Plaintiffs and employers often dispute when an employee’s time period for filing a charge of discrimination commences. Plaintiffs argue that it commences on the date the adverse action is effective (e.g., the termination date) where employers often argue that it commences earlier when the employee is advised of the decision (i.e., notice of termination that is effective at a later date). In today’s Supreme Court opinion, the Court held that in a federal sector Title VII constructive discharge case, the applicable administrative remedies that must be exhausted commence on the date the employee tenders his notice of resignation and not the later effective date of that resignation.
In Green v. Brennan, an employee of the United States Postal Service believed that he was denied a promotion because of his race and that his supervisor’s wrongly accused him of intentionally delaying the mail –a federal crime. The USPS and Green reached an agreement that it would not pursue criminal charges against Green and Green would either retire or accept a lesser paying position in a remote location. Thereafter, Green elected to retire by tendering his notice and then claimed a constructive discharge. Ninety-six days after signing the non-prosecution agreement but forty-one days after tendering his notice of retirement, Green contacted an EEO counsel to commence his charge of discrimination against the USPS. Federal sector employees must contact an EEO counselor within 45 days of the discriminatory act complained of in contrast to private-sector employees who must file a charge of discrimination within 300 days of the discriminatory event. Depending on when Green’s administrative remedy deadline commenced, his claim could have been deemed untimely.
Green’s administrative remedies deadlines could have commenced on several dates:
- December 16, 2009 when he signed the non-prosecution agreement with USPS to retire or accept a lesser paying position in a remote area;
- February 9, 2010 when he tendered his notice of resignation for an effective date March 31, 2010;
- March 31, 2010 the effective date of his resignation.
The courts below both found that the commencement date was the earliest date and therefore Green’s efforts to exhaust his administrative remedies on March 22nd came too late. The Supreme Court reversed the courts below and held that the “clock for a constructive discharge begins running only after the employee resigns”. In this case, the employee resigned when he tendered his notice of resignation with a later effective date. While the regulation that applies to federal sector employees exhausting Title VII administrative remedies is different for private-sector Title VII plaintiffs, the Court noted that the EEOC treats the federal and private-sector limitations identically. It is likely that the Supreme Court would reach a similar result as it did in Green if it were faced with a private-sector Title VII constructive discharge claim under similar facts.
And perhaps most important outside the constructive discharge context, the Court reaffirmed its commitment that an employee’s charge filing deadline runs from the date when an employer communicates an adverse employment decision to an employee and not the date later date when the decision becomes effective.
You can download the full opinion in Green v. Brennan here.
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