Supreme Court Considers Time Limits in Constructive Discharge Case


By: Megan J. Muoio, March 7, 2016

Currently pending before the Supreme Court is Green v. Brennan, a case from the U.S. Court of Appeals for the Tenth Circuit that involves the question of when 45-day period to file a claim of constructive discharge as a result of racial discrimination begins to run. The case was argued before the Supreme Court on November 30, 2016. A decision is expected sometime this spring.

The appellant Marvin Green was employed by the United States Postal Service as the postmaster for Englewood, Colorado. In 2008, he applied for but did not receive a promotion to the position of postmaster of Boulder, Colorado. Green alleged that he was passed over because of his race and complained to U.S.P.S. officials. In 2009, while the discrimination complaint was pending, the U.S.P.S. began investigating Green for potentially illegally delaying the mail. As a result of that investigation, Green was removed from duty and his pay was suspended.

On December 16, 2009, Green and the U.S.P.S. entered into an agreement by which the U.S.P.S. agreed not to pursue criminal charges if Green agreed to resign and either retire or take a lower-paying job in another area. On February 9, 2010, Green resigned from the U.S.P.S., effective March 31, 2010. On March 22, 2010, Green contacted the U.S.P.S. EEO counselor to report that he had been constructively discharged.

The Tenth Circuit held that Green’s claim for constructive discharge under Title VII of the Civil Rights Act of 1964 was time barred because he asserted his claim more than 45 days after “the date of the matter alleged to be discriminatory.” The Tenth Circuit held that the December 16, 2009 settlement agreement was the “last discriminatory act” upon which Green’s constructive discharge claim was based.

Green argued that a different date from the one used by the Tenth Circuit should be used to calculate the last discriminatory act. Green asserted that the date of his resignation – February 9, 2010, 41 days before he filed his claim – was the date of the last discriminatory act and therefore the day that the 45 day clock began to run. Green argued that a cause of action cannot accrue (and a claim cannot be filed) until the employee resigns so the date of resignation was the accrual date of his constructive discharge claim. Green also argued that the date of resignation would be an easily-administered bright line rule.

The government argued that the Tenth Circuit correctly held that Green’s claim was time-barred and that the 45 days began to run on December 16, 2009 (the date of the settlement agreement), but for a different reason. The government asserts that December 16, 2009 was the day that a claim accrued because it was the date that Green gave notice of his resignation. Under the government’s reasoning, Green’s claim would still be time-barred in this case.

For oral argument before the Supreme Court, counsel was appointed to defend the Tenth Circuit’s reasoning. The Tenth Circuit found that the date upon which Green’s claim accrued was December 16, 2009 because it was the date of the last discriminatory act, culminating in Green’s constructive discharge. At oral argument on November 30, 2015, only Justice Antonin Scalia seemed predisposed to adopting the Tenth Circuit’s reasoning. He stated that the plain language of “last discriminatory act” implied a discriminatory act by the employer, not the act of the employee in resigning. The remaining Justices grappled with the relative merits of Green and the government’s proposed dates, weighing the practicability of administering each. The Justices also considered whether the December 16, 2009 settlement agreement was a true notice of resignation since Green had the option to resign or take a different position.

In light of Justice Scalia’s passing, it remains to be seen whether a majority of the remaining Justices will be able to come together to endorse either Green or the government’s asserted arguments. It is possible that the Justices will split their decision 4-4, which would result in the Tenth Circuit’s decision being automatically upheld.


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