Former Colorado Springs City Manager Penelope Culbreth-Graft will have a difficult time proving “constructive termination” in her attempt to collect $105,000 in severance pay from the city, a law professor at the University of Colorado at Boulder said today.
“Does she have a lawyer arguing this or is she just saying this?” asked associate professor Scott Moss, who specializes in employment law.
Last month, Culbreth-Graft announced she was resigning effective April 16.
But during the City Council’s April 13 meeting, immediately after the swearing-in ceremony of interim City Manager Steve Cox, Culbreth-Graft announced she was “hereby” stepping down as city manager as stunned council members looked on.
“I do consider this constructive termination of my contract,” she said before walking out of council chambers with her purse in tow.
“She walked out, and she never came back,” Councilman Tom Gallagher said.
The same day or the next, Culbreth-Graft sent a letter to City Attorney Patricia Kelly asking for six months of severance pay according to her employment contract, which states the city “shall pay” six months of salary and benefits if she is fired without cause.
Moss said constructive termination claims are not uncommon but hard to prove.
“I’m not sure I’m seeing what the argument is for constructive discharge in that a classic constructive termination claim is that you are being treated so badly or having your performance so subverted that you have to quit,” Moss said. “It means you quit only because they were treating you badly or subverting your performance.”
Mayor Lionel Rivera said Thursday the city did nothing wrong.
Cox’s effective date as interim city manager was 5 p.m. April 16, the date Culbreth-Graft said her resignation was effective, the mayor said.
“The city has met its requirement under her employment contract,” he said. “Specifically, the contract says if she resigns on her own, then she’s not due any kind of severance.”
Employees who claim constructive termination typically have to prove that their working conditions were “intolerable to a reasonable employee such that any reasonable person would resign,” Moss said.
“Unless she has some other facts she’s holding in reserve that might support her argument, I don’t see a constructive discharge claim from the city just planning ahead for her replacement,” Moss said.
The Gazette has requested a copy of Culbreth-Graft-s letter – as well as a response from Kelly – under the open-records act. But the city said essentially denied the request.
“The materials are not readily available and may be privileged in any case,” city spokesman John Leavitt said in an e-mail.