By: Karen L. Piper
An employee asserting discrimination (or harassment, retaliation or any other legal claim) against his employer has a limited period of time following the discrimination in which he must file his claim or be time-barred. This period of time is called a “limitations period.” When discrimination results in an employee’s discharge, the limitations period begins on the date of termination. Sometimes an employee subjected to discrimination will resign his employment because he finds working conditions too intolerable to continue. The resignation is called a “constructive discharge.” It requires the employee to show that his working conditions were so intolerable that no reasonable person would continue his employment. In Green v Brennan, (May 23, 2016) the United States Supreme Court was asked to decide when the limitations period began for an employee who resigned his employment due to discrimination and retaliation.
Marvin Green worked for the Postal Service for 35 years. In 2008, he was serving as postmaster for Englewood, Colorado. He applied for a promotion to the vacant postmaster position in nearby Boulder, Colorado. Green did not get the promotion and complained that his rejection was due to his race: black. Following his complaint, Green’s relations with his supervisors deteriorated. In December 2009, Green was accused of intentionally delaying the mail – a criminal offense. Green was placed on a leave of absence. On December 16, 2009, Green signed a settlement agreement in which the Postal Service agreed not to pursue criminal charges against him and Green agreed to leave his position as postmaster for Englewood. Green was given until March 31, 2010 to retire or accept an assignment to Wamsutter, Wyoming – population 451 – at a greatly reduced salary.
Green chose to retire and submitted his resignation and retirement paperwork to the Postal Service on February 9, 2010, effective March 31, 2010. On March 22, 2010 – 41 days after submitting his resignation on February 9, but 96 days after signing the settlement agreement on December 16 – Green notified an EEOC Counselor that he believed that had been forced to resign his position in retaliation for his original complaint that he had been passed over for promotion because of his race. The Postal Service sought dismissal of Green’s claim as untimely.
Much like filing a charge of discrimination with the EEOC is a prerequisite for private sector employees to file a discrimination lawsuit, notifying an EEOC Counselor was a prerequisite for Green to file his discrimination lawsuit. Title VII gives private sector employees 180 days to file a charge of discrimination with the EEOC (or 300 days in states, such a Michigan, which have their own civil rights departments which share in the processing of discrimination charges with the EEOC). Title VII gives federal sector employees only 45 days to notify an EEOC Counselor of the “matter alleged to be discriminatory.”
The Postal Service argued that the 45-day limitations period commenced on the date of the last discriminatory act – here, December 16, 2009, when Green signed the settlement agreement giving him the choice between retiring or being reassigned to Wyoming. Green argued that the matter alleged to be discriminatory did not occur until he submitted his resignation and retirement paperwork on February 9, 2010. The U.S. Supreme Court agreed with Green for three reasons: 1) a forced resignation/constructive discharge claim involves two elements – discrimination so intolerable that the employee feels compelled to resign and the resignation; 2) Title VII does not state a different rule; and 3) the matter alleged to be discriminatory is not complete until the employee actually resigns.
Both parties agreed that an employee resigns “when he gives his employer definite notice of his intent to resign.” The Postal Service argued that Green resigned on December 16 when he signed the settlement agreement. Green argued that he resigned on February 9 when he submitted his resignation and retirement paperwork. The Court sent the case back to the 10th Circuit Court of Appeals to decide which date Green actually resigned.
This case resolved a split among the federal appeals courts over the date on which the limitations period commences in a constructive discharge case. To avoid a constructive discharge lawsuit, consult with experienced employment counsel, such as the author, about strategies to prevent employees who have complained about discrimination, harassment or retaliation from resigning and filing a lawsuit.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org.
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