Green v. Brennan: Choosing the Appropriate Standard for Limitation Periods

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

 You have probably heard the old saying that “timing is everything.” This statement is true in many aspects of life. For example, a well-timed joke can be the difference between laughter and awkward silence. In law, the time at which a cause of action begins to accrue can be vital to a plaintiff’s case. If a plaintiff’s timing is off, the claim may never reach adjudication on the merits. In an upcoming decision, Green v. Brennan, the Supreme Court will resolve a federal circuit split regarding when the relevant limitations period begins to accrue for Title VII constructive discharge claims. [1] The crux of this debate is whether an employee’s resignation constitutes a “discriminatory act” for purposes of the federal constructive discharge statute.[2] The Second, Fourth, and Ninth circuits have all concluded that constructive discharge claims accrue on the date an employee resigns or gives notice of their resignation. In contrast, the District of Columbia, Seventh, and Tenth Circuits have all held that the relevant date is the employer’s last alleged discriminatory act before the resignation. The Supreme Court should rule that the period begins to run when the employee resigns or gives notice of their resignation. The nature of a constructive discharge claim renders determining when the last “discriminatory act” occurred nearly impossible and ruling in favor of that standard will force plaintiffs to file claims prematurely in order to preserve their right.

Statutory Background and Title VII Administrative Procedures

To understand the argument before the Supreme Court, it is important to briefly set out the administrative procedures required by Title VII. One important note is that federal employees are governed by different laws than private sector employees.[3] For private sector employees, a charge of discrimination must be filed with the EEOC within 180 days.[4] In contrast, federal employees must begin the process by contacting an Equal Employment Opportunity counselor “within 45 days of the date of the matter alleged to be discriminatory.”[5] The limitations provided under Title VII operate as a statute of limitations, thus failure to comply with the applicable provision can result in dismissal of the plaintiff’s case.[6]

Constructive discharge is a form of wrongful discharge.[7] “Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person would feel forced to resign.”[8] The rationale behind a constructive discharge claim is that employers should not be able to escape liability for discrimination by making the job so intolerable that the employee resigns, thus avoiding having to actually fire the employee.[9]

Green v. Donahoe

Green v. Donahoe involves a former U.S. Postal Service employee alleging, among other things, that he was constructively discharged due to harassment and bullying by his employer.[10] Green argues that the 45-day limitations period for federal employees did not begin to run until the date that he submitted his resignation. The court rejected this argument, instead stating “we cannot endorse the legal fiction that the employee’s resignation … is a ‘discriminatory act’ of the employer. Such a fiction stretches the language [of the statute] too far.”

Along with the plain meaning of “discriminatory act” argument, the court reasoned that setting the time of accrual at the date of resignation allows the party seeking relief to be in control of the when the clock begins to run, which is counter to an essential feature of limitation. Additionally, the court used Del. State Coll. v. Ricks to argue that “[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.”[11]

Resignation as a “Discriminatory Act” for Constructive Discharge Claims

In Flaherty v. Metromail Corp., the plaintiff was a 61-year-old female who worked at the company for 20 years. The plaintiff alleged that a series of acts[12] by her various supervisors made her work atmosphere intolerable.[13] The Second Circuit held that her cause of action began to accrue when plaintiff gave the defendant notice of her intention to resign.[14] In support of this argument, the court found that “it is only the employee who can know when the atmosphere is so intolerable by the discrimination-motivated employer that the employee must leave.”[15]

The court agreed with the 9th Circuit’s reasoning that constructive discharge is one form of wrongful discharge. In a wrongful discharge claim, the cause of action begins to accrue when the employer discharges the employee.[16] Similarly, just because the employee resigns instead of being terminated does not change the fact that it is still a wrongful discharge since the employee was compelled to leave by the employer’s actions.[17]

Constructive Discharge Claims Should Accrue at Resignation or Notice

Due to the nature of a constructive discharge claim, the 10th Circuit’s framework of determining when the last “discriminatory act” occurred is unworkable. Constructive discharge claims innately refer to a series of harassment and discrimination events; thus determining when the last act occurred is virtually impossible to ascertain with certainty. This problem is exacerbated when, as in Green’s case, the employee is a federal employee and has only 45 days to determine if there is a claim and then bring the claim forward.

In contrast, the date of resignation standard is clear and easily determined. A bright line rule is far superior administratively and tends to foster consistency for constructive discharge claims. Further, this rule is more equitable. As the 9th Circuit pointed out, only an employee knows when she is compelled to leave based on the employer’s actions. Imagine an employee who reports harassing behavior from her employer and is waiting for upper management to attempt to rectify the situation. The employee may wait to see if anything will change or if the harassing employee will be punished, only to be disappointed by an unresponsive upper management. This waiting time has now cut into the employee’s limitation period and the employee now has even less time than before. In contrast, if the employee resigns after seeing that there is going to be nothing done about her complaint, she now has the full limitations period to establish her options and make a decision regarding her claim.

Further, the 10th Circuit’s reliance on Ricks is misguided. Ricks involved a college professor who was denied tenure, allegedly in a discriminatory manner, and offered a terminal contract. The professor continued to work for an entire year and brought suit when the contract expired. There, the Supreme Court ruled that “the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts becomes the most painful.”[18] In the context of that case’s situation, the ruling makes sense. The professor did not bring suit until the terminal contract, which he believed was discriminatory, had expired, i.e. when the “consequences,” (denial of tenure) had become the most painful. Here, however, The 10th Circuit unjustifiably uses this quote as support for the argument that the focus here should be on the discriminatory acts, not the employee’s resignation. In reality, the Supreme Court’s decision only highlights that employees who wait too long to file a claim will weaken their argument that the working conditions were intolerable. But it should not be extended to bar constructive discharges just because some time has passed between an employer’s act and the employee’s ultimate resignation.

Conclusion

The Supreme Court should use this case to resolve the circuit split and create a standard that is workable. The last discriminatory act standard is problematic in that it is nebulous and puts workers facing discrimination is an extremely tough position. Conversely, the date of resignation standard fosters consistency and uniformity. Because of the problems created by the 10th Circuit’s ruling, and the weak rationale used to arrive at that conclusion, the Supreme Court should clarify that the limitations period for a constructive discharge claim begins to accrue when the employee submits his or her resignation.

[1]  Green v. Donahoe, 135 S.Ct. 1892 (2015).

[2] For private sector employees, the applicable law is 42 U.S.C. §2000e-5(e)(1). For federal employees, the applicable law is 29 C.F.R. §1614.105(a)(1).

[3] Green v. Donahoe, 760 F.3d 1135, 1139 (10th Cir. 2014).

[4] 42 U.S.C. § 2000e-5(e)(1). The time can be extended to as much as 300 days if the claim is pursued initially with a state or local agency empowered to prosecute discriminatory employment practices.  See Draper v. Coeur Rochester, 147 F.3d 1104, 1106-1107 (9th Cir. 1998).

[5] 29 C.F.R. § 1614.105(a)(1).

[6] Draper, 147 F.3d at 1107 citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982).

[7] Id. at 1110.

[8] Green at 1142 citing Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1133 (10th Cir. 2013).

[9] Id.

[10] Id.

[11] Id. at 1144 citing Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980).

[12] These acts included failure to assist plaintiff with accounts, threats to terminate for failure to meet her budget projections, transferring her accounts to others, pressuring her to take a lower-paying position, and making discriminatory remarks. Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2nd Cir. 2000).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 138-139 citing Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998).

[18] Del. State College v. Ricks, 449 U.S. 250, 258 (1980).

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