On November 30th, 2015, the U.S. Supreme Court will hear oral arguments in the case of Green v. Donahoe, 760 F.3d 1135, 1137 (10th Cir. 2014) regarding the timeliness of an Equal Employment Opportunity Commission (“EEO”) complaint alleging constructive discharge under Title VII. Currently five circuits have held that the filing period begins when an employee resigns. In contrast, three circuits have found that the employer’s last discriminatory act triggers the filing period.
The facts of Green clearly illustrate the problem that the circuit split presents to employees and employers alike. Marvin Green, an African American man, was a postmaster for the U.S. Postal Service. In November of 2009 Green was instructed to appear for an investigative interview about allegations that he had delayed the mail, an allegation that carried criminal implications. While the investigators ultimately determined that Green had not intentionally delayed the mail, Green was led to believe that criminal charges were still pending. On December 16, 2009, Green signed a settlement agreement which required him to immediately give up his position as Englewood postmaster, and then ultimately either retire or accept a position at significantly lower pay 300 miles away. In exchange, the Postal Service agreed that no charges would be pursued based on items reviewed during the interviews. On February 9, 2010, Green submitted his retirement papers, and on March 22, 2010, he initiated counseling with the EEO office alleging racial discrimination.
Under Title VII of the Civil Rights Act, an employee must first seek redress through administrative channels before looking to the courts for relief. For federal employees, the first step in the process is for the employee to initiate contact with an EEO counselor “within 45 days of the date of the matter alleged to be discriminatory.” Courts have found that this 45-day period serves as a statute of limitations. The district court in Green granted summary judgment in favor of the post office, reasoning that Green did not timely contact an EEO counselor and therefore failed to properly exhaust his administrative remedies. The court found that the 45 days began on December 16, 2009 because all of the discriminatory acts had occurred on or prior to that date. The court rejected Green’s argument that the 45 day period began on February 9, 2010, the date he informed the defendant of his retirement date.
The Tenth Circuit affirmed the holding of the district court. While the court acknowledged other circuits begin tolling the 45 days from the date of resignation, the court was concerned that this would allow the employee to indefinitely extend the limitations period. In response to the argument that a constructive-discharge charge cannot be submitted before the employee quits his job, the Tenth Circuit proposed that an employee could first bring a discrimination claim and then look to amend their pleading upon their resignation.
On April 27, 2015, the Solicitor General’s office mailed a letter to the U.S. Supreme Court stating that the government would not defend the court of appeal’s rationale but would continue to defend the court of appeal’s judgment. In response, the Court appointed an amica curiae to argue in support of the circuit court’s reasoning.
The briefs supporting the “time of resignation” position have three primary arguments. (1) a statute of limitation period commences when the plaintiff has a complete and present cause of action, and in the case of a constructive discharge claim, the employee’s resignation is necessary to have a full cause of action; (2) the “last discriminatory act” rule incentivizes the employee to resign as soon as possible in order to preserve their claim; and (3) the “time of resignation” position is more administrable because it is difficult for courts to pinpoint the employer’s last discriminatory act.
As a response to these arguments, the court-appointed amica curiae first argued that courts will apply statute of limitations periods by their text even when the limitation period begins to run before there is a present cause of action. Second, the amica argued that the “last discriminatory act” rule promotes the purpose of pre-complaint counseling, because the 45-day deadline only requires a prompt initiation of counseling to encourage an informal resolution. Third, the amica argued that the facts of this case demonstrate that the “time of resignation” position is not inherently more administrable, particularly because in Green, the parties dispute when Green’s resignation occurred. Fourth, the amica argued that the last discriminatory act rule runs when the employee says the “matter alleged to be discriminatory occurred.” The amica notes that this inquiry would not be as complex as the petitioner and respondent argue.
The Court’s holding in Green could have a broad impact on constructive-discharge claims under Title VII. First, while the facts of the case are limited to the requirements for federal employees, the question presented focuses on the filing period for all employees. Second, the circuits are split on other aspects of constructive discharge claims, such as whether a plaintiff must prove that the employer intended to force his resignation, or whether a worker must complain to higher management prior to resigning. Unwieldy dicta by the court in characterizing constructive discharge claims could lead to unclear guidance on these issues. Third, even if the Court resolves the circuit split by picking one rule or the other, the inquiry for employers and employees could still be relatively complex depending on how the Court characterizes either the “last discriminatory act” or “the time of resignation.”
The court is likely to issue a decision on Green in the spring of 2016.
