The U.S. Supreme Court on Monday took up an important procedural question involving the issue of “constructive discharge,” when the law treats an employee’s decision to quit because of intolerable working conditions the same as a termination.
Claims of constructive discharge are not uncommon in education, where teachers and other school employees have contended that a demotion or a transfer to an undesirable school was tantamount to dismissal.
The case of Green v. Brennan (No. 14-613) involves the U.S. postmaster in Englewood, Colo., who, in a dispute with his superiors, was given a choice of either taking early retirement or accepting a cut in pay and a job in a small Wyoming post office some 300 miles away.
The legal question in the case involves whether the postmaster, Marvin Green, complied with the timetable for initiating his claim of retaliation under Title VII of the Civil Rights Act of 1964. Under regulations specific to federal employees, Green had 45 days after the triggering act to file an initial complaint.
Green contends he filed his complaint 41 days after he resigned from his job in 2008 under what was indisputably a constructive discharge. But two lower federal courts held that 45-day filing period was triggered not when Green resigned, but on an earlier date when he and the Postal Service had signed a settlement agreement. That earlier date meant Green had filed his complaint outside the 45-day filing period.
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled that the filing period for a constructive discharge claim begins to run from the time of the employer’s alleged “last discriminatory act” said to give rise to the resignation, not from the resignation itself.
The appeals court acknowledged a split among the federal circuit courts, with some taking the same view it had, while others have held that the timetable begins when an employee resigns.
The Supreme Court agreed to resolve the conflict on an issue that applies not only to federal employees but those in local governments and in the private sector.
In the high court, both Green and his former top boss, U.S. Postmaster General Megan J. Brennan, actually agreed with each other that in the context of a constructive-discharge claim, the 45-day timetable starts with the employee’s resignation.
“The 10th Circuit’s rule ... injects unnecessary complexity,” said Brian Wolfman, Green’s lawyer. “Identifying the last discriminatory act in an alleged hostile work environment can be difficult.”
Curtis E. Gannon, an assistant to the U.S. solicitor general, said, “We agree with [Green] that the period for initiating ... a constructive-discharge claim should begin when the employee gives notice of resignation and not when the employer commits the last act which might or might not lead to that resignation.”
In one of the nuances of the case, though, Green and the federal government disagree about which date triggered the limitations period in Green’s particular case. While Green contends it was the day when he announced his resignation (which put it within the timetable), the federal government argues it was the earlier date, when the two parties signed a settlement agreement. Under the government’s view, Green’s suit could not go forward.
The justices at times tussled with the lawyers about whether a resignation occurs when an employee announces it or on its effective date.
“I think it’s fairly common for people to set a resignation date at some point in the future,” Chief Justice John G. Roberts Jr. said. “You know, a schoolteacher will say, ‘As soon as this school year is over, I’m out of here.’”
Wolfman said the resignation date is “the date the teacher says that.”
The justices appointed a separate lawyer to defend the 10th Circuit’s holding that the filing period begins not when the employee resigns but on the day of the last discriminatory act.
“Like any other kind of claim under Title VII, a constructive-discharge claim has to challenge actionable conduct by the employer,” said the lawyer, Catherine M.A. Carroll of Washington.
She pointed for support to a 1980 Supreme Court decision, Delaware State College v. Ricks, in which the justices ruled against a professor who had filed a national-origin discrimination suit after being denied tenure. After the tenure decision, the professor served a one-year termination contract, and only then did he file his initial bias complaint with the U.S. Equal Employment Opportunity Commission.
In Ricks, the high court held that the professor needed to file the claim within a specified period after the time of the alleged discriminatory employment action, which was when the tenure decision was made and communicated to him.
“We agree that the Ricks rule should apply here as it does to any other kind of claim under Title VII,” Carroll said.
By the end of the argument, the chief justice seemed to convey the mood of the court in favor of some definition of the resignation rule.
“You say this isn’t going to be a problem much,” Roberts said to Carroll, about the last-discriminatory-act approach. “I think it’s going to be a problem a lot of times. People are in jobs and they’re, you know, suffering this particular type of adverse work environment or discrimination. But quitting your job is a very big deal. I think you have to plan out when that’s going to be, and just because you can’t take it anymore doesn’t mean you could quit work right away.”
A decision in the case is expected by late June.
A version of this news article first appeared in The School Law Blog.