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Constructive Discipline

Constructive discharge occurs when an employer, through unlawful discriminatory behavior, makes an employee’s working conditions so difficult or intolerable that any reasonable person in the employee’s position would feel compelled to resign or accept an early retirement.

Typically, constructive discharge cases can be very difficult to prove. The Equal Employment Opportunity Commission (EEOC) uses a three-prong test to determine whether an employee left his or her place of employment voluntarily or was forced out. In order to prevail on a claim of constructive discharge, a complainant must show: “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.”

Complainants are not required to put the Agency on notice of their claim by formally pleading “constructive discharge” in their complaints. The EEOC will look at whether the circumstances surrounding the resignation should have put the Agency on notice that the action was involuntary.

If a complainant specifically raises a constructive discharge allegation in his or her formal complaint and has resigned from his or her position at the time the complaint is filed, then the complaint should initially be addressed by the Merit Systems Protection Board (MSPB), which ordinarily has jurisdiction over matters of termination and discharge. Although issues concerning constructive discharge are ordinarily within the jurisdiction of the MSPB, the EEOC may assume jurisdiction over a constructive discharge claim when it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB.

There can also be cases of discipline that do not result in discharge or termination, but still fit within the parameters of being “constructive” in nature, nonetheless. The MSPB has recognized that constructive suspension claims, for instance, may arise in two situations: 1) when the Agency places an employee on enforced leave pending an inquiry into his/her ability to perform; or 2) when an employee who is absent from work for medical reasons asks to return to work with altered duties, and the Agency denies the request.

An employee who alleges that he or she was constructively suspended must prove by preponderance of the evidence that his or her absence was involuntary. The dispositive question in such a case is whether the Agency or the employee initiated the absence. If the employee initiated the absence, then it is not a constructive suspension. Proof of intolerable working conditions propelling an employee to be absent may support a finding of a constructive suspension in certain circumstances where the employee also shows that he or she put the Agency on notice of the objectionable working conditions and requested assistance or remediation from the Agency.

If an agency bars an employee from duty for more than 14 days, the employee’s absence is considered a constructive suspension appealable to the MSPB. Generally, in a constructive suspension claim, nonconsecutive absences cannot be combined and treated as one for purposes of establishing board jurisdiction over an absence of more than 14 days.

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