Federal and private-sector employers alike should take note of yesterday’s decision by the U.S. Supreme Court in Green v. Brennan. The issue in Green was whether a federal employee’s claim of discrimination in a constructive discharge case was triggered by the last act of alleged discrimination by the employer or by the date on which the employee resigned. The Supreme Court reversed the Tenth Circuit decision and held that the statute of limitations in a constructive discharge case begins to run on the date the employee resigns because that is the date when the employee has a “complete and present cause of action.”
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 (EEO) Office in 2008, alleging racial discrimination after a more senior position he applied for in Boulder, Colorado was given instead to a Hispanic employee. Green, an African-American, alleged 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 also claimed he was falsely accused of delaying delivery of the mail, a federal crime, in retaliation for his EEO activity.
On December 16, 2009, Green and the Postal Service entered into a settlement agreement whereby the Postal Service agreed not to press criminal charges in exchange for Green either retiring or accepting a demotion. On February 9, 2010, Green submitted his resignation to the Postal Service effective March 31, 2010. On March 22, 2010, 41 days after submitting his resignation, he contacted an EEO counselor to report an unlawful constructive discharge. In September 2010, Green filed suit, alleging five retaliatory acts in violation of Title VII, including constructive discharge.
While private-sector employees filing discrimination charges with the Equal Employment Opportunity Commission (EEOC) must do so within 180 days of the incident or 300 days if the claim is pursued initially with a state or local agency, federal employees must begin the process within 45 days by contacting an EEOC counselor in the employee’s agency. Writing for the majority of the court, Justice Sonia Sotomayor noted that the EEOC treats federal and private-sector employee limitations period as identical in operations, citing the EEOC Compliance Manual. Consequently, for private-sector employees, the applicable time period will also run from the date the employee notifies the employer of his or her resignation.
The court’s decision makes clear that the limitation period in these kinds of cases is not triggered by the last act of alleged discrimination by the employer — nor is it triggered by the last day the employee actually works. To the extent that employees are free to pick and choose the date they resign and are therefore, in Justice Sotomayor’s words, “masters of their complaints,” there will still need to be proof of a causal link between the alleged discrimination and the resignation. In other words, there has to be temporal proximity between the two.
Employers should stay tuned. The court’s decision in Green could have an impact on the way time limits in other types of employment cases are applied.
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