Resignations are presumed voluntary. So under what circumstances can you file a complaint arguing that your resignation or retirement was involuntary, forced or coerced? A complaint of involuntary resignation or retirement is filed with the Merit Systems Protection Board (MSPB). There are generally three situations in which an allegation of involuntary resignation or retirement is raised: 1) deceit/misrepresentation, 2) coercion/duress, and 3) intolerable working conditions.
The first situation, deceit/misrepresentation, means that you must show that the agency has misrepresented significant information and failed to correct the information that it had a reason to know you relied upon, for instance, misinformation provided to you regarding your retirement options, retirement benefits, RIF, or appeal options for challenging actions by the agency. Information provided to you by your agency with respect to your options must be correct in nature and adequate enough to allow you to make an informed choice. An agency is required to correct any misleading/incorrect information provided to you if the agency had reason to know you relied on the information. You do not have to show that the agency intentionally deceived you about your options. The MSPB has held that you must show that a reasonable person would have relied on the information.
The second situation, coercion/duress, means that you must show that you were given no time to consider a course of action or consult with anyone before resigning. Your mental state at the time of your resignation and the time allowed to make a decision regarding your resignation are factors that will be considered. That you may have been subject to an adverse action, such as removal, if you did not resign is typically not enough to establish involuntariness, unless you can establish that the agency had no good cause to propose or threaten to propose the adverse action and that the grounds for the action could not be substantiated.
Finally, you can also attempt to prove that your resignation was involuntary by showing that your working conditions were so difficult and intolerable that you were driven to resign. The MSPB has held that you must show that you were effectively deprived of free choice in the matter, in other words, whether in light of all of the circumstances of your situation, working conditions were so difficult that a reasonable person in your shoes would have felt compelled to resign. One example of evidence that has been held sufficient to establish a constructive resignation is where you can show that the working conditions have had serious effects on your health. Constructive resignation cases, especially those involving allegations of intolerable working conditions, are very difficult to prove.
This situation sometimes arises when you have to take disability retirement because the agency denied reasonable accommodations for your medical conditions. If this is the case, and if you have an already pending discrimination complaint due to the failure to accommodate, you might be able to pursue your claim through the EEO process. Remember, you have the burden of proving that your resignation was not voluntary. It is prudent to consider consulting counsel before making a decision to resign and filing such a claim.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **