan and Pavia spoke to this issue, portraying a situation complex with a range of vicissitudes. Indeed, plaintiff's own testimony was vague in detailing difficulties, slights and justifications. Out of such clouded context, the apprehension of a repeat resignation cannot be dismissed.
It is true that it has been suggested that an employer defendant should bear the burden of showing it has so acted in reliance as to make rescission irrelevant. Alia, supra. The court's ultimate determination against plaintiff acknowledges this burden and notes that defendants persuaded the court that the rescission need not have been given effect. The rationale given by defendants regarding the need to move forward is equal to the notion of the unemployment cases, for here the employer would rely to its detriment in not moving ahead without plaintiff.
The need to move forward on the cusp of the season strikes the court as central. In plaintiff's few cases, we see the tribunal weigh the amount of work the employer undertook before rescission as determinative whether said employer must stop and honor the rescission. It is equally just, to weigh employer harm, in the temporal setting of an approaching season, in having to undo or jeopardize what they did in reliance upon the resignation, and what they might suffer upon allowing a return. It is true that within the four days before the attempt to rescind, not much could have been fully performed of the tasks looming. But to require that which plaintiff asks, would have tossed it all back into chaos. The rescission note is quite unclear, as was the evidence, as to what had improved in the mere four days. Hence, the fear expressed of another resignation ought not be ignored and was credibly expressed by the defendant officials. A forced re-marriage would be problematic, Board imposed or court imposed.
The "rescission" e-mail stated that "help is arriving" to be led and to receive his delegation of tasks. Left untouched was the first of plaintiff's resignation reasons: "The autonomy and leadership role that I require . . . have been undermined."
It would be disingenuous not to recognize as well the steep hill presented in plaintiff seeking a re-appointment at Board level. A season has passed. The evidence put to this court took six days and a strictly bound or narrowed presentation would be unwieldy at a Board hearing, to say the least. The Board, too, might well be struck that the "courtesy" meetings given plaintiff at all three levels (athletic director, principal and superintendent) constituted a unanimity, so that a Board reinstatement would override three resignation acceptance or rescission refusal positions. Finally, the Board has heard the issue generally via a meeting with the superintendent, at plaintiff's acquiescence and although this was totally ex parte, Dr. Abbey credibly testified that the Board had no "fairness" qualms with what by then was plaintiff's departure.
None of the immediately above "steep hill" factors are reasons, of course, for denial. They merely illustrate, if only for plaintiff's own personal edification, that the court's denial of the requested hearing may not constitute the large deprivation he is certain to feel.
In summary, the court regretfully must reject the attempted rescission as legally binding the employer. The effort to fix here, for future precedent, when sufficient employer steps would justify rejection of a rescission effort would constitute a line drawing effort too driven by minutia to be of value in any other situation. But whatever that boundary would be, it was met here, when one includes the jeopardy likely entailed in honoring rescission, and thus, plaintiff's rescission was not rejected in a setting which would convert the resignation into a "termination," triggering a C.G.S. § 10-222e hearing.
It is saddening, in having to decide this matter, to have witnessed the slow, unhappy and clouded denouement. It is hoped that the laudatory comments herein about Mr. Benedict are some consolation to one whose deserved adulation became obscured under e-mails and legal papers.
Injunctive relief denied.