Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: June 21, 2016
The Firm
201-896-4100 info@sh-law.com
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.
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.
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 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.

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Author: Michael Mietlicki

Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Author: Graham Staton

Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Author: Michael Mietlicki

For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Author: Sean M. Pena

Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Author: Donald M. Pepe

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
Author: Chris Seelinger
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
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!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!