Whistleblower Law Blog

A Crucial Debate on Constructive Discharge

By R. Scott Oswald

On Monday morning the U.S. Supreme Court will hear arguments on the rules federal employees must follow when they’re forced out of their jobs by discrimination or retaliation.

The case in question, Green v. Brennan, is about legal deadlines. That sounds technical, but really it boils down to simple justice. If the Court affirms a lower judgment, it will become far too easy to deprive federal workers of their day in court.

A hypothetical scenario will make the downside clear — but first some background.

Monday’s case concerns Marvin Green, a former letter carrier and longtime U.S. Postal Service employee who rose to become postmaster for Englewood, Colo.

Mr. Green is Black. In December 2009, under pressure from an internal investigation that he said was unfair, he signed an onerous deal with the USPS. In it, he agreed to retire at the end of March 2010. If the postmaster failed to retire, the agreement stipulated, he would have to accept a demotion, a pay cut, and a transfer to Wamsutter, Wyo., pop. 451.

After further thought, Mr. Green began to bridle at this deal; in February 2010 he notified the USPS that he opted to quit instead. Less than six weeks later, on March 22, he alleged that the Post Office had pushed him out as punishment for some earlier discrimination claims. That made his resignation an illegal “constructive discharge,” he said.

Meeting the deadline

Now the law: A constructive discharge, or forced resignation, is equivalent to being fired. If it’s driven by an employer’s discrimination or retaliation, it can be illegal under Title VII of the Civil Rights Act of 1964. Federal employees have 45 days to protest such an action. If they miss the deadline, they lose the right to sue under Title VII.

Did Mr. Green make his deadline?

Absolutely: The clock starts ticking only when all the elements of an unlawful act are in place. Here the act was Mr. Green’s forced resignation. He submitted his resignation — clearly an element of the claim — on February 9 and lodged his protest 41 days later, easily within the deadline.

Not so fast, argued the USPS. In the December agreement, Mr. Green had already said he intended to leave. Notice of this “decision” was enough to start the clock ticking, the USPS said, even though an alternative outcome (exile to Wyoming) remained technically possible.

A lower-court judge sided with the Post Office. Then an appeals court muddied things by ruling that the clock began ticking with the “last discriminatory act” that triggered Mr. Green’s resignation. The court didn’t identify this act, but concluded that it happened on December 16 or earlier — so Mr. Green lost again, but for a different reason.

Three possible standards

On Monday, the Supreme Court will wade through all three options:

  • Deadline is based on finalized notice of resignation (Mr. Green’s position);
  • Deadline is based on worker’s stated intent to quit (USPS position); or
  • Deadline is based on employer’s “last discriminatory act” (appeals court’s position).

The “last discriminatory act” standard is legally shaky, and as a practical matter would be difficult to administer. The justices are unlikely to take it very seriously.

Both of the other standards, however, seem credible — and quite similar on the surface. Indeed, in their briefs Mr. Green and the USPS use similar arguments, and their standards often would produce an identical outcome.

So why should we care who wins?

In short, because the USPS standard is legally wrong — and could lead to terrible injustices.

In 1980, the Supreme Court held that the filing clock starts to tick when an employee’s termination first becomes “inevitable.” Under Mr. Green’s December agreement, however, there still was a possibility that he would stay with the USPS and move to Wyoming. Because he didn’t truly quit until February, Mr. Green did not miss his deadline.

A hypothetical illustration

If that seems like hair-splitting, consider this scenario:

A federal worker comes to her HR department and gives notice: A co-worker has exposed himself to her, and threatened to make her life unbearable if she complains. He sits right next to her and they must cooperate on a project, which makes her job intolerable.

The HR person is horrified: “If we can sort this out, will you stay?”

The employee says she might withdraw her notice if HR solves the problem in 60 days. While she waits, she doesn’t take further action.

After 60 days, however, nothing has happened. The co-worker hasn’t done anything else overtly bad — but neither has he apologized or left. The frustrated employee quits and immediately contacts her equal opportunity officer.

Under the USPS standard, however, she is already too late. She cannot file a lawsuit for constructive discharge.

Obviously this is the wrong outcome: Besides being unjust and open to abuse by federal employers, the USPS standard would discourage efforts to conciliate. The Supreme Court should stick to its established standard — departure must be inevitable before the clock starts ticking. In our hypothetical, departure wasn’t inevitable until the employee finally quit in frustration.

Federal employees already have much shorter Title VII deadlines than their private-sector peers. Making them even shorter would be the wrong move.

Mr. Oswald is managing principal of The Employment Law Group, P.C., which did not participate in Green v. Brennan. He is a former president of the Metropolitan Washington Employment Lawyers Association.

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