The Court’s Decision in Green v. Brennan Allows Employees to Make the Best of a Bad Situation, by Angela Morrison

The Court’s decision in Green v. Brennan last week recognizes the practical difficulties victims of workplace discrimination face—in the workplace itself and in vindicating their rights under Title VII. In a 7 to 1 decision, the Court held that the limitations period for how long a federal employee has to consult an Equal Employment Opportunity counselor about constructive discharge claims begins on the date the employee provides notice of his resignation. This decision is good news for workers, especially vulnerable workers who need the income from their jobs to provide for their families. It mitigates the immediate threat of retaliation. And it allows workers who are suffering from intolerable work conditions to exercise some control over when they leave their job.

The issue in this case was how long a federal employee has to notify an Equal Employment Opportunity counselor about his constructive discharge claim under 29 C.F.R. § 1614.105(a)(1). A federal employee who asserts a Title VII violation must consult with an EEO counselor prior to filing a formal complaint. The regulation provides that “[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory[.]” The district court and Tenth Circuit determined that the 45-day period began not when the employee gave notice of his resignation but when the action occurred that led to the employee’s resignation.

In rejecting the decision below, Justice Sotomayor, writing for the majority, offered three reasons in support of the decision. First, the normal rule for a limitations period requires a plaintiff to have a “complete and present” claim before the period begins to run. The Court explained that an employee asserting a constructive discharge claim must show his working conditions became so intolerable that a reasonable person would have felt compelled to resign and that he actually resigned. Thus, a “complete” constructive discharge claim means the employee must have resigned.

Second, the majority asserted that nothing in the regulation displaces the normal limitations rule requiring that the claim be complete. Finally, the majority pointed to the practical consequences of adopting the lower court’s view of when the limitations period accrues. The Court cited two practical consequences. Requiring an employee to consult an EEO counselor before he resigned would frustrate Title VII’s remedial scheme and would “place[] that employee in a difficult situation.”

The Court noted that because Title VII is a remedial statute, courts must construe its limitations provisions “to honor the remedial purpose of the legislation as a whole without negating the particular purpose of the [limitations] requirement.” Title VII’s enforcement scheme relies on individual workers to come forward to report employer violations of the law. The Court explained that requiring an employee to report earlier than resignation would make it difficult for laypeople to enforce their rights under Title VII. It would first require the employee to file a complaint based on the employer’s conduct and then require the employee to amend the complaint after he resigned.

The Court also recognized that employers might retaliate against workers who come forward to report; “if [an employee] feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination—an additional adverse consequence that he may have to disclose in future job applications.” Accordingly, another practical consequence of requiring employees to report discrimination prior to their resignation is that it risks leaving employees without remedy because they did not want to risk termination or even worse working conditions.

The allegations in this case illustrate the retaliation employees may face. Mr. Green, a 35-year employee of the USPS, had complained that he believed the USPS failed to promote him due to his race, black. He consulted an EEO counselor and then filed a formal discrimination complaint. After he filed, he alleges his supervisors harassed him, so he filed another complaint.

Subsequently, the USPS alleged that Mr. Green intentionally delayed mail, which is a federal crime. The agency placed him on leave and threatened him with criminal prosecution. Later, the Office of Inspector General found that Mr. Green did not intentionally delay mail but USPS did not notify Mr. Green of that determination. Instead, the agency pressed forward with settlement negotiations, using the now discredited criminal investigation as a stick and threatening Mr. Green that the OIG “was ‘all over’ the delay-of-mail issue and that ‘the criminal issue could be a life changer.’” As a result, Mr. Green signed a settlement in which he agreed to resign or to take a job that paid significantly less in a town hundreds of miles from his current home.

Under the lower court’s reading of the statute, Mr. Green would have been left without remedy for the supervisor harassment and the agency’s threats of criminal prosecution because he consulted an EEO counselor too late—within 45 days of his resignation, not 45 days of the conduct that led to his resignation. As the Court correctly noted, this would have negated Title VII’s remedial purpose since it would have left him without remedy.

Nor does setting the limitations period at 45 days from resignation rather than from the employer conduct negate the purpose of the limitations period. The purpose of requiring employees to consult with an EEO counselor within 45 days of the matter alleged to be discriminatory is to promote “conciliation for federal employees through early, informal contact with an EEO counselor.” Although it might be a bit more difficult to resolve the complaint after the employee has resigned, the Court noted that termination claims also face the same obstacle. And, “a resignation or a termination may be undone after an employee contacts a [EEO] counselor.” Thus, as the majority saw it, there was no reason to treat constructive discharge and termination claims differently since they both could be resolved informally.

The result in Green is good for employees. Employees who are facing constructive discharge already must endure intolerable working conditions. They also face other practical consequences such as the loss of income and retaliation for bringing their claims forward. Fortunately, the Court’s decision means that employees can plan the timing of their resignation to make the best of a bad situation.

Angela Morrison

Professor Morrison was previously the Legal Director of the Nevada Immigrant Resource Project (NIRP) at the William S. Boyd School of Law. As director of NIRP, she conducted outreach on immigration-related issues to community partners, immigrant communities, and governmental organizations. Prior to directing NIRP, Professor Morrison worked for the U.S. Equal Employment Opportunity Commission (EEOC) where she was the first EEOC trial attorney in Las Vegas. Before joining the EEOC, Professor Morrison was a law clerk for the Honorable Judge Philip M. Pro, United States District Court for the District of Nevada. She graduated from the William S. Boyd School of Law where she was the editor-in-chief of the Nevada Law Journal and was a student attorney in the Immigration Clinic. Professor Morrison teaches Lawyering Process, Immigration Law and Employment Discrimination.