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
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