A federal court in New Jersey recently granted summary judgment to an employer in connection with a lawsuit alleging that an employer’s failure to rescind an employee’s resignation constituted retaliation.
According to the Court’s opinion, the plaintiff, Keith Jones, was the General Manager of the defendant McCormick & Schmick’s Seafood Restaurant in Atlantic City. In September 2011, the plaintiff engaged in a “heated argument” with the restaurant’s executive chef, resulting in the issuance of discipline to both. The plaintiff’s written warning contained similar language to the chef’s but was characterized as a “final warning” because the plaintiff was also cited for violating the company’s human resources policy by meeting privately with three employees regarding their employment status and demoting at least one employee, without guidance from regional management or human resources. About a month later, the plaintiff was involved in a physical altercation with a server and received training on how to better handle similar incidents in the future.
A few days later, the plaintiff submitted his resignation via e-mail. He did not list a separation date in the e-mail, instead offering to work until a replacement could be found. However, ten days after sending the e-mail, the plaintiff sent another e-mail in which he asked to rescind his resignation. In this second e-mail, he also stated that he wanted to make “a formal complaint” of race discrimination, alleging that he was subjected to harsher discipline than others.
The company declined to permit the plaintiff to rescind his resignation, claiming that it had already begun the search for his replacement and citing certain business reasons – such as his recent discipline history – as a basis to conclude that it would be in everyone’s best interest for Jones to move on.
The plaintiff filed suit and the matter proceeded through discovery. The company then moved for summary judgment. The sole remaining claim for the Court’s consideration was a count for retaliation under the Civil Rights Act of 1866, commonly referred to as Section 1981.
In analyzing the retaliation claim, the Court referenced the familiar burden-shifting framework in which a plaintiff must establish a prima facie case, the employer then can rebut the prima facie case by showing a legitimate business reason for the adverse employment action and the employee must then show that the articulated reasons are merely a pretext for an unlawful reason. The court noted that an employment action could be considered adverse if it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Here, the court found that the plaintiff had resigned before ever complaining of race discrimination and that he had resigned completely of his own accord, without any encouragement by McCormick & Schmick’s. Thus, his resignation could not constitute an adverse employment action.
Furthermore, the court held that it was not an adverse action for the company to decline the plaintiff’s request to rescind his resignation because, according to the Court, once the employee tenders his resignation, “the employment relationship had ended.” The court also found that any other holding would create an unreasonable situation for employers faced with the same facts – whenever an employee complains of discrimination simultaneously with a request to rescind his or her resignation, the employer would need to either permit the rescission or face a retaliation lawsuit.
The Court found that, even if the plaintiff could establish a prima facie case, he had set forth no evidence to prove pretext. Thus, the Court granted the company’s motion for summary judgment.
While the Court’s decision here was a victory for employers, companies should remember that certain other post-employment conduct had been found to be actionable in both State and federal courts. Many of these “post-employment retaliation” cases involve allegations of negative employment references or other conduct that could impair a former employee’s ability to find or maintain new employment. Thus, employers should not assume that the risk of a retaliation claim ends at the time of separation.