Filing Period Begins to Run at the Time of Resignation
On May 23, 2016, the Supreme Court decided that for a former employee to bring a constructive discharge claim, the filing period to do so begins once the employee gives his/her resignation notice. In Green v. Brennan, No. 14-613, 2016 WL 2945236 (U.S. May 23, 2016), the plaintiff applied for a promotion, but did not receive the position after being with the USPS since 1983. Id. at *3. Soon after the denial, the plaintiff filed a complaint alleging he was denied the promotion because of his race. Id. After the complaint, the plaintiff alleged he was receiving retaliatory treatment from his supervisors, and even accused of delaying the mail, a criminal offense. Id. The plaintiff was investigated for this criminal offense by the Postal Service’s Office of the Inspector General, and ultimately signed an agreement with the USPO. Id. That agreement gave the plaintiff the choice between retiring early or moving to a new location over 100 miles away for a much lower salary, and in return the USPO would not pursue criminal charges. Id. After deciding to resign, the plaintiff contacted an Equal Employment Opportunity counselor to report his complaint 41 days after handing in his resignation paperwork, but 96 days after signing the agreement to resign. Id.
Title VII required a federal employee to consult an EEO counselor within 45 days of the matter alleged to be discriminatory, and this case would then turn based on when the filing time period begins. The Court held that the 45-day clock for a federal employee’s constructive discharge claim begins running once the employee resigns, and more specifically in this case would begin when the employee gave the postal Service his notice of resignation. Id. at *1. The Court came to this conclusion after explaining there must first be a “complete and present cause of action”, and until the employee resigns, there is not a “complete and present cause of action” for constructive discharge. Id.