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Can the Refusal to Rescind a Resignation be the Basis for Retaliation?


The technical definition of "retaliation" occurs when an "adverse employment action" is taken against an employee because that employee engaged in "legally protected activity." It is commonly understood that demoting or terminating an employee for complaining of discrimination or harassment in the workplace, is a form of retaliation. Some retaliation can be more indirect, such as unjustified negative performance evaluations. But a recent case in the Fifth Circuit may stretch the understanding of what constitutes an adverse employment action.

The Unique Facts of Porter v. Houma Terrebonne Housing Authority

Tyrikia Porter, an employee at the Houma Terrebonne Housing Authority in Louisiana, offered her resignation in June of 2012, after working there for several years. As she was working out her remaining days, she testified against the Executive Director, Wayne Thibodeaux, who had been accused of sexual harassment. Porter's supervisors later urged her to rescind her resignation, but when she attempted to do so, Thibodeaux rejected her rescission.

Was that an Adverse Employment Action?

Again, one of the essential elements of any retaliation claim is that the employee was subjected to a materially adverse employment action. While termination is the clearest example of an adverse employment action, voluntary resignation is not always so clear cut. In Porter's case, she voluntarily resigned, as opposed to asserting a constructive discharge, so her facts were more unique than most.

The Trial Court Dismissed the Case

In this case, Porter resigned while providing substantial notice. During that notice period, she attempted to rescind her resignation, but alleges her supervisors rejected the request in retaliation for her testimony against him. What makes the case stronger, however, is the fact that he had allowed other employees to rescind their resignations. Nevertheless, the trial court dismissed her case, holding that Porter had not suffered an adverse employment action. Porter appealed the dismissal of her case to the Fifth Court of Appeals, which reversed the trial court's decision.

Appellate Court's Reasoning Based on At-Will Employment Concept

In most cases, courts view the refusal to accept the rescission of a resignation as insufficient to constitute an adverse employment action in retaliation cases. However, the Fifth Circuit reasoned this way:

just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee's rescission. Failing to do so in either case because the employee has [complained about discrimination] is nonetheless an adverse employment action.

The Fifth Circuit further held that it was reasonable for Porter to expect her employer to allow her to rescind her resignation. More importantly, the court found that a person in Porter's shoes would likely be discouraged from complaining about discrimination if she knew that her resignation could not rescinded. Therefore, when an employer rejects an employee's rescission of resignation it may actually constitute an adverse employment action.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel | King , either online or by calling us at (205) 265-1880.

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