Issue: Qualification; Discrimination-Race, Separation-Involuntary Resignation, Other; Ruling Date June 14, 2001; Ruling #2001-044; Agency: Department of Health; Outcome: Not Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Health/ No. 2001-044

June 14, 2001

The grievant has requested a ruling on whether her October 16, 2000 grievance with the Department of Health (VDH) qualifies for a hearing. The grievant claims that her employment was wrongfully terminated. The agency head denied the grievant’s request for qualification, concluding that the grievant voluntarily resigned from her position.1 For the reasons set forth below, the grievance is not qualified for hearing.

FACTS

The grievant was employed as an Administrative and Program Support Specialist with VDH. On September 20, 2000, she initiated a grievance claiming harassment, discrimination, and conduct unbecoming/disruptive behavior by several co-workers and managers, who were not in her supervisory chain. The first-step respondent challenged that the grievance was out of compliance with the grievance procedure.2 The grievant concluded her grievance.

At the close of business on September 29, 2000, and after her supervisor had departed for the weekend, the grievant placed a letter of resignation in her supervisor’s office mailbox which indicated that she was resigning because of "acts of harassment and discrimination." In her letter, she emphasized that her resignation was effective on that date and that she would not provide two-weeks notice. The grievant also e-mailed a copy of her resignation to her subordinates and co-workers, with a copy to the Health Director.

On Sunday night, October 1, the grievant called her supervisor and informed him of her resignation. Although the facts are in dispute as to the exact content of their discussion, they agreed that the grievant would return to the office on the following day. Upon arriving at work, the grievant retrieved her letter of resignation from her supervisor’s mailbox. She also informed her subordinates and co-workers by e-mail of her temporary return to negotiate a notice period.

At approximately 11:00 a.m., her supervisor informed the grievant that her September 29 resignation was accepted, effective immediately. The grievant claims that her agreement to return to the office on October 2, and the retrieval of the letter of resignation from her supervisor’s mailbox, amounted to a withdrawal of her resignation. Therefore, the grievant maintains that management’s action constituted a wrongful termination of her employment, and was retaliatory.

DISCUSSION

Involuntary Resignation

The threshold question is whether the grievant voluntarily resigned her position with VDH. The Department of Human Resource Management (DHRM) defines resignation as "an employee’s voluntary separation from state service."3 The determination of whether a resignation is voluntary is based on an employee’s ability to exercise free and informed choice in making a decision to resign. Thus, a resignation may be involuntary "(1) where [the resignation] was obtained by the employer’s misrepresentation or deception … and (2) where forced by the employer’s duress or coercion."4 Under the "misrepresentation" theory, a resignation may be found involuntary if induced by an employee’s reasonable reliance upon an employer’s misrepresentation of a material fact concerning the resignation.5 There is no evidence in this matter that VDH misrepresented a material fact with respect to the grievant’s resignation.

Rather, the grievant alleges that she was under duress and forced to resign because other employees subjected her to harassment and racial discrimination. Factors to be considered in claims of involuntary resignation based upon duress are (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice she was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether she was permitted to select the effective date of resignation.6 It is undisputed that the grievant submitted a letter of resignation on September 29, 2000, giving notice of her intent to resign immediately -- agency management did not request her resignation or select the effective date. Further, while the grievant may have considered the behavior of other employees to be harassing and discriminatory and the alleged behavior may have influenced her decision to resign, there is insufficient evidence from which a reasonable fact finder could conclude that such alleged behavior forced or coerced the grievant’s resignation by effectively depriving her of her free choice in the matter.

Withdrawal of Resignation

The grievant claims that her agreement to return to work on October 2 and her retrieval of the letter of resignation from her supervisor’s mailbox constituted the withdrawal of her resignation and, thus, management wrongfully terminated her employment. The facts are in dispute as to whether the grievant and her supervisor discussed the withdrawal of her resignation during their telephone conversation on the night of October 1, 2000. However, a review of her actions upon her return to work on October 2 does not support her claim that she had attempted to withdraw her resignation. This determination is supported by her e-mail message to her employees and co-workers, which emphasized that she had only returned to negotiate a final departure date.7 Additionally, in a postscript to her supervisor, the grievant reiterated that her purpose for returning to the office on October 2 was to meet with her supervisor and decide on the effective date for the termination of her employment.8 Additionally, the grievant took no action on the morning of October 2 to submit a formal withdrawal of her September 29 letter of resignation.9 Furthermore, even if the grievant had attempted to withdraw her resignation, the decision whether to accept the withdrawal of a resignation is entirely within the discretion of the agency head.10 Accordingly, the grievant has presented insufficient evidence to establish that she attempted to withdraw her resignation (and such withdrawal was accepted) or that her separation from state service was a termination rather than a voluntary separation.11

APPEAL RIGHTS AND OTHER INFORMATION

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, please notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 Employees who voluntarily resign may not have access to the grievance process, depending upon the surrounding circumstances such as the nature of their claim or when the grievance is filed. For example, this Department has long held that any grievance initiated by an employee prior to the effective date of a voluntary resignation may, at the employee's option, continue through the grievance process, assuming it otherwise complied with the 30-day calendar rule. On the other hand, this Department has also long held that once an employee's voluntary resignation becomes effective, she may not file a grievance, unless the grievant alleges that the voluntary resignation was in reality an involuntary separation or termination (Grievance Procedure Manual § 2.3, page 5). In this case, the agency permitted the grievant access to the resolution steps of grievance procedure, but denied her qualification for hearing because she voluntarily resigned.
2 The first-step respondent claimed that the grievance was untimely and that the issues did not pertain directly and personally to the grievant's employment.
3 Department of Human Resource Management, policy No. 1.70 II (A)(1).
4 Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 174 (4th Cir. 1988).
5 Id.
6 Id.
7 The email stated that "[a]fter talking to Robert, I decided to work out some type of notice but hopefully it won't be the entire two weeks. I'll let you know when my last day will be."
8 The postscript stated that "[a]s you know, per our telephone conversation, Sunday evening, October 01, 2000, I had reconsidered my rash decision to leave without notice. We agreed that I would come in on Monday, October 02, 2000 and we would decide when my last day would be..."
9 Department of Human Resource Management Policy No. 1.70, Termination/Separation From State Service, II (A)(3), effective 09/16/93 (stating that an "employee who wishes to withdraw a resignation must submit a written request to withdraw the resignation no later than one month after the effective date of the proposed resignation…").
10 Id. (stating that the employee may be continued in her position only with the approval of the agency head or designee).
11 The grievant also claims that her "wrongful termination" was in retaliation for engaging in prior grievance activity. For a claim of retaliation to qualify for a hearing, there must be evidence raising a sufficient question as to whether (i) the employee engaged in a protected activity (such as filing a grievance); (ii) the employee suffered an adverse employment action; and (iii) a causal link exists between the adverse employment action and the protected activity. In this case, there was no adverse employment action because the grievant was not terminated -- she voluntarily resigned. Furthermore, as discussed in footnote 1, please note that while the grievant had access to the procedure to challenge her alleged involuntary resignation, she did have access to the procedure to raise the issue of retaliation because she did not file the challenge the alleged retaliation prior to the effective date of her resignation.