On July 13, 2015, NELA filed an amicus brief in support of petitioner in Green v. Brennan, No. 14-613, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit. This case concerns the timeliness of an EEO complaint alleging constructive discharge under Title VII.
Petitioner Marvin Green, while postmaster for Englewood, Colorado, applied in 2008 for a promotion, which he did not get. Believing he was subjected to race discrimination because the successful candidate had less experience and did not submit an application, Green contacted a Postal Service EEO counselor and asked to have his concerns investigated. Thereafter, relations with his supervisors soured. In 2009, he twice went to Postal Service EEO counselors complaining about retaliation. In November 2009, while his claims were under investigation, Green was summoned by his superiors to an “investigative interview,” which was held on December 11, 2009 and attended by agents from the Postal Service’s Office of the Inspector General. There, Green was accused of mismanagement and “intentionally delaying the mail,” which is a crime. He was put on Emergency Placement in Off-Duty Status without pay. After several days of negotiations in which his union participated, an agreement was signed on December 16, 2009 under which Green’s emergency placement ended, and he was allowed to use accumulated leave to compensate him for the suspension time. He was removed from his Englewood position and given the choice between taking a demoted position in Wyoming, 300 miles away, with a $40,000 pay cut, or retiring. Green ultimately submitted his resignation on February 9, 2010, effective March 31. On March 22, he contacted an EEO counselor, 41 days after his February 9 resignation and alleged that, given the choice he was forced to make, he had been constructively discharged.
Green sued and the District of Colorado court found that his signing the December 16 agreement triggered the 45-day filing period for his constructive discharge claim and thus held it time-barred. The Tenth Circuit affirmed, holding that the filing period for a constructive discharge claim begins to run from the employer’s alleged last discriminatory act that gave rise to the resignation, not from the resignation itself. The Tenth Circuit recognized that other circuits have embraced a different rule, which is that the filing period begins on the date the employee resigns. It also acknowledged that its decision was at odds with the practical reality that a claim for constructive discharge “cannot be submitted before the employee quits his job.” Nonetheless, and concerned that the other circuits’ position would “allow the employee to extend the date of accrual indefinitely,” the Tenth Circuit rejected the date-of-resignation rule. Instead, it joined two other circuits to hold that the limitations period is triggered by the “last discriminatory act” of the employer allegedly giving rise to the resignation.
NELA’s amicus brief requests that the Tenth Circuit be reversed, and as a “friend of the court” alerts the Court to other existing circuit conflicts regarding constructive discharge jurisprudence. Although the circuit conflicts are not at issue here, NELA wrote to caution the Court not to use language inadvertently that would resolve those issues or suggest to the lower courts how they should be resolved. The brief begins by emphasizing that the Tenth Circuit acknowledged that the plaintiff’s resignation is an element of a constructive discharge claim, which is largely dispositive of the issue before the Court. Absent unusual circumstances, the limitations period for a claim does not begin to run until all the elements of the claim exist. There is no persuasive reason for departing in this case from that normal rule.
NELA’s brief then advises the Court about the important circuit conflicts regarding other elements of a constructive discharge claim not implicated in this case. In particular, the brief details the disagreement among the courts of appeals about whether a plaintiff must prove that the employer intended to force the worker to resign. The brief also points out appellate courts differ regarding whether a plaintiff is required, prior to resigning, to complain to some company official—other than the particular official who violated Title VII—about the violation triggering the resignation. Because these issues are not presented by this case, the Court was requested to avoid language which the lower courts might misunderstand as addressing either of these circuit conflicts.
NELA member Professor Eric Schnapper, University of Washington School of Law, Seattle, WA drafted the amicus brief, which was generously reviewed by NELA members Paul W. Mollica, Outten & Golden, LLP, Chicago, IL, and Richard T. Seymour, Law Office of Richard T. Seymour, PLLC, Washington, DC. Petitioner Green was represented below by NELA member John Mosby, Law Office of John Mosby, Denver, CO, Marilyn Cain Gordon, Denver, CO, and Elisa Moran, Washington, DC. He is represented in the Supreme Court by Brian Wolfman, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA.