Tuesday, December 15, 2015

5th Circuit Holds Rescission of Resignation Can Sometimes be an Adverse Employment Action

The Court of Appeals for the Fifth Circuit reversed a grant of summary judgment from a lower court, holding that "rejecting an employee's rescission of resignation can sometimes constitute an adverse employment action, and appellant has presented a substantial conflict of evidence on the question of whether the employer would have taken the action 'but for' the protected activity."


The plaintiff, Tyrikia Porter, experienced a slew of comments and physical behavior from the Defendant's newly-hired Executive Director, Wayne Thibodeaux.  Porter's direct supervisor was Jan Yakupzack, and Porter reported "some" of Thibodeaux's behavior to her, but did not file a formal grievance.  Porter then tendered her resignation on June 6, 2012, to take effect on August 1, 2012.  Porter was aware that other employees had been allowed to rescind resignations, but at the time of her resignation, Porter did intend to actually leave.  On July 25th, Porter requested that her resignation be put off until September 1st, so that she could complete projects, train staff, and assist in inspections.  This request was approved by Thibodeaux the same day, thus extending her resignation to September 1, 2012.

In an unrelated matter, Porter testified at a grievance hearing about Thibodeaux's behavior toward her and the Chairman of the HTHA Board of Commissioners, Allan Luke, asked Porter if she intended to pursue any charges, and asked her to consider rescinding her resignation.  Yakupzack also asked Porter to consider rescinding her resignation.  Thus, on September 4, 2012, Porter wrote a letter stating that she had "decided to rescind [her July 25th] resignation notice and remain an employee" of the HTHA.  This letter was forwarded from Yakupzack to Thibodeaux, who further stated that she supported retaining Porter.  Acting in his sole discretion, Thibodeaux denied the request on September 10th.  This is the only time an employee was separated from the HTHA against Yapupzack's advice.

As for the reason Thibodeaux rejected the rescission, he stated that he had "determined that that person was not satisfied or happy being an employee of the ... Housing Authority."  However, Porter stated that she was in fact happy with her job, and believes her rescission was not accepted because of her testimony at the hearing.

Porter then filed a charge with the EEOC alleging that she was sexually harassed until her "discharge" and was discriminated against in "retaliation for opposing practices made unlawful under Title VII."  She received a Right to Sue letter and then filed suit in the Eastern District of Louisiana.  The HTHA moved for summary judgment, which was granted, which led to Porter's appeal to the 5th Circuit.


To establish a prima facie claim for retaliation, a plaintiff must show:

(1) she was engaged in protected activity;
(2) she was subjected to an adverse employment action; and
(3) there was a causal connection between the protected activity and the adverse employment action.

There was no dispute about the first element as it is clear that Porter's testimony at the hearing is engaging in protected activity.  However, the 2nd and 3rd elements are at issue and disputed.

The seminal U.S. Supreme Court case of Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) discussed and clarified that the "adverse employment action" is in fact NOT limited to "workplace-related or employment-related retaliatory acts and harm.  The key question is whether the challenged action is "materially adverse" in that it is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination."  The standard if objective, but the "significance of any given act of retaliation will often depend upon the particular circumstances.  Context matters, and this is how Porter prevailed in this appeal, as alluded to above in the facts section.

In response to the argument that an employee has no statutory or contractual right to rescind a letter of resignation, and, therefore, rejection of the rescission is never an adverse employment action, the 5th Circuit pointed out:

"Most at-will employees have no right to employment in the first place, but not hiring them on their basis of their engagement in protected activities is nonetheless the ultimate adverse employment action, even under the strict pre-Burlington Northern standard for what counts.  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 engaged in protected activity is nonetheless an adverse employment action.
In considering context in Porter's case, the Court found that "...circumstances suggest that a reasonable employee in Porter's shoes might have legitimately expected that her rescission of resignation would be accepted."  i.e., The Chairman of the HTHA, Allan Luke, asked her to rescind her resignation, as did her immediate supervisor, Yakupzak, Porter's request to stay on a month longer than her initial effective resignation date was immediately approved, and Porter identified four (4) individuals who had resigned and then been allowed to rescind their resignations.  Thus, the Court held that Porter satisfied the second element.


The second and last issue the Court had to address, which the lower court did not address, is whether there was a causal connection between the protected activity and the adverse employment action.

To demonstrate pretext and avoid summary judgment, Porter had to show "'a conflict in substantial evidence' on the question of whether the employer would not have taken the action 'but for' the protected activity."

In quickly finding this issue in favor of Porter, the Court noted that, in the 5th Circuit, temporal proximity between protected activity and alleged retaliation is sometimes enough to establish causation at the prima facie.  There was a six and a half week timeframe between Porter's testimony (protected activity)  and her denial of her rescission (adverse employment action), and thus, this was deemed sufficient to satisfy the prima facie case of causation.

The case is Porter v Houma Terrebonne Housing Authority Board of Commissioners, 5thCir, November 17, 2015, Higginbotham, P.

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