Tick-Tock Goes the Clock: SCOTUS Clarifies the Statute of Limitations in Constructive Discharge Actions

On May 23, 2016, the United States Supreme Court issued its opinion in Green v. Brennan, Postmaster General, in which the Court gave aggrieved employees in workplace discrimination cases more time to file complaints against their employers.  The Court in Green addressed when the 45-day clock during which an employee must file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) when pursing a claim for employment discrimination begins to run.  In a 7-1 opinion by Justice Sotomayor, the Court held that because part of the “matter alleged to be discriminatory” in a constructive-discharge claim is an employee’s resignation, the 45-day limitations period for such an action begins to run when the employee “gives notice of his resignation,” not the last day of the last discriminatory workplace incident. Justice Thomas, a former chairman of the EEOC, dissented.  Justice Alito concurred with the majority’s outcome, but not with its reasoning.

In Green, the petitioner complained to his employer, the United States Postal Service (“USPS”), because he believed he was passed over for a promotion due to his race.  After making the complaint, his supervisors accused petitioner of intentionally delaying mail, a federal offense.  On December 16, 2009, petitioner and the USPS entered into an agreement whereby the USPS agreed not to pursue criminal charges in exchange for the petitioner either retiring or accepting another position in a less desirable location for less pay.  The petitioner chose to retire, and submitted his resignation on February 9, 2010, with an effective date of March 31, 2010.

On March 22, 2010, 41 days after submitting his intention to retire but 96 days after signing the agreement with USPS, the petitioner contacted the EEOC to report an unlawful constructive discharge, which is a prerequisite to filing a complaint under Title VII of the Civil Rights Act of 1964.  The Federal District Court dismissed his complaint as untimely because it ruled that petitioner did not contact the EEOC within 45 days of the complained discriminatory action.  The Tenth Circuit affirmed, holding that the 45-day window began to run on December 16, 2009, when the agreement with the USPS was signed.

In holding that the “matter alleged to be discriminatory” in a constructive-discharge claim includes the employee’s resignation, the majority in Green offered three reasons to start the 45-day period with the notice of resignation:

• The employee’s resignation is a part of the completed cause of action, which has two elements: discriminatory conduct such that a reasonable employee would have felt compelled to resign and the actual resignation. Relying on Pennsylvania State Police v. Suders, 542 U.S. 149 (2004), the majority held that it is only after an employee has resigned that they have a complete and present cause of action to trigger the limitations period.

• The majority held that the natural reading of “matter alleged to be discriminatory” includes the allegations that form the basis of the claim, e. the employee’s resignation.

• Lastly, the majority relied on practical considerations of its holding in order to further the policy goals of Title VII’s remedial structure. Otherwise, the majority noted, an employee would be forced to file a complaint only to later amend it to allege a constructive discharge after resigning.

Importantly, the majority concluded that the constructive-discharge claim accrues, and the limitations period begins to run, when an employee gives notice of their resignation, not from the effective date of that resignation.  So, if an employee gives their two-week notice to their employer, their claim would run from the date that notice was given, not from their last day of work two weeks later.  The Court did not rule on the merits of the petitioner’s claim, instead remanding the matter to the Tenth Circuit Court of Appeals to determine when exactly Green gave notice of his resignation.

While Justice Alito concurred in the outcome of the majority’s decision as it applied to the petitioner, he did not agree with the majority’s bright-line rule for all constructive-discharge claims. Rather, Justice Alito would start the 45-day period from the employer’s last discriminatory act, which could include the employee’s resignation if it was the employer’s intent to force that employee to resign.  Without that intent however, Justice Alito argued that the resignation is not an “independent discriminatory act but merely a delayed consequence of earlier discrimination” that does not give rise to a fresh limitations period.  In his dissent, Justice Thomas would have affirmed the Tenth Circuit because, he argued, only an employer’s action can trigger the 45-day period, and not the action of an employee.  To Justice Thomas, an employee’s decision to resign does not fall within the meaning of a “matter alleged to be discriminatory” because it is an action taken solely by the employee.

The effect of this decision is that it eliminates procedural uncertainties for when the limitations period begins for a claim of constructive discharge.  It is important for employers to remember that this decision only applies to the claims of constructive discharge, and not for other claims of discriminatory conduct.  As noted by Justice Sotomayor, the “limitations-period analysis is always conducted claim by claim.”  The 45-day period for those other claims will begin to run from when those alleged acts occur, but for claims of constructive discharge, the clock does not start until the employee gives notice of their resignation.

For more information regarding the potential impact of this decision, please John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group, at jpetrella@genovaburns.com, or at 973-533-0777 or contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com.