CONSTRUCTIVE DISCHARGE GENERATES FIVE YEARS BACK PAY & BOOSTED ANNUITY
When does discrimination become so bad that the employee can resign or retire and claim s/he had been constructively discharged?
A Dep’t. of Agriculture Loan Specialist had teleworked four out of every five days for ten years when the agency issued a policy during the Trump Administration limiting telework to one day a week. When the employee asked to retain her telework schedule as a reasonable accommodation of her physically disabling condition, the agency refused. Commuting significantly triggered pain from degenerative disc disease. In the alternative, the agency only offered her liberal leave, a sit/stand desk, telework on days when she had a doctor’s appointment, one day a week of scheduled telework, and two 15-minute paid health breaks each day. Seeing no option, the employee retired—and promptly filed an EEO charge claiming a failure of the agency to offer a reasonable accommodation. The agency responded that she had retired and therefore had no right to reinstatement.
EEOC quickly dispensed with the failure to accommodate, largely due to conflicting management testimony. The employee’s first line supervisor thought her request was reasonable while top management saw granting her request as opening the flood gates. EEOC found the agency’s offer inadequate and reminded it that the Commission has held that forcing an employee to take leave when another accommodation would permit the employee to continue working is not an effective accommodation and “evinces a failure by the Agency to act in good faith.”
EEOC then turned to the issue of whether the employee had no choice but to retire or resign. Noting that it had a different standard for finding a constructive discharge than MSPB did, EEOC wrote –
Constructive Discharge occurs when an employee resigns from his or her employment because he or she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency’s unlawful employment practices, it is a foreseeable consequence of those practices and constitutes constructive discharge….To establish that she was constructively discharged from her position, a complainant must show 1) that a reasonable person in her situation would have found the agency’s actions intolerable; 2) that the Agency’s actions were discriminatory; and 3) her resignation resulted from the agency’s actions.
It then found that the agency’s offer required the employee to either begin driving back and forth four days a week in severe pain or use all her accrued annual and sick leave. The Commission found that a reasonable person, in Complainant’s situation, would have found the Agency’s actions intolerable. Hence, she was constructively discharged.
For more details, check out Julietta K v. Thomas J. Vilsack, Sec’y., Dep’t of Agriculture (Rural Development), EEOC No. 2022001460 (2023)