Green v. Brennan: When is a Constructive Discharge Claim Applicable?

The U.S. Supreme Court recently held that the statute of limitations begins to run in a constructive discharge lawsuit when the employee provides notice of his resignation.

The Court’s 7-1 decision in resolves a circuit split on the issue and should make it easier for employers to determine whether a suit is untimely.

The Legal Background

As employers should be aware, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, or retaliating against their employees for opposing or seeking relief from such discrimination. Under federal employment law, a constructive discharge claim arises when an employer intentionally discriminates against an employee to the point that working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.

Before a federal civil servant can sue his employer for violating Title VII, workers are required to “initiate contact” with an Equal Employment Opportunity (EEO) counselor at their agency “within 45 days of the date of the matter alleged to be discriminatory.” If an employee claims he has been fired for discriminatory reasons, the “matter alleged to be discriminatory” includes the discharge itself and the 45-day limitations period begins running only after the employee is fired.

The Facts of the Case

Marvin Green, an African-American U.S. Postal Service worker, complained that he was passed over for a promotion because of his race. Thereafter, Green’s relations with his supervisor deteriorated, with tensions reaching its peak in December 2009 when two of his supervisors accused Green of intentionally delaying the mail (a federal crime). After an investigation was launched, Green and the Postal Service reached an agreement under which the Postal Service agreed not to pursue criminal charges, provided that Green agreed to either retire or accept a lower position at a remote Wyoming town.

Green elected to retire and tendered his resignation on February 9, 2010, with an effective date of March 31.  On March 22 — 41 days after resigning and 96 days after signing the settlement agreement — Green contacted an EEO counselor to report an unlawful constructive discharge. He subsequently filed suit in federal district court. The Postal Service sought summary judgment, maintaining that the statute of limitations required Green to contact an EEO counselor within 45 days of the “matter alleged to be discriminatory.” Accordingly, the 45 days began when Green signed of the settlement agreement on December 16, rather than upon his subsequent resignation. On appeal, the Tenth Circuit Court of Appeals affirmed.

The Court’s Decision and Implications for Employers

The Supreme Court reversed the Tenth Circuit Court of Appeal’s decision that the limitations period begins to run for a constructive-discharge claim after the employer’s last discriminatory act. “A constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation, not on the effective date thereof,” Justice Sonia Sotomayor explained.

In reaching its decision, the Court first concluded that since part of the “matter alleged to be discriminatory” in a constructive-discharge claim is an employee’s resignation, the 45-day limitations period for such action begins running only after an employee resigns. The Court then applied the “standard” rule for limitations periods, which provides that a limitations period ordinarily begins to run “when the plaintiff has a complete and present cause of action.” As explained by Justice Sotomayor:

Resignation is part of the “complete and present cause of action” in a constructive-discharge claim, which comprises two basic elements: discriminatory conduct such that a reasonable employee would have felt compelled to resign and actual resignation. Until he resigns, an employee does not have a “complete and present cause of action” for constructive discharge. Under the standard rule, only after the employee has a complete and present cause of action does that trigger the limitations period. In this respect, a constructive- discharge claim is no different from an ordinary wrongful-discharge claim, which accrues only after the employee is fired.

While the decision in Green v. Brennan can be characterized as “pro-plaintiff,” there is a benefit for employers as well. In its decision, the Court created a bright-line rule for constructive discharge claims — the clock for bringing a constructive discharge claim begins running from the date the employee tenders his resignation. Thus, the Court’s decision should deter costly and burdensome litigation on this procedural issue.