October, 2016







For purposes of filing a lawsuit, the U.S. Supreme Court has offered some guidance as to the timeliness for maintaining a constructive discharge claim.  Green v. Brennan, 2016 U.S. LEXIS 3484.

First, a “constructive discharge” occurs when the employer deliberately makes working conditions so intolerable that a reasonable employee would feel compelled to resign.  It has the same legal effect as if the employer fired the employee.  A typical example of a constructive discharge, given appropriate facts, would be an employer’s failure to remedy sexual harassment compelling the employee to continue to be subjected to harassment.  In Green, the plaintiff  alleged he was discriminatorily denied a promotion and suffered retaliation.

Green had complained to his employer, the U.S. Postal Service, that he was denied a promotion because he was black.  His supervisors accused him of the crime of intentionally delaying the mail.  In an agreement signed December 16, 2009, the Postal Service agreed not to pursue criminal charges and Green agreed either to retire or to accept another position in a remote location for less money.  Green chose to retire and submitted his resignation on February 9, 2010, effective March 31, 2010.

On March 22, 41 days after resigning and 96 days after signing the agreement, Green filed a charge with the EEOC alleging he was constructively discharged in violation of Title VII because of his employer’s discrimination and retaliation.  When he filed suit in federal court, the court granted summary judgment to his employer and the Tenth Circuit affirmed, holding that the 45-day limitations period for filing a claim with the EEOC for federal employees began to run on the date that Green signed the agreement, December 16.

However, the Court saw it otherwise.  In a 7-1 decision by Justice Sonia Sontomayor, the Court held that the EEOC charge filing period begins to run when the employee tenders the resignation.

The Court reasoned that because “resignation” is an essential part of a constructive discharge claim, it didn’t make sense to start the clock running until that resignation had been accomplished.  The tender of resignation was enough to start the clock running.

The Court vacated the judgment of the Tenth Circuit and remanded the case back to the trial court allowing the case to go the jury, the goal of all plaintiffs.






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