In a recent opinion involving a Louisiana housing authority, the Fifth Circuit Court of Appeals held that an employer’s refusal to allow an employee to rescind her resignation may be sufficient to support a claim of retaliation.  The housing authority had had a history of allowing such rescissions in the past.  However, after the employee at issue presented testimony at a grievance hearing against the executive director to the effect that he had sexually harassed her over the years, the executive director refused to grant the employee’s request to rescind her resignation submitted a month prior to the hearing. 

By definition, conduct by an employer is retaliatory only if it would dissuade a reasonable employee from making complaints of discrimination.  In this case, the executive director had previously granted the employee’s request to postpone her resignation by one month.  The court held that this decision could have created the expectation that the resignation was negotiable and not finalized.  The latter was important, the court reasoned, because a reasonable employee would be dissuaded from making complaints by the fear of losing the option to rescind a non-final resignation.  In addition, the plaintiff in this case had asked to rescind her resignation at the urging of her supervisor.  The executive director’s subsequent decision not to accept the rescission had been the only separation decision he had ever made that was contrary to this supervisor’s advice.  The court considered this fact important evidence of intent to retaliate. 

Given these circumstances, the court held that, while normally a refusal to permit an employee to rescind his or her resignation would not be actionable, the plaintiff in this case may be able to prove a claim of retaliation.  The Fifth Circuit’s decision is important as it demonstrates the broad spectrum of conduct that may be considered retaliatory under the anti-discrimination statutes.  In addition, while there may be good reasons to allow a particular employee to rescind his or her resignation, employers should do so cautiously so as not to create an expectation for all employees and are well advised to document the reasons for each decision to protect against a claim of disparate treatment in the future.