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Was it forced retirement or just a resignation?

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in Employment Law,Human Resources

An employee facing the prospect of being demoted, transferred or having to take on new duties may consider retiring instead. That’s especially true if the adverse action would affect retirement pay and immediately retiring would preserve a higher monthly income for life.

But, is such a resignation truly voluntary, or could the employee sue, alleging duress? The answer appears to be no.

Recent case: Hoa worked for the U.S. Patent office as a supervisory patent examiner. Her supervisor issued an official notice that Hoa was going to be demoted to patent examiner.

The supervisor claimed Hoa violated rules prohibiting nepotism by attempting to use her position in the agency to prevent her son, a probationary patent examiner, from being fired. Specifically, the letter alleged that Hoa had approached two directors of technology centers to ask if her son could be transferred to their departments instead of being terminated.

After several discussions during which Hoa’s supervisors told her it would be her choice whether to resign and take retirement or begin the new job assignment, Hoa chose to resign and retire before the demotion went into effect.

Then she sued, alleging she had been forced to resign.

The court concluded that wasn’t true. It didn’t matter that she would have lost benefits if she had stayed on after the demotion. The court looked at the pressure management might have asserted and concluded there really wasn’t any. The mere looming deadline with monetary consequences wasn’t enough to be coercive. Her claim was dismissed. (Nguyen v. Merit System Protection Board, No. 2015-3144, Federal Circuit, 2016)

Final note: Make sure you document any discussions about resignation or retirement. Don’t put undue pressure on the employee. Explain the options but let her decide.

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