Hopefully, no reader of ProfLERoy will ever feel compelled
to quit due to discrimination. But just in case—or if you administer HR
policies— here is an update on the Supreme Court’s ruling last week.
First, let me use a short hypothetical to explain this.
Suppose that a Trump-inspired supervisor (or worse, more senior manager) feels emboldened
to make derogatory remarks about Mexicans and Muslims. You’re neither Mexican
nor Muslim but you reach the point where you can’t tolerate these conditions. Point 1: You’re
protected under Title VII, even if “your group” isn’t implicated.
Now, let’s say you take leave or vacation time to think
about whether you can work for this jerk.
Some courts would start the 45-day clock for an employee to
contact the EEOC at the time of the last discriminatory act. Courts that took
that approach effectively knocked out the employee’s claim of discrimination.
In Green v. Brennan, the Supreme Court ruled against this
approach: the clock starts on the day the employee actually quits.
I think the Court got it right here, with a common sense
ruling.
For readers who want more, here is a good explanation from
Christina McDonald in The National Law Review.
U.S. Supreme Court Holds that Resignation Triggers
Limitations Period for Constructive Discharge Claims
Tuesday, May 31, 2016
The United States Supreme Court resolved a split among
appellate circuits about when an employee must take action to pursue a
constructive discharge claim. The Court held that the 45-day limitation period
for a federal civil servant to contact an EEOC counselor for a constructive
discharge claim under Title VII of the Civil Rights Act of 1964 begins to run
when the employee gives notice of his resignation, and not on the date of the
employer’s last alleged discriminatory act. The Court’s decision in Green v.
Brennan foreshadows how courts will likely treat the timeliness of filing
constructive discharge claims in both the private and public sectors.
The Facts
Marvin Green worked for the U.S. Postal Service for 35
years. The last position he held was as postmaster for a Denver, Colorado
suburb. He applied for a promotion for a vacant postmaster job in Boulder, but
he was passed over. Shortly thereafter, Green complained that he was denied the
promotion because of his race. His supervisors accused him of intentionally
delaying the mail – a criminal act – and continually threatened Green. Finally,
Green and the Postal Service signed an agreement wherein the Postal Service
promised not to pursue criminal charges in exchange for Green’s promise to
resign, retire, or take a position in Wamsutter, Wyoming (population 451) for
significantly less pay. Green chose to resign. Forty-one days after he
submitted his resignation paperwork, which was 96 days after he signed the
settlement agreement, Green contacted an EEOC counselor to report an unlawful
constructive discharge.
Before a federal employee can sue his employer for violating
Title VII, he must contact an EEOC counselor “within 45 days of the date of the
matter alleged to be discriminatory.” The U.S. 10th Circuit Court of Appeals
held that the “matter alleged to be discriminatory” encompassed only the Postal
Service’s discriminatory actions and not Green’s decision to resign; therefore,
the 45-day period started running when the parties signed the settlement
agreement and Green’s EEOC contact was untimely.
The Holding
The Supreme Court reversed, holding that the “matter alleged
to be discriminatory” includes the employees’ resignation so that the 45-day
clock for constructive discharge begins running only after the employee
resigns. The Court specifically noted that the 45-day regulation, though applicable
to federal employees only, “has a statutory analog for private-sector Title VII
plaintiffs, who are required to file a charge with the EEOC within 180 or 300
days after the alleged unlawful employment practice occurred…Although the
language is different, the EEOC treats the federal and private-sector employee
limitations periods as identical in operation.” Notice of the resignation, and
not the resignation itself, triggers the limitations period to start running
(i.e. “If an employee gives ‘two weeks’ notice…the limitations period begins to
run on the day he tells his employer, not his last day at work”).
Based on the Supreme Court’s ruling, employers who pursue a
statute of limitations defense of a constructive discharge claim must calculate
the employee’s deadline to file an EEOC charge from the date the employee gives
notice of his or her resignation, even if the last alleged discriminatory act
occurred before the employee submits the notice.
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