On May 23, 2016, the Supreme Court of the United States decided when the limitations period for filing a lawsuit begins to run for a federal employee claiming he or she resigned—or was “constructively discharged”—due to discrimination in violation of Title VII of the Civil Rights Act of 1964. According to the Court, a federal civil servant must “initiate contact” with an Equal Employment Opportunity (EEO) counselor at his or her agency “within 45 days of the date of the matter alleged to be discriminatory” before he or she may file suit under Title VII. In a constructive discharge case, the Court further held, the “matter alleged to be discriminatory” includes the employee’s resignation. Thus, “the 45-day clock for a constructive discharge begins running only after the employee resigns.” Green v. Brennan, No. 14–613, Supreme Court of the United States (May 23, 2016).
Marvin Green had worked for the United States Postal Service for 35 years when he applied for and was denied a promotion. Green claimed that he had been passed over for the position due to his race. Later, two of his supervisors accused Green of intentionally delaying the mail, which is a criminal offense. The Postal Service’s Office of the Inspector General investigated the accusations and eventually reported that no further investigation was warranted. Nevertheless, on December 16, 2009, Green and the Postal Service entered into an agreement giving Green a choice of retiring or being reassigned to a remote location at a lower salary.
On February 9, 2010, Green submitted his resignation, effective March 31. On March 22—41 days after Green submitted his resignation and 96 days after signing the agreement—Green complained to an EEO counselor that his supervisors had threatened him with criminal charges and negotiated their agreement in retaliation for his discrimination complaint over being denied a promotion.
Green sued in federal district court in Colorado claiming that the Postal Service had constructively discharged him. The court ruled in favor of the Postal Service and the Tenth Circuit Court of Appeals affirmed the decision. In April of 2015, the Supreme Court agreed to review the case to decide a circuit split concerning whether the filing period for a constructive discharge claim begins to run when an employee resigns—as five circuit courts of appeals had held—or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation—as three circuit courts of appeals had held.
The Supreme Court’s Decision
According to regulations promulgated by the U.S. Equal Employment Opportunity Commission (EEOC), federal employees are required to consult with an EEOC counselor “within 45 days of the date of the matter alleged to be discriminatory” prior to filing a discrimination suit. The Postal Service argued that since Green had signed the settlement agreement on December 16—96 days before he contacted an EEO counselor—he had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory.” Thus, the issue in this constructive discharge case was: What is the “matter alleged to be discriminatory”? Was it Green’s signing of the settlement agreement on December 16 or the submission of Green’s resignation letter on February 9?
With Justice Sotomayor writing for the majority in a 7–1 decision, the Supreme Court held that the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes all the elements of a constructive-discharge claim—including an employee’s resignation. According to the Court, a “complete and present cause of action” for a constructive-discharge claim accrues only after an employee resigns. Specifically, the Court ruled that “a constructive-discharge claim accrues—and the limitations period begins to run— when the employee gives notice of his resignation, not on the effective date of that resignation.” The Court thus vacated the Tenth Circuit’s judgment and remanded Green’s case.
According to Roger G. Trim, a shareholder in the Denver office of Ogletree Deakins, “Although the Supreme Court normally eschews line-drawing, in this case it provided a bright-line rule for employers facing constructive discharge claims. The Supreme Court reached the common-sense conclusion that in constructive discharge cases, the claim does not accrue and the limitations period does not begin to run until the employee actually resigns. Even though the employee may have been exposed to a hostile work environment and the environment caused the employee to resign, the clock does not start ticking on the statute of limitations period until the employee resigns. In reaching its decision, the Court held that the employee’s resignation, even though initiated by the employee and not the employer, was a ‘matter alleged to be discriminatory’ for statute of limitations purposes. For employers, the Court’s decision provides clarity because it requires a concrete event—the employee’s resignation—to start the statute of limitations clock on a constructive discharge claim.”