By Mitchell Riese
A recent decision from U.S. l District Court in Arizona denied the City of Prescott, Arizona’s attempt to dismiss a lawsuit by a former firefighter, who alleged that he had been coerced into retiring by being threatened with criminal charges for having traded shifts. In Vicente v. City of Prescott, AZ, 33 IER Cases 1306 (D. Ariz. 2012), Vicente, who had been a firefighter for almost 20 years and a Captain for 10, was vice president of the firefighters union. In that role, he advocated on behalf of two union members who claimed that they were being harassed by certain managers. Not long after Vicente assisted the members in filing formal complaints, he was called into a meeting and told that he had engaged in criminal conduct by trading shifts or obtaining substitutes for shifts with other firefighters. He was told that the situation was serious and that his job could not be saved. Vicente was told that his only option was to retire. Vicente claimed that he was told that he had to cease all union activity because that was the reason why they were all there.
Vicente was summoned to several other meetings at which management officials continued to urge him to retire based on the shift trading allegation. During these meetings, Vicente made repeated requests to have an attorney present, but was denied. Vicente eventually agreed to retire. He then filed a lawsuit, claiming that he had been retaliated against for exercising his free speech rights.
The city filed a motion to dismiss the lawsuit. The court denied the city’s motion to dismiss. Based on the evidence that city officials had threatened Vicente with criminal prosecution if he did not retire, that one of the defendants had told Vicente’s wife that he had engaged in criminal activity, and that another manager told him that he “needed to do what was right for his family,” the judge ruled that these facts sufficiently suggested duress and placed the validity of the waiver that Vicente had signed when he retired in question. The court also denied the motion to dismiss on the basis that it is widely recognized that government officials cannot retaliate on the basis of speech protected by the First Amendment.
It is generally an uphill battle to invalidate any settlement agreement or release that has been signed by an employee. However, this case illustrates that if there is sufficient evidence to show that the agreement or release was obtained under duress, and then it is not an insurmountable barrier to bringing a lawsuit to invalidate the agreement.
