Employees who retire to avoid facing internal disciplinary charges can’t turn around and claim they were constructively discharged. That’s why employers might want to consider offering retirement in such cases as an option in lieu of discipline.
Recent case: James Bailey, who is black, worked for the New York City Board of Education for 38 years. While on sabbatical, he enrolled in college full time, taking graduate-level mathematics courses. Also during that year, Bailey was arrested for possession of an illegal firearm. After pleading guilty, he served a 30-day jail term.
When he returned to work, he had to get a new criminal clearance and fingerprint check. On the form accompanying his fingerprint samples, he reported the firearm conviction but did not report a decade-old grand larceny and criminal conspiracy convictions.
When the school system’sshowed both convictions, Bailey was temporarily assigned to design lesson plans, a position that didn’t involve contact with students.
Bailey retired before he had to face his disciplinary hearing. He then sued, alleging race discrimination. He claimed that black and Hispanic teachers awaiting disciplinary hearings for criminal conduct were treated more harshly than white teachers. He also claimed that his retirement was a constructive discharge.
But the court disagreed and tossed out his case. It reasoned that facing disciplinary charges isn’t an intolerable working condition, and therefore retiring to avoid the charges isn’t a constructive discharge. Only employees whose working conditions are intolerable can quit and still sue. (Bailey v. New York City Board of Education, No. 01-CV-2250, ED NY, 2007)
- Warn bosses: One wisecrack can mean trouble
- Use fair progressive discipline and clear documentation to prove you're not biased
- Sexist remarks plus denied opportunities can add up to a hostile environment
- EEOC sues Minneapolis manufacturer for disability bias
- Don't expect quick dismissal just because employee has decided to act as his own attorney