Green v. Brennan: Resignation, Notice & Constructive Discharge

Green v. Brennan: Resignation, Notice & Constructive Discharge
Marie E. Giraud

On May 23, 2016, the Supreme Court of the United States decided in Green v. Brennan,1 that the limitation period for constructive discharge claims begins to run when an employee resigns, not at the time of the employer’s last discriminatory act giving rise to the resignation. Although the decision was analyzed under the pre-complaint procedure for federal employees, private sector and non-federal public employees have similar requirements under Title VII.2 Therefore, the court’s decision on timeliness is far-reaching.

Underlying Facts
From 1973 to 2010, the U.S. Postal Service employed Marvin Green, an African-American man; in 2008, Green applied, and was not selected, for a more senior position. Following a formal complaint with the agency’s EEO office, tensions rose, and workplace relations deteriorated when two of Green’s supervisors accused him of intentionally delaying the mail—a federal crime. At the request of a congressional inquiry, the Postal Service’s Office of Inspector General (OIG) began an investigation into the criminal allegations. Although the OIG agents informed Green’s supervisors that further investigations were not needed, the supervisors continued to insist to Green that the criminal charges “could be a life changer.” On December 16, 2009, the Postal Service agreed not to pursue criminal charges if Green would agree to either retire or accept a demotion for a position in a remote location. Green chose to retire and submitted his resignation on February 9, 2010, effective March 31, 2010.

On March 22, 2010—96 days after signing the agreement and 41 days after submitting his resignation paperwork, Green reported an unlawful constructive discharge to an Equal Employment Opportunity counselor. Green alleged that his supervisors had threatened criminal charges, that they negotiated the agreement in retaliation for his initial complaint, and that the choice given to him by the Postal Service forced his resignation in violation of Title VII.

Title VII Administrative Procedure-Federal Employees
Preliminarily, before filing suit in the district court for a Title VII violation, federal agency employees—such as Green—are required to exhaust administrative remedies. 3 The administrative process begins when an employee initiates contact with an equal employment opportunity (EEO) counselor at their agency “within 45 days of the date of the matter alleged to be discriminatory.”4 The timeliness of Green’s complaint therefore hinged upon legal interpretation of the “matter alleged to be discriminatory”—whether it was the settlement agreement or the submission of his resignation letter.

Green filed suit in the federal district court, and summary judgment was granted in favor of the Postal Service. The 10th circuit affirmed, holding that the 45-day limitation period began when Green signed the settlement agreement, not when he submitted his resignation paperwork. In a 7-1 decision delivered by Justice Sotomayor, the Supreme Court reversed the decision. The Court held that for constructive discharge claims where the "matter alleged to be discriminatory" includes the employee's resignation, the 45-day limitation period for begins to run only after the employee resigns.

Standard Rule of Limitation Periods & Constructive Discharge
The Court analyzed the text of the regulation5 and the legal definition of the word “matter,” but both were ambiguous when applied to Green’s claim. Therefore, to resolve the issue, the court relied upon cannons interpreting the “standard rule” for limitation periods. The Court reasoned that the limitation period begins to run when a claimant has a “complete and present” cause of action.6 Considering the basic elements for constructive discharge, (1) discrimination to the point where a reasonable person would feel compelled to resign; and (2) an actual resignation, the Court stated “the limitation period should begin to run for a constructive discharge claim only after a plaintiff resigns. At that point—and not before—he can file a suit for constructive discharge. So only at that point—and not before—does he have a ‘complete and present’ cause of action.”7 Additionally, the Court noted that nothing in the text of Title VII suggests that the “standard rule” for limitation periods should be displaced and that starting the limitation period before a plaintiff can sue for constructive discharge “actively negates Title VII’s remedial structure.”8

Practical Considerations
The Court noted three practical considerations influencing its decision. First, the limitation periods should not run so soon that it would be difficult for a layman to understand. Second, Title VII does not require a two-step process that would force an employee to file a complaint only to amend for constructive discharge after resigning. Third, requiring that a complaint be filed before resignation would also ignore the fact that many employees may not be in the position to resign. The lone dissenter, Justice Thomas, seemed to believe that the ruling would make a “discrimination victim the master of his complaint” by extending the limitation period indefinitely.9 Nevertheless, the majority found the concern groundless, as the time limitation for any underlying claims of discrimination remains unchanged. As such, if the employee waits too long before resigning, the underlying claims may become time-barred. Furthermore, the court emphasized the necessity of a causal connection between the plaintiff’s resignation and the alleged discrimination for a claim of constructive discharge to survive.10

Definite Notice of Resignation
The Court provided a clearly-defined rule that begins the time clock for constructive discharge claims when an employee gives notice of his resignation. Specifically, the Court held that a constructive discharge claim accrues and the limitation period begins to run when an employee gives his employer definite notice of his intent to resign—not on the effective date of the resignation. The Court gave the following example: “If an employee gives 'two-week’s notice'—telling his employer he intends to leave after two more weeks of employment—the limitation period begins to run on the day he tells his employer, not on his last day of work.” The court remanded the case to the 10th Circuit to determine this issue of notice. In Green’s case, the factual issue remaining for determination will center upon the date he gave “notice” of his resignation. The Postal Service claims that Green gave notice when he signed the settlement agreement, but Green’s position is that he did not give notice until he submitted his resignation paperwork.

Notes for Practitioners
The majority opinion strikes a balance between the interests of employers and employees. Adhering to the remedial purpose of Title VII, while acknowledging the practical realities facing employees, the Court held that a constructive discharge claim accrues once an employee gives definite notice of resignation—and not before. To the benefit of employers, an employee cannot toll the limitation period for a constructive discharge claim or any underlying discriminatory acts by unreasonably delaying a resignation. To do so would jeopardize both claims by breaking the causal connection between the intolerable conditions and the resignation while increasing the risk that underlying discriminatory acts become time-barred. Nevertheless, the factual issue of when “definite” notice was tendered by an employee likely will become prevalent in lower courts. Resolution of the next stage of Green’s claim may provide some insights.

Marie E. Giraud, Esq. is a labor & employment attorney for the City of New York. Ms. Giraud advises city agencies on maintaining non-discriminatory employment practices. She is also a 2013 recipient of the National Bar Association's 30 under 30 award.

Endnotes
1 Green v. Brennan, No. 14-613 (U.S. May 23, 2016). Justice Sotomayor delivered the opinion of the Court; Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Kagan joined. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion.
2 Private sector and non-federal public employees are also required to file a timely charge with the EEOC before filing a Title VII lawsuit in district court. Plaintiffs are required to file a charge with the EEOC within 180 or 300 days (depending on the jurisdiction) “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (2015).
3 42 U.S.C. § 2000e-16(c).
4 29 C.F.R. § 1614.105(a)(1).
5 Id.
6 Green, No. 14-613, slip op. at 5.
7 Id. at 7.
8 Id. at 9.
9 Id. at 14 (referring to dissenting opinion at 7).
10 Id. at 15.
11 Id. at 16.

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