New Timing Rule for Constructive Discharge Claims: U.S. Supreme Court Rules that the Clock Starts to Run at the Time of Resignation

On Monday, May 23, 2016, in a 7-1 decision, the United States Supreme Court ruled that the filing period for a constructive discharge claim begins to run when an employee resigns as a result of discriminatory conduct. A constructive discharge claim can arise when an employer creates an environment so intolerable that an employee feels forced to resign. To be actionable, the employer’s conduct that led to the employee’s resignation must be motivated by the employee’s protected class or protected activity. The Supreme Court’s decision vacated a September 2014 ruling by the Tenth Circuit, which provided that the clock for a constructive discharge begins to run at the time of an employer’s last alleged act of discrimination that forces an employee to quit. This effectively may give employees more time to file an EEOC or DFEH claim and subsequent lawsuit against an employer.

In Green v. Brennan, Postmaster General, Marvin Green, the former postmaster of Englewood, Colorado, and a 35-year veteran of the Postal Service, was passed over for promotion. Suspecting he was discriminated against on the basis of race, Green filed a complaint with the post office’s Equal Employment Opportunity office (EEO). After Green’s relationship with his supervisors deteriorated and he was placed on off-duty status without pay, Green reached a deal on December 16, 2009, in which he had to accept a demotion to a lower-paying position in another state or retire. Green chose the latter and filed suit in September 2010 alleging he was constructively discharged in retaliation for filing a complaint with the EEO.

The Tenth Circuit ruled that Green’s claim was time-barred based on the rule that the filing period for a constructive discharge claim begins to run at the time of an employer’s alleged “last discriminatory act” that gives rise to resignation, not the date of resignation itself. In November 2014, Green petitioned for certiorari to the U.S. Supreme Court, which was granted. Upon review, the U.S. Supreme Court disagreed with the Tenth Circuit and ruled that Green could not sue for constructive discharge until he actually resigned. The U.S. Supreme Court further clarified that the clock for the limitations period commences at the time an employee gives notice of resignation, not their actual last work day.