Under federal anti-discrimination law, does the filing period for a constructive discharge claim begin to run at the time an employee resigns, at the time an employee gives notice of her resignation, or at the time of the employer’s last discriminatory act giving rise to the resignation?
Federal employees wishing to file a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 must exhaust their administrative remedies before proceeding to federal court. The first step in that process is contacting an Equal Employment Opportunity counselor (“EEOC”) and reporting the charge within 45 days of the matter alleged to be discriminatory. Green, a United States Postal Service employee, alleges that he was constructively discharged after being forced to retire. Green contacted an EEOC to report the alleged discrimination within 45 days of his formal retirement. The issue before the Court is when the 45-day filing period begins to run. The Tenth Circuit ruled that the filing period begins to run when the last allegedly discriminatory act occurred, which in Green’s case was more than 45 days before Green contacted the EEOC. Green argues that the filing period begins to run when the employee actually resigns following a discriminatory act. Postmaster General Brennan maintains that the filing period begins to run when the employee either actually resigns or gives the employer a notice of resignation, which may occur before the actual resignation. Court-Appointed Amica Catherine M.A. Carroll, Esq., agrees with the Tenth Circuit’s holding. This case will impact the rule that courts use when applying Title VII and the balance between employees’ need to access the courts and employers’ need for repose from impending lawsuits.
Questions as Framed for the Court by the Parties
Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation?
In early 2008, Marvin Green, an African American United States Postal Service (“Postal Service”) worker, applied for a postmaster position. However, a Hispanic candidate received the position. As a result, “[i]n August 2008, Green filed a formal charge with the Postal Service’s Equal Employment Opportunity (EEO) Office, alleging that he had been denied a promotion because of his race.” The matter was soon settled. Afterwards, Green’s supervisor allegedly began threatening, demeaning, and harassing him because of his race and his filing the EEO charge. “In May 2009, Green filed an informal EEO charge alleging that the Postal Service had begun retaliating against him for his prior EEO activity.” After completing investigations, the EEO office permitted Green to file a formal charge, but he did not.
In November 2009, Green received a letter from the Postal Service’s Manager of Labor Relations, instructing him “to appear for an investigative interview regarding allegations of non-compliance in the grievance procedure.” On December 16, 2009, Green signed a settlement agreement with the Postal Service, in which he agreed to surrender his current position and “use accrued annual and sick leave to receive pay until March 31, 2010, after which he could choose either to retire or to accept a position at significantly lower pay . . . about 300 miles away.” As a condition, the Postal Service agreed not to pursue charges.
On January 7, 2010, Green filed an informal EEO charge alleging that he had been retaliated against on December 11, 2009, the day the investigative interview took place. “On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010.” On March 22, 2010, Green initiated counseling with an EEO counselor (“EEOC”). In September 2010, Green filed the complaint in this case alleging, amongst other claims, constructive discharge in violation of Title VII of the Civil Rights Act of 1964.
The United States District Court for the District of Colorado granted the Postal Service’s motion for summary judgment on the grounds that the constructive discharge claim was time-barred: federal employees must report discrimination to an EEOC within 45 days of the matter alleged to be discriminatory, but Green failed to do so within 45 days of signing the settlement agreement. According to the District Court, “the allegedly discriminatory actions occurred by December 16, 2009, so [Green’s] March 22, 2010 contact with the EEO office” was beyond the 45-day limit.
The United States Court of Appeals for the Tenth Circuit agreed that the constructive discharge claim was time-barred. In determining when the limitations period began to run, the Tenth Circuit focused on “the time of the discriminatory acts,” not “the time at which the consequences of the acts became most painful.” Contrary to Green’s argument, the Tenth Circuit held that “the employee’s resignation, or notice of resignation” does not constitute a discriminatory act of the employer. The Tenth Circuit argued that otherwise, employees could “extend the date of accrual indefinitely.” The Tenth Circuit maintained that the limitations period provides employees enough time for contemplation prior to filing a claim. Subsequently, Green petitioned the Supreme Court for a writ of certiorari, which it granted on April 27, 2015.
In this case, the Supreme Court will decide when the filing period for a constructive discharge claim begins. A Title VII claim requires employees to contact an EEOC within 45 days of the matter alleged to be discriminatory. Green argues that “the matter alleged to be discriminatory,” comprises the discriminatory act and the employee’s actual resignation. Accordingly, Green, arguing for the application of a Date-Of-Resignation Rule, contends that the filing period can only begin once the employee resigns. Brennan agrees that the “matter” includes the employee’s resignation, but that this resignation may be manifested in the form of notice. As such, Brennan contends that the Court should apply a Notice-Of-Resignation Rule, and begin the filing period once the employee gives the employer notice of resignation, which may occur before the actual resignation. Court-Appointed Amica argues that the “matter” is the employer’s “discriminatory conduct,” which is independent from the employee’s resignation. Accordingly, Court-Appointed Amica argues for a Last-Discriminatory-Act Rule, contending that the filing period should begin once the discriminatory act occurs, regardless of when the employee decides to resign.
WHEN DOES THE FILING PERIOD OF A CONSTRUCTIVE DISCHARGE CLAIM BEGIN?
Green contends that the 45-day filing period begins when plaintiffs have “complete and present cause[s] of action.”Green states that the “general rule” for interpreting limitations periods is that complete and present causes of action are ones for which a party can sue and claim relief. Green asserts that constructive discharge has two elements, a discriminatory act and resignation. Accordingly, his claim could only accrue—that is, he could only sue and claim relief—once he resigned. Thus, Green argues, the filing period did not begin until he resigned. Green explains that the Court rarely determines that a filing period starts before the claim accrues, because it would be unfair to start the limitations period before plaintiffs could litigate their claims “to a successful conclusion.”
Green asserts that this interpretation is in line with the relevant statutory text; 29 C.F.R. §1614.105(a)(1) provides aggrieved employees 45 days “from the date of a ‘matter alleged to be discriminatory’” to file a claim. According to Green, “the discriminatory matter” means “more than just a particular ‘act’; rather,” it means “‘the subject under consideration.’” Accordingly, Green maintains that the subject under consideration in a constructive discharge action is the employer’s act and the employee’s resignation, because an employee could not “properly ‘allege’ constructive discharge before [she] resign[s].” . Green contends that even if the Court did not consider the employee’s resignation as part of the matter, an employee’s resignation is a discreet discriminatory act, because it was caused by the employer’s intolerable working conditions. Green also argues that the Date-Of-Resignation Rule follows the Court’s precedent regarding statutes of limitations and statutes of repose. While statutes of limitation begin running once an employee’s claim accrues, and may be modified by “equitable defenses,” statutes of repose begin after the employer’s last act, and may not be modified by “equitable tolling.” Green asserts that “[a]ll courts” apply equitable defenses to the filling period of “Title VII administrative claims”—effectively treating the filing period as a statute of limitations. Green maintains that the courts have adopted the same approach in similar areas of the law, such as franchisees suing their franchisors, tenants suing their landlords, and, in some states, employees suing for wrongful termination.
Brennan also contends that the filing period begins after the claim accrues. Brennan explains that the Court has repeatedly treated the filling periods for similar Title VII claims as statutes of limitations, by allowing “equitable defenses” to modify the filling periods. As such, Brennan contends that the filing period for a constructive discharge claim under Title VII is a statute of limitations. Like Green, Brennan argues that, if the filing period is a statute of limitations, the standard rule is for the filing period to start only when the claim accrues. But Brennan maintains that a constructive discharge claim accrues when the employee gives notice of resignation or, in the absence of notice, resigns. Brennan argues that the Court in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), recognized that a claim for constructive discharge accrues when an employee resigns or when she “gives definitive notice” of resignation. Thus, Brennan contends that the filing period may start as early as when the employee gives notice of resignation. Brennan contends that this result is consistent with the rule for actual (as opposed to constructive) discharge claims; in those cases, the period begins on the date of termination by the employer.
Court-Appointed Amica Catherine M.A. Carroll, Esq., argues that the Tenth Circuit “correctly held that ‘the matter alleged to be discriminatory’ in a constructive discharge claim” was the employer’s last discriminatory act and not the employee’s resignation. She explains that employees outside the constructive discharge context “have a duty to mitigate damages” by staying on the job before they can seek certain remedies for discrimination, such as “back pay, front pay, and reinstatement,” because these remedies “are generally available only if the employee was discharged.” She explains further that constructive discharge is a remedial doctrine, which recognizes that sometimes employees may reasonably feel forced to resign, and that employers should not be able to avoid liability that would otherwise be available had the employee stayed and the employer terminated her. To succeed on a constructive discharge claim, an employee must show a discriminatory act by an employer that is “independently actionable” and such intolerable working conditions that would cause a reasonable employee to resign. However, the focus of the constructive discharge claim is still the employer’s discriminatory act.
Ms. Carroll explains that the second element—intolerable working conditions that caused the employee to reasonably resign—preserves an employee’s remedies, which would be lost if that employee resigned voluntarily. But the discriminatory act is still the heart of the claim, because the claim cannot survive without it; and hence, it should serve as the trigger that starts the filing period. Accordingly, Carroll concludes that the filing period could start before a claim accrues. She asserts that the Court’s precedent clearly shows that filing periods begin as specified by the relevant text or statute. Contrary to both Green and Brennan, Ms. Carroll asserts that section 1614.105(a)(1) is unambiguous: the filing period begins to run whenever the matter alleged to be discriminatory occurs. Drawing on the reasoning above, she concludes that “the matter alleged to be discriminatory” is not the employee’s resignation, but the employer’s last discriminatory act.
The Supreme Court will determine whether the filing period for a constructive discharge claim begins to run when an employee resigns, when an employee gives notice of resignation, or when an employer commits its last allegedly discriminatory act giving rise to the employee’s resignation. Green advocates the Date-Of-Resignation Rule and argues that the filing period begins when the employee resigns. Brennan maintains that the filing period begins to run when the employee either actually resigns or gives the employer a notice of resignation, which may occur before the actual resignation. The Court-Appointed Amica Curiae Catherine M.A. Carroll, Esq. (“Court-Appointed Amica”) supports the Last-Discriminatory-Act Rule and argues that the filing period begins when the employer commits the last allegedly discriminatory act. The Supreme Court’s resolution of this case will impact the balance between employees’ need to access the courts and employers’ need for repose from impending lawsuits.
BALANCING TITLE VII’S GOALS WITH EMPLOYERS’ NEED FOR FINALITY
The NAACP Legal Defense and Educational Fund, Inc. asserts that the goal of Title VII is eliminating unlawful discrimination in the workplace. The NAACP also asserts that Title VII also seeks to promote “policies of conciliation, mediation, and non-litigation remedies,” and to encourage employers and employees to work out solutions without going to court. The NAACP argues that the Last-Discriminatory-Act Rule does not advance these goals. First, the NAACP contends that bringing a successful constructive discharge claim is already difficult enough, given the high standard of proof required to prove discrimination, without the added challenge of a shorter filing period. Second, the NAACP maintains that the Last-Discriminatory-Act Rule does not provide employees adequate time to consider informal resolution methods, forcing employees to resign first and seek assistance later. The NAACP explains that employees need time to balance various considerations and make an informed decision about their resignation. The NAACP asserts that rushing the deliberation process exposes employees to “a whole range of personal and psychological pressures.”
Amici supporting Green argue that the Date-of-Resignation Rule is “straightforward.” The National Employment Lawyers Association (“NELA”) contends that the Date-of-Designation Rule is more intuitive than the Last-Discriminatory-Act Rule, because reasonable employees would assume that the appropriate time to file a claim is after they resign and not beforehand, when they are trying to decide whether to do so. Relatedly, the NAACP argues that employees would have a hard time applying the Last-Discriminatory-Act Rule, because where “a series of discriminatory, retaliatory, or harassing acts give rise to the constructive discharge,” it is difficult for employees to determine which act is considered the last one. And the NAACP asserts that the Date-of-Resignation Rule will not incentivize employees “to game the system by delaying their resignation, thus controlling the timing of their claims,” because courts can strike down such gamesmanship as unreasonable delay that indicates the employee was not actually constructively discharged.
But the Equal Employment Advisory Council (“EEAC”) contends that the goal of Title VII is to “promote prompt and efficient resolution of discrimination claims,” so a short filing period is appropriate. EEAC asserts that Congress’ choice of a relatively short 45-day filing period demonstrates its intent to encourage prompt filing and resolution of discrimination claims. EEAC maintains that allowing the employee to determine the start of the filing period may encourage employees to delay resignation and file claims after certain benefits are received, such as raises or bonuses. Furthermore, EEAC asserts that the Last-Discriminatory-Act Rule allows employers to operate free of the pressure of uncertainty over whether a past employment issue will resurface. EEAC maintains that prompt filing provides employers with “fair notice that accusations of discrimination have been leveled against them,” encouraging them to conduct internal investigations to address and correct problems. EEAC also asserts that a long filing period might prejudice employers who “lawfully destroy employment records after one year.”
The Supreme Court will determine whether the filing period for a constructive discharge claim begins to run when the employee resigns, gives notice of resignation, or when the employer commits his last allegedly discriminatory act giving rise to the employee’s resignation. To resolve this issue, the Court will have to examine the goals of Title VII and balance employees’ need to access the courts against employers’ need for finality from impending lawsuits. The Court must then determine whether these goals and interests are best satisfied using a Date-of-Resignation Rule, in which the filing period begins to run when the employee actually resigns; a Date-of-Notice Rule, in which the filing period begins to run when the employee gives notice; or a Last-Discriminatory Act Rule, in which the filing period begins to run when the employer commits his last allegedly discriminatory act giving rise to the employee’s resignation.
- Megan Toth, ELL SCOTUS SERIES: #1 – Green v. Brennan, JD Supra Business Advisor (October 23, 2015).