News & Updates

Constructive Discharge in the Federal Sector: When Does the Clock Start Ticking? December 8, 2015

For private-sector employees filing discrimination charges, claims must be made to the Equal Employment Opportunity Commission (EEOC) within 180 days of the incident, although the time can be extended to as many as 300 days if the claim is pursued initially with a state or local agency. Federal employees, however, must begin the process within 45 days by contacting an EEOC counselor in the employee's agency. The issue in Green v. Brennan, argued last Monday before the United States Supreme Court, revolves around whether that 45-day period begins in a constructive discharge case at the time of the employee’s resignation (as five circuits have held), or at the time of the employer’s last allegedly discriminatory acts giving rise to the resignation (as three circuits have held).

Marvin Green, a 37-year veteran of the United States Postal Service and former postmaster in Englewood, Colorado, filed a discrimination claim with the Postal Service Equal Opportunity Employment Office in 2008 after a more senior position he applied for in Boulder was given instead to a Hispanic employee. Although the case was ultimately settled, Green — an African-American — alleges that he was threatened, demeaned, and harassed by his supervisors because of his race and in retaliation for his EEO activity relative to the Boulder position. He was ultimately, he alleges, forced to retire.

In September 2010, Green filed suit, alleging five retaliatory acts in violation of Title VII, including constructive discharge. The district court dismissed the case, finding, in relevant part, that his constructive-discharge claim was time-barred because he had not contacted an EEO counselor about it within 45 days of December 16, 2009, when he signed an agreement settling his discrimination claim.

Green appealed to the Tenth Circuit, which affirmed in part and reversed in part the decision of the district court.  That decision was appealed to the United States Supreme Court, which granted certiorari for the purpose of addressing when the 45-day time limit for initiating a complaint of retaliatory discharge begins to run.   

At oral argument held on November 30, 2015, much time was spent addressing the two elements of a discriminatory discharge claim — discriminatory conduct and the creation of a hostile work environment by the employer and the employee’s decision to quit as a result.  Justice Ginsburg, Justice Kagan, and Justice Breyer commented on the fact that a cause of action does not accrue until the damage is done and the employee quits — suggesting their view that the 45-day period should begin to run then.  Justice Scalia, on the other hand, commented: “I would take the term constructive discharge to refer not to the notice of quitting, but rather to the acts of the employer that forced the quitting. Even though the person hasn’t been discharged, you have constructively discharged him because you have made his life miserable.”  Thus, suggesting that the 45-day period should run from the last discriminatory act of the employer. 

A number of the justices also raised questions as to what the rule should be if there is a considerable time span between the last discriminatory act of the employer and the resignation of the employee. Chief Justice Roberts suggested that there would need to be some element of temporal proximity between the discriminatory conduct and employee’s resignation, which is similar to the analysis applied in the context of discriminatory termination cases. In this regard, the Chief Justice noted that it would not be a matter of years, but perhaps a matter of months: “I mean…you can’t take it anymore, but maybe you also need a paycheck or…you’re going to be eligible for a bonus in six weeks, you may as well at least wait until then.”

The Supreme Court is expected to render a decision in Green sometime next summer. And based on the comments of the justices during oral argument, it is anyone’s guess as to how they will rule.  In the meantime, employers should stay closely tuned, as the decision in Green could have an impact on the way time limits in other types of employment cases — particularly the time limits applicable to private-sector constructive discharge cases — are applied.

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