Justices Consider When Constructive Discharge Claim Accrues

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By Lisa Nagele-Piazza

Nov. 30 — The U.S. Supreme Court grappled during oral argument Nov. 30 with the question of whether the limitations period for an employee to bring a constructive discharge claim under Title VII of the 1964 Civil Rights Act begins when the employee gives notice of resignation, when the employee actually resigns, or at the time of the employer's last allegedly discriminatory act.

An employee may assert a constructive discharge claim when the employer made working conditions so intolerable that a reasonable person would feel compelled to resign. Former postmaster Marvin Green claimed he was forced to resign after he was subjected to harassment in retaliation for filing race discrimination complaints.

The U.S. Court of Appeals for the Tenth Circuit ruled that Green waited too long to file his claim under a 45-day limitations period applicable to federal sector claims under Title VII. The claim accrued when the U.S. Postal Service gave him a choice between retiring or taking a lower paying job 300 miles away, not on the date that he formally resigned a few months later, the appeals court reasoned (146 DLR A-2, 7/30/14).

The federal appeals courts are split on this issue, with five circuits using the resignation date and three courts the “last discriminatory act” standard.

Brian Wolfman of the Stanford Law School Supreme Court Litigation Clinic argued that the high court should reverse the appeals court's decision because an employee must definitively resign before he can claim he was constructively discharged.

The Postal Service agreed with the Tenth Circuit's ruling but on different grounds. Justice Department attorney Curtis E. Gannon said the limitations period should be measured from the date the employee gives notice of his intent to resign. The limitations period in the present case should be measured from the date the parties reached a settlement agreement several months prior to Green's formal resignation, Gannon argued.

Catherine M.A. Carroll, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, was appointed by the Supreme Court to defend the Tenth Circuit's “last discriminatory act” rule. In every case, it's about identifying what is the alleged violation, Carroll said.

Agreement Signed Months Before Resignation

Green, who was a postmaster in Englewood, Colo., claimed that his supervisors retaliated against him for filing a race discrimination complaint after he was overlooked for a postmaster opening in Boulder, Colo.

Green signed a settlement agreement on Dec. 16, 2009, following a criminal investigation into his alleged intentional delay of the mail. The agreement provided that the Postal Service would drop the investigation if he immediately left his job and used his accrued annual and sick leave through the end of March 2010. He was given the option to retire or accept a significantly lower paying position in Wyoming after his accrued leave expired.

On Feb. 9, 2010, Green informed the Postal Service that he was resigning at the end of March. On March 22, he made a complaint to an Equal Employment Opportunity counselor about constructive discharge.

Green sued in September 2010 asserting various employment discrimination claims, including the constructive discharge claim. The district court held, and the Tenth Circuit affirmed, that the constructive discharge claim was time-barred because he didn't raise the issue with the EEO counselor within 45 days of signing the Dec. 16 settlement agreement.

Green contended that the limitations period should be measured from Feb. 9—the date he gave definitive notice of his decision to resign.

The Supreme Court last April granted review in the case (80 DLR AA-1, 4/27/15).

Justices Question Time Between Act, Resignation

Wolfman argued that the cause of action for constructive discharge isn't complete until an employee resigns. He urged the high court to make a clear rule that is easy for a layperson to follow when deciding whether to bring a complaint.

The date of resignation is easy to identify, Wolfman asserted, and would be aligned with the Equal Employment Opportunity Commission's position as well as the majority rule among the federal appeals courts, he said.

The justices raised concerns about the amount of time that could elapse between the last alleged discriminatory act and the employee's resignation date.

What if there's no discrimination for a year before the employee decides he's going to quit? Justice Antonin Scalia asked.

Wolfman said this is a concern in theory but not in practice. “In reality, there are no such claims. The claims would be so weak that those constructive discharge claims are not brought, and amicus cites no claims of that nature,” he said in response to this line of questioning.

What happens if someone says. “I can't take it anymore. I'm leaving in three months” or in the case of a school teacher who resigns effective the end of the school year? Chief Justice John G. Roberts asked.

Wolfman clarified that he wasn't asking the court to find that the limitations period begins on the employee's last day of work. Rather, the period should begin on the date the employee definitively tells the employer he's resigning, Wolfman said.

Representing the Postal Service, Gannon argued that Green gave notice when he signed the settlement agreement because it included his promise to retire.

When Did Harm Occur?

Arguing in support of the Tenth Circuit's ruling, Carroll said the court should look to what the employee alleged is discriminatory.

Justice Stephen G. Breyer mentioned that in negligence claims the limitations period doesn't begin to run until the harm occurs. He asked why it should be any different in Title VII cases.

Green alleges that he was retaliated against when he was asked to sign the settlement agreement, Carroll said. He “could have promptly initiated counseling on that complaint,” she said.

Breyer observed that it's a more challenging analysis to look at many acts and determine which may have been discriminatory than to determine the date of resignation.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

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

For More Information 
Text of the oral argument transcript is available at http://src.bna.com/bjk.