by Tammy Binford
A May 23 U.S. Supreme Court ruling clears up questions about how long employees have to file constructive discharge claims, and the decision likely means more pressure for employers potentially facing such lawsuits.
In Green v. Brennan, the Court ruled 7-1 that a U.S. Postal Service employee in Englewood, Colorado, filed a constructive discharge claim within the time period allowed for such claims. The employer had maintained that the claim came too late, and the lower courts agreed.
The case involved Marvin Green, a 35-year postmaster who claimed he was passed over for a promotion because of his race. He also alleged his employer retaliated against him for making a race discrimination claim.
After Green made his original claim, his supervisors made accusations against him, including delaying the mail, which is a criminal act. After an investigation, officials reported to his supervisors that no further investigation of delaying the mail was warranted, but Green said his supervisors continued to make him believe investigators were “all over this.”
Green eventually signed a settlement agreement with the Postal Service and agreed to resign his post. Forty-one days after submitting his resignation paperwork—but 96 days after signing the settlement agreement—he claimed unlawful constructive discharge to an equal employment opportunity (EEO) counselor.
The Supreme Court’s ruling points out that before federal employees such as Green can sue their employer for violating Title VII of the Civil Rights Act of 1964, they must “initiate contact” with an EEO counselor at their agency “within 45 days of the date of the matter alleged to be discriminatory.”
The U.S. 10th Circuit Court of Appeals ruled that the window to file a complaint opened on the date of the “last discriminatory act,” which was well before Green made his claim. The 10th Circuit’s decision agreed with two other appeals courts that have ruled on the issue. But five federal appeals courts have ruled differently, and the Supreme Court’s decision agrees with the majority.
In his appeal to the Supreme Court, Green claimed the 45-day period should have begun when he actually resigned. In writing for the majority, Justice Sonia Sotomayor stated, “The ‘matter alleged to be discriminatory’ in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons.” The reasons include:
- A resignation in the context of a constructive discharge claim is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run.
- Nothing in the regulation creating the limitations period shows an intent to displace the standard rule.
- Practical considerations confirm the merit of applying the standard rule.
What employers need to know
The ruling gives employees more time to file constructive discharge claims, meaning employers face a longer danger period when an employee plans to claim constructive discharge. “Hypothetically, employees who resign may be able to bootstrap any alleged discriminatory act during the course of their employment to their decision to abandon employment,” Micah Dawson, an attorney with Holland & Hart LLP in Denver, wrote in an article on the firm’s website.
Dawson pointed out that Justice Clarence Thomas’ dissenting opinion brought up concerns that an employee claiming discrimination may extend the period to make a claim indefinitely just by waiting to resign. Dawson wrote that the majority of the Court “believed such concerns to be overblown, doubting that a victim of employment discrimination would continue to work under intolerable conditions only to extend the limitations period for a constructive-discharge claim.”
“Nonetheless,” Dawson wrote, “even if the applicable Title VII limitations period (typically 180 or 300 days for private employers) for the underlying discrimination has passed, an employee may still have a timely claim for constructive discharge under the Court’s rule.”