Offering a public employee the option to retire rather than face a disciplinary hearing that could result in discharge isn’t an adverse employment action. Therefore, it can’t be the basis of an employee’s discrimination lawsuit.
Recent case: Larry worked for the Philadelphia Water Department for 12 years. His job was to collect water bill payments or to cut off service and then reconnect it after the bill was paid. Someone reported that Larry parked his official vehicle at home during the day. The department conducted surveillance and found that Larry’s truck was indeed parked during business hours when he should have been working. The department scheduled a disciplinary hearing.
Before the hearing, the department told a union representative that it would accept Larry’s retirement in lieu of holding the hearing. The union rep reported this to Larry as a choice between retiring and being fired. Larry chose to retire.
Then he sued, alleging he had been forced to retire and that this was an adverse employment action. He also claimed that race discrimination was the underlying reason for his discipline.
The court dismissed his case. It reasoned that the department didn’t issue an ultimatum, but merely suggested a way to avoid the disciplinary hearing altogether. No one from the employer’s side said he would face discharge if he didn’t retire. Therefore, there was no adverse employment action and no basis for litigation. (Thomas v. City of Philadelphia, No. 12-3250, ED PA, 2013)
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