Tag Archives: California

Favorite Firing: Failure to Rescind a Resignation

flag-28567_640Every once in a while, a difficult employee resigns, and his or her managers breathe a sigh of relief. The employer might have wanted to be rid of this employee, but there weren’t grounds to discharge the individual. But what if the employee wants to rescind the resignation—does the employer have to take the employee back? In Featherstone v. Southern California Permanente Medical Group, B275225 (April 19, 2017), the California Court of Appeals said no—once the employee resigns, there is no requirement that the employer allow the person to return.

The Facts: Ruth Featherstone worked for the Southern California Permanente Medical Group. She had had prior health problems necessitating her absence from work. Despite her absences, there is no indication in the Court’s opinion that she had any performance difficulties.

In mid-December 2013, she returned to work after an absence for surgery and recuperation. About a week after her return, she allegedly suffered a temporary disability due to an adverse drug reaction to medication. She claimed that while she was under the influence of this drug, she first orally resigned and then several days later confirmed the resignation in an email. At the time, her supervisors did not suspect that she was behaving abnormally and processed the resignation promptly so that Ms. Featherstone could receive her final paycheck in a timely manner under California law.

Unbeknown to any of her managers, Ms. Featherstone’s family noticed that her behavior was unusual, and she was rehospitalized. She was hospitalized for several days. On the day she was released from the hospital, she confirmed her resignation to her employer. It wasn’t until about five days after she confirmed her resignation that she told her managers she had been under the influence of medication when she resigned. Only then did she ask to rescind her resignation.

Despite the sympathetic circumstances of Ms. Featherstone’s request to rescind her resignation, the medical group refused to rescind it, because they did not think they had done anything improper in accepting it. As mentioned above, there is no indication of any problems with the plaintiff’s performance, so this reader wonders why the employer was reluctant to rescind the resignation.

Ms. Featherstone later sued, claiming disability discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). The trial court granted the medical group’s motion for summary judgment, and the Court of Appeals affirmed for two reasons: (1) First, the employer’s refusal to allow the plaintiff to rescind her resignation was not an adverse employment action under the FEHA, and (2) the plaintiff failed to show that the management employees who accepted and processed her resignation knew of her alleged temporary disability at the time.

The Moral: In this case, the employer’s good-faith action in accepting the resignation was upheld. As the California Court of Appeals said, for an employer’s action to be found to be a pretext for discrimination, the employee

“ ‘cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) To meet his or her burden, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” ’ ” and hence infer “ ‘that the employer did not act for [the asserted] nondiscriminatory reasons.’ ” ’

The California Court of Appeals first found that

“refusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.”

The Court of Appeals cited a California Supreme Court case, Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, for the proposition that only actions affecting a current employee are covered, not those affecting a former employee.

“[A]n adverse employment action is one that affects an employee, not a former employee, in the terms, conditions or privileges of his or her employment, not in the terms, conditions or privileges of his or her unemployment.”

The Court of Appeals also cited federal authorities under the Americans with Disabilities Act.

However, I am not sure the Court of Appeals’ reasoning is persuasive—another court might well find that former employees are covered for at least some purposes. If I were reviewing an employee’s request to rescind his or her resignation, I would probably analyze the situation more deeply.

At the very least, an employer should at least be sure there is no element of coercion in the resignation, no sign of constructive discharge. In addition, the employer should be sure there is no express or implied contract of employment and that the employee is truly an at-will employee. Both of these possibilities were examined by the Court of Appeals in Featherstone.

This case also turned on the fact that the medical group had no knowledge of Ms. Featherstone’s adverse reaction to the drug when it processed her resignation. Had her managers had some inkling of this possibility, they might have had a duty to inquire and to accommodate her situation by permitting her to rescind her resignation made under the influence of the medication—the Court in this case did not have to address that situation.

While this case will be helpful to employers who want to stand by an employee’s initial decision to resign, it will still be important for employers to investigate the circumstances surrounding both the resignation and the request to rescind it. Ultimately, this case may be more helpful when good employees resign than when problem employees resign in a pique and later want to return—and those are the employees the employer might most want to lose.

Have you had to deal with an employee’s request to rescind a resignation? What did you do?


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Favorite Firing: Not All Objections to an Employer’s Practices Are “Protected Activity”



Photograph by Honza Soukup on Flickr

Today’s favorite firing case comes from California, which labor and employment attorneys know is a pro-plaintiff venue. But in Dinslage v. City and County of San Francisco, et al, the employer won a lawsuit because the plaintiff could not proof a prima facie case of retaliation. The case involved the distinction between retaliation for opposing discriminatory employment practices and for opposing other allegedly discriminatory practices of the employer (in this case, practices directed at the public).


The Facts: David Dinslage worked for the Recreation and Parks Department in San Francisco for over thirty years until he was laid off during a reduction in force. His duties included overseeing programs for adults and children with disabilities. His group in the Department organized special events for people with disabilities.

During the last few years that Dinslage worked at the Department, his managers made changes to the programs he handled. The primary change was to shift the focus from providing separate, segregated programs to people with disabilities to ensuring all programs were accessible, so that the programs were more inclusive, which the Department believed was the current “best practice” in providing services to the disabled. Therefore, many of the segregated special events Dinslage had organized were eliminated.

In 2009-2010, the Department was reorganized to focus more on inclusion, and also to meet budget reductions and eliminate some staff. Dinslage disagreed with the program changes and ultimately refused to accept and implement the changes his superiors envisioned, resulting in him receiving a lower performance rating.

When his position was eliminated, Dinslage applied for a new position in the Department, but he was not selected. After his forced retirement, he and other employees sued San Francisco.

Dinslage claimed age discrimination, retaliation, and harassment in violation of the FEHA (Cal. Gov. Code §12940, subds. (a), (h), and (j)). He alleged his termination and other adverse actions were based on his age. He also claimed retaliation and harassment based on his age and in retaliation for his objections to the Department’s changes in programs for people with disabilities.

The Moral: The Department and the City won their motion for summary judgment in the Superior Court, and Dinslage appealed. The California Court of Appeals upheld the summary judgment for defendants on both the age discrimination and the retaliation claims. On the retaliation claim, the Court of Appeals held that plaintiff failed to make out a prima facie case, because his opposition to the changes in how the Department offered programs for the disabled was not directed at an unlawful employment practice, and therefore could not support a claim of retaliation.

As quoted in the Court of Appeals opinion, the Superior Court found:

“Defendants have met their burden to show that Plaintiff did not engage in protected activity under the FEHA,” because the “evidence shows that Plaintiff did not speak out against the Defendants for engaging in discriminatory conduct directed at Defendants’ employees.” The court found Dinslage’s evidence “only shows that [he] spoke in public forums regarding his concern that the . . . Department’s reorganization would cause layoffs and the potential negative effects the reorganization would have on members of the public who have disabilities.”

Thus, the trial court found Dinslage had failed to establish the first element of his retaliation claim, because he had not shown he had engaged in protected activity under the FEHA.

The Court of Appeals agreed with the lower court that Dinslage had not stated a prima facie case of retaliation. The appellate court stated:

“For protection under the ‘opposition clause,’ an employee must have opposed an employment practice made unlawful by the statute.”

The employee can state a claim for retaliation

“not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.”

The employee’s belief must be both subjectively and objectively reasonable.

But the Court of Appeals found that Dinslage’s objections to what he considered to be unwise and/or improper actions by the Department were insufficient to allege that he had opposed activity protected under FEHA. The Court of Appeals cited cases involving plaintiffs who had complained about police conduct against the general public and about their employer’s environmental practices. Because these were not employment practices, objections to such practices could not state a claim under FEHA.

Thus, the Court of Appeals said,

“Neither the ‘unlawful practice’ nor the ‘good faith belief’ requirement is satisfied where the practice complained of was not directed at employees but, instead, was directed to individuals who are not in an employment relationship with the defendant.” (citing Taneus v. Brookhaven Memorial Hosp. Medical Center (E.D.N.Y. 2000)).

The Court held that Dinslage could not

“reasonably have believed his actions constituted protected activity, because there is no dispute his opposition was not directed at the Department’s employment practices.”

This case is good news for employers. It clarifies both that the only activities that can support a claim for retaliation under FEHA are objections to employment-related practices, that the plaintiff must reasonably believe that he or she is opposing a discriminatory practice under FEHA, and that the plaintiff’s belief must be both subjectively and objectively reasonable.

Have you ever dealt with a retaliation claim where the Dinslage holding might be helpful?

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Mozilla, Brendan Eich, Diversity, and the First Amendment

Brendan Eich, Mozilla Foundation official photograph, from Wikipedia

Brendan Eich, Mozilla Foundation official photograph, from Wikipedia

The separation of Brendan Eich, former CEO of Mozilla, from his position just ten days after he was named to it, is a situation where all involved did what they were legally entitled to do, yet the result causes reasonable people some discomfort.

  1. The CEO made a legal donation, in support of a position with which more than half of California voters agreed at the time.

In 2008, Mr. Eich donated $1,000 to support passage of California Proposition 8, which reserved marriage for a man and a woman. Proposition 8 passed that year, with the support of 52% of California voters. During the 2008 Presidential campaign, both Barack Obama and Hillary Clinton stated they were against gay marriage.

Mr. Eich had every right to contribute to any ballot initiative he wanted to support, as do we all. Nevertheless, he recently resigned from Mozilla under duress, stating, “Under the present circumstances, I cannot be an effective leader.” The circumstances were that his personal donation in support of California Proposition 8 was causing a public backlash against his employer Mozilla.

  1. The protesters did what comes naturally to protesters across America.

When Mr. Eich was named CEO of Mozilla, OKCupid and other organizations in favor of gay marriage “outed” Mr. E in social media for making the $1,000 donation in support of Proposition 8 six years ago. They argued for a boycott of Mozilla for naming Mr. Eich to the CEO role.

The organizations and individuals who spread the campaign to boycott Mr. Eich had every right to publicize what was already public (though not well known) information. It was a fact that Mr. Eich had made the donation. The protesters against his position could discuss it publicly and call for whatever reaction they thought appropriate. Protest is the American way, and we see it acted out every day by both the left and the right.

  1. The company addressed a very real financial and public relations problem.

When Mozilla realized that Mr. Eich’s donation was a distraction from his ability to lead the company and would likely result in lost revenue from customers that did not want to be associated—however remotely—with Mr. Eich’s donation, its board discussed the situation with Mr. E, and he stepped down. It is a board’s fiduciary obligation to mitigate financial problems, and the Mozilla board had to address the situation and determine an appropriate response. In fact, Mr. Eich, as an officer of the company, had a fiduciary duty not to do it harm, which his continued presence was likely to do.

So there is right on all sides in this matter.


And yet, the result in this case makes me queasy. It raises questions that every corporate diversity council, every employee resource or affinity group that supports diversity in the workplace or in society, every Human Resources department in America, and every advocate of political correctness should ask themselves.

Here are my questions:

  1. If contributions to organizations that work against gay marriage can be cause for termination, what other contributions can also be cause for termination? What about contributions to anti-abortion groups? To pro-abortion groups? To tea party affiliated groups? To the Communist party? To fundamentalist churches? To a neo-Nazi group?
  2. If you make distinctions between any of the groups named in Item 1, what is the basis for making those distinctions?
  3. If it is right to make a CEO step down because of a private contribution made for political and religious reasons, what other employees can a company make step down? Other officers? Anyone in a public or leadership role? Any rank and file employee?
  4. What if Mr. Eich’s donation had been made twenty years ago? Forty years ago? Is there any statute of limitations on holding someone accountable for a past political or charitable contribution?
  5. What if Mr. Eich had not given money in support of Proposition 8, but had simply voiced his opinion publicly? Or posted his opinion on Facebook? Or at a private dinner party? Or simply attended a rally in support of Proposition 8?
  6. Where is the role for tolerance of opposing viewpoints in our society?  On what issues is tolerance intolerable in your opinion?
  7. How far would you go to defend the right of someone whose position on an important issue differs from yours to express that opinion? How do you think competing concerns under the First Amendment should be balanced, and whose responsibility is it to ensure that balance is kept?

In this post, I am not advocating for or against gay marriage. I am also not saying Mozilla was right or wrong to force Mr. Eich to depart. I am simply pointing out the complexity of diversity and First Amendment issues.

Mr. Eich’s departure from Mozilla involves a situation where public opinions on an issue of  civil liberty (gay marriage) have been changing rapidly. It is also a situation where a citizen’s freedoms of speech, of religion, and of association are being attacked several years after he exercised those rights.

Regardless of your opinion on gay marriage, and even though all parties involved acted legally, if you do not squirm over the result in this case, I wonder what conflicts between the civil rights of dissenting members of our still pluralistic society would cause you discomfort. After all, the Bill of Rights was designed to protect those with minority opinions.

And yet.

How do you personally answer the questions listed above? How does your organization answer them?


Filed under Diversity, Human Resources, Law, Leadership, Management, Politics

Supreme Court Opinions in Same-Sex Marriage Cases Could Impact Employers

Last week I wrote about the Supreme Court’s pending decision in Fisher v. University of Texas.  This week I’m discussing the implications for employers of the Supreme Court’s upcoming decisions on same-sex marriage.

The Court has heard arguments in two cases testing whether gay and lesbian couples have a fundamental right to wed. Those cases are Hollingsworth v. Perry (involving California’s definition of marriage and the Equal Protection Clause) and United States v. Windsor (involving the constitutionality of the federal Defense of Marriage Act, hereinafter “DOMA”).

Currently, many employers grant spousal benefits to same-sex partners, but many others do not. For employers that do permit gays and lesbians to add their partners to health benefits, those benefits must be tracked, because they are taxable under DOMA, whereas heterosexual spousal benefits are not taxable. DOMA differentiates between all other federal benefits as well – heterosexual and homosexual couples are treated differently. This is a significant issue for employers, and becoming a greater issue as more states permit same-sex marriage.

The Hollingsworth case deals with California’s Proposition 8, which amended the state’s constitution to make same-sex marriage impermissible. In Hollingsworth, the issues are (1) whether the petitioners had standing in the case, and (2) if the petitioners did have standing, whether the federal Equal Protection Clause prohibits California from defining marriage as the union of a man and a woman.

The SCOTUS Blog has outlined many possible outcomes in Hollingsworth.  The Court may decide not to decide, finding that the case was improvidently granted, because the petitioner before the Court does not have standing. Alternatively, the Court may decide the cases in such a way that only California is impacted – either permitting or denying marriage to same-sex couples in that state. Or it is possible the Court might remand the case to the California courts to reconsider in light of the Windsor decision. For a lengthy review of the options, see the SCOTUS Blog. 

It is possible that the Court will issue a broad opinion covering the laws of all states regarding marriage, but most commentators think that is unlikely.  Thus, only California employers are likely to face implications from Hollingsworth. (Of course, interstate employers with workers in California are included in this group.)

Moreover, the implications of Hollingsworth are also limited by California’s domestic partner statute. Under that statute, same-sex couples can enter into domestic partnerships that require these couples to be treated the same as heterosexual couples. Thus, Hollingsworth primarily differentiates between domestic partnerships and marriage, which will not have as big an impact on employers as Windsor.

In Windsor, the issues are (1) whether the House of Representatives had standing to pursue the case when the Administration chose not to, (2) whether the Supreme Court can even consider the case, since the Executive Branch agrees with the lower court that DOMA is unconstitutional, and (3) if the Court determines it should rule in the case, whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state

As in Hollingsworth, the Court’s opinion in Windsor could go in a number of directions, according to Employee Benefit News. First, the Court could decide the parties didn’t have standing, and the case shouldn’t even be before the Court, which would leave DOMA as valid law. Second, the Court could uphold DOMA as meeting constitutional muster. This would have the same result as throwing the case out for lack of standing, in that DOMA would remain valid. With either of these rulings, federal law would be unchanged, and employers could continue administering their employee benefit plans as they do today.

Finally, the Court in Windsor could find DOMA to be unconstitutional, which would require that federal laws accept the marriage laws of all the states. In this case, couples validly married under state law, regardless of sexual orientation, would have to be treated the same. This would have significant impact on employee benefit plans, both retirement plans (such as pension plans and 401(k) plans) and health and other welfare benefit plans.

Both Hollingsworth and Windsor deal with the government’s response to same-sex marriages, rather than with private employers’ responses. In fact, most large employers are ahead of the federal government in developing benefit and leave policies to deal with these issues. The Supreme Court’s opinions in Hollingsworth and Windsor may force all employers to move in this direction.

Is your company ready for the Supreme Court’s decisions on same-sex marriage?


Filed under Benefits, Diversity, Human Resources, Law, Politics