Employment Law Daily SCOTUS: Limitations period for constructive discharge claim runs from actual resignation
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Wednesday, May 25, 2016

SCOTUS: Limitations period for constructive discharge claim runs from actual resignation

By Lorene D. Park, J.D. Absent clear statutory language otherwise, a limitations period begins to run when a plaintiff has a “complete and present cause of action,” so the 45-day limitations period for a postal worker to make an EEO report of constructive discharge began not from the date he agreed to resign but from the date he actually resigned, explained the Supreme Court, noting that resignation is part of a “complete and present” constructive discharge claim. For this and other practical reasons, the High Court vacated the dismissal of the former postal employee’s complaint. Justice Alito concurred, writing separately to stress that an act done with discriminatory intent must occur within the limitations period but that constructive discharge could be considered an act by the employer. Justice Thomas dissented, reasoning that a federal employee’s decision to quit was not discrimination and the employer’s alleged discriminatory act occurred outside the limitations period (Green v. Brennan, May 23, 2016, Sotomayor, S.). Criminal charges threatened. The long-time postal employee complained that he was denied a promotion in 2008 because he is black. Thereafter, his relationship with supervisors deteriorated. On December 11, 2009, two supervisors accused him of intentionally delaying mail—a criminal offense. The Office of the Inspector General investigated and, even though agents reported to the supervisors that no further investigation was warranted, the supervisors continued to represent to the employee that “the OIG is all over this” and the “criminal” charge “could be a life changer.” Agreed to resign or transfer. In an agreement signed December 16, 2009, the postal service agreed not to pursue criminal charges and the employee agreed to leave his post as postmaster for Englewood, Colorado, effective March 31, 2010, and either retire or accept a position in a remote location for significantly less money. He submitted his resignation on February 9, 2010. Constructive discharge claim. On March 22, 41 days after submitting his resignation but 96 days after signing the agreement, the employee reported an allegedly unlawful constructive discharge to an EEO counselor (an administrative exhaustion prerequisite to filing suit under Title VII). He claimed his supervisors threatened criminal charges and negotiated the agreement in retaliation for his original complaint and that the choice he was given forced his resignation. The employee’s subsequent Title VII suit was dismissed as untimely because he did not contact the counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR §1614.105(a). The Tenth Circuit affirmed, holding that the alleged discrimination encompassed only the postal service’s actions, not the employee’s decision to resign, so the 45-day limitations period began December 16, the date he signed the agreement to resign or transfer. Limitations period runs when cause of action complete. Vacating that decision, the Supreme Court explained that the regulatory text was not unambiguously clear so the standard rule for limitations period applied. Under the standard rule, the period begins to run “when the plaintiff has a complete and present cause of action.” As applied here, the High Court found three persuasive reasons to include the employee’s actual resignation in the limitations period. Cause of action complete after resignation. First, resignation is part of the “complete and present cause of action” in a constructive discharge claim, which has two basic elements: (1) discriminatory conduct that would compel a reasonable employee to resign; and (2) an actual resignation. Only after the employee resigns would he have a constructive discharge claim. Second, nothing in Title VII or the applicable regulation suggested an exception to the standard rule. Third, practical considerations supported application of the standard rule, including that it would make little sense and would do nothing to further the goals of a limitations period to start the clock running before a plaintiff could actually initiate a lawsuit. Nothing in the regulation required a two-step process requiring a plaintiff to file a complaint after an employer’s discriminatory conduct, only to be then forced to amend to allege constructive discharge after resigning. The Court further noted that the employee’s resignation in this case was not a mere inevitable consequence of the postal service’s alleged discriminatory conduct and that the goal of promoting conciliation through early EEO contact did not warrant treating a constructive discharge different from an actual discharge for purposes of the limitations period. Based on the foregoing, the Court held that a constructive discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation. It was left to the Tenth Circuit to determine, in the first instance, the date that the postal employee in fact gave notice in this case. Justice Alito concurs. Concurring, Justice Alito wrote separately to explain that the limitations period starts when an “act done with discriminatory intent” occurs, and a fresh period does not start upon a later nondiscriminatory act, even if the later act carries forward the effect of earlier discrimination. Justice Alito would hold that the limitations period for a constructive discharge claim starts running from the employer’s discriminatory act; he would also hold, however, that an employee’s resignation can be considered a discriminatory act of the employer if there is evidence that the employer intended to force the employee to resign. In this case, the employee had evidence from which a jury could find the postal service intended to force his resignation when presenting the settlement agreement. Justice Thomas dissents. Dissenting, Justice Thomas noted that the applicable regulation, 29 C.F.R. §1614.105(a) requires that an aggrieved employee contact a counselor within 45 days of a “matter alleged to be discriminatory.” In his view, the majority held that a “matter alleged to be discriminatory” included a matter that was not discriminatory at all: a federal employee’s decision to quit his job. He would hold that only an employer’s actions may constitute a “matter alleged to be discriminatory.” Here, the postal service’s alleged discriminatory act took place more than 45 days before the employee contacted the EEO counselor; so his claims should have been time-barred, reasoned Thomas.

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