The United States Supreme Court recently resolved a split between the circuits as to the limitations period for filing a Title VII constructive discharge claim. Prior to the decision, there had been a conflict between the circuits as to whether the limitations period was triggered by an employee’s notice of resignation or the last discriminatory act of the employer. In Green v. Brennan, a 7-1 majority held that the statute of limitations begins running upon notice of an employee’s resignation.
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Federal law prohibits employers from terminating employees based upon their protected status. These anti-discrimination protections have been applied by courts to employees who resign under certain circumstances. To establish this claim of constructive discharge, an employee must demonstrate that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.
Under federal law, when a federal employee seeks to file a claim of discrimination, he or she must contact an Equal Employment Opportunity (“EEO”) counselor within 45 days “of the date of the matter alleged to be discriminatory.” (29 C.F.R. §1614.105(a)(1).)
Allegations and Procedural History
Marvin Green, a 35-year employee of the Postal Service, served as the postmaster for Englewood, Colorado. In 2008, he applied for a promotion to the vacant postmaster position in the nearby town of Boulder. When the job was not offered to him, he filed a formal complaint with the Postal Service’s EEO office, alleging that he was denied the promotion because of his race. Several months later, Mr. Green was notified that he was the subject of a Postal Service investigation into claims he had intentionally delayed the mail, failed to properly handle employee grievances, and sexually harassed a female employee.
On December 16, 2009, Mr. Green and the Postal Service entered into a settlement agreement in which the Postal Service agreed not to pursue formal charges against him. In exchange, Mr. Green agreed to immediately give up his postmaster position in Englewood. The agreement further provided that after several months of paid leave, Mr. Green would have the choice to either retire or to accept a position at significantly lower pay in Wamsutter, Wyoming. On February 9, 2010, Green submitted his retirement papers, making his retirement effective March 31, 2010.
On March 22, 2010, Mr. Green initiated contact with the Postal Service’s EEO office. This was 41 days after submitting his retirement papers and 96 days after signing the settlement agreement.
Mr. Green eventually filed suit in federal court alleging, among other things, constructive discharge. The district court dismissed Mr. Green’s complaint for falling outside the statute of limitations, determining that the 45-day period began not when Mr. Green gave notice of his resignation (February 9, 2010) but when the action occurred that led to his resignation (the signing of the settlement agreement on December 16, 2009). On appeal, the Tenth Circuit affirmed the district court’s decision.
The Supreme Court’s Decision
Justice Sonia Sotomayor, on behalf of the majority, determined that the default rule for calculating limitations periods in constructive discharge cases must incorporate when the plaintiff has a complete and present cause of action. Because constructive discharge claims must meet two basic elements – discrimination by the employer to the point a reasonable person would resign and an actual resignation – the statute of limitations period cannot begin to run until the resignation actually occurs. In doing so, the Court recognized the remedial purpose of Title VII and the practical benefits of such a rule, stating:
Starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period – and it actively negates Title VII’s remedial structure. … If the limitations period begins to run following the employer’s precipitating discriminatory conduct, but before the employee’s resignation, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged.
The Court also clarified that the notice of resignation is sufficient to start the clock on the statute of limitations. That is, the limitations period starts running when the employee gives the employer definite notice of his/her intent to resign (as opposed to the last day of employment). The Court remanded the case to the Tenth Circuit to evaluate the question of when definite notice of resignation was provided in Mr. Green’s case.
Implications for All Employers
The Green ruling does not make substantial changes to the law of constructive discharge and it likely has little effect on employer’s day-to-day employment decisions. That being said, the likely implication of the ruling is to incentivize employees to delay resignation until weeks, months, or, in the unlikely case, years after the alleged discriminatory act occurs without fear of a statute of limitations claim. The majority seemingly considered this concern, but noted 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.”
Finally, it is worth noting that while this decision specifically addressed claims of federal employees, there is no reason to believe that a similar rule would not apply to private sector constructive discharge claims. In recognizing that the statutory requirements affecting private sector employees is different (charges of discrimination must be filed within 180 or 300 of the “alleged unlawful employment practice”), the Court noted that the EEOC treats this language as “identical in operation.” In doing so, the Court failed to suggest that it disagreed with this conclusion. The absence of such language is likely sufficient to extend the Green ruling to all Title VII constructive-discharge claims.