The Supreme Court's 7-1 decision in Green v. Brennan sets a clear rule on the time limit for taking action on a Title VII claim of constructive discharge — when an employee is forced to quit because of discrimination or retaliation. By tying the deadline to an employee's "definite notice" of resignation, Justice Sonia Sotomayor provides a roadmap for workers who must resign in the face of intolerable bias.
This expert analysis by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on May 23, 2016.
Supreme Court Sets a Practical Rule on Forced Resignations
By R. Scott Oswald
With her majority opinion today in Green v. Brennan, Justice Sonia Sotomayor has injected a welcome dose of what she called “practical sense” into the law of constructive discharge — workplace resignations that are forced by discrimination or retaliation.
In finding that the time limit for taking action on such a claim under Title VII of the Civil Rights Act of 1964 doesn’t start ticking until an employee gives “definite notice” of resignation, Justice Sotomayor’s opinion sets a rule that even laypeople can follow.
The 7-1 decision — Justice Samuel Alito concurred in the judgment but not the logic, and Justice Clarence Thomas dissented — doesn’t resolve matters for plaintiff Marvin Green, who must return to a lower court for further fact-finding before his case can proceed. But it puts paid to some perverse legal possibilities, like claims for constructive discharge that are time-barred before an employee even resigns.
Justice Sotomayor’s down-to-earth opinion also provides a roadmap for employees who are pondering how to resign in the face of overwhelming bias — and for the attorneys who advise such workers.
Background and decision
Mr. Green is a former letter carrier and longtime U.S. Postal Service employee who rose to become postmaster for Englewood, Colo. He is black.
In December 2009, after being passed over for promotion and facing pressure from an internal investigation, he signed an onerous deal with the USPS. In it, he agreed to retire at the end of March 2010. If Mr. Green failed to retire, he would have to report to work in Wamsutter, Wyo., pop. 451 — taking both a pay cut and a demotion.
After further thought, Mr. Green balked at this deal; in February 2010 he notified the USPS that he would quit instead. Forty-one days later, on March 22, he claimed that the Post Office had pushed him out as punishment for earlier discrimination claims. That made his resignation a constructive discharge, he told the U.S. Equal Employment Opportunity Commission.
Did Mr. Green meet a 45-day deadline for contacting the EEOC? Not according to the U.S. Court of Appeals for the Tenth Circuit, which said his clock had started ticking whenever the USPS last acted in a discriminatory way. The Tenth Circuit never fixed that date, exactly, except to say it couldn’t have been later than December 2009.
Justice Sotomayor rejected this convoluted thinking, saying bluntly that Mr. Green’s window for action didn’t open until he resigned. Unless a law specifies otherwise, she said, a limitations period cannot start unless the employee has assembled a complete legal claim — and “[t]he sine qua non of a discharge case is, of course, a discharge,” she said, quoting a well-known treatise.
The decision cited a number of justifications, including a rigorous textual analysis, but most striking were Justice Sotomayor’s appeals to the “remedial purpose” of Title VII and to the real-world difficulties faced by victims of discrimination. Both were a far cry from the cold formalism of Justice Thomas’ dissent, which insisted that a forced resignation can’t possibly trigger a limitations period because it isn’t a discriminatory act: “An employee cannot plausibly be said to discriminate against himself” by resigning.
Justice Sotomayor rejected that, and noted that the logic of both Justice Thomas and the Tenth Circuit would penalize, for instance, a teacher who had faced intolerable discrimination but postponed his resignation until the end of the school year for the sake of his students.
Lessons for practitioners
Justice Sotomayor’s “practical” opinion suggests some practical considerations for employees considering resignation — and for the attorneys who may advise them.
First, a claim of wrongful discharge is separate from any Title VII claims based on the underlying workplace discrimination that might force an employee’s resignation. Today’s decision doesn’t affect the deadline for contacting the EEOC about those other claims — a tight 45 days for federal employees.
No plaintiff should “delay pursuing what he believes to be a meritorious … discrimination claim,” the opinion says. “The 45-day limitations period begins running on any separate underlying claim of discrimination when that claim accrues, regardless of whether the plaintiff eventually claims constructive discharge.”
(Indeed, all eight justices appeared to agree on this particular advice — even though it may precipitate further discrimination or retaliation.)
Second, it may be wise to avoid meeting the “definite notice” standard until the last possible moment, even if the employee believes a workplace situation is hopeless. Justice Sotomayor says that an employee resigns “on the day he tells his employer, not his last day at work,” yet the question of when Marvin Green “definitely” resigned remains open — and depending on the interpretation of lower courts, it may affect how employees should resign.
Pending further case law, employees who face discrimination should avoid unconditional resignations. As Justice Thomas noted with some chagrin, the start of the limitations period now is largely in workers’ hands. While notice should be clear and in writing, so that there is no dispute about its terms, its language should postpone the resignation’s “definiteness” until the last day of work.
Here is a model notice that might achieve this effect:
For the last X months, my working conditions at Acme have been intolerable. I have informed you on multiple occasions of the hostile work environment I face: [Brief statement of specific intolerable conditions].
Because Acme has not adequately addressed these issues, I am compelled to offer my resignation: Unless there are acceptable changes in my work environment, my last day at Acme will be [specific date].
I regret that I am forced to take this step. I prefer to remain at Acme, and I remain open to a good-faith discussion of changes that might allow me to do so.
Possible reactions by employers
Under Green, a wily employer might offer to negotiate new employment terms after a resignation notice simply to delay the employee’s contact with the EEOC — possibly endangering the employee’s compliance with limitations periods. In the case of federal employees, for instance, an empty request to “give us another month to fix the problem” might push an employee’s action past the 45-day window.
Courts might refuse to give effect to bad-faith actions, but careful employees still will react by documenting the delay — and by pushing back their non-“definite” notice accordingly:
I appreciate your offer to discuss improvement of my working conditions at Acme. My notice of resignation will remain in abeyance during this discussion.
Alternatively, an employer might seek to make a worker’s notice more definite by saying that work conditions will not change. The best response will be to repeat, for the record, the worker’s previous terms:
I understand that Acme does not intend to change the working conditions that I have found to be intolerable. I retain hope that we can resolve this matter, and the terms of my resignation are unchanged: Without acceptable changes in my work environment, my last day at Acme will be [date].
It’s possible that lower-court decisions — perhaps even in the next stages of Green — will declare such precautions to be either unnecessary or ineffective. A cautious attorney will advise clients to contact the EEOC promptly upon a decision to resign, no matter how artful their resignation notices.
The biggest effect of Green, meanwhile, will be to preclude some of the worst interpretations of Title VII — and to assure employees facing discrimination that the Supreme Court is sympathetic to their plight.
R. Scott Oswald is managing principal of The Employment Law Group, P.C.