On November 17, 2015, the U.S. Court of Appeals for the Fifth Circuit held an employer’s rejection of an employee’s rescission of resignation can “sometimes constitute an adverse employment action” and may be considered retaliation under Title VII. Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners, d/b/a Houma Terrebonne Housing Authority, No. 14-31090 (5th Cir. Nov. 17, 2015). Even though the case was brought under Title VII, the decision continues the trend of expanding the types of employer actions that might constitute retaliation.
The plaintiff, an employee for the defendant for several years, submitted her resignation. Before her employment ended, the plaintiff testified at a grievance hearing that one of her supervisors sexually harassed her during her employment. Afterwards, the plaintiff requested and was granted a one-month extension of her employment.
After the extension expired, the plaintiff decided to rescind her resignation. The accused supervisor was strongly encouraged by the plaintiff’s direct supervisor to accept the rescission and retain the plaintiff. The accused supervisor, however, denied the plaintiff’s request.
Fifth Circuit’s Decision
In reviewing whether failure to accept a rescission of resignation is an adverse employment action under Title VII, the Fifth Circuit considered the objective standard for determining when an action is an “adverse employment action” articulated in Burlington Northern, Smith v. DeTar Hosp. LLC. In this case, the Supreme Court defined such action as “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.”1 The court stressed “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.”2
In considering the context of the denial, the court found there was “an expectation that [the plaintiff’s] resignation was still negotiable and not finalized” based the plaintiff’s ability to change or rescind her resignation. The court also noted the accused supervisor’s decision to decline the plaintiff’s rescission was contrary to his prior actions of accepting rescissions of resignations. The court noted “while a reasonable employee might not normally expect that she was entitled to rescind her resignation, in this particular context, a reasonable employee in [the plaintiff’s] shoes might have expected it.” Based on this, the court held it was possible for a fact-finder to find “[the plaintiff] was ‘well dissuad[ed] from making . . . a charge of’ sexual harassment if she knew it would destroy the chance that her rescission would be accepted.”3
The court also found the plaintiff made a prima facie case of causation based on temporal proximity, and that a fact question remained as to whether the accused supervisor would have taken the action of rejecting the plaintiff’s rescission “but for” her complaint of sexual harassment against him.
Employers should be aware that under the Porter decision, the court may analyze the context of the rejection of the rescission to determine whether it is considered an adverse employment action. Thus, the Porter decision provides further support for employers to improve manager training programs. Managers must know how easy it is to engage in actionable retaliation. What would seem to be a legitimate exercise of discretion may be considered an act that would dissuade employees from reporting misconduct and put the employer in peril. Therefore, in an effort to limit exposure under this decision, employers should make efforts to remain consistent when dealing with rescissions of resignations, especially with regard to employees who have engaged in protected activity prior to a rescission.