Constructive Discharge for Federal Employees
Many federal employees quit when things become toxic or discriminatory. They shouldn’t have to suffer these issues in the federal workplace but do. Many resign or retire and then ask whether or not there is any remedy. This is where the concept of constructive discharge comes up. Our federal employment lawyers represent these federal employees.
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What is a Constructive Discharge?
A constructive discharge is a forced resignation or retirement by involuntary means. Â Many federal employees are confused about this concept and whether it may apply to their case.
The most clear example of a constructive removal involves a federal employee who has suffered continuous discrimination in the workplace to the point that they are suffering significantly at work (mentally and/or physically) and the employee’s very well being requires that they resign.
This type of argument can be made at either the Equal Employment Opportunity Commission (EEOC), in the context of a Merit Systems Protection Board (MSPB) appeal, in the courts and before other forums.
Examples of Constructive Discharge in the Federal Sector
1. An agency failed to address ongoing sexual harassment at work against a female federal employee, where the employee fears for their safety and resigns after their agency has not remedied the situation after she had reported it.
2. A federal employee is forced to apply for disability retirement when a federal agency refuses to take steps to determine whether his medical disability could be reasonably accommodated.
3. A federal employee, rather than facing daily acts of retaliation at work for having filed an Equal Employment Opportunity (EEO) complaint against their supervisor later resigns because his manager, still angry about the earlier EEO complaint, continues to retaliate against the employee severely. The federal employee, despite her attempt to notify upper management of these acts of retaliation, begins to suffer anxiety and depression. The employee resigns based on these intolerable working conditions to protect her health.
4. A federal employee working for at an air base restaurant was found to have been at an subjected to unlawful harassment based on his sexual orientation when a server at the restaurant repeatedly called him a derogatory name used to insult gay men and threatened him with bodily harm. Â Because the federal employee’s resignation was seen as reasonable, given the threats, Â the EEOC held that he was constructively discharged from his position. Silas T. v. Dep’t of the Air Force, EEOC No. 2019003996 (EEOC OFO 2021).
How to Establish a Constructive Discharge Claim
The key issue in a constructive discharge or removal case is whether the agency, through discrimination, retaliation, harassment, etc., made the employee’s conditions at work so horrible that any reasonable person in the same situation would have felt compelled to resign or retire. Constructive removals or discharges do not happen in every case and the EEOC, MSPB and the courts review these cases in degrees to determine whether or not a resignation or retirement was effectively forced due to the intolerable working conditions.
The essential test for a constructive removal/discharge are the following questions:
1. Whether or not there has been discriminatory or retaliatory behavior against the federal employee?;
2. Whether or not the discriminatory behavior has been so severe as to be intolerable by a reasonable person?; and
3. Whether the individual was forced to resign or retire because of these intolerable conditions?
If the answers to these 3 questions are yes, then it is possible to bring a constructive removal or discharge case against a federal agency. It is very important, in the context of a constructive discharge claim, to put the agency on notice of the ongoing negative work conditions before a resignation or retirement takes place. This cannot be emphasized enough. The agency should have a clear record of the efforts made by the federal employee to put management on notice of the ongoing negative work conditions. Doing so before the removal is often key to showing evidence of the intolerableness in working conditions when filing a claim.
Evaluating Evidence for Constructive Removal
Establishing evidence of the constructive removal is important given the way in which the EEOC and the MSPB have evaluated such claims in the past. The MSPB “has recognized that ‘an employee is not guaranteed a work environment free of stress,’ and that dissatisfaction with work assignments, a feeling of being unfairly treated, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to retire or resign. Miller v. Department of Defense, 85 M.S.P.R. 310, 322 (2000). The EEOC, in 2017, in Latarsha A. v. Cochran, 2017 EEOPUB LEXIS 319, EEOC (IHS) 0120150488 (E.E.O.C. Jan. 31, 2017) offered their reasoning:
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003, 2002 EEOPUB LEXIS 2344 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688, 1995 EEOPUB LEXIS 1014 (Apr. 13, 1995).
Remedies for Constructive Discharges / Removals
There are a number of remedies possible for constructive discharge cases. For instance, there can be a return to work, lost backpay, attorneys fees, and compensatory and other damages. Â Additionally, settlements can often be worked out with federal agencies which rectify a difficult employment situation in any number of ways.
Contact Us
If you need assistance in filing or evaluating a constructive discharge claim, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
