Whistleblower Claims Dismissed; Employer’s Refusal to Accept Resignation Retraction Not an “Adverse Employment Action”

In Kilcullen v. The New York and Presbyterian Hosp., No. 650470/2015, 2020 WL 4048130 (N.Y. Sup Ct, New York County July 15, 2020), the court granted defendant’s motion for summary judgment and dismissed plaintiff’s claims of retaliatory discharge in violation of New York’s whistleblower laws (Labor Law 740, 741), as well as constructive discharge.

In sum, plaintiff resigned, and then unsuccessfully attempted to rescind this resignation.

In reaching its decision, the court reasoned:

It is uncontroverted that the plaintiff submitted a resignation letter which was accepted by the defendant and that when plaintiff subsequently moved to retract the resignation, the defendant refused to accept her retraction. As plaintiff voluntarily submitted a resignation, the defendant’s failure to allow the plaintiff to retract such resignation cannot be said to be an adverse employment action on the defendant’s part. “Defendant met its initial burden on the motion by establishing that plaintiff left his employment voluntarily and thus that there was no retaliatory discharge of plaintiff. Plaintiff failed to raise a triable issue of fact with respect to that issue.” McNally v Swift Transp. Co., Inc., 35 AD3d 1238, 1239 (4th Dept 2006). To the extent that the plaintiff argues constructive discharge, plaintiff’s attempt to rescind the resignation belies the argument that defendant had created a work environment so hostile that plaintiff was forced to resign. With respect to plaintiff’s allegation that the 2013 performance review constituted an adverse retaliatory employment action, the documentary evidence indicates that in fact plaintiff independently gave herself the same rating on her self-evaluation as the respondent.

Having concluded that plaintiff failed to raise an issue of fact that the defendant took any adverse employment action against her, it dismissed plaintiff’s Labor Law claims.

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