|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
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:
See Legal Standards for Establishing Constructive Discharge (PDF free download of
MSPB AJ Ribas' Initial Decision).
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.). See a sample of a resignation letter under
Also see harassment, and disparate treatment in the terms and conditions of employment.
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. See more
on MSPB jurisdiction.
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.
Disability discrimination, OWCP, disability retirement and Workers' Comp.
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