Constructive Adverse Actions

Jennifer Duke
June 17, 2016
A constructive adverse action is one that appears voluntary on the surface, like a retirement or resignation, which an employee later claims was involuntary. When a federal employee claims that an action was constructive, that employee can appeal the action to the Merit Systems Protection Board.

Constructive actions are extremely difficult to prove. A "voluntary" action can only be deemed involuntary if it is determined that the decision to take the action was based on agency coercion or duress, or on misinformation provided by the agency.

If a federal agency provides an employee with misinformation, and the employee relies on that information when making a decision to resign or retire, the employee does not need to prove that the agency acted intentionally. The incorrect information can be provided innocently. The employee will, however, still need to prove that the information was provided with the intent that it be relied upon.

For example, if a federal employee asks their agency to provide the date on which the employee would be eligible to retire and receive an immediate annuity, the employee would have no reason to mistrust the information provided by the agency, unless the information was clearly incorrect. If the employee were to retire on the date the agency provided, only to find out afterwards that the agency was wrong by a few months and provided him with incorrect information, that employee would have a constructive retirement claim, based on the agency's misinformation.

If an agency coerces an employee to take a personnel action, or forces an employee to take a personnel action under duress, that employee would also have a constructive claim. However, this type of constructive action can be even more difficult to prove. An employee must prove that his or her working conditions were so intolerable, that a reasonable person in their position would have felt compelled to retire or resign (or take whichever personnel action the employee took).

It is extremely rare for the MSPB to determine that working conditions were bad enough that the employee truly had no other options. However, it can be done. For example, if an employee's supervisor called the employee into his or her office and threatened to terminate them and ruin their career unless they resigned right then, and the employee was able to prove that the conversation happened, the employee would likely be successful in a constructive resignation claim.

Constructive actions must be appealed to the MSPB within 30 days of the action. In constructive actions, the MSPB presumes that the action was voluntary, and required the employee to overcome that presumption. Due to the difficulty of proving these types of claims, it is advisable to seek counsel from an attorney with experience handling constructive action appeals.

If you are facing a constructive adverse action, Melville Johnson, P.C. may be able to help. Contact us today using the contact form on this page.

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.
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