When is a resignation not considered a voluntary act? When it is unlawfully coerced or the only escape from an intolerably hostile work environment.
A finding of “constructive discharge” is essentially the same as wrongful termination. The person technically quit but for all practical purposes they were pushed out. Federal employees alleging constructive discharge have a very short window to bring such a complaint.
What is constructive discharge?
Constructive discharge means that an employee, rather than being terminated, was forced to resign because of deception, coercion and/or unbearable treatment by the employer. In other words:
- I quit because they lied to me about what would happen if I stayed.
- I quit because they threatened to ruin me.
- They made my job a living hell. I had no choice but to quit.
When an employee voluntarily leaves a job, they are typically not entitled to unemployment benefits. They are no longer entitled to due process through their employer. And they forfeit the right to sue for wrongful discharge. So it is in the employer’s interests to “encourage” employees to quit and characterize the exit as voluntary.
Involuntary resignation is not always constructive discharge
Quitting because of subjective feelings of “unfair” treatment is not grounds for a constructive termination lawsuit. Nor is quitting rather than face disciplinary proceedings or “I quit before they could fire me.”
In general, constructive discharge must meet one of these scenarios:
- Hostile environment — The employee was subjected to retaliation, harassment or discriminatory conduct that created a hostile work environment so intolerable that a reasonable person would not be able to stay.
- Coercion — The employer made misrepresentations or threats of adverse employment actions that the employee relied upon as a forced resignation.
You don’t have to prove that management conspired to make you quit, only that their actions or deceptions led you to believe you had no alternative.
Federal employees’ constructive discharge claims have short deadlines in many cases
A landmark U.S. Supreme Court decision in 2016 (Green v. Brennan) clarified that the clock starts from the date of your resignation, not from the date of the manipulative or abusive conduct. For federal employees, that means you have just 45 days from your separation (the day you gave your resignation) to initiate a constructive discharge claim through the EEO complaints ‘mixed case’ process (different deadlines apply if you are appealing the removal directly to the Merit Systems Protection Board rather than going through EEO investigation first, if filing a whistleblower reprisal complaint through the Independent Right of Action (IRA) complaints mechanism, or if you are filing a union grievance).
Where the complaint is filed depends on the underlying nature of the mistreatment, such as Title VII discrimination or whistleblower retaliation. Passman & Kaplan represents U.S. federal government employees nationwide in adverse actions and wrongful termination. They can advise on the deadlines and the appropriate venue for your circumstances.
Don’t be too quick to quit your job
It is difficult to “undo” a resignation. If you storm out, dramatically shouting “I quit!” that is as legally binding as resigning in a formal letter. In general, it is harder to land new a job if you have already left gainful employment – you will have to explain the employment gap or explain why you left. Don’t do anything rash without getting legal advice.
In a perfect world, you should remain on the job and exhaust all of your due process rights, including filing a formal complaint of harassment, discrimination or retaliation. Obviously, if it gets so bad that your physical and mental health are jeopardized, you may conclude you can longer go back to work. Hopefully by then you have reported and documented the mistreatment, reprisal or inadequate response. Ideally, you will have another job lined up before leaving.