Last month, the U.S. Supreme Court issued a pro-employee decision resolving disagreements over the question of when a constructive discharge claim accrues for the purposes of calculating applicable statute of limitations periods. The Supreme Court's opinion resolves a split in the circuits regarding when the limitations clock should start ticking on claims by employees that they were forced to quit by an employer.
The case before the Court was styled Green v. Brennan. In 2008, Green – who was then working as the postmaster for Englewood, Colorado – applied for a job as the postmaster in nearby Boulder. Green, who had worked for the Postal Service for thirty-five years, didn’t get the job. He complained internally that he believed he was passed over because he is black. In what Green believes to be retaliation for his complaint, his supervisors accused him of criminal wrongdoing (delaying delivery of the mail). In December 2009, Green and the Postal Service reached an agreement: Green would leave his job in Englewood to retire and the Postal Service would not pursue criminal charges against him.
On February 9, 2010, Green submitted his resignation, to take effect on March 31. Forty-one days later, he contacted a Equal Employment Opportunity counselor, alleging that he had been the victim of a constructive discharge — that is, he had been forced to resign because conditions in his workplace had become intolerable.
Federal regulations require that, before a federal employee can sue the government for employment discrimination under Title VII of the Civil Rights Act, he must contact a Equal Employment Opportunity at his agency “within 45 days of the date of the matter alleged to be discriminatory.” (Note that longer limitations apply to employees of non-government employers.)
The district court and the Tenth Circuit ruled in favor of the USPS and dismissed Green's lawsuit because he contacted the EEOC more than forty-five days from the last discriminatory act. The court ruled that the forty-five-day period had begun to run on December 16, 2009, when Green and the Postal Service signed their agreement rather than later when Green actually resigned pursuant to that agreement. Therefore, activating the EEO process forty-one days after his resignation was too late.
Writing for the 7-1 majority, Justice Sotomayor said that the claims of wrongful discharge and constructive discharge share two common elements (discrimination and discharge); therefore, “[w]ith claims of either constructive discharge or actual discharge, the standard rule thus yields the same result: a limitations period should not begin to run until after the discharge itself.”
Justice Sotomayor also pointed out that would-be plaintiffs cannot always resign their jobs immediately following discriminatory treatment. They may be unable to forego the income, or have other valid reasons to stay at their job—such as the committed teacher who wants to finish out the school year.
Under the Court's decision, the applicable limitations period for both a wrongful discharge or a constructive discharge claim will start running when the employee is notified—or gives notice of—termination/resignation, not necessarily the last day of work.
IMPORTANT: The magic word is NOTICE. The clock begins to run on a discharge claim when notice has been given of the termination/resignation. While this worked in the plaintiff's failure in this case because of the facts of his particular case, the reverse situation is more often what potential plaintiffs need consider. If an employer gives an employee notice of termination that will take place at a later date (30 days notice of termination for example), the limitations clock will begin to run from the date of NOTICE and not from the employee's last day of employment.
BOTTOM LINE: If you believe you have been wrongfully terminated or otherwise discriminated against because of your race, age, sex, etc. don't delay contacting an attorney or going to the EEOC to file a Charge of Discrimination. Applicable limitations periods are short and your claim may be lost forever if you miss the deadline.