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May 26, 2016

Legal Update
Christine M. Netski

U.S. Supreme Court: Under Title VII, limitations period starts when employee gives notice of resignation

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On May 23, 2016, the Supreme Court of the United States ruled in Green v. Brennan that the statute of limitations for a federal employee’s constructive discharge claim under Title VII of the Civil Rights Act of 1964 begins to run on the date the employee gives notice of his or her resignation. Specifically, the Court held that a federal employee’s obligation under Title VII regulations to initiate contact with an Equal Employment Opportunity (“EEO”) counselor within 45 days following the “matter alleged to be discriminatory” is satisfied so long as the employee does so within 45 days of giving his or her notice. In so ruling, the Court resolved a split among the circuits as to whether the limitations period in a constructive discharge case is triggered upon the employee’s resignation or the employer’s last discriminatory act.

Case Summary

In 2008, Green, a black postmaster for the United States Postal Service (“USPS”), complained to USPS that he believed he was denied a promotion because of his race. Thereafter, Green’s interactions with his supervisors became strained and, on December 11, 2009, two of Green’s supervisors accused him of “intentionally delaying the mail,” a criminal violation. USPS placed Green on “off-duty status” after the Postal Service’s Office of Inspector General (“OIG”) interviewed Green as part of its investigation into the accusation. Although the OIG reported to Green’s supervisors that no further investigation was warranted, the supervisors continued to misrepresent to Green that the investigation was ongoing and that a criminal charge could be “a life changer.” On December 16, 2009, Green and USPS reached a settlement under which USPS agreed not to pursue criminal charges if Green, in turn, agreed to either retire or take a new post, located 300 miles away and at a significantly lower salary. Green informed USPS on February 9, 2010, that he would retire effective March 31, 2010. On March 22, 2010 (41 days after his notice of resignation), Green contacted an EEO counselor and reported that he believed he had been forced to resign as a result of his supervisors’ threats of criminal action and negotiation of the settlement agreement, in retaliation for his original complaint of discrimination.

Green later filed suit in federal district court, alleging that he was constructively discharged. The district court granted USPS’s motion for summary judgment, ruling that Green’s claim was untimely because he did not contact an EEO counselor within 45 days of the parties’ execution of the settlement agreement – the “matter alleged to be discriminatory” within the meaning of the applicable federal regulation, 29 C.F.R. §1614.105(a)(1). The Court of Appeals for the Tenth Circuit affirmed the lower court’s ruling that Green’s constructive discharge claim was untimely.

The Decision

In interpreting the applicable regulation, the Court in Green analyzed the “not unambiguously clear” text under the “standard rule,” pursuant to which a limitations period ordinarily begins to run when the plaintiff has “a complete and present cause of action.” The Court reasoned that a complete and present cause of action for constructive discharge can only exist when a plaintiff is able to allege that the employer’s discriminatory conduct resulted in such an intolerable working environment that a reasonable employee would have felt forced to resign and that he or she in fact resigned. Accordingly, the Court held that a cause of action for constructive discharge cannot accrue until the employee actually resigns. The Court held further that the limitations period begins to run when the employee gives notice of his or her resignation, rather than on the effective date of the resignation, and remanded the case for a finding as to when Green gave USPS notice of his intention to retire.

Takeaway for Employers

Although the 45-day limitations period at issue in Green only applies to federal employees, the Court’s analysis also appears to govern constructive discharge claims brought by private-sector employees under Title VII. Indeed, the Court noted that the EEOC views the limitations requirements in the public and private sectors as “identical in operation.” Thus, a cause of action will be deemed to accrue for purposes of bringing a timely administrative charge with the EEOC when the employee gives notice of his or her resignation, regardless of when the employer’s last discriminatory act occurred or the employee’s resignation became effective. This bright-line rule brings more certainty and predictability to the determination of when a cause of action accrues in constructive discharge cases under Title VII, but potentially permits employees to manipulate the accrual of their cause of action and extend the limitations period long beyond the date of the employer’s most recent discriminatory act. As the Court in Green emphasized, however, a plaintiff who claims to be working in an intolerable environment has little incentive to delay resigning and risk being unable to “pro[ve] the causal link between the allegedly intolerable conditions and the resignation.” The temporal proximity between the allegedly unlawful conduct by the employer and the employee’s resignation will continue to be a very significant factor in determining whether a plaintiff can succeed in a constructive discharge case.

You can view the Supreme Court’s decision in Green v. Brennan, 136 S. Ct. 1769 (2016) here.

This Alert was prepared for the clients and colleagues of Sugarman, Rogers, Barshak & Cohen, P.C.  It is provided for educational and informational purposes only and is not a substitute for professional advice on your specific legal situation.