The United States Supreme Court resolved a split among appellate
circuits about when an employee must take action to pursue a
constructive discharge claim. The Court held that the 45-day
limitation period for a federal civil servant to contact an EEOC
counselor for a constructive discharge claim under Title VII of the
Civil Rights Act of 1964 begins to run when the employee gives
notice of his resignation, and not on the date of the
employer's last alleged discriminatory act. The Court's
decision in Green v. Brennan foreshadows how courts will
likely treat the timeliness of filing constructive discharge claims
in both the private and public sectors.
The Facts
Marvin Green worked for the U.S. Postal Service for 35 years. The
last position he held was as postmaster for a Denver, Colorado,
suburb. He applied for a promotion for a vacant postmaster job in
Boulder, but he was passed over. Shortly thereafter, Green
complained that he was denied the promotion because of his race.
His supervisors accused him of intentionally delaying the mail
– a criminal act – and continually threatened Green.
Finally, Green and the Postal Service signed an agreement wherein
the Postal Service promised not to pursue criminal charges in
exchange for Green's promise to resign, retire, or take a
position in Wamsutter, Wyoming, (population 451) for significantly
less pay. Green chose to resign. Forty-one days after he submitted
his resignation paperwork, which was 96 days after he signed the
settlement agreement, Green contacted an EEOC counselor to report
an unlawful constructive discharge.
Before a federal employee can sue his employer for violating Title
VII, he must contact an EEOC counselor "within 45 days of the
date of the matter alleged to be discriminatory." The U.S.
10th Circuit Court of Appeals held that the "matter alleged to
be discriminatory" encompassed only the Postal Service's
discriminatory actions and not Green's decision to resign;
therefore, the 45-day period started running when the parties
signed the settlement agreement and Green's EEOC contact was
untimely.
The Holding
The Supreme Court reversed, holding that the "matter alleged
to be discriminatory" includes the employees' resignation
so that the 45-day clock for constructive discharge begins running
only after the employee resigns. The Court specifically noted that
the 45-day regulation, though applicable to federal employees only,
"has a statutory analog for private-sector Title VII
plaintiffs, who are required to file a charge with the EEOC within
180 or 300 days after the alleged unlawful employment practice
occurred. . . . Although the language is different, the EEOC treats
the federal and private-sector employee limitations periods as
identical in operation." Notice of the resignation, and not
the resignation itself, triggers the limitations period to start
running (i.e. "If an employee gives 'two weeks'
notice' . . . the limitations period begins to run on the day
he tells his employer, not his last day at work").
Based on the Supreme Court's ruling, employers who pursue a
statute of limitations defense of a constructive discharge claim
must calculate the employee's deadline to file an EEOC charge
from the date the employee gives notice of his or her resignation,
even if the last alleged discriminatory act occurred before the
employee submits the notice.
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.
