On Monday, May 23, the Supreme Court handed down its decision in Green v. Brennan addressing when the statute of limitations begins to run on a constructive discharge claim.
Green worked for the United States Postal Service as the postmaster in Englewood, Colorado. In 2008, Green applied for the postmaster position in Boulder but was not selected. He filed an EEOC charge alleging discrimination which was settled. A year later, Green filed an informal charge, alleging that he had been subjected to retaliation for filing his first EEOC charge. Green had been the subject of an internal investigation (including a threat of criminal prosecution). The investigation resulted in Green signing an agreement that he would either retire or accept a much lower paying position. Green chose retirement and filed additional charges with the EEOC. Green sued in district court alleging, among other things, that he had been constructively discharged. The district court dismissed Green’s constructive discharge claim, finding it was time-barred because he did not timely contact the EEOC after the last allegedly discriminatory act (the signing of the agreement). The U.S. Court of Appeals for the Tenth Circuit affirmed.
The Supreme Court rejected the Tenth Circuit’s reasoning and, instead, held that the statute of limitations for a constructive discharge claim begins to run when the cause of action is complete—not when the last allegedly discriminatory act takes place. As such, the time to file an EEOC charge alleging constructive discharge begins to run when the employee resigns.
In addition, the Court adopted a “notice rule” for constructive discharge that is consistent with the Court’s prior ruling in Del. State College v. Ricks, 449 U.S. 250 (1980). In Ricks, the Court held that the statute of limitations for wrongful termination claims begins to run when the employer gives notice of termination. The Brennan decision applies the same notice rule to constructive discharge. As such, the statute of limitations begins to run when the employee provides notice of the resignation, not when the resignation goes into effect.
Moving forward, when determining whether a claim of constructive discharge is time-barred, employers should begin the countdown on the date the employee provides notice of resignation. A charge must be filed with the EEOC within 180 days of the notice of resignation in a non-deferral state and within 300 days of the notice of resignation in a deferral jurisdiction.