On April 27 the Supreme Court granted certiorari in Green v. Donahoe to determine whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held. See Green v. Donahoe, 760 F.3d 1135 (10th Cir. 2014).
Marvin Green (a former postmaster for the US Postal Service) was denied a promotion. He filed a charge with the EEOC alleging race discrimination under Title VII and the matter was settled. Green alleged that he experienced what he perceived to be threats and harassment about his EEOC filing and was given a choice between retiring or taking a significantly lower-paying job 300 miles away. He quit, sued for constructive discharge, and argued that his claim accrued when he was given his choice.
The district court held that Green’s constructive-discharge claim was time-barred because all of the allegedly discriminatory actions occurred by the date he signed his settlement agreement. Thus, his contact with an EEO Counselor about his constructive discharge was beyond the limitations period. In affirming the trial court, the Tenth Circuit joined the majority of circuits and held that the limitations period on a constructive discharge claim begins to run on the date of an employer’s misconduct.
The Second, Fourth and Ninth circuits disagree. Each has held that a constructive discharge claim accrues when an employee actually resigns. The Supreme Court granted review in Green v. Donahoe to resolve the circuit conflict.
The Postal Service will argue that Green’s constructive discharge claim is untimely even under the rule Green asks the Court to adopt because he agreed to retire in his settlement and he contacted an EEO counselor more than 45 days after that event. Additionally, according to the Postal Service, Green’s settlement and his retention of the consideration received prevented him from maintaining his Title VII claim on the merits.
Moreover, the Postal Service will argue that the purported circuit split may not be as stark as Green suggests. The decisions on which Green relied could be distinguished on the ground the last act of discrimination was within the applicable Title VII limitations period. Indeed, with the exception of the First Circuit, all the constructive discharge cases cited by Green involved hostile work environments, in which a single act of alleged harassment during the filing period preserves the Title VII claim. In contrast, Green’s case involved a “discrete” act of intolerable working conditions, i.e., the settlement agreement. The Postal Service will argue that “the rationale for using the date of notice of resignation in hostile environment cases may not apply in other cases in which the constructive discharge is triggered by a discrete act, rather than the cumulative effect of a series of prior acts.”