Author: Matt Huffman, Associate Member, University of Cincinnati Law Review
In Green v. Donahoe,[1] the Tenth Circuit considered when the limitations period starts for a constructive discharge claim under Title VII of the 1964 Civil Rights Act. The court held that the forty-five day clock starts ticking on the date of the employer’s alleged discriminatory act that causes the employee to resign. In so holding, the Tenth Circuit agreed with similar holdings by the Seventh Circuit and the District of Columbia.[2] The Second, Fourth, and Ninth Circuits, however, have all considered the same issue and concluded that the limitations period for Title VII constructive discharge claims starts to run on the date the employee resigns. In its decision in Green, the Tenth Circuit fell on the wrong side of an already blurred line, ensuring an increase in the premature filing of constructive discharge claims by employees eager to preserve their right to bring a claim.
Constructive Discharge
An employee who resigns from a job after discriminatory conduct by an employer is generally treated as having voluntarily left employment, and is not entitled to damages or reinstatement.[3] The claim for “constructive discharge” was created to prohibit employers from avoiding remedies such as reinstatement and back pay by making a job so intolerable that an employee resigns, making it unnecessary to fire him.[4] A “constructive discharge” occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign.[5] Accordingly, courts treat “a constructive discharge as functionally the same as an actual termination in damages-enhancing respects.”[6]
An employee who believes he has been discriminated against based on his race, color, religion, sex, national origin, age, disability, or genetic information must consult a counselor prior to filing a complaint to try informally to resolve the alleged discriminatory matter.[7] The employee must contact the counselor within forty-five days of the date the alleged discrimination occurred or, in the case of personnel action,[8] within forty-five days of the effective date of the action.[9] This typically means the clock starts running for federal limitation periods “when the plaintiff first knew or should have known of his injury.”[10] For employment-discrimination suits, this normally means that the clock begins to run when the alleged discriminatory employment action—demotion, firing, etc.—occurs. However, unlike a formal discharge, refusal to hire, or demotion, a constructive discharge involves both a discriminatory action by the employer and the employee’s decision to resign. Therefore, an employee has not been “constructively discharged” until his actual resignation, or notice to resign, thus creating an unclear “starting point” for the statute of limitations.
The Second, Fourth, and Ninth Circuits
In decisions under Title VII, the Second, Fourth, and Ninth Circuits have held that a constructive discharge claim accrues on the date the employee resigns or gives notice of intent to resign.[11] The Second, Fourth, and Ninth Circuits have acknowledged that the applicable limitations period runs from the time of the “discriminatory act,” not from the time of a subsequent, inevitable consequence of that act.[12] However, these courts have determined that the employee’s resignation in a constructive discharge case is not simply a “subsequent, inevitable consequence” of a prior discriminatory act. Rather, these courts have reasoned that, although a resignation is not itself a “discriminatory act,” if an employer “discriminates against an employee and purposely makes the employee’s job conditions so intolerable that a reasonable person would feel forced to resign, then the resignation is a constructive discharge—a distinct discriminatory ‘act’ for which there is a cause of action.”[13]
The Tenth Circuit and Green v. Donahoe
In Green, the court held that an African-American postmaster in Englewood, Colorado, failed to timely raise a constructive discharge claim. In early 2008, the plaintiff, Green, was denied a postmaster position that had opened in Boulder, Colorado. Green subsequently filed a formal charge with the Postal Service’s Equal Employment Opportunity (EEO) Office, alleging that he had been denied a promotion because of his race.[14]
In an act of alleged retaliation, Green’s managers accused him of intentionally delaying the mail, which can be a federal crime. An independent investigation was launched by the Office of the Inspector General (OIG), which concluded that Green had not intentionally delayed the mail. Green was not informed of the OIG conclusion, and his supervisor placed him in “off-duty status” because of “disruption of day-to-day postal operations.”[15] On December 16, 2009, Green signed a settlement agreement providing that he would give up his position as the Englewood postmaster effective March 31, 2010, after which he could choose either to retire or accept a position at significantly lower pay in Wamsutter, Wyoming, about 300 miles away. In exchange, the USPS agreed that “no charges [would] be pursued” based on the “disruption of day-to-day operations allegations.”[16]
On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010. On March 22, 2010, forty-one days after submitting his retirement papers, he initiated counseling with an EEO Counselor, alleging that he had been constructively discharged by being forced to retire. In September 2010, Green filed a lawsuit. The district court held, and the Tenth Circuit subsequently affirmed, that Green’s constructive-discharge claim was time-barred because all of the allegedly discriminatory actions occurred by December 16, 2009, the date he signed the settlement agreement. Thus, his March 22, 2010 contact with an EEO Counselor about his constructive discharge was beyond the forty-five day limitations period. In so holding, the Tenth Circuit affirmed that the accrual for the limitations period in a constructive discharge claim begins on the date of an employer’s misconduct, and cannot be postponed until the employee resigns.
The Tenth Circuit relied on the Supreme Court’s language in Delaware State College v. Ricks,[17] which stated that in employment discrimination cases “the proper focus is upon the time of the ‘discriminatory acts,’ not upon the time at which the ‘consequences’ of the acts became most painful.” Thus, the Tenth Circuit rejected the reasoning of the Second, Fourth, and Ninth Circuit, and determined that the “discriminatory act” in a constructive discharge case did not include the actual resignation. The Tenth Circuit argued that “delaying accrual past the date of the last discriminatory act and setting it at the date of notice of resignation would . . . [allow] the employee to extend the date of accrual indefinitely.”
What’s the Best Approach?
In Green, the Tenth Circuit missed an opportunity to validate the Second, Fourth, and Ninth Circuits’ decisions and establish a clear judicial line concerning the accrual timing of constructive discharge claims. Instead, the court enhanced the circuit split and set the accrual date at what will often be an ambiguous date. Many constructive discharge cases result from an employer creating a hostile, antagonistic, or demeaning work environment over a period of time. In this set of circumstances, the date of the “discriminatory act” can only be set at the time the discriminatory action “ended.” It will be difficult to determine when the last discriminatory act took place in the hostile environment. Additionally, under the Tenth Circuit’s holding, an employee will be more likely to rush to file a claim with an EEO counselor or even quit his job in order to retain their right to sue for constructive discharge. As the holdings of the Second, Fourth, and Ninth Circuits encourage, it would be preferable for employees and employers to settle disputes in-house, without legal action.
The Tenth Circuit should have established a hard line on the date of accrual for a constructive discharge claim: the date of resignation. First, resignation is an element of the claim. To recover for constructive discharge, an employee generally is required to quit his job.[18] It is the standard rule that accrual for a limitation period begins when the plaintiff has a complete and present cause of action.[19] This is in direct conflict with the Tenth Circuit’s holding, which would potentially require an employee to file a constructive discharge claim before all of the elements of the claim are even present, i.e., before the actual “discharge.” Additionally, an employee cannot file suit before presenting a charge with an EEO counselor, and a constructive discharge charge cannot be submitted before an employee quits his job. Therefore, under the Tenth Circuit’s holding, if an employee anticipates a future constructive discharge claim, the employee will be forced to forego in-house resolution or take a wait-and-see approach, and then will have to reach out to an EEO counselor and quit his job within forty-five days of the “last” discriminatory act. This will undoubtedly lead to premature resignations and filings of constructive discharge claims.
The Tenth Circuit notes that delaying accrual past the date of the last discriminatory act and setting it at the date of resignation would allow the employee to extend the date of accrual indefinitely.[20] The fear is that an employer could discriminate against an employee and, if the employee resigns one or two years later, could file a constructive discharge claim within forty-five days of his resignation. This is not a well-founded fear. To win on a constructive discharge claim, an employee would be required to show that the work conditions were so intolerable that a reasonable person would feel forced to resign. It would likely be difficult to prove a constructive discharge claim if the last discriminatory act that “forced” the employee to resign had occurred over a year prior to the resignation.[21]
A Missed Opportunity
The Tenth Circuit passed up an opportunity to validate the Second, Fourth, and Ninth Circuits and declare that the limitation period for a constructive discharge claim begins at the date of resignation. Doing so would have set a clear date for the limitation period, rather than an ambiguous date requiring an employee to identify when the “last” discriminatory act occurred in a hostile work environment. Drawing the line at the date of resignation would have been consistent with the standard rule that a limitations period begins when a plaintiff has a “complete and present cause of action.” Finally, an employee would have a difficult time proving that intolerable working conditions caused his resignation if he did not resign within a reasonable time after the last discriminatory act. Therefore, the Tenth Circuit’s fear that a plaintiff could extend the accrual period indefinitely under the Second, Fourth, and Ninth Circuit holdings is unfounded. The Tenth Circuit’s incorrect decision in this case has muddied the waters of an already murky set of case law, virtually ensuring an increase in constructive discharge filings by disgruntled employees hoping to preserve their rights.
[1] Green v. Donahoe, 760 F.3d 1135 (10th Cir. 2014).
[2] Davidson v. Ind.-Am. Water Works, 953 F.2d 1058, 1059-60 (7th Cir. 1992) (plaintiff’s claim was barred because notice of resignation was within limitations period but no discriminatory act of employer was); Mayers v. Laborers’ Health & Safety Fund, 478 F.3d 364, 367, 370 (D.C. Cir. 2007) (same).
[3] Mallinson-Montague v. Poclrnick, 224 F.3d 1224, 1236-37 (10th Cir. 2000) (employees who resigned after being sexually harassed were not entitled to back pay because they were not found to have been “constructively discharged.”); Derr v. Gulf Oil Corp., 796 F.2d 340, 342 (10th Cir. 1986) (“The remedies of back pay and reinstatement are not available…unless [the plaintiff] was constructively discharged.”).
[4] Barbara T. Lindemann et al., Employment Discrimination Law 21-33 (5th ed. 2012) (“An employer…should not be able to accomplish indirectly what the law prohibits being done directly.”).
[5] Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1133 (10th Cir. 2013).
[6] Pa. State Police v. Suders, 542 U.S. 129, 148 (2004).
[7] 29 C.F.R. § 1614.105(a).
[8] A “personnel action” includes any appointment, promotion, detail, transfer, reassignment, reinstatement, restoration, reemployment, a decision concerning pay, benefits, or awards, or any other significant change in duties, responsibilities, or working conditions.
[9] 29 C.F.R. § 1614.105(a)(1).
[10] Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir. 2011).
[11] Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000) (holding that that constructive discharge claim accrued when employee gave notice of intent to resign); Young v. Nat’l Cetner for Health Servs. Research, 828 F.2d 235, 237-38 (4th Cir. 1987) (holding that constructive discharge claim accrued when employee resigned; Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1111 (9th Cir. 1998) (holding same).
[12] Young, at 237-238.
[13] Id.
[14] Green, at 1137.
[15] Id. at 1138.
[16] Id.
[17] Del. State Coll. V. Ricks, 449 U.S. 250, 258 (1980).
[18] Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 184 (2010).
[19] Wallace v. Kato, 549 U.S. 384 (2007).
[20] Green, at 1145.
[21] Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) states that the “bar is quite high in [constructive discharge] cases: a plaintiff must show he had no other choice but to quit.” Additionally, in finding that a nine-month gap between the last act of harassment and resignation was too long, in Gonzalez Garcia v. Puerto Rico Elec. Power Auth., 214 F.Supp.2d 194, 204 (D. Puerto Rico 2002) the court stated that “if a plaintiff does not resign within a reasonable time period after the alleged harassment, he was not constructively discharged.” Thus, if no “act of harassment [is alleged to have] occurred within a reasonable time of [the plaintiff’s] resignation, then the plaintiff has not stated a timely claim of constructive discharge.”
