United States: Supreme Court Clarifies The Time Period For Initiating Constructive Discharge Claims

On May 23, 2016, the United States Supreme Court issued its decision in Green v. Brennan, holding that the statute of limitations for a constructive discharge claim begins to run at the time the employee resigns. While the Court's 7-1 decision was unsurprising and does not change the substantive law of constructive discharge, it provides employers and employees alike with the benefit of a clear rule for assessing the timeliness of charges alleging constructive discharge.


Marvin Green was a manager with the U.S. Postal Service for 25 years, most recently serving as a postmaster in Englewood, Colorado. In 2008, he filed a formal charge with the Postal Service's EEO office, alleging that he was denied a postmaster position in Denver because of his race. In May and July 2009, Green filed informal charges alleging that he had been retaliated against because of his report of race discrimination. In November 2009, Green was informed that he was the subject of a Postal Service investigation into claims he had intentionally delayed the mail, failed to properly handle employee grievances, and sexually harassed a female employee. On December 16, 2009, Green signed a settlement agreement. That agreement provided that he would immediately give up his postmaster position and receive paid leave until March 31, 2010, after which he could choose either to retire or to accept a position at significantly lower pay in Wamsutter, Wyoming, about 300 miles away. In exchange, the Postal Service agreed to pursue no charges against him. On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010. On March 22, 2010, he initiated counseling with the Postal Service's EEO office.

Lower Court Rulings

Green filed a federal lawsuit in Colorado district court alleging, among other things, that the Postal Service had retaliated against him in violation of Title VII by constructively discharging him from his employment. The district court dismissed this claim as time-barred. Unlike a private sector employee, who generally has 180 or 300 days to file a charge of discrimination with the EEOC, federal employees must begin the administrative process by contacting an EEO counselor in the employee's agency within 45 days of the "matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that the limitations period for the constructive discharge period began to run on December 16, 2009, when Green entered into the settlement agreement, which represented the date of the last discriminatory act by the Postal Service. As a result, his claim was untimely.

Supreme Court Decision

The U.S. Supreme Court agreed to resolve a circuit split on whether the filing period for a constructive discharge claim begins to run when an employee resigns, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation. One procedural peculiarity was that neither the Postal Service nor Green was defending the Tenth Circuit's decision. Both advocated for the rule that starts the limitations period upon the employee's notice of resignation; they disagreed, however, on when that happened. As a result, the Court appointed amicus curiae to defend the Tenth Circuit's position.

In an opinion by Justice Sotomayor, and joined by five other justices, the Court held that the 45-day clock for initiating counseling begins to run on the date an employee resigns. The Court found that the term "matter alleged to be discriminatory" was unclear, so it relied on the "standard rule" for limitations periods: the limitations period begins to run when the plaintiff has a "complete and present" cause of action, and that a cause of action does not become complete and present until the plaintiff can file suit and obtain relief. Applying this rule, the Court found that the "matter alleged to be discriminatory" in a constructive discharge claim includes the employee's resignation for three reasons.

First, a resignation is an essential component of a cause of action for constructive discharge. Although a constructive discharge requires that the employer create conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign, an employee has no cause of action until that resignation takes place. Second, nothing in the statute or regulations suggests this standard rule should be displaced. Third, nothing inherent in the term "matter alleged to be discriminatory" limits that term to employer conduct; rather the employee's reasonable decision to resign is an essential element of the claim and is the legal equivalent of a formal discharge.

The Supreme Court's decision contained two other important components. The Court held that an employee resigns – triggering the statute of limitations – when he gives his employer definite notice of his intent to resign. For example, when an employee resigns and gives two weeks' notice, the period begins to run on the day he tells the employer, not the last day of employment. The Court remanded the case to the Tenth Circuit to evaluate the question of when definite notice of resignation was provided in Green's case.

In addition, the Court recognized that the public sector regulation applicable to Green – requiring initiation of counseling with 45 days of the "matter alleged to be discriminatory" – differs from the statutory requirement that a private sector employee file a charge of discrimination within 180 or 300 days after the "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). The Court noted that the EEOC treats this language as "identical in operation" and said nothing to suggest that it disagreed with this conclusion. Coupled with the express statement from Justice Alito's concurrence that "nothing in either text requires that they be read as setting different rules," it appears likely that the Green holding will be extended to all Title VII constructive discharge cases, including those brought by private sector employees.

Employer Takeaways

The Green decision does not change the substantive law of constructive discharge, and requires no adjustments in the way employers handle day-to-day personnel decisions. From a risk management perspective, however, employers gained valuable clarity. Specifically, the decision:

  • Provides a clear date – notice of resignation – on which the limitations period for a constructive discharge claim will begin to run.
  • Will likely apply to all Title VII constructive discharge claims, whether public or private sector.
  • Will lead to more claims, which is a natural consequence of adopting the interpretation that lengthens the filing period.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.