On May 23, 2016, the US Supreme Court resolved the circuit split over when the filing period begins for a claim of constructive discharge under Title VII of the Civil Rights Act of 1964. The Court held the period begins when the employee submits his or her resignation to the employer, not when the last allegedly discriminatory act giving rise to the resignation occurred.

In Green v. Brennan, 578 U.S.____(2016), after the petitioner, an employee of the US Postal Service, complained to his employer that he was denied a promotion because of his race, his supervisors allegedly retaliated by accusing him of intentionally delaying delivery of the mail. In exchange for not filing any criminal charges, the Postal Service reached an agreement with the employee in which he could retire or accept another position in a remote location for less money. That agreement was signed December 16, 2009. The petitioner chose to retire and submitted his resignation on February 9, 2010. After resigning, he met with an Equal Employment Opportunity Counselor (the Counselor), an administrative prerequisite for filing a charge of discrimination under Title VII. The petitioner contacted the Counselor 41 days after resigning, but 96 days after the settlement agreement.

The employee eventually filed suit in federal district court, which dismissed the complaint because he had not contacted an equal employment counselor within 45 days of the "matter alleged to be discriminatory." Contacting an a Counselor within 45 days is an administrative prerequisite to filing a charge of discrimination against a federal employer. If the claim was filed against a private employer this would not be a prerequisite. The US Court of Appeals for the 10th Circuit affirmed the dismissal of the complaint, holding that the December 16, 2009, settlement was the day the limitations period began to run because it was the last discriminatory act by the employer.

Upon review, the Supreme Court held that the end of the "matter alleged to be discriminatory" in a constructive discharge claim is the date of the employee’s resignation, not the date of the last discriminatory act. Its opinion clarifies that the limitations period begins to run when the employee submits the resignation, not the last day of work. The Court remanded the case to the 10th Circuit to decide whether the petitioner "resigned" on December 16, 2009, when he signed the settlement agreement, or on February 9, 2010, when he submitted his resignation letter.

Takeaway: Based on this decision, employers should focus on the date of resignation as the beginning of the filing period for claims of constructive discharge. This decision concerned a federal employee. When the charge is against a private employer, the employee has 180 or 300 days to file a charge of discrimination with the EEOC (300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis) after the alleged unlawful employment practice occurs. Employers concerned that an employee is seeking to file a claim of discrimination on a theory of constructive discharge should be careful to document the exact date on which the employee resigned. Even if the employee remains at work for a period of time following this formal resignation, the date of resignation is when the filing period begins to run.