Constructive Discharge Claims: When Does the 45-Day Period for Initiating Contact with the EEOC Begin to Run?
On May 23, 2016, the U.S. Supreme Court decided the case of Green v. Brennan in order to resolve a split among the Circuits on whether, in an action for constructive discharge, the 45-day limitation period for the employee to initiate contact with the EEOC begins to run after the employer’s last discriminatory act, or at the time of the employee’s resignation. In the 7th and 10th Circuits (which include Illinois and Kansas), the limitation period had been measured from the time of the last discriminatory act. In the 8th Circuit (which includes Missouri), it had been measured from the time of the employee’s resignation. The Supreme Court in Green held that the period runs from the time of the employee’s resignation.
Marvin Green is a black man who worked for the U.S. Postal Service for 35 years. In 2008, Green was passed over for a promotion and later complained to his supervisors that he was denied the promotion because of his race. Following his complaint, Green’s supervisors accused him of the criminal offense of intentionally delaying the mail but agreed to pursue no criminal charges against Green if he agreed to leave his current post at the Postal Service to either retire or take a lesser position for less pay effective March 2010. The parties signed this agreement on December 16, 2009. Green submitted his resignation on February 9, 2010.
On March 22, 2010, Green first contacted the EEOC to report his alleged unlawful constructive discharge. Green claimed that his supervisors threatened him with criminal charges and negotiated the resulting agreement as retaliation for his original complaint. Green contends these actions effectively forced his resignation and were in violation of Title VII. Green’s first contact with the EEOC was 41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16.
In 2010, Green filed suit in federal court in Colorado alleging that the Postal Service constructively discharged him. The District Court granted the Postal Service’s Motion for Summary Judgment on the grounds that Green had failed to make timely contact with an EEOC counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR §1614.105(a)(1). The Tenth Circuit affirmed the District Court’s ruling, holding that the “matter alleged to be discriminatory” encompassed only the Postal Service’s discriminatory actions and not Green’s resignation on February 9, 2010.
The U.S. Supreme Court, however, held that “the ‘matter alleged to be discriminatory’ in reference to the elements required in a constructive-discharge claim necessarily includes the employee’s resignation”, for three reasons.
1. For a constructive-discharge claim, the limitations period requires a “complete and present cause of action” which only occurs when the employee resigns. A claim of constructive-discharge requires that the plaintiff employee prove two elements: first, that the employee was “discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign” and second, that the employee actually resigned. The limitations period can only begin to run at the point when a plaintiff can file suit for a constructive discharge after there is a “complete and present cause of action” which occurs only after the plaintiff resigns. Thus, the term “matter alleged to be discriminatory” under §1614.105 in reference to the elements of a constructive-discharge claim include the employee’s resignation.
2. There is nothing in the language of regulation §1614.105 that indicates the standard rule for limitations periods should be displaced. The standard rule dictates that a limitations period should commence after a claim accrues and there is only an exception if the text creating the limitations period clearly indicates otherwise. Citing Dodd v. United States, 545 U.S. 353, 360 (2005). Nothing in the text of Title VII or regulation §1614.105 indicate that the standard rule should be displaced.
3. Applying the standard rule for limitations periods to constructive-discharge claims makes practical sense. As discussed, a plaintiff can only bring a constructive-discharge claim once the claim accrues which requires the employee to actually resign. “Starting the limitations clock ticking before a plaintiff can actually sue for constructive-discharge serves little purpose in furthering the goals of a limitation period – and it actively negates Title VII’s remedial structure.” If the limitations period began to run at the employer’s last discriminatory act and before the employee’s resignation, the employee would be forced to file a discrimination complaint and then later amend the complaint after he resigns to allege a constructive-discharge claim.
Going forward, the limitations period for constructive-discharge claims for federal and private employees to make contact with the EEOC will begin to run at the employee’s resignation, as a constructive-discharge claim does not exist until the employee resigns.