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OK to insist on initial retirement request

by on
in Discrimination and Harassment,Human Resources

When an employer doesn’t have a set policy on whether an employee can change his mind about retiring, refusing to rescind a retirement request isn’t enough to support a discrimination or retaliation lawsuit.

Recent case: John Cashman worked for CNA Financial as a claims investigator. Over the years, he consistently received average or lower performance reviews.

When Cashman developed cancer, he took medical leave under the FMLA to be treated. He returned to work under a different supervisor after the company reorganized. His performance reviews remained subpar.

Then Cashman’s cancer reoccurred and he needed more outpatient treatment. He used paid leave for those sessions.

Eventually, when his performance did not improve, his supervisor told him he potentially faced termination and would be placed on a performance improvement plan if he didn’t reach specific goals. That’s when Cashman told HR he was retiring and set a last day.

Weeks later, as the date neared, Cashman changed his mind and said he wanted to stay on the job. By then, the company had made plans to replace him and had already begun transferring some of his work to others. It refused to honor his decision not to retire.

Cashman sued, alleging discrimination and retaliation.

But CAN Financial explained that it didn’t have a set policy on whether it would allow an employee to change his mind on retiring. It said allowing Cashman to change his mind would be disruptive.

The court agreed. Without some evidence that Cashman was not allowed to rescind his retirement notice while others were, he had no case. (Cashman v. CNA Financial, No. 08-5102, ED PA, 2012)

Final note: The case could have turned out differently if CNA had suddenly found fault with Cashman’s work at the same time he became sick.

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