Supreme Court to Decide Time Limits for Filing Constructive Discharge Claim

On November 30, the Supreme Court heard oral argument in Green v. Brennan (Case No. 14-613), a case in which the justices must decide when the “clock starts ticking” for purposes of constructive discharge claims. Unlike conventional discharge claims, in which the employer makes the decision to terminate the employee, constructive discharge claims arise where the employee voluntarily decides to end his or her employment (on the theory that his or her working environment is so intolerable that a reasonable employee would have no choice but to resign).
There is currently a split in the federal courts. Five circuits (the First, Second, Fourth, Eighth, and Ninth) apply a “date of resignation” standard, in which the clock does not start until the employee gives clear notice to the employer that he or she is resigning. Three other circuits (the Seventh, Tenth, and D.C. Circuits) start the clock earlier, beginning on the date of the final discriminatory act by the employer (e.g. a hostile comment by a supervisory employee, a demotion, etc.) prior to the resignation.
In this case, Marvin Green worked for the U.S. Postal Service for decades before applying unsuccessfully for a postmaster position in 2008. He filed a charge of race discrimination, and later filed retaliation and harassment charges. On December 16, 2009, following the Postal Service’s investigation, Green signed a settlement agreement in which he agreed to resign his current position and could then either retire or accept a lower-paying position roughly 300 miles away. He submitted his retirement papers on February 9, 2010 and sought EEO counseling on March 22, 2010.
After Green filed a lawsuit in September 2010, the Postal Service moved to dismiss his complaint as time-barred because of his failure to timely seek EEO counseling. Federal public-sector employees are required by regulation to “initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory….” 29 C.F.R. § 1614.105(a)(1).  The Postal Service argued that because Green waited until late March to seek counseling for acts dating back to mid-December (i.e., more than 45 days), his claim was barred. The district court agreed with the Postal Service and dismissed Green’s claim. The Tenth Circuit affirmed.
On appeal, Green asked the Court to apply the “date of resignation” standard. In making this argument, Green relied on two prior Court decisions. First, in Pennsylvania State Police v. Suders, the Supreme Court explained that “[a] constructive discharge involves both an employee’s decision to leave and precipitating conduct[.]” 542 U.S. 129, 148 (2004) (emphasis added). Second, the Court affirmed that in order to recover damages for constructive discharge, “an employee generally is required to quit his or her job.” Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 184 (2010) (collecting authorities). Therefore, the argument goes, until the employee actually decides to leave (by notifying the employer of his or her resignation), a constructive discharge claim would be.

The alternative approach, advocated for by Court-appointed counsel, is that the date of the employer’s last allegedly discriminatory act should govern. In the context of constructive termination claims, the Supreme Court has previously explained in Delaware State College v. Ricks that merely continuing one’s employment “is insufficient to prolong the life of a cause of action for employment discrimination” and that “[the] proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” 449 U.S. 250, 258 (1980) (emphasis in original). Counsel argued that the Court should adapt the Ricks approach to constructive discharge claims for the sake of consistency.
From an administration standpoint, the “date of resignation” standard appears to be the cleaner approach, consistent with the primary purposes of timing requirements: allowing employees sufficient time to contemplate whether to pursue administrative or legal relief while also protecting employers from the time and expense of defending stale claims. Nevertheless, as several justices pointed out, using this standard would effectively give the employee sole control over when to bring such a claim, because it is up to him or her as to when to resign. On the other hand, there is a disincentive for employees to wait to resign because doing so makes it less likely that a reasonable employee would have had no choice but to resign, and thus more likely that his or her case would be dismissed.
Though the justices did not appear to reach a clear consensus, the case will significantly impact hundreds of cases each year. (Although the facts of the Green case only apply to public-sector employees, it is widely expected that the Court’s reasoning will be adopted in private-sector constructive discharge cases, too.) Until the Court announces its decision, employers and practitioners should continue to utilize the standards set forth in their respective jurisdictions when analyzing the timeliness of constructive discharge claims.
Further information about the case, including copies of the parties’ briefs, can be found here.

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