Employees scored a victory when the Supreme Court extended the clock to file a claim for constructive discharge. In Green v. Brennan, No. 14-613, the Court held that the 45-day period to file a claim that the working conditions of an employee of the federal government have become so intolerable that a reasonable person would feel compelled to resign begins when the employee gives notice of resignation, rather than when the last allegedly discriminatory act occurred. While the decision concerns principles unique to federal employees, private employers can anticipate that it will be similarly applied to nongovernmental employers.
Green v. Brennan
The Supreme Court’s decision stems from petitioner Marvin Green’s experiences at the United States Postal Service (“USPS”). In exchange for USPS’ agreement not to pursue criminal charges for allegedly delaying the mail, Green was to either receive a demotion or retire. Green chose retirement, giving notice of his resignation on February 9, 2010, for a retirement date of March 31, 2010.
On March 22, 2010, Green alleged to an Equal Employment Opportunity counselor that he had been constructively discharged. But this complaint came 96 days after the allegedly forced agreement, which was the final allegedly discriminatory act by his employer. The District Court dismissed Green’s claim as untimely, and the Tenth Circuit affirmed.
Supreme Court Adjusts the Clock
In an unusual display of unity, the Supreme Court vacated the Tenth Circuit’s judgment 7-1, with Justice Sonia Sotomayor writing for the majority and Justice Clarence Thomas penning a solo dissent. Rather than maintain the status quo of abiding by the last discriminatory act of an employer — which can be difficult to identify with certainty — the Court determined to set a clear standard. The 45-day period in which a federal employee must lodge a constructive discharge complaint thus now begins when the employee gives his or her notice of resignation.
In explaining this change in approach, Sotomayor writes that an employee’s resignation is included in the “matter alleged to be discriminatory,” as it is an essential part of the “complete and present cause of action” required to begin the limitations period. Additionally, the Court stresses that this new rule serves a very practical purpose — the timeline and timeliness for a claim of constructive discharge will now be clear to both employers and employees. The majority noted that starting the clock on filing such a claim before an employee can legally sue, because the employee has not yet established an essential element of constructive discharge by resigning, is nonsensical and ultimately negates the remedial structure of Title VII.
Private Employers Beware
Green addresses constructive discharge in the federal employment context, and the majority of the Court did not address how this ruling may affect the private sector. The Court simply acknowledged that private employees are allowed either a 180-day or a 300-day period for filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and that the EEOC otherwise operates both public- and private-sector time limitations in an identical manner.
But Justice Samuel Alito noted in his concurring opinion that the majority relied on private-sector cases to determine the applicable period in Green, and thus concluded that the new rule must apply to both the private and the public sectors. While the Court did not reach the issue, private-sector employers should anticipate that the new rule will be applied to all employers.