U.S. Supreme Court Holds That Limitations Period for a ConstructiveDischarge Claim Begins to Run When Employee Submits Notice of Resignation
The Supreme Court held yesterday in Green v. Brennan1 that under federal employment discrimination law the limitations period for a constructive-discharge claim begins to run only after the employee provides notice of resignation. The decision resolves a conflict in the courts of appeals, which had split over whether the limitations period was triggered by the notice of resignation or instead by the last discriminatory act of the employer.
In 2008, a United States Postal Service (USPS) postmaster in Englewood, Colorado named Marvin Green applied for a promotion in the nearby city of Boulder. When Green was denied the position, he filed a complaint with an Equal Employment Opportunity (EEO) counselor at the USPS, alleging that his employer had discriminated against him based on his race. In late 2009, while his administrative action remained pending, the USPS alerted Green that it was investigating whether he had engaged in criminal wrongdoing by “intentionally delaying the mail.” Green was suspended without pay and removed from duty. Shortly thereafter, on December 16, 2009, Green signed a settlement agreement with the USPS. Pursuant to the settlement, the USPS agreed not to pursue criminal charges against Green, to end his suspension, and to reinstate his salary through the end of March 2010. At that point, Green would be required either to resign or report to duty at a rural post 300 miles away that paid $40,000 less per year.
On February 9, 2010, Green tendered his resignation, and on March 22 (41 days later) Green filed another complaint with an EEO counselor, alleging that he had been constructively discharged from his position in violation of Title VII. Constructive discharge occurs when an employee resigns and can show “that [an] abusive working environment [had become] so intolerable that [his or her] resignation qualified as a fitting response.”2 Green argued that his resignation was justified because the USPS, in response to his original discrimination complaint, had retaliated against him by threatening legal action and negotiating an unfavorable settlement agreement.
After failing to obtain relief in the administrative process, Green filed suit against the Postmaster General in federal district court. The district court dismissed Green’s suit as untimely on the ground that he had not contacted an EEO counselor within the required 45 days of the “matter alleged to be discriminatory.”3 The Tenth Circuit affirmed, reasoning that the relevant EEOC limitations period began with the last alleged discriminatory act of the employer—the signing of the December 16, 2009 settlement agreement—and not, as Green urged, with his February 9, 2010 notice of resignation.4 The decision contributed to a split among the courts of appeals over when the limitations period begins to run for constructive-discharge claims.5 '
THE SUPREME COURT’S DECISION
In a 7-1 decision authored by Justice Sotomayor, the Supreme Court held that the 45-day period for initiating a constructive-discharge claim is triggered by the employee’s notice of resignation, not the last discriminatory act by the employer. In the majority’s view, the relevant text of the governing EEOC rule—which requires a filing within 45 days of the “matter alleged to be discriminatory”—is ambiguous.6 The Court therefore resorted to canons of interpretation, and in particular “the standard rule” that a limitations period commences only when the plaintiff has a “complete and present” cause of action.7 In order to plead constructive discharge, a plaintiff must allege both intolerable working conditions and resignation.8 The Court thus concluded that a constructive-discharge claim does not accrue until the plaintiff actually resigns, at which time the limitations period commences.
The majority further ruled that an employee resigns for purposes of the limitations period when he gives his employer definite notice of his intent to resign.9 Because the record was not clear when Green gave such notice, the Court vacated the Tenth Circuit’s judgment and remanded the case for further factfinding.
Justice Alito concurred in the judgment, arguing that the limitations period commences upon the last allegedly intentionally discriminatory act performed by the employer. When the employer creates an intolerable working environment for the express purpose of forcing a plaintiff to resign, the resignation itself qualifies as the last such act. Justice Alito found that Green had alleged facts sufficient to satisfy this test.10
Justice Thomas dissented, concluding that as a textual matter only an employer’s conduct may constitute a “matter alleged to be discriminatory.” Because Green’s resignation was not employer conduct, the limitations period was instead triggered by the USPS’s request that Green sign the settlement agreement.11
The Green Court conclusively resolved an issue that had divided the courts of appeals. By establishing a bright line for measuring the timeliness of constructive-discharge claims, the Court provided needed certainty to both courts and parties. Although the 45-day period at issue in Green applies only to federal employees, language in the decision suggests that the Court’s new rule should also apply to the limitations period governing private-sector constructive-discharge claims.12 The immediate effect of the rule will be fewer dismissals of constructive-discharge claims on timeliness grounds, because a notice of resignation almost always occurs after the last allegedly discriminatory act of the employer. The Court’s decision does not change the constructive-discharge standard itself, and its principal holding is sufficiently narrow that its applicability outside the scope of the timing of constructive-discharge claims in employment actions is likely limited.
Despite the clarity of its rule, the Court’s decision nevertheless introduces a degree of unpredictability, particularly for defendants. Under the ruling, an employer may be subject to constructive-discharge allegations based on resignations occurring long after the last alleged discriminatory act. The majority attempted to address this concern by noting that “a plaintiff who wishes to prevail on the merits of his constructive discharge claim” will be incentivized to bring his claim promptly, because such a claim “requires proof of a causal link between the allegedly intolerable conditions and the resignation.”13 In other words, a defendant confronted by an unduly delayed claim will be able to argue that, in light of the plaintiff’s delay in leaving his or her job, the working conditions were not in fact so intolerable as to justify resignation.