In the Supreme Court’s only substantive Title VII case this term, the six-justice majority takes a plaintiff-friendly view of when a claim for constructive discharge accrues – on the date that the employee declares his resignation – while Justice Alito’s special concurrence and Justice Thomas’s dissent would start the limitations clock with the last discriminatory event. The court also dispenses with the requirement (imposed by some courts) that hostile working conditions be created by the employer with the intent of making the employee resign.
Green v. Brennan, No. 14-613 (U.S. S. Ct. May 23, 2016): Constructive discharge occurs when “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U. S. 129, 141 (2004). A resignation under such circumstances is deemed, at law, to be an involuntary termination.
This federal-sector, constructive-discharge retaliation case began with a black postal employee who complained that he was passed over for a promotion on the basis of race. After filing this complaint, two of Green’s supervisors accused him of intentionally delaying the mail-a criminal offense. They called in the Postal Service’s Office of the Inspector General (OIG) to investigate the charge, and assigned Green to off-duty status. Despite that OIG interviewed Green and eventually found that no further investigation was warranted, the supervisors allegedly “continued to represent to Green that ‘the OIG is all over this’ and that the ‘criminal’ charge ‘could be a life changer.'”
With the handwriting on the wall, on December 16, 2009 Green signed an agreement providing that he would leave his current assignment, and accept either early retirement or transfer to a remote, lower-paying job. In exchange, the agency agreed not to further pursue the criminal charges. “Green chose to retire and submitted his resignation to the Postal Service on February 9, 2010, effective March 31.”
Then, on March 22, 2010, he contacted his EEO counselor, the first step to commencing a federal-sector Title VII claim. Green contended that the undue pressure placed on him to resign constituted a “constructive discharge.” The March 22 filing date was within the 45-day limitations period permitted under federal regulations, i.e., within 45 days of the “matter alleged to be discriminatory,” 29 CFR § 1614.105(a)(1). Yet the agency argued – successfully in the Tenth Circuit – that the limitations period commenced earlier with the supervisor’s final act, submitting the agreement to Green.
The Supreme Court holds that the limitations period for Title VII constructive-discharge cases accrues with the date of resignation. The majority opinion (signed by Justice Sotomayor) begins by finding the key language in § 1614.105 – a “matter alleged to be discriminatory” – to be not unambiguously clear, and thus in need of interpretation.
The court then holds that nothing in this language signals an intent to depart from what it terms “the ‘standard rule'” for limitations periods: that the period commences when the plaintiff has a complete cause of action. following the standard rule, resignation is the capstone to constructive discharge that completes the claim.
This interpretation, the majority opinion holds, comports not only with the regulatory language, but also with “practical sense”:
“If the limitations period begins to run following the employer’s precipitating discriminatory conduct, but before the employee’s resignation, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged.”
In addition to preventing unnecessary procedure steps, the standard rule also recognizes the some-time impediments to resigning immediately:
“An employee who suffered discrimination severe enough that a reasonable person in his shoes would resign might nevertheless force himself to tolerate that discrimination for a period of time. He might delay his resignation until he can afford to leave. Or he might delay in light of other circumstances, as in the case of a teacher waiting until the end of the school year to resign. … And, if he feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination-an addition al adverse consequence that he may have to disclose in future job applications.”
The majority also rejects an interpretation of constructive discharge (advocated by Justice Alito’s concurrence and Justice Thomas’s dissent) that would require proof that the employer fostered a hostile work environment with the intent to force the employee to resign.
“The whole point of allowing an employee to claim ‘constructive’ discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him. Suders, 542 U. S., at 141-143.6 We do not also require an employee to come forward with proof-proof that would often be difficult to allege plausibly-that not only was the discrimination so bad that he had to quit, but also that his quitting was his employer’s plan all along.”
The court remands the case to the Tenth Circuit to decide whether the resignation occurred when Green signed the agreement (December 16) or when he declared his retirement (February 9).
Two separate opinions follow. Justice Alito – concurring in the judgment – would hold that a claim of constructive discharge accrues only with the final act by an employer, unless it’s shown that the employer intended to force the employee to resign, in which case the resignation could be imputed to the employer as well. Dissenting, Justice Thomas interprets a claim of constructive discharge to always accrue with the employer’s final act.