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An individual may not withdraw or rescind his or her resignation without the consent of the appointing authority

An individual may not withdraw or rescind his or her resignation without the consent of the appointing authority
Matter of Lewis v State Univ. of N.Y. Downstate Med. Ctr., 2009 NY Slip Op 01802, Decided on March 10, 2009, Appellate Division, Second Department

State University Police Officer Robert Lewis submitted his written resignation from his position at the State University of New York Downstate Medical Center [DMC]. When DMC declined to permit him to withdraw his resignation and be reinstated to his former position*, he commenced a lawsuit in an effort to obtain a court order directing his reinstatement.

Supreme Court granted Lewis? petition, annulled DMC?s determination, and directed that it reinstate Lewis to his former position ?with back pay and benefits."

DMC appealed and the Appellate Division vacated the Supreme Court?s ruling, pointing out that under the relevant Rules of the New York State Civil Service Commission, once the [written] resignation is delivered to the appointing authority, "it may be withdrawn only at the discretion of the appointing authority."

Finding that the ?record demonstrates that the determination denying [Lewis?] request for reinstatement was neither arbitrary and capricious nor an abuse of discretion, the Appellate Division said that ?Supreme Court should have denied [Lewis?] petition.?

Every so often an employee, after submitting his or her resignation, will attempt to withdraw or rescind the resignation claiming it had been coerced or obtained under duress such as being threatened with disciplinary action if the employee refuses to resign from his or her position.

This was the claim made by an individual who, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him.

Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney and advised that unless he resigned, charges would be filed. He submitted his resignation.

A few days later the individual asked to withdraw the resignation on the grounds that it had been "forced" from him. When the request was denied, the individual sued, claiming his resignation had been obtained under duress and thus was void.

The Court of Appeals ruled that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643]. The court upheld the appointing authority?s refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

The full text of the Lewis decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01802.htm

* 4 NYCRR 5.3 (c) provides as follows: ?A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.? Many local Civil Service Commissions have adopted a similar rule.

Full post as published by New York Public Personnel Law on March 13, 2009 (boomark / email).