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Withdrawing a resignation

By Harvey Randall, Esq.

Withdrawing a resignation
Martinez v State Univ. of New York, App. Div., 3rd Dept. 294 A.D.2d 650; 13 A.D.3d 749

Probationer Odilon Martinez was advised by his supervisors that he was to be terminated from his position as a Laborer, Grade 6 because his performance during his probationary period had been unsatisfactory.

Martinez was also told that he would be simultaneously reinstated to his former position of Cleaner, Grade 5. Martinez then went to the office of the Director of Human Resources [DHR] and submitted a letter of resignation. The next day the DHR wrote to Martinez indicating that "his resignation had been accepted."

Note: Courts have typically ruled that to be effective a resignation must be in writing and delivered to the appointing authority, or its designee. All that is required for a written resignation to become operative is its delivery to the appointing authority. The approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74).

Martinez subsequently wrote to the DHR indicating that he wished to withdraw his resig­nation. The DHR declined to allow Martinez to withdraw his resignation because it "had already been accepted." Martinez sued, seeking to a court order (1) allowing him to withdraw his resignation, (2) annulling the termination of his probationary promotion, and (3) his reinstatement to the Laborer Grade 6 position subject to new probationary term. Supreme Court granted the University's motion for summary judgment, dismissing Martinez's petition without addressing the merits of his allegations.

The Appellate Division commenced its review of Martinez's appeal by noting that 4 NYCRR 5.3(c) provides that a written resignation submitted an employee of the State "may not be withdrawn, canceled or amended after it is delivered to the appointing au­thority, without the consent of the appointing authority".

The court, citing Edelman v Axelrod, 111 AD2d 468, said that allowing the individual to withdrawal his or her resignation after it has been delivered to the appointing authority is subject to the exercise of "the sound discretion of the appointing authority."

However, said the court, the exercise of such discretion may not be done in an arbitrary or capricious manner. As the issue of whether the University's action met this standard was not considered by Supreme Court because it granted the University's motion for summary judgment, the Appellate Division remanded the case to the lower court for its consideration of whether or not the University's rejection of Martinez's request to with­draw his resignation was arbitrary or capricious.

The Appellate Division, however, rejected Martinez's other claims including his com­plaint that his was a "constructive dismissal." The court said Martinez did not present any evidence that his resignation was prompted by such difficult or unpleasant working conditions that a reasonable person would have concluded that he or she had no choice but to resign.

On a related issue: May an appointing authority refuse to accept an employee's written resignation?

As noted earlier, an employee's written resignation becomes effective upon delivery; neither the appointing authority's acceptance or rejection is a factor insofar the effective­ness of the resignation is concerned.

The receipt of an employee's resignation may have an effect on other personnel actions under certain circumstances, however. For example, the employee may submit his or her resignation in the anticipation of disciplinary charges being filed against him or her or while disciplinary charges are pending. Will the employee's resignation prevent the appointing authority from proceeding with the disciplinary action?

Not necessarily as the appointing authority may elect to disregard the employee's resigna­tion for the purposes of proceeding with the disciplinary action. The Rules of the State Civil Service Commission [4 NYCRR 5.3(b)], specifically provide that the appointing authority may elect to disregard the resignation and proceed with the disciplinary action. Many municipalities have adopted a similar rule or regulation.

Full post as published by New York Public Personnel Law on March 17, 2008 (boomark / email).