By John V. Berry, Esq., www.berrylegal.com
In the course of discrimination and termination cases involving federal employees, we are often asked about the concept of constructive discharge, also known as constructive termination or removal. Many federal employees ask what a constructive discharge or constructive removal is and whether it may apply to their case. The best way to describe a constructive discharge claim is as follows: a constructive discharge is a forced resignation or retirement by involuntary means.
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.
Some Examples of Constructive Discharge in the Federal Sector
1. An agency fails to address ongoing sexual harassment at work against a female 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.
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.
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. Additionally, settlements can often be worked out with federal agencies which rectify a difficult employment situation in any number of ways.
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. Please also visit and like us on Facebook.