December 09, 2014 Top Story

Constructive Discharge Claim Accrues When Employer Retaliates

Employer retaliation—not employee resignation—triggers constructive discharge claim

Daniel Elms

A constructive discharge claim accrues on the last date the employer commits an adverse employment action and not when the employee actually quits his or her job, according to the court in Green v. Donahoe. The United States Court of Appeals for the Tenth Circuit’s decision furthers a circuit split regarding the claim accrual date. The accrual date is critical because it starts Title VII’s clock on a claimant’s deadline to satisfy the administrative procedures required by the Equal Employment Opportunity Commission.

Employee Files Title VII Claims 

Marvin Green, a former U.S. Postal Service postmaster, was allegedly denied a promotion in favor of a Latino. Green filed a Title VII race discrimination claim, which was resolved internally. Shortly thereafter, Green was threatened with criminal prosecution for delaying mail, a charge later deemed unfounded. The U.S. Postal Service then placed Green on immediate off-duty, non-paid status. On December 16, 2009, the parties settled this dispute, which included Green’s agreement to retire. Green filed his retirement papers on February 9, 2010.

Title VII requires the exhaustion of certain administrative procedures subject to strict deadlines before a claimant can file a lawsuit. A claimant must file a discrimination claim with the EEOC no later than 180 days after the date of the alleged discrimination or retaliation to preserve the right to sue. Federal employees like Green have a 45-day deadline. Moreover, federal employees are required to initiate the process by contacting an EEOC counselor to attempt to resolve the dispute.

On March 22, 2010, Green initiated counseling with the EEOC based on various Title VII retaliation claims, including the claim that his retirement constituted a constructive discharge. Green’s contact with the EEOC occurred more than three months after settlement of the claims against him, but only 36 days after his resignation.

Green subsequently filed a formal charge of discrimination with the EEOC and a lawsuit. The United States District Court for the District of Colorado found Green’s constructive discharge claim untimely. The Court of Appeals affirmed, in part, holding that a Title VII constructive discharge claim accrues on the last date of the discriminatory employment action that forces the worker to resign, not on the date that the worker actually resigns.

The Claim of Constructive Discharge 

Courts have long recognized constructive discharge as a distinct claim arising out of an employer’s improper conduct. “The constructive discharge doctrine prohibits an employer from accomplishing indirectly what it is prohibited from doing directly, i.e. harassing an employee to the point that a reasonable employee would feel compelled to resign,” according to Brian Koji, Tampa, FL, cochair of the ABA Section of Litigation’s  Employment & Labor Relations Committee. Although two distinct actions must occur before a constructive discharge claim arises—i.e., the employer must commit a prohibited employment action and the employee must quit his or her job—“the focus in such cases is still on the employer’s conduct,” Koji says.

Accrual of Constructive Discharge Claims

Generally, a claim accrues when the claimant first knows or should have known of his or her injury. Courts have different views on how this rule applies to constructive discharge claims. Some courts hold that a constructive discharge claim accrues on the last date the employer commits an improper act. “This is the sounder decision because it properly places the focus only on what was occurring in the workplace rather than on an arbitrary resignation date selected by the employee,” says Kevin O’Connor, River Edge, NJ, Books Subcommittee cochair of the Section of Litigation’s Employment and Labor Relations Committee.

This approach also furthers the objectives of Title VII, including the requirement that an employee attempt to resolve the issue before pursuing litigation. Treating constructive discharge claims as accruing before resignation should encourage the employee to engage with the employer to improve the situation. “It makes sense to require that the employee report the alleged discriminatory conduct in a timeframe when the employer may still be able to remedy that conduct and, in some cases, prevent the environment from escalating to the point that the employee feels compelled to resign,” Koji opines.

Other federal appellate courts, including the SecondFourth, and Ninth Circuits, have held that the accrual of a constructive discharge claim is delayed until the employee succumbs to the employer’s improper acts and quits his or her job. This construction is more favorable to the employee because it delays the beginning of the period for filing a discrimination claim with the EEOC. It may also be more consistent with the general principle that a claim cannot “accrue” until all of its elements are present. The deadline for a constructive discharge claimant to file an EEOC charge may depend on which court will adjudicate that claim until the Supreme Court resolves the disagreement.

Daniel Elms is a contributing editor for Litigation News.

Keywords: constructive discharge, accrual, limitations, administrative procedures, Title VII

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