holding that (1) public employee may rescind or withdraw tender of resignation prior to effective date, so long as public employer has not formally accepted such tender and (2) acceptance occurs where public employer initiates some type of affirmative action, preferably in writing, that clearly indicates to employee that tender of resignation is accepted
How later courts described this case
- holding that (1) public employee may rescind or withdraw tender of resignation prior to effective date, so long as public employer has not formally accepted such tender and (2) acceptance occurs where public employer initiates some type of affirmative action, preferably in writing, that clearly indicates to employee that tender of resignation is accepted
Written by the judges who cited it.
Distinguished
Distinguished by Pownall v. City of Perrysburg, 63 F. App'x 819 (2003)
Davis is also distinguishable because it considers the withdrawal of a prospective resignation before its effective date.
The opinion
Wright, J.,
dissenting. I concur with the syllabus law as propounded by the majority. I dissent only because I believe the appellee county engineer did what the majority said was required, i.e., initiate “some type of affirmative action * * * that clearly indicates to the employee that the tender of resignation is accepted by the employer.".
Consider, if you will, the following actions taken by the engineer after the appellant had handed in a letter of resignation:
(1) He interviewed three prospective replacements that same Friday and another six the following Monday; (2) he specifically rejected the appellant’s request to withdraw his letter of resignation on Monday; (3) two days later the appellant attempted to give *57 the engineer a letter withdrawing the resignation and again the engineer refused to accept it.
It seems to me that interviewing replacements is about as clear an indication of an impending vacancy as can be given. Just in case the appellant missed the import of that activity — though it would have been hard to miss since he recommended two people to fill his job — the engineer twice told him that his resignation had been accepted and could not be withdrawn. The majority acknowledges, nay, it “underscores,” the rule that formal acceptance of a resignation need not be in writing. The majority stops short, however, of providing some guidance as to what act, in lieu of a letter, would constitute an affirmative action. Breaking all the departing employee’s pencils in front of the other staff might suffice, though it seems childish. Perhaps it would be enough if the employer starts interviewing replacements and tells the employee that his resignation has been accepted and cannot be withdrawn.