Supreme Court to Decide Timing of Constructive Discharge Claims

In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are:  when an employee resigns or the employer's last allegedly discriminatory act. Often these two events occur at the same time, but not in this case.

This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court.

  On December 16, 2009, Postmaster Marvin Green signed a settlement agreement that he would resign and use accrued leave to receive pay until March 31, 2010. Then he would either retire or accept a position for significantly less pay about 300 miles away. On February 9, 2010, he submitted his retirement papers. On March 22, 2010, he contacted an equal employment opportunity (EEO) counselor stating that he had been constructively discharged in violation of Title VII of the Civil Rights Act. 

While generally employees have up to 300 days to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), federal employees must contact an EEO counselor within 45 days. 

Green claimed that the 45-day limitations period should not begin until he announced his resignation. But the Tenth Circuit held that Green had 45 days from the last alleged act of discrimination to contact the EEO office. Here the last alleged act of discrimination occurred on December 16, 2009. Green didn’t contact the EEO office until March 22, 2010—which was more than 45 days later. 

The Tenth Circuit reasoned that the regulation which states federal employees “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action” focuses on discriminatory acts.  Specifically:  “[T]he Supreme Court has said that ‘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.’”