Justices Agree to Review Timing Issue On Title VII Constructive Discharge Claims

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By Kevin McGowan

April 27 — Granting a black former postmaster's petition, the U.S. Supreme Court April 27 agreed to address a federal circuit court split on when the limitations period under Title VII of the 1964 Civil Rights Act begins to run on constructive discharge claims.

The justices will review a U.S. Court of Appeals for the Tenth Circuit decision that Marvin Green's constructive discharge claim accrued when the U.S. Postal Service gave him a choice between retiring or taking a significantly lower-paying job 300 miles away, not when Green formally quit some months later (760 F.3d 1135, 123 FEP Cases 1425 (10th Cir. 2014).

The Tenth Circuit joined the District of Columbia and Seventh circuits in holding the Title VII limitations period for a constructive discharge claim begins to run from the employer's alleged discriminatory act that causes an employee to quit. By not contacting a federal equal employment opportunity counselor within 45 days of the Postal Service's Dec. 16, 2009, offer, Green forfeited his constructive discharge claim, the Tenth Circuit said.

But five federal appeals courts, including the Second, Fourth and Ninth circuits, have said a constructive discharge claim accrues when an employee actually resigns, Green said in his petition for review.

The justices should grant review and resolve the circuit conflict because “clear and uniform limitations periods vindicate the interests of both employees and employers,” Green said.

In its brief opposing review, the Postal Service said Supreme Court review is premature because lower courts have yet to weigh in on the differences between constructive discharge cases alleging “discrete” acts of alleged discrimination (such as Green's case) and those alleging hostile work environment, in which courts have picked the resignation date as the accrual date.

Green's case also is a poor vehicle for addressing the issue because his December 2009 agreement to retire occurred more than 45 days before he contacted an EEO counselor, the Postal Service said. Even under his preferred rule, Green's constructive discharge claim would be untimely filed, the employer contended.

‘Discrete Act' Controls, Tenth Circuit Said 

In his petition, Green said the federal agencies enforcing Title VII themselves are divided on when a constructive discharge claim accrues.

The Equal Employment Opportunity Commission “has taken a position consistent with the majority rule” that the Title VII limitations period for constructive discharge begins to run when the employee resigns because of intolerable working conditions, Green said.

But the Justice Department, which represents the Postal Service, argues for the minority rule that an employer's last act of alleged discrimination causing the constructive discharge triggers the Title VII claimant's limitations period, Green said.

“This case—in which the choice between these two timeliness rules is outcome-determinative—provides the court with an ideal vehicle to restore uniformity to the legal landscape, ensuring that constructive discharge claims will no longer turn on geographic happenstance,” Green said.

In affirming the dismissal of Green's claim, the Tenth Circuit said a Title VII filing period for a constructive discharge claim begins to run when the employer's alleged “last discriminatory act” occurs giving rise to the employee's resignation, rather than from the date of resignation itself.

The appeals court acknowledged its rule deviated from other circuits that have ruled Title VII constructive discharge claims accrue when the employee resigns, Green said. The Tenth Circuit also conceded its decision was “at odds with the practical reality” a constructive discharge claim can't be submitted until an employee quits his job, Green said.

Nevertheless, the Tenth Circuit said the majority rule that the date of resignation triggers the Title VII limitations period would “allow the employee to extend the date of accrual indefinitely.” It therefore joined the District of Columbia and Second circuits in adopting the “last discriminatory act” rule.

Placed on unpaid leave and facing a Postal Service inspector general investigation, Green on Dec. 16, 2009, signed an agreement that in exchange for the dropping of the probe, he either would retire by March 31, 2010, or accept a job located 300 miles away that paid him $40,000 less per year. Green resigned Feb. 9, 2010.

On March 22, 2010, Green contacted an EEO counselor, alleging the Dec. 16 agreement was retaliation for his prior race discrimination charge against the Postal Service and led to his forced resignation. Indeed, the inspector general already had dropped its investigation of Green when the Postal Service pressured him to sign the Dec. 16 pact, Green said.

Restore Title VII ‘Uniformity,' Petitioner Urges 

Green argued he complied with Title VII federal sector rules that apply to the Postal Service by contacting an EEO counselor within 45 days of his Feb. 9 resignation. But the Tenth Circuit dismissed his constructive discharge claim,, saying Green's failure to initiate the EEO process within 45 days of the Dec. 16 agreement, the Postal Service's “last discriminatory act,” made his claim untimely.

The Tenth Circuit decision “deepened a split” among the federal courts about when a Title VII constructive discharge claim accrues, Green said. The issue affects both federal sector and private sector claims, he said.

If Green had been a postmaster in any of the circuits that apply a date of resignation rule, “binding precedent would have rendered his claim timely and required it to be resolved on the merits,” he said.

But three circuits, including the Tenth Circuit, use a less definite “last act of discrimination” rule for determining when constructive discharge claims accrue, sowing uncertainty for both employees and employers, Green said.

The minority rule also has the adverse consequence of encouraging employees prematurely to file Title VII charges, before the employer has an opportunity to correct the alleged intolerable conditions, retain the employee and avoid a constructive discharge claim, he said.

“As long as the question presented remains unanswered by this court, thousands of employees and their employers operate in a legal environment lacking predictability and uniformity,” Green said. “Not only have eight courts of appeals arrived at conflicting rules, but the federal government itself has advanced different positions over the years. This uncertainty should not persist.”

Brian Wolfman of the Stanford Law School Supreme Court Litigation Clinic in Stanford, Calif., is counsel of record for Green.

‘Poor Vehicle' for Review 

But the Postal Service said even if a circuit split were “otherwise ripe” for court review, Green's case is a “poor vehicle” to address the Title VII issue presented.

Green's constructive discharge claim is untimely even under the rule he asks the Supreme Court to adopt because he agreed to retire in the Dec. 16 settlement and he contacted an EEO counselor more than 45 days after that event, the Postal Service said.

In addition, Green's December 2009 settlement and his retention of the consideration received for signing that pact would prevent him from maintaining his Title VII claim on the merits, the Postal Service said.

Also, the purported circuit split may not be as stark as suggested by Green, the Postal Service said. The Tenth Circuit suggested the decisions on which Green relied “could be distinguished on the ground the last act of discrimination was within” the applicable Title VII limitations period, the employer said.

Indeed, with the exception of a First Circuit decision, all the constructive discharge cases cited by Green involved hostile work environments, in which a single act of alleged harassment during the filing period preserves the Title VII claim, the Postal Service said.

In contrast, Green's case involved a “discrete” act of intolerable working conditions, the Dec. 16 agreement that Green alleges forced him to resign, the Postal Service said.

Cases in which courts have adopted the date of resignation rule, most of them involving a hostile working environment, may be reconcilable with the Tenth Circuit's decision, which involved a “discrete act” of alleged retaliation, the Postal Service said.

Green's argument “essentially requires the employee's act of resigning (or giving notice of his resignation) to be treated as the ‘discriminatory act' in every constructive discharge case,” the Postal Service said. “But the rationale for using the date of notice of resignation in hostile environment cases may not apply in other cases in which the constructive discharge is triggered by a discrete act, rather than the cumulative effect of a series of prior acts.”

Solicitor General Donald B. Verrilli in Washington is counsel of record for the U.S. Postal Service.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the petition for review is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9vyqgh, the brief opposing review at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9vyqh3 and the petitioner's reply brief at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9vyqhf.