What is Constructive Discharge?

When an employee is forced to resign, retire, or take demotion due to harassment, discrimination, or retaliation; he or she may be deemed constructively discharged.  If proven, he or she is entitled to the same remedy as if he or she were discharged involuntarily.  

The threshold to establish a constructive discharge, however, is higher or more difficult than for
discharge cases.

The following must be established to prove constructive discharge:

1. The action voluntarily taken by the employee was a product of misinformation or deception on the part of the Agency; or  
2. Such action was a product of Agency's coercive actions that made working conditions so difficult or unpleasant that a reasonable person in that employee's position would have felt compelled to resign, retire, or take demotion.

See Legal Standards for Establishing Constructive Discharge below:

It is not enough that you felt disgusted.  Your health, to cite an extreme but common case, must be threatened -- due to harassment, discrimination, or retaliation -- so as to have no choice but to quit or retire (on disability or otherwise on regular retirement).  Or the working condition was so intolerable that you had no choice but to seek demotion elsewhere or else suffer performance deficiency, career deadlock, etc..  Or, your financial hardship (in the case of retaliatory or discriminatory demotion or salary cut) was so severe that you had no choice but to quit to find a better job, etc.  Or, to cite yet another common example, due to denied reasonable accommodation, you could no longer perform the job.  

When you have no choice but to resign, the resignation letter should make it clear that the decision was forced upon you due to the intolerable working condition which in turn was caused by unlawful harassment, retaliation, denied accommodation, or discrimination (based on race, age, sex, disability, etc.). 

Forced resignation, retirement, or demotion may be appeal to MSPB by claiming that your separation was coerced or forced upon you as result of intolerable working condition in such a way that any reasonable person under your position would have felt no choice but to separate, as you did. For MSPB appeals involving a constructive discharge claim, the claim of intolerable working condition must be established first, so as to invoke MSPB jurisdiction. Otherwise, MSPB does not have a jurisdiction, as you would be deemed separated voluntarily. Only after having established intolerable working condition and thus a constructive discharge, you can then argue discrimination/retaliation.  See AJ Ribas' Initial Decision rendered for MSPB Western Regional Office on Sept. 1, 2011. 

For MSPB appeals involving termination or constructive discharge claims as result of discrimination/retaliation, such cases are categorized as "mixed cases," meaning they could involve either EEOC or MSPB but not both.  In such cases, you must raise an "affirmative defense" in your MSPB appeal, claiming that you were terminated or constructively discharged based on your race, age, sex, disability, or prior EEO activity, etc.  If you do not claim discrimination/retaliation as part of the affirmative defense in your MSPB appeal, MSPB judge would not be interested in hearing about discrimination/retaliation.  See MSPB hearing for more.