United States: Supreme Court Rules That Statute Of Limitations Period For Constructive Discharge Claims Begins To Run From Date Of Notice Of Resignation

Executive Summary: The U.S. Supreme Court recently held that the statute of limitations period for constructive discharge claims under Title VII of the 1964 Civil Rights Act (Title VII) begins to run from the date that the employee gives the employer notice that the employee is resigning. Reversing the Tenth Circuit's decision in favor of the employer, in Green v. Brennan, the Supreme Court held that "the matter alleged to be discriminatory includes the employee's resignation," and that the limitation period for filing a claim for a constructive discharge begins running only after the employee resigns.

Constructive Discharge Claims

In Pennsylvania State Police v. Suders, the U.S. Supreme Court recognized that an employer may be liable for a constructive discharge under Title VII. To establish a claim for constructive discharge, the employee must establish that working conditions have become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.

Green v. Brennan

In Brennan, Marvin Green, a former postmaster with the U.S. Postal Service, sued the Postmaster General, claiming he was constructively discharged by the Postal Service. The alleged constructive discharge occurred after Green complained that he had been denied a promotion because of his race. After making this complaint, Green's relations with his supervisors began to deteriorate. Two of his supervisors accused him of intentionally delaying the mail, a criminal offense, and he was subjected to an investigation and placed on off-duty status. The supervisors continued to make comments to Green about the potential consequences of a criminal charge even after the investigators advised that further investigation was not warranted. Green was given the option of retiring or accepting a much lower salary in another state in return for the Postal Service agreeing not to pursue criminal charges. A settlement agreement was signed. Green chose to retire and, 41 days after submitting his notice of resignation, filed a complaint with the Postal Service EEO Counselor over the alleged constructive discharge.

A federal trial court in Colorado granted the Postal Service's motion for summary judgment, accepting the argument that Green had failed to make contact with the EEO counselor within 45 days of "the matter alleged to be discriminatory," as required by the Equal Employment Opportunity Commission's (EEOC) regulation governing the complaint procedure for federal agencies and federal agency employees. The trial court's decision was affirmed on appeal by the Tenth Circuit, which found that Green's constructive discharge claim was time-barred. The Tenth Circuit held that the "matter alleged to be discriminatory" was limited to the discriminatory actions of the Postal Service and did not encompass Green's later decision to resign, which was 96 days after he signed the settlement agreement with the Postal Service.

The Supreme Court agreed to review the decision to resolve a split among the federal appeals courts on when the statute of limitations begins to run for a constructive discharge claim. The Tenth Circuit and two other appeals courts have held that the time period begins to run on the date of the employer's last discriminatory act; however, other federal appeals courts have held that the time period does not begin to run until the employee resigns. The Supreme Court reversed the Tenth Circuit's ruling, finding that the limitations period begins to run when the employee resigns.

The Court began its analysis by interpreting the EEOC regulation at issue while noting the EEOC treats the "federal and private-sector employee limitation period as identical in operation." The Court found that the text of the regulation was not "particularly helpful" so it turned to the "standard rule" for limitations periods. The Court stated that "ordinarily, a limitations period commences when the plaintiff has a complete and present cause of action." The Court continued its analysis by noting that "a cause of action does not become 'complete and present' for limitations purposes until the plaintiff can file suit and obtain relief." The Court applied the "default rule" and found that the "'matter alleged to be discriminatory' in a constructive discharge claim necessarily includes the employee's resignation."

According to the Court, there are three reasons that support this conclusion. First, the Court noted that "a resignation is part of the 'complete and present cause of action' necessary before a statute of limitations ordinarily begins to run." Second, the Court found nothing in the EEOC regulation that "clearly indicated an intent to displace this standard rule." Finally, the Court found that "practical considerations" supported the application of the standard rule in this situation.

Employer's Bottom Line: The practical effect of the Court's ruling in Brennan is the creation of a bright line rule regarding when the statute of limitations period begins to run in Title VII cases alleging constructive discharge. Private-sector employees will now have 180 days (300 days in states that have a state agency) from the date they give their notice of resignation to file an EEOC charge claiming constructive discharge in violation of Title VII, even though the underlying discriminatory act may have occurred beyond the statute of limitations period. While the standard for proving a constructive discharge remains challenging when compared to a normal discriminatory discharge claim, the Court's decision will make it more difficult for employers to prevail on an argument that a constructive discharge claim is untimely. According to the EEOC's Fiscal Year 2015 enforcement statistics, 4,569 charges of discrimination alleging constructive discharge under Title VII were filed as compared to 33,731 charges alleging a discriminatory discharge. It is likely that the number of constructive discharge charges will increase as a result of the Court's decision in Brennan.

While the Brennan decision is not a good one for employers since it will, in most cases, expand the time period for employees to file a constructive discharge claim, employers can take some steps to help ensure that the conditions of the workplace cannot objectively be viewed as "intolerable." Employers should continue to be vigilant to ensure employees who lodge internal complaints or file EEOC charges are not subject to retaliation. Additionally, employers should continue to investigate workplace complaints promptly, issue appropriate warnings to supervisory personnel against retaliating against employees who make complaints, and conduct follow-up monitoring during and after the investigation. Prompt disciplinary action should be taken against management personnel who violate company policy prohibiting retaliation. Company policy against retaliation should, of course, be contained in the employer's anti-harassment policy and clearly expressed, including the potential disciplinary consequences for violating the policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions