Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

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

Author: Scarinci Hollenbeck, LLC

Date: June 21, 2016

Key Contacts

Back

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.

Green v. Brennan

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs post image

Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs

When a family member can no longer make important decisions for themself, the question is often not whether the family will step in, but whether they have the legal authority to do so. A spouse may manage household finances, or an adult child may arrange medical care and pay bills. Still, informal assistance does not […]

Author: Marc J. Comer

Link to post with title - "Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs"
New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments post image

New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments

New Jersey residential developers with affordable housing obligations should carefully review their existing approvals, development agreements, and proposed deed restrictions in light of the State’s revised UHAC regulations (Uniform Housing Affordability Controls). The regulations, which took effect on November 6, 2025, significantly change the administration and physical requirements for affordable housing units. For developers with […]

Author: Wendy Rubinstein Quiroga

Link to post with title - "New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments"
“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy post image

“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy

A “no comment” response is sometimes the right call when a legal problem arises. As a blanket policy, however, it lets allegations go unanswered, deadlines pass, evidence disappear, and manageable disputes grow into expensive litigation. The businesses that fare best are usually the ones that say little publicly while acting decisively behind the scenes. When […]

Author: Sean M. Pena

Link to post with title - "“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy"
Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders post image

Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders

Utility-scale battery energy storage systems (BESS) are becoming an increasingly important component of the electric grid throughout New Jersey, New York, and Pennsylvania. As renewable generation expands, electricity demand increases and grid operators seek greater flexibility, battery storage can help balance supply and demand while providing additional capacity and reliability. For developers, battery storage presents […]

Author: Nicholas Wall

Link to post with title - "Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders"
Navigating Disputes: Hire a Partnership Dispute Lawyer post image

Navigating Disputes: Hire a Partnership Dispute Lawyer

A falling out between partners can be disastrous for any business. In many cases, the partnership will not survive. If you are in an unworkable situation with your partners, it may be time to consult a partnership dispute lawyer experienced in handling partnership breakups and dissolutions before the situation deteriorates any further. It is easy […]

Author: Jay McDaniel

Link to post with title - "Navigating Disputes: Hire a Partnership Dispute Lawyer"
Section 363 Sales in Bankruptcy: What Businesses, Lenders, and Buyers Need to Know post image

Section 363 Sales in Bankruptcy: What Businesses, Lenders, and Buyers Need to Know

When a company enters Chapter 11 bankruptcy, many assume the process will culminate in a lengthy reorganization plan. However, distressed businesses are increasingly being sold through a different mechanism — a sale under Section 363 of the United States Bankruptcy Code. A Section 363 sale allows a company, as a debtor-in-possession in bankruptcy, to sell […]

Author: John D. Giampolo

Link to post with title - "Section 363 Sales in Bankruptcy: What Businesses, Lenders, and Buyers Need to Know"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!