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SCOTUS: Clock for Constructive Discharge Begins Running After Employee Resigns
Practical Law Legal Update w-002-4945 (Approx. 6 pages)
SCOTUS: Clock for Constructive Discharge Begins Running After Employee Resigns
by Practical Law Labor & Employment
| Law stated as of 25 Oct 2016 • USA (National/Federal) |
In Green v. Brennan, the US Supreme Court held that the limitations period in a public employee's Title VII of the Civil Rights Act of 1964 (Title VII) discrimination claim involving constructive discharge does not begin running until after the employee resigns.
On May 19, 2016, in Green v. Brennan, the US Supreme Court held that in a federal employee's Title VII discrimination claim alleging constructive discharge, the 45-day period by which the employee must contact an Equal Employment Opportunity (EEO) counselor does not begin running until after the employee resigns. The Supreme Court's decision resolves a circuit split on this issue. ( (U.S. May 23, 2016).)
Background
Marvin Green, an African-American, worked for the US Postal Service as the postmaster for Englewood, Colorado. After Green complained that he was denied a promotion because of his race, Green's supervisors accused him of delaying mail delivery (a criminal offense) and initiated an investigation by the Postal Service's Office of the Inspector General (OIG). Although Green's supervisors were aware that the OIG investigation did not reveal any wrongdoing by Green, Green's supervisors:
- Continued to warn Green about the consequences of his alleged "criminal conduct."
- Had Green sign an agreement with the Postal Service on December 16, 2009 in which the Postal Service agreed not to pursue criminal charges against Green in exchange for Green:
- giving up his post in Englewood, Colorado; and
- either retiring or taking a new position at a much lower salary in a remote, low-populated town in Wyoming.
Green chose to retire and submitted his resignation documents to the Postal Service on February 9, 2010, effective March 31, 2010. On March 22, 2010, 41 days after submitting his resignation documents and 96 days after signing the agreement with the Postal Service, Green contacted an Equal Employment Opportunity (EEO) counselor to report that he had been unlawfully constructively discharged in violation of Title VII.
Green ultimately filed a lawsuit in US district court. The district court granted the Postal Service's motion for summary judgment based on Green's failure to contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory," as required by Title VII regulations applicable to federal employees (29 CFR § 1614.105(a)(1)). The Tenth Circuit affirmed, holding that:
- "The matter alleged to be discriminatory" did not include Green's decision to resign.
- The 45-day limitations period began running from the date the agreement was signed (December 16, 2009), not from the date Green submitted his resignation (February 9, 2010).
- Green appealed. The Supreme Court granted certiorari to resolve a circuit split on this issue.
Outcome
The Supreme Court, in a seven to one decision (with Justice Sotomayor writing for the majority, Justice Alito concurring in the judgment, and Justice Thomas dissenting):
- Vacated the Tenth Circuit's grant of summary judgment to the Postal Service.
- Held that in a Title VII constructive discharge case brought by a federal public employee:
- "the matter alleged to be discriminatory" in Title VII's regulation requiring that the federal employee contact an EEO counselor within 45 days includes the employee's resignation; and
- the 45-day limitations period begins running only after the employee resigns.
- Remanded to the Tenth Circuit to determine when Green gave the Postal Service notice of his resignation (either on December 16, 2009, when the agreement was signed, or on February 9, 2010, when Green submitted his retirement paperwork). The Tenth Circuit later determined that Green gave notice when he submitted his retirement paperwork (Green v. Brennan, (10th Cir. Oct. 24, 2016)).
The Supreme Court noted that:
- Before a federal employee can bring a Title VII discrimination claim, he must contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory" (29 CFR § 1614.105(a)(1)).
- The standard rule is that a limitations period begins "when the plaintiff has a complete and present cause of action" (Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409, 418 (2005)).
- A circuit split exists on when the limitations period begins to run on a constructive discharge claim. The Tenth, Seventh and DC Circuits held that it runs after the employer's last discriminatory act. The Second, Fourth, Eighth and Ninth Circuits held that it does not begin to run until after the employee resigns (see Mayers v. Laborers' Health and Safety Fund of North America, 478 F. 3d 364, 370 (D.C. Cir. 2007); Davidson v. IndianaAmerican Water Works, 953 F. 2d 1058, 1059 (7th Cir. 1992); Flaherty v. Metromail Corp., 235 F. 3d 133, 138 (2d Cir. 2000); Draper v. Coeur Rochester, Inc., 147 F. 3d 1104, 1111 (9th Cir. 1998); Hukkanen v. Operating Engineers, 3 F. 3d 281, 285 (8th Cir. 1993); Young v. National Center for Health Servs. Research, 828 F. 2d 235, 238 (4th Cir. 1987)).
- The "matter alleged to be discriminatory" in a constructive discharge claim includes an employee's resignation because:
- a resignation is part of a "complete and present cause of action" in a constructive discharge claim;
- the regulation's language does not indicate any intention to supersede the standard limitations rule; and
- from a practical standpoint, it would not make sense to start "the limitations clock ticking" following the employer's discriminatory conduct but before the employee resigns, as an employee would then have to file the discrimination complaint first and then amend it to allege constructive discharge, and could even lead the employee to delay his resignation and go on tolerating discriminatory conduct.
- The phrase "matter alleged to be discriminatory:"
- does not reflect that it be limited only to an employer's conduct; and
- can include the facts underlying the employee's claim.
Justice Alito concurred in the judgment, noting that:
- The limitations period for constructive discharge claims should run starting from the employer's discriminatory act, as with all other employment discrimination claims.
- An employee's resignation can be considered the employer's discriminatory act when the employer subjects the employee to intolerable working conditions with the intent of forcing the employee to resign.
Justice Thomas dissented, noting that:
- The majority's reading of the applicable Title VII regulation was "atextual."
- The phrase "matter alleged to be discriminatory" can only refer to the employer's actions, not the employee's actions.
Practical Implications
The Supreme Court's decision in Green resolves a circuit split on when the limitations period begins to run on a Title VII constructive discharge claim. The court held that the limitations period begins to run only after the employee resigns, and that a federal employee has 45 days to contact an EEO counselor from the resignation date. Although this decision involves a federal sector employee and the applicable 45-day statute of limitations for federal employees, the majority and concurring opinions noted that the statutory language applicable to private sector employees' time to file a discrimination claim is similar to the federal regulation. Therefore, the decision likely applies to private sector employees under the statute of limitations applicable to private sector employees. This decision clarifies that employees may bring timely constructive discharge claims even where the incidents causing the employee to resign are outside the limitations period.