On May 23, 2016, the Supreme Court resolved an important split among the circuit courts of appeals regarding when the clock for filing a constructive discharge claim begins to run. In Green v. Brennan, the Supreme Court held that the time for employees to file a constructive discharge claim runs from the date they give notice of their resignation, not the date the employer took the action causing the resignation.
The employee, Marvin Green, is a black man who had worked for the Postal Service for 35 years. In 2008, he was the Postmaster for Englewood, Colorado, a suburb of Denver. He applied for a promotion to the vacant Postmaster position in nearby Boulder—a bigger city—but was not selected. Green told his employer that he believed he was denied the promotion because of his race. Subsequently, Green’s relations with his supervisors “crumbled.” Two supervisors accused him of intentionally delaying the mail—a criminal offense. They told Green that the Postal Inspector was investigating the charge and that agents would soon interview him as part of the investigation. After Green met with the agents, his supervisors placed him on an off-duty status.
The Postal Inspector reported to Green’s supervisors that no further investigation was warranted. However, Green’s supervisors continued to tell him that “the OIG [wa]s all over this” and that the “criminal” charge “could be a life changer.” On December 16, 2009, Green and the Postal Service came to an agreement. The Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood in one of two ways: effective March 31, 2010, Green could retire or report for duty in Wamsutter, Wyoming—population 451—at a much lower salary. Green chose to retire and submitted his resignation on February 9, 2010 (effective March 31st).
On March 22, forty-one (41) days after submitting his resignation, Green contacted an EEO counselor to report an unlawful constructive discharge. He contended that his supervisors threatened criminal charges and negotiated the agreement in retaliation for his original complaint. Green alleged that the Postal Service’s actions left him no choice but to resign, in violation of Title VII.
The federal district court in Colorado dismissed the case because Green’s March 22nd EEO complaint was filed 96 days after the December 16, 2009, resignation agreement. The district court held that Green missed the 45-day time limit set by an EEOC regulation, 29 CFR §1614.105(a)(1), which states: “[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” The Court of Appeals for the Tenth Circuit affirmed but noted that, in the Second, Fourth, Eighth and Ninth Circuits, the time for filing a constructive discharge claim does not start to run until the employee actually resigns. The Supreme Court took the case to resolve the conflict.
Writing for the majority, including five other justices, Justice Sotomayor noted that the regulation only speaks of the “matter alleged to be discriminatory.” This language was not helpful because “the matter” could refer to the employer’s hostile actions or “all of the allegations underlying a claim of discrimination, including the employee’s resignation[.]” The Court did not address whether the constructive discharge was a “personnel action” because Green’s lawyers did not claim that it was. Perhaps some other plaintiff might later raise and preserve a claim based on “the effective date” of a “personnel action.”
The Court next looked to “the standard rule” for limitations periods. This rule says that a limitations period begins when the plaintiff has “a complete and present action.” A claim cannot be “complete and present” unless and until the plaintiff can file it. Although the Court did not use the word “ripe,” it well describes a claim that is fully ready to be filed. The Court held that a constructive discharge claim is not “complete and present” until an employee resigns; therefore, the clock cannot begin to run until the actual resignation.
The Court explained that its holding was consistent with the remedial purposes of the Civil Rights Act. “Starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure,” wrote Justice Sotomayor. She added that the Court had previously recognized “that the limitations perio[d] should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Quoting Delaware State College v. Ricks, the Court concluded that nothing in the regulations suggests it intended to require a layperson to follow a difficult two-step process to preserve a constructive discharge claim.
In his dissent, Justice Thomas expressed his belief that “only an employer’s actions may constitute a ‘matter alleged to be discriminatory.’” Justice Thomas cited National Railroad Passenger Corporation v. Morgan for the proposition that discrete adverse actions occurring outside the filing period were not actionable, even if they are connected to other acts within the filing period. The majority opinion rejected this interpretation by making clear that even discrete and time-barred adverse actions “could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period.” Justice Thomas’ dissent thus prompted the Court to make crystal clear that even discrete adverse actions can be considered part of a hostile work environment claim.
The majority also rejected the dissent’s argument that victims of discrimination would manipulate the new rule by delaying their resignations to extend the filing period. To the contrary, the Court argued that any federal employee who is aware of the Court’s rule could easily meet it by resigning and promptly sending an email to the Agency EEO office to commence the complaint process. Moreover, a victim of a hostile work environment would hardly wait any longer in such conditions, wrote the majority.
Justice Alito would not go as far as Justice Thomas. He filed a concurring opinion arguing that the time limit should start to run from the resignation only if the employee can prove that the employer intended to cause the employee to quit. This is a high hurdle for employees to meet and addresses discrimination claims from an employer point of view. From this viewpoint, if the employer intended to cause the resignation, then it is fair to the employer to start the clock with that resignation. The majority noted that the law has never required constructive discharge claimants to prove that the employer intended to force the employee to quit. In Pennsylvania State Police v. Suders, the Court held that when the workplace becomes “so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him.” Thus, the prevailing rule is that constructive discharge claims are assessed from an employee’s point-of-view, not an employer’s.
Green’s lawyers previously argued that the time limit should start to run from the date Green provided notice of his resignation. The parties disagreed, however, on the date the resignation was submitted: December 2009 or February 2010. The Court declined to decide this factual question and returned the case to the Tenth Circuit for further proceedings.
The intricacies of this case show the real value of having experienced employment lawyers from the very beginning of any legal claim. With legal advice from experienced lawyers, employees can identify and preserve their best claims. To speak with an experienced employment lawyer about your case, contact Kalijarvi, Chuzi, Newman & Fitch.
By Richard Renner and Alex Kutrolli