whether the facts of this case can constitute a prima fashioned case of an adverse employment action for the purposes of i would tell agent claim under title seven this is truly an issue of first impression for this court because it was not every television case subject to burlington and in fact was decided before the burlington decision so the only directly controlling president here before the court is burlington northern santa fe real a company view white in which the supreme court of the united states considered the standard for adverse employment actions in the context of a title seven retaliation claim and that case establish that the alleged  adverse action must be materially adverse which means it quote might have dissuaded a reasonable worker from making or supporting a charge of discrimination and his court has recognized burlington it requires that an adverse employment action must be viewed first of all there is sheffield which is decided in two thousand and six where the court's ruling was explicitly based on its finding that the employment relationship at issue had ended the court said quote failure to accept a previous employee's rescission of his voluntary resignation is not an adverse employment action for the simple reason that the employment relationship had ended and that case the court tends to its decision on whether the employer company had regarded th ship has ended and that case was decided under very different circumstances where an employee who was brought in to address improprieties in the workplace and promptly stated i'll save you some time i cannot deal with this right now on out of here he really pushed his employee id card and left the office at which point his employers immediately began processing his terminations and he only returned later for what we called re circuit the court considered a voluntary resignation as having taken effect and the court there in keeping with burlington paid close attention to the facts and facts provided a thorough recitation and evaluation and based on it ruling that the resignation had had taken its effect on numerous facts including that the plaintiff had packed up family photographs and other personal belongings from our office told the coworker that she quote couldn't take it anymore hugged her coworkers goodbye asked for a reference left the premises with a box of her personal effects did not deny having walked off the job when she was called to confirm that she had put thrown in the towel and never attempted to contact anyone at the company and to explain that she had not intended to abandon her job or seek reinstatement and that this case and that's go into too much detail or sharply distinguishable because in this case it is undisputed that the plaintiff was actively employed at the time she tempted to present her resignation that she had been encouraged to reconsider her resignation by not only her direct supervisor but also the months to begin to work in a chemistry lab at which point her direct supervisor who continued to be a direct supervisor i requested that she return and she did so in two thousand and six where she event right the deposition testimony of her supervisor shows that she had made comments on occasion that she wished to resign whether she stated that she was going to look for another job i think is not respectfully not relevant to the issue of either the causation or the adverse employment action but one that the one of the being kind of general knowledge that she was looking for another job and so left left the workforce and the supervisor in a quandary as to whether you know how long she's going to be there and whether her job is going to get done and he need to find somebody out yes your honor the ad i do not believe that the record supports the contention that the police are making to the extent that they say it does  her direct supervisor mr tabor who was incidentally the subject of the grievances and whose behavior was found to be inappropriate did state that the reason that she was in her resignation that position was not accepted was that she seemed unhappy at her job which we contend is a protection of well and now legitimate proposition she she had gone through the grievance process at that point and her concerns and her reasons and her own happiness addressed this porter's concerns mr allan luke the chairman said we had a thorough discussion concerning the need to be more aware of words gestures or any behaviors in the presence of any employees that could potentially be deemed offensive or in violation of sexual harassment rules policies or laws even if you don't perceive them as such also you should never place yourself between an exit and an employee where the employee may perceive you as being an impediment from leaving the room or meeting i do believe that the use of training for all of the staff she felt that she wanted to remain in their job and she no longer had any qualms and in fact  ha and for the people of public housing that she consider that she was doing god's work and this is not incident to any litigation this was in real time in the attempt to rescind her resignation so i think which happened for this was before the sexual harassment any any and the implication that was involved is that right in two thousand and five that was before the ha ha hired mr wayne tippett oh who is the alleged harasser yes or when did the sexual harassment allegedly  her wardrobe commenting on her physicality left her voice mails and emails which to be fair here he later denied until confronted with hard evidence of them which we believe goes to his a legitimate reason to say look you've resigned and and we've accepted it and goodbye and good luck it sure there may be a legitimate reason under the facts of this case me dispute that it is we believe it was protect she will based on a number of reasons including there is no question that there is evidence that ms porter liked her job and then sleep found it rewarding and only considered leaving because of the there's no question in the record that she had the support and was encouraged to resend her resignation or remain at h t h a both by her direct supervisor and by the chairman of the board  there's no question that mr tippett oh who was the subject of her grievances which are protected under law was the one making the ultimate decision here and i think that there is clearly there has been shown evidence of a retaliatory animists from mr tippett of even if those reasons might be circumstantial we also have testimony from this porter that shows that several other employees had resigned and then been allowed to resend their resignations so i believe that that speaks to both issues here the questions you're on and we just want to touch very briefly on the cadet decision which is the third case out of the four cases cited by polies which bases its ruling essentially on the notion of at will employment and says that because there is no obligation to accept an attempted rescission of a resignation under the law then it is not protected under title seven and our position is that neither the new pure at will system is an employer obligated to employ anyone at all but it is undeniable that firing would be protected under title seven and the argument that court in that way is not a logical and we also want to address and in this case is cited in completely but they know the impossible position of an employer who simultaneously confronted with a protected activity and an attempt to rescind a resignation at a possible position either accept the rescission and hope for no lawsuit or don't and lap and allow the lawsuit to proceed and we think that that is a false choice that is a policy argument and they're advocating a gate keeping function on problem to which is whether an adverse employment action occurred when those things should properly be understood and if the causation rubric which is problem three this case honour's were here today as a result of the district courts grant a summary judgment on the plaintiff's title seven retaliation claim the district court properly granites of summary judgment for two reasons if found that because ms porter had resigned from her position she could not have suffered an adverse employment action under title seven in the context of retaliation and also found that she could not show that but as i believe that for weeks in northern ca is very on point in this case although as opposing counsel probably pointed out the circuit courts have not decided on a similar that the standard would be that a reasonable employer would have found the challenge action materially adverse which quote in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination unquote now the spring corn burlington northern went further and addressed that this is an objective standard it refers to the actions of a reasonable employee because the court believe that visions the title seven retaliation for vision standard for judging harm must be objective and objective standard is judicially admissible according to the supreme court now on that level low applying the objective standard to the facts this case i'll briefly just address the time  on that resignation accorded that resignation the effective date would be august first the same year on july twenty fifth two thousand and twelve she wrote a letter asking to extend her resignation dates that she may close out some issues that she was working on the next day on july twenty sixth she participated in a grievance hearing in front of the board of commissioners of the h t h d a which was filed by a fiance but part of the testimony during that reagan's hearing was that she had been sexually harassed by her her supervisor  by one of her supervisors mr wing tip though this is the first time that she had made allegations of sexual harassment to the h g on september fourth she came to work and she made two requests one she requested to rescind her resignation and two she requested to take the remaining personally the chief head that she was entitled to the request was granted effective and date with the would be nov twelfth going back to the objective standard for burlington northern this part of voluntarily reside in june she engaged in protective activity in july under that objective standard i can't understand how it could deter a reason the employee who was intending to leave work from engaging in protected activity i e making the allegations of sexual harassment i think on that simple level of love and a plea who voluntarily resigns cannot then be subjected to an adverse employment action when she makes allegations of sexual harassment  called she attempted to shoot her resignation and so then you have to look at seems to me that the causation of that led to the refusal to allow her to we send her resignation and all of it is circumstantial but there is least something that some fact finders my rely on based on the fact that mr tiptoe was the final decision maker it was done shortly after this grievance hearing which led to some sort of directives to him to clean up his act i don't know what else he was told to do and that someone whose recommendation i forget who the supervisor was you no doubt know the name recommended that she be retained and this was the first time that such a recommendation had been overridden by a supervisor or by mr two but doesn't all that sort of make a fact question as to whether the failure to allow her to remain at that job site her resignation was initiated because of her sense of being mistreated by mr david o and the decision not to allow her to remain was another decision made by mr tippett oh doesn't all that make a fact question about a that there is a causal connection and b when you look at burlington northern and not to get caught up in mere labels burlington all they're certain or them says contact context matters you've got to look at the whole circumstances that we're causation argument respectfully the record i don't believe suggests the statements that you just made in some of the statements that opposing counsel made her initial letter breckon recommendation letter of resignation excuse me in july or in june gave no reasons for her desire to leave the if she had the reasons in litigation she can but other than her self serving of evidence of causation you know i think that produces sufficient evidence causation because the record actually is contrary to those allegations and we have the testimony of her supervisor jan h human resources person in the quanta jefferson who both stated that they were under the impression that the only reason she was asking to rescind her resignation was that she could have time to look for another job had other than her own testimony which i believe is not enough to create an issue of fact the first the summary judgment because it i'm sorry if i can take a step back regarding the causation l i believe you're referring to the third element of retaliation claim and i correct that third element of causation claim can be give a legitimate non retaliatory reason we believe we have to accept that such a reason was given so we're now looking at whether her evidence supports that this was just a pretext i don't believe her evidence to support the only record evidence that she  decision maker was the person to whom or against whom she had these charges there was a recommendation that had not previously been overridden by some sort of supervisor that you want to be retained and that was overridden in this case we're not going to have admissions probably as to whether it was retaliation or not isn't that some evidence beyond mere proc temporal proximity the fact that tippit was a decision maker enough to rebut arledge in the nondiscriminatory reason because jan york of sac also stated that she was aware that mrs porter was only attempting to resend her resignation so that she could look for another job the human resources the possibility of miss porter rescinding her resignation this was prior to her even engaging in protected activity i doubt his testimony doesn't go so far as to suggest that he asked her to recenter resignation and to say that he that the legitimate now retaliatory reason is false it's an unusual case though when you are going trying to overcome pretext that the person who had been the subject i believe the facts of the case are unique but the fact that he was the ultimate decision maker is not in itself good enough to rebut the nondiscriminatory not retaliate or reason that we've proffered it's a plain it's a burden to overcome that and other than her testimony combined of the temporal proximity i don't think the record gives any evidence that resignation i'm sorry i don't believe the record gives any evidence that the legitimate not retaliate or reason was false courts this court has held that they may do it by attacking the reason directly but attacking the credibility of the reason this for in a brief attempts to do that by pointing to statements made during this or to that as deposition that i if you read the briefing he did not remembering leaving boy felt voicemail when played the voice mails where he referred to a quote sexy voice he acknowledged it and offer his reason in context for giving that i don't think that into question his credibility at all i also don't think that just because he was the person who decided not to accept her requests for completely absent of any substantiation for that testimony she had the opportunity to substantiate his claims she didn't she didn't in either her briefing for the most for summary judgment or briefing on appeal she didn't issue in support of her opposition to our summary judgment motion nor we ask him what we've just talking about is it fair to say as you are opposing counsel just did that the existence of other individuals who were allowed to withdraw the resignation that that was not developed factually and that was not part of your summary judgment or human i believe that would be accurate to say i also wanted to point out that in the ruling on the summary judgment issue the district court took care opposing counsel is stating that our position is contrary to the record that all of the evidence that we are putting forth is self serving just because it benefits the supporters claim i want to point along with ms porter's letter after a lengthy discussion with tide this morning she sent a letter to resend her resignation permanently and remain an employee of the ha ha she also requested to take a week of annual time to sort things out i fully support her request to remain an employee of the ha ha and trust that you will too we both know that she is an asset to this agency and will continue to help us reach our goals for the communities we serve the the testimony of porter to resign are not in fact individual observations by her but the the question was asked to her in the context of what you understand mr tippit as reasons to be so that's my point in the distinction i want to physical grievance that was submitted that touches on that issue someone able to confirm that right here in the courtroom that that is the case not the record of page two thirty five check  later thank you in the record i also wanted to point out that before her resignation in two thousand and ten ms porter had notified her direct supervisor of the inappropriate voice mails noting a sexy voice that were left by mr tippit  says she had made some complaints about inappropriate behavior before her resignation was tendered it is a relevant whether she attempted to take any personal leave or was granted personal leave in fact the fact that she had to request and was entitled to a crude personal leave time only supports the our position that she was employed at that time by the h a h a if she were not she would not have to request personal time it would not be allowed to take that