Offering the option to resign or retire instead of facing an investigation into alleged wrongdoing doesn’t always block a later lawsuit if the employee accepts—but it usually does. Be prepared to show the resignation or retirement was truly voluntary.
Recent case: Informed that three state contracts he worked on might involve “improprieties,” Andrew had a choice: retire or face an investigation. The next day, he retired, explaining he did so because of unspecified harassment and the inability to get along with other employees.
He later sued, alleging he had been forced to retire, thus giving up a property interest in his job without an administrative hearing.
The court said that in this case, his retirement was voluntary, especially since Andrew had openly stated that he retired for essentially personal reasons. (Balik v. Bayonne, et al., No. 13-1815, 3rd Cir., 2014)