The United States Supreme Court recently held the 45-day period from which a federal employee is required to contact the Equal Employment Opportunity counselor begins to run on the date of the employee’s resignation under a Title VII constructive discharge claim. This 7-1 procedural ruling in Green v. Brennan, 578 U.S. ___ (2016), is plaintiff-friendly and may allow more employees to file discrimination lawsuits.
Constructive Discharge 101
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. Title VII also prohibits employers from retaliating against their employees for opposing or seeking relief from such discrimination.
A constructive discharge claim arises when “an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Green v. Brennan, 578 U.S. ___ (2016) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004)). Title VII treats a “constructive discharge” resignation as tantamount to an actual discharge. Id. (citing Suders, 542 U.S. at 142-43).
Before a federal employee is allowed to sue his or her employer for discrimination under Title VII, they must, among other things, “initiate contact” with an Equal Employment Opportunity counselor at their agency “within 45 days of the date of the matter alleged to be discriminatory.” Id. (citing 29 C.F.R. § 16140105(a)(1) (2015). The Court explained “[i]f an employee claims he has been fired for discriminatory reasons, the ‘matter alleged to be discriminatory’ includes the discharge itself and the 45-day limitations period begins running only after the employee is fired.” Id. The federal regulation does not provide guidance of the meaning and application of “the matter alleged to be discriminatory” in constructive discharge cases. Prior to the Green decision, the federal appellate courts split on when the 45-day limitations period started running in constructive discharge claims.
Plaintiff Marvin Green was an African American male and employee of the U.S. Postal Service for 35 years. In 2008, he claims he was passed over for a postmaster promotion from Englewood to Boulder, CO due to his race. Shortly after his complaint, Green’s relationship with his supervisors crumbled. In December 2009, two supervisors accused Green of the criminal offense of intentionally delaying the mail. The Postal Service’s Office of the Inspector General investigated the allegations against Green and concluded no further investigation was warranted. However, on December 16, 2009, Green and the Postal Service subsequently entered into an agreement under which Green was given the option to either retire or report for duty in Wamsutter, WY (population 451) at a lower salary than he was earning in Englewood, CO.
Green chose to retire. He submitted his resignation to the Postal Service on February 9, 2010, effective March 31. On March 22 – 41 days after submitting his resignation paperwork but 96 days after signing the settlement agreement – Green contacted the an EEO counselor to report a constructive discharge.
District Court Holding And Tenth Circuit Appeal
Green later filed suit in the Federal District Court of the District of Colorado for constructive discharge and other claims. The District Court granted summary judgment in favor of the Postal Service on the grounds Green failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR § 1614.105(a)(1).
On appeal, the Tenth Circuit affirmed summary judgement for the Postal Service, holding the “matter alleged to be discriminatory” related only to the Postal Service’s alleged discriminatory action and not Green’s decision to resign. Therefore, the 45-day deadline to contact the EEO counselor began when both parties signed the settlement agreement on December 16, 2009.
Supreme Court Holding
The Supreme Court held the 45-day limitations period begins to run when an employee has a “complete and present cause of action.” In constructive discharge cases, it logically follows this limitations period begins to run at the employee’s resignation. When an employee resigns, an employee has not technically been discharged under Title VII. The Court explained that to start the limitations period running before the employee has resigned may force an employee to file a complaint with the EEO counselor before actually leaving employment.
The Court and both parties in this case agreed the 45-day deadline begins to run on the day the employee gives notice of resignation in constructive discharge cases – not on the day the resignation take effect. The parties disagreed, however, as to when the resignation date occurred—i.e., whether it was the date that Green signed the settlement agreement, or the later date he submitted his resignation paperwork. Accordingly, an important issue is left open for the trial court’s reconsideration in this case on remand – on what date did Green resign? While this Supreme Court procedural decision may have opened the gate for Green to proceed a little further on his claim, the Postal Service may have a viable defense available to defend against Green’s continued claims.
ABOUT THE AUTHORS
Susan L. Oliver is a partner at Tyson & Mendes. Ms. Oliver leads the Professional Liability practice and handles employment matters. Contact Susan at 858.263.4134 or email@example.com.
Cayce Greiner is Special Counsel of Complex Matters & Client Relations at Tyson & Mendes. She is based out of the firm’s Los Angeles and San Diego offices. She specializes in personal injury, insurance coverage, and bad faith litigation and chairs the T&M Women’s Initiative. Contact Cayce at 858.263.4136 or firstname.lastname@example.org.Download Article Here: Another Open Door for Lawsuits: Supreme Court Issues Plaintiff-Friendly Decision in Federal Employment Discrimination Case