In Green v. Brennan, the Supreme Court will decide an important procedural question involving the issue of “constructive discharge”—what is the trigger that starts the clock for filing a claim? Is it the employer’s last discriminatory act or the date of the employee’s resignation? The Justices heard argument on November 30th, and a decision is expected by June.
With its decision, the Supreme Court will resolve a split among the federal courts of appeals and provide much-needed clarity to employers. The current legal landscape leaves employers who operate nationwide litigating under two sets of rules in the eight courts of appeals that have decided the issue and uncertainty in the circuits that have not. Currently, five courts of appeals, including the First Circuit, have held that the filing period for a constructive discharge claim begins when the employee resigns, while three courts of appeals have held that the employer’s last discriminatory act is the trigger.
The Road to the Supreme Court
Marvin Green was a United States postmaster in Englewood, Colorado. In 2008, he filed an internal complaint that he had been discriminated against on the basis of his race. Thereafter, his relationship with his supervisors soured. In late 2009, while Mr. Green’s discrimination complaint remained pending, the Postal Service notified him that it was investigating if he had engaged in potentially criminal misconduct related to the mail. He was removed from duty with his pay suspended. A few days later, on December 16, 2009, Mr. Green and the Postal Service executed an agreement that required Mr. Green to retire or take a new job with a $40,000 pay cut that was three hundred miles away in exchange for the Postal Service’s agreement not to pursue criminal charges against him. The Postal Service would permit Mr. Green to use his accumulated leave to receive his full salary until the end of March, 2010.
In January, 2010, Mr. Green challenged his suspension internally through the Postal Service’s Equal Employment Opportunity (“EEO”) process, but was unsuccessful. He resigned on February 9, 2010, effective March 31, 2010.
On March 22, 2010 (forty-one days after his resignation, but ninety-six days after his agreement with the Postal Service), Mr. Green reported to the EEO counselor that he had been constructively discharged in retaliation for his complaint of racial discrimination. The timing of Mr. Green’s report is critical. Federal employees pursuing claims under the employment discrimination statutes must initiate contact with an EEO counselor within forty-five days of the date of the matter alleged to be discriminatory. Private sector employees have three hundred days to bring their claim if they also institute state proceedings.
Mr. Green then filed suit in the Colorado federal court, alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964. The federal court dismissed his constructive discharge claim as time-barred, because he had not contacted the EEO counselor within forty-five days of December 16, 2009—the day of the agreement. The Tenth Circuit affirmed, holding as a general proposition, that the filing period for a constructive discharge claim begins to run from the time of the of the employer’s last discriminatory act said to give rise to the resignation, not from the resignation itself.
The Oral Argument Clues
Notably, the Supreme Court heard three arguments. The Postal Service and Mr. Green agreed, contrary to the Tenth Circuit’s holding, that the trigger should not be the employer’s last discriminatory act. The parties disagreed regarding whether the trigger should be when an employee gives notice of his resignation (the Postal Service’s view) or when an employee actually resigns (Mr. Green’s view). This left a court-appointed amicus to argue the merits of the Tenth Circuit’s decision.
While not entirely clear what rule the Court will adopt, the argument did make clear that the Court likely will not adopt the Tenth Circuit’s reasoning.
The justices expressed concern with the difficulty of applying a rule that required determining when the last discriminatory act occurred. Justice Breyer described the rule as a “nightmare” to administer in comparison with the simple rule of using the date of resignation.
The Court also was concerned that adopting such a rule would mean that an employee would be required to resign so close in time to the employer’s last discriminatory act to permit the employee to bring a claim. In a comment that led one commentator to refer to him as a “surprise working-class hero,” Chief Justice Roberts noted that quitting a job is “a very big deal” that requires planning, “and just because you can’t take it anymore doesn’t mean you could quit work right away.”
That seems to leave the Court to choose as the trigger the date on which the employee actually resigned, or alternatively the date on which the employee first gave notice to the employer of that resignation. Both have the benefit of a being a date that should be easy to determine; however, as Justices Kagan and Sotomayor note if both acts are the result of discrimination it would be more fair to employees to choose the later of the two dates.
Whatever rule the Court adopts, employers will have clarity for future cases. Although Mr. Green was a federal employee, the Supreme Court will be clarifying an issue that has significant implications for private sector employees because courts regularly apply timeliness and procedural rules recognized in one sector to the other. Both federal and private employees must initiate a complaint in the administrative process within an applicable timeframe. Failure to do so creates a bar to a later suit.
In theory, a decision that adopts the majority view—the trigger is the resignation date—permits an employee to toll indefinitely the limitations period until the employee decides to resign, leaving employers with some level of uncertainty. Of course, an employee who delays resigning until well after the discriminatory acts cease may have difficulty proving a constructive discharge claim.
Adopting the majority view will result in little change for Massachusetts employers, who have been subject to that rule since the First Circuit’s 1998 decision, American Airlines, Inc. v. Gardoza-Rodriguez, 133 F.3d 111, 123 (1st Cir. 1998).
If you would like more information about Green v. Brennan or constructive discharge claims, you should contact one of the experienced employment law attorneys at Conn Kavanaugh.