Friday, August 16, 2013
The Chronicle of Higher Education recently ran a story about a professor at VMI who announced that he intended to resign his position. The dean of faculty responded that, “although the procedure you have followed does not strictly conform to the guidelines published in VMI’s Faculty Handbook or Regulations, we accept your resignation.” The professor, Kurt J. Ayau, immediately protested, but the events left his status at VMI unclear. What is pretty clear is that his employer put Ayau in the uncomfortable position of having to backtrack -- which may have been its purpose. In the end, the professor accepted a paid leave, which will give him a chance to look for employment elsewhere. So it's kind of hard to tell who came out on top.
As one of the commenters at the Chronicle suggested, VMI would have been on pretty tenuous ground if it tried to push the “resignation” since Ayau not only failed to tender a written resignation but didn’t even announce that he was resigning; he merely stated his intent to do so.
But the case got me thinking about the law of resignations. Even formal resignations can be rescinded in extreme circumstances. Some of you may remember Odorizzi v. Bloomfield School Dist., where a school teacher had a signed resignation invalidated for undue influence – “multiple persuaders” took advantage of plaintiff’s exhaustion and mental turmoil after being arrested for homosexual conduct to extract his resignation. And, of course, the constructive discharge doctrine can be viewed as another way in which a formal resignation might lose its normal legal effects.
But there’s certainly nothing in "normal" contract law that would require any degree of formality for mutual agreement to terminate a contract – which is what a resignation, if accepted, is. There doesn’t seem to be much law on what is necessary to make a resignation into an offer that can be accepted. This makes sense, of course: in a mostly at will world, either side can walk away by virtue of a mere announcement. But Professor Ayau presumably had tenure, and there are millions of employees working in academic institutions, el-hi, civil service, unions, and under individual contracts where the issue is a real one. To quote an old country song, does Johnny Paycheck’s “Take this job and shove it I ain’t working here no more” constitute an offer that the employer in such cases can accept? (For those country music fans, if any on this blog, I realize that Johnny was merely fantasizing about what he wished he had the “guts to say”).
One instructive case is Mahoney v. Board of Trustees, 214 Cal.Rptr. 370 (Cal. App. 1985), where the court refused to honor a telephone message resigning because the community college was "equitably estopped" by its formal written resignation procedures, upon which the plaintiff had supposedly relied. That might well have been the outcome had the VMI situation been litigated.
In this kind of case, the issue is whether a resignation should be viewed as an offer to rescind a contract, which can then be accepted by the employer. But a resignation can also be viewed as a repudiation of a contract, especially if it is coupled with failure of the employee to perform. Indeed, unjustified failure to show up to work is sometimes described as constructive resignation. The notion of repudiation triggers yet other contract doctrines, under which it's generally held that the act of repudiation must be unequivocal, see Bennet v. Sage Payment Solutions, Inc., 710 S.E.2d 736 (Va. 2011), and it may be that there is more room for argument in this regard about the formality of the resignation.
While all may have ended well for Professor Ayau, the lesson from this kerfuffle is that employees have to be careful what they say in the course of griping about their jobs.
Thanks to Teliza Adams, Seton Hall class of 2015, for her help with this.