Deadline for constructive termination claim
Deadline for pursuing constructive termination claim.
On May 23, 2016, the U.S Supreme Court decided when the clock starts running for employees to pursue legal action when they resign in the face of intolerable discrimination. In Green v. Brennan (2016) ___U.S.___ [___L.Ed.2d___], the high court interpreted a federal regulation that requires federal employees to make contact with an Equal Employment Opportunity (EEO) counselor within 45 days of the “matter alleged to be discriminatory.”
In this case, Mr. Green is an African American man who worked for the Postal Service. In 2008, he applied for a promotion but was passed over. Mr. Green complained he was denied the promotion because of his race.
Mr. Green’s relations with his supervisors deteriorated, who accused him of intentionally delaying the mail—a criminal offense. On December 16, 2009, Mr. Green and the Postal Service signed an agreement in which the Postal Service promised not to pursue criminal charges in exchange for Mr. Green’s promise to leave his post. The agreement also gave Mr. Green the choice of retiring or reporting for duty in a new location at a considerably lower salary. Mr. Green chose to retire and submitted his resignation on February 9, 2010, effective March 31 of that year.
On March 22, 2010—41 days after submitting his resignation, but 96 days after signing the settlement agreement—Mr. Green contacted an EEO counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint. Mr. Green alleged that the choice he had been given effectively forced his resignation in violation of federal employment discrimination law (Title VII).
Mr. Green filed a case in federal court alleging that the Postal Service constructively discharged him. The trial court dismissed the case on grounds Mr. Green failed to make timely contact with the EEO counselor. A Court of Appeals affirmed after concluding that the “matter alleged to be discriminatory” included only the Postal Service’s discriminatory actions and not Mr. Green’s independent decision to resign.
Two other federal Courts of Appeals had previously reached the same conclusion that the time to begin legal action (statute of limitations) starts running after the employer’s last discriminatory act. Other Courts of Appeals, however, had decided that the limitations period for a constructive-discharge claim does not begin until the employee resigns. The Supreme Court took the case to resolve this split.
The high court began with a review of federal employees’ obligations before pursuing an employment discrimination claim in court. They must “initiate contact with a[n EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” Whether Mr. Green made timely contact with the Counselor depended on the Supreme Court’s interpretation of this regulation.
The high court found that the phrase “matter alleged to be discriminatory” could refer to all of the allegations underlying a claim of discrimination, including the employee’s resignation, or only to those allegations concerning the employer’s discriminatory conduct. Given the two different possible meanings, the Supreme Court turned to the “standard rule” for the statute of limitations to resolve the question before it.
Ordinarily, a limitations period does not start until the individual can file suit and obtain relief. Applying this rule, the high court concluded that the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons.
First, a constructive-discharge claim has two basic requirements: (1) the employee was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign, and (2) the employee actually resigned. Therefore, a resignation is necessary before a limitations period ordinarily begins.
Second, nothing in the regulation clearly indicates an exception to this standard rule. To the contrary, the word “matter” refers to “an allegation forming the basis of a claim or defense.” Accordingly, the “matter alleged to be discriminatory” refers to the constructive discharge, which requires an actual resignation.
Third, if the limitations period begins to run following the employer’s discriminatory conduct, but before the employee’s resignation, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests an intent to follow such a two-step process.
After concluding that the statute of limitations begins when an employee resigns, the Supreme Court addressed the question of how this rule works when an employee gives advance notice of the resignation. The high court looked to previous decisions where the employer gave prior notice of termination. In that situation the limitations period begins at the time of notice. The Supreme Court decided that the same standard applies in constructive-termination claims, i.e., the limitations period begins when the employee gives advance notice of resignation.