By Lisa Soronen
Under federal employment discrimination laws, timelines are short and decisive.
If an employee misses a deadline. his or her case is over. If such timelines aren’t forgiving, the U.S. Supreme Court is. In Green v. Brennan, the court chose a deadline for constructive discharge cases, where an employee feels compelled to quit because of intolerable working conditions, more favorable to employees.
In a 7-1 decision, the court held that the clock begins to run on when an employee must start the process of bringing a constructive discharge case after the employee resigns, not after (the earlier date of) the employer’s last discriminatory act.
While generally employees have up to 300 days to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), federal employees, like the plaintiff in this case, must contact an EEO counselor within 45 days “of the matter alleged to be discriminatory.”
The court’s decision will apply to constructive discharge claims brought against state and local government employers under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court.
Though apparently cleared of criminal allegations that he intentionally delayed mail, on Dec. 16, 2009, Postmaster Marvin Green signed a settlement agreement that he would retire effective March 31, 2010, or accept a position in another state with considerably lower pay.
On Feb. 9, 2010, he submitted his retirement papers. On March 22, 2010 (41 days after submitting his resignation paperwork) he contacted an EEO counselor stating that he had been constructively discharged on the basis of race in violation of Title VII. In the lower court, the postmaster general argued Green’s case was time-barred because he should have contacted the counselor within 45 days following the last discriminatory act—Dec. 16, 2009.
The Supreme Court concluded that resigning triggers the clock to contact an EEO counselor in constructive discharge cases. Justice Sonia Sotomayor began her analysis by noting that the “matter alleged to be discriminatory” language in the Title VI regulations is “not particularly helpful” in determining when the 45-day timeline is triggered. But the standard rule for when statutes of limitations begin to run is when a plaintiff has a “complete and present cause of action."
Plaintiffs can’t bring constructive discharge claims until they resign. The court also noted that nothing in the regulations indicate the standard rule should be displaced and that starting the clock on complaining to an EEO counselor before a plaintiff can sue makes little sense.
Interestingly, the court didn’t rule that Green’s claim wasn’t time barred. Instead, the court sent the case back to the lower court to determine when Green resigned (on the day he signed the settlement agreement or the day he submitted his retirement papers). Generally, the day an employee gives notice of resigning will begin the clock tolling.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.