On Monday, the U.S. Supreme Court ruled that the statute of limitations for purposes of filing a claim alleging constructive discharge begins to run on the date that the employee resigns, as opposed to the last discriminatory act that prompts the resignation, resolving a circuit split.
A “constructive discharge” occurs when an employee establishes that discriminatory conduct makes the employee’s working conditions so intolerable that a reasonable person in the employee’s position would feel compelled to resign. This is an exception to the general rule that an employee who has resigned cannot claim discriminatory discharge under Title VII of the Civil Rights Act (“Title VII”).
In Green v. Brennan, an African-American postmaster with the U.S. Postal Service (“USPS”) was denied a promotion. Green alleged that the decision was based on his race and filed a formal internal complaint. Thereafter, Green alleged his supervisors retaliated against him and accused him of intentionally delaying mail delivery—a federal crime. Even after the USPS Inspector General reported that no further investigation was necessary, the supervisors continued to threaten Green with criminal charges. The supervisors eventually gave Green an ultimatum: either retire from the Postal Service or accept a transfer to a new office and a much lower salary. Green signed a settlement agreement on December 16, 2009 agreeing to retire, and officially resigned on February 9, 2010.
On March 22, 2010, Green contacted the USPS Equal Employment Opportunity (“EEO”) counselor. Green alleged that he was forced into the settlement, and his resignation was a constructive discharge. Under Title VII, a federal government employee must contact an EEO counselor within 45 days of the “matter alleged to be discriminatory.” USPS successfully argued before the district court and Tenth Circuit Court of Appeals that the last “matter alleged to be discriminatory” was the entry of the settlement agreement on December 16, 96 days before Green contacted the EEO counselor. Therefore, Green’s complaint was untimely. Before the Supreme Court, Green argued that the statute of limitations only began to run on February 9, when he officially resigned his employment.
The Supreme Court agreed with Green. By a 7-1 vote, the Court vacated the Tenth Circuit’s ruling that the clock for a claim of constructive discharge starts running at the time of the employer's last alleged act of discrimination. Instead, Justice Sotomayor and the Court agreed with five other Circuit Courts that had previously held that when an employee alleges constructive discharge, the statute of limitations period on the constructive discharge claim starts only when an employee officially resigns and gives “definite notice” of his decision to leave. The Court reasoned that the standard rule for determining the statute of limitations period is that the period starts when the plaintiff has a complete and present cause of action. Because an employee must prove he or she actually resigned in order to establish constructive discharge, the Court reasoned that the limitations period for a constructive discharge claim cannot begin to run before one of the essential elements of that claim has even happened. Notably, the Court’s ruling overrules the Seventh Circuit (which has jurisdiction over federal courts in Illinois, Wisconsin, and Indiana), which, like the Tenth Circuit, had previously applied the “last discriminatory act” rule.
While Green concerned the application of the 45-day limitations period applicable to federal employees, the Court specifically noted in a footnote that the reasoning of the decision would apply to claims filed against private sector and state and local government employees, which generally have a 180- or 300-day limitations period. Green will undoubtedly make it more difficult to effectively defend cases in which an employee alleges constructive discharge because this ruling effectively allows an employee to “resurrect” claims based on alleged discriminatory acts that occurred long before the employee’s resignation.