By: Daniel Deacon
With the beginning of a new Supreme Court term this month, employers, employees, and labor unions are eagerly awaiting the Court’s decision in several cases concerning labor unions and class actions. However, there is one other case in the employment law field that the Court is scheduled to hear that will resolve a circuit split over the filing period for a constructive discharge claim under federal discrimination laws.
In April 2015, the Supreme Court unanimously agreed to hear Green v. Brennan to consider whether the filing period for a constructive discharge claim begins to run when an employee resigns or when the employer’s last allegedly discriminatory act occurred. The case dates back to 2008 when a 35-year veteran of the post office in Colorado was passed over for a promotion in the Boulder office in favor of a less qualified candidate. Green complained to a post office EEOC counselor that he was passed over for the promotion because he was African American. Green was later faced with a criminal charge stemming from allegations that he had not complied with agency procedures in processing subordinate employee grievances. This allegedly caused the post office to pay monetary damages and penalties. To avoid any potential criminal charges, the employer offered Green a position 300 miles away in Wyoming and a $40,000 pay cut. He alleges that his only other option was retirement and the employer’s actions amounted to constructive discharge. Green did not resign, however, until roughly three months after this deal was offered.
Both the U.S. District Court for the District of Colorado and the U.S. Court of Appeals for the Tenth Circuit ruled that Green’s claim was time-barred. The Tenth Circuit ultimately agreed with the Seventh Circuit and the D.C. Circuit in ruling that the clock began to run with the post office’s last discriminatory act – not when the employee resigned as a result of the retaliatory behavior.
The Supreme Court’s ruling will help resolve a circuit split that has even caused government agencies confusion. The case actually prompted the EEOC to file an amicus brief in support of the Tenth Circuit’s ruling. The Supreme Court’s decision will provide clarity in defending constructive discharge claims. The outcome of a constructive discharge claim will no longer hinge on the geographical location of an employee bringing the claim.
The timeliness rule is very important for employers to be aware of because it is outcome determinative. If the Supreme Court holds that the filing period starts to run at the employer’s last allegedly discriminatory act, then an employee who resigns and claims constructive discharge will have a much shorter window within which to file an administrative charge for constructive discharge after the resignation.
The Supreme Court is scheduled to hear the case on November 30, 2015. Stay tuned to the Employer Defense Report for updates regarding this case and several others that the Court is scheduled to hear this term.