Thursday, February 9, 2012

Refusal to Rescind Resignation is Not an Adverse Employment Action

You may recall a recent 3rd Circuit ruling that placing an employee on a Performance Improvement Plan (the dreaded "PIP") is not an adverse employment action sufficient to bring discrimination claims. What about a lowered evaluation, plus a PIP, plus denial of a transfer request, plus a refusal to accept the employee's resignation? Nope - at least according to the Eastern District of Pennsylvania.

The employee in Cashman v. CNA Financial Corp., 2012 WL 113667 (E.D. Pa. Jan. 13, 2012) had received an "exceeds expectations" in a draft review, which was later changed to a mere "meets expectations." Then he was placed on a PIP. He then emailed his employer that he was retiring in about a month and a half . . . but then, he emailed again:
My original decision to retire was made during a period of extreme stress caused by an unwarranted work performance review. I was recovering from a stress related illness and facing tests to determine the possible reoccurrence of Cancer. Management was aware that I was treating for this condition.... I was presented with a [p]erformance [i]mprovement [p]lan which I believe may have been prejudicial in relation to my age and ongoing medical conditions. 
The employer responded by essentially saying, "thanks, but no thanks." The plaintiff responded by essentially saying, "thanks, but here's an FMLA, ADEA, and ADA lawsuit." Oh, there was a last ditch effort by the employee to secure a transfer to another department in there too.

The Court ran through his proffered adverse employment actions and dismissed them all one by one. The Court even rejected them for purposes of bringing a retaliation claim (which is a different, I consider it lower, standard).

The message for employers is clear: if there are employees you want to terminate, get rid of 'em while you can. For employees, two age-old lessons:
1. Don't quit your job until you're sure you want to quit your job; and
2. Don't quit your job if you want to sue your employer. 
Re: #2 - There are certainly times when you can and should quit anyways... but getting a PIP and negative review is probably not one of them.

HT: The Legal Intelligencer - Refusal to Rescind Resignation Not Adverse Employment Action.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.