A “constructive discharge” claim arises when an employee asserts that an employer made working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign. The case of Green v. Brennan, Postmaster General, raises a question as to the timeliness of an employee's claim for constructive discharge. The Supreme Court of the United States (SCOTUS) was asked to decide whether the filing period for a constructive discharge claim begins to run (1) when the employee quits or (2) at the time of the employer's last discriminatory act giving rise to the resignation.
On May 23, 2016, in a 7-1 decision, SCOTUS solidified the rule that the time within which an employee can file a “constructive discharge” claim against his or her employer starts with the employee's resignation from employment, not the employer's last alleged bad act.
Background – Green v. Brennan (USPS)
The petitioner in this case, Marvin Green was a 35 year employee with the United States Postal Service. In 2008, he was serving as the postmaster for Englewood, Colorado when he applied for a promotion to the vacant postmaster position in nearby Boulder. After not getting the job, Green complained he was denied the promotion because of his race.
After the Postal Service determined there was no basis for his complaint, on December 11, 2009, the employee's supervisors allegedly confronted him with allegations of poor management and intentional delay of mail service. The intentional delay of mail service is a federal crime, the complaint alleges. The supervisors reassigned Green to off-duty status with no pay. On December 16, 2009, the Postal Service and the employee agreed that, to avoid bringing potential criminal charges, the employee would either accept a demotion and move to Wyoming (hundreds of miles from his then-current work location) or retire.
Green chose to retire and submitted his resignation to the Postal Service on February 9, 2010, with an effective date of March 31. On March 22 (41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16) Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint.
Allegations of Constructive Discharge
Green alleged that the choice he had been given effectively forced his resignation in violation of Title VII. Green eventually filed suit in the Federal District Court for the District of Colorado, alleging that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR §1614.105(a)(1). The District Court granted the Postal Service's motion for summary judgment. The Tenth Circuit affirmed, holding that the “matter alleged to be discriminatory” encompassed only the Postal Service's discriminatory actions and not Green's independent decision to resign on February 9.
Appellate Court Decision
Therefore, the 45-day limitations period started running when both parties signed the settlement agreement on December 16, 2009. Accordingly, because 96 days passed between the agreement and when Green contacted an EEO counselor on March 22, 2010, his constructive discharge claim was time barred. Two other Courts of Appeals agree with the Tenth Circuit's view that the limitations period begins to run for a constructive discharge claim after the employer's last discriminatory act. As the Tenth Circuit recognized, however, other Courts of Appeals have held that the limitations period for a constructive discharge claim does not begin to run until the employee resigns.
Supreme Court Decision
The Supreme Court disagreed however, reasoning that because an employee cannot sue for constructive discharge until he or she actually quits, the resignation itself is part of the “complete and present cause of action” that starts the filing clock. Clarifying its holding, the court further held that the filing clock starts at the time the employee gives notice of resignation, not the actual last day worked. This essentially expands the time within which employers face liability for underlying discrimination because it allows employees to bootstrap older discriminatory actions to their resignation.
If you are living in California and feel you have been discriminated against or have been forced to work in intolerable working conditions as a result of retaliation, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.