Here is a recent case where the employee’s claim that he had been “constructively suspended” because of intolerable working conditions eventually led to his removal. (Noble v. United States Postal Service, CAFC No. 2013-3045 (nonprecedential), 9/18/13)
When Mr. Noble, a letter carrier, stopped coming to work, the Postal Service noticed and charged him with AWOL. He took issue with the label and claimed among other things that “I have been constructively suspended from employment because [my] management team and other management representatives have made my working conditions completely intolerable.” (Opinion p. 2) When the agency interviewed Noble to find out why he had not been coming to work, things got testy. He walked out and said he would only come back when these intolerable working conditions had been corrected. (p. 2)
The agency sent another written notice warning Noble that he could face disciplinary action if he did not report to work or provide medical evidence as to why he could not work. Apparently Noble did neither and the agency proposed his removal based on AWOL. Noble did not respond to that notice and ended up being fired. (p. 3)
On appeal Noble argued the agency could not fire him for AWOL because he was actually on a constructive suspension due to poor working conditions. The Merit Systems Protection Board treated the removal and the so-called “constructive suspension” as two separate appeals and ruled against Noble in both.
In the appeals court he has fared no better. The court found no error on the part of the MSPB in dismissing his constructive-suspension appeal since he did not present compelling evidence to prove intolerable work conditions warranting his refusal to come to work. As for the removal based on AWOL the court agreed that the agency had fully supported that case and the Board was correct in affirming Noble’s removal.
The unilateral decision to simply quit going to his job did not work out so well for this employee who now finds himself out of a job.