On Monday, the Supreme Court resolved a circuit split over the deadline for employees to pursue their administrative remedies in connection with constructive discharge claims under Title VII. Generally, employees must file a charge of discrimination with the EEOC no later than 180 days from the date that the alleged discrimination took place. This deadline extends to 300 days if there is a state law prohibiting discrimination on the same basis. Federal employees have to follow a slightly different process, and are normally required to contact an EEO counselor within 45 days.
In Green v. Brennan, postal worker Marvin Green alleged that he was denied a promotion due to his race. Green’s supervisors denied the allegations of discrimination and accused Green of intentionally delaying the mail, a criminal offense. In exchange for the Postal Service’s promise not to pursue criminal charges, Green agreed to either retire or accept another position in a different location. The agreement between Green and the Postal Service was signed on December 16, 2009.
Green ultimately decided to retire, and on February 9, 2010, he submitted paperwork indicating that his last day of work would be March 31, 2010. On March 22, 2010, 41 days after he submitted the paperwork indicating his intent to retire, Green reported to an EEO counselor that he was constructively discharged in violation of Title VII. Green subsequently filed a lawsuit in District Court, but his complaint was dismissed on grounds that he failed to timely contact his EEO counselor within the 45 day deadline. In particular, the District Court concluded that Green’s deadline to contact the EEO counselor was January 30, 2010, 45 days from the date that he signed the agreement with the Postal Service. The 10th Circuit affirmed, and Green appealed to the Supreme Court.
Siding with the 2nd, 4th, 8th and 9th Circuits, the Supreme Court reversed and held that a cause of action for a constructive discharge under Title VII does not accrue until an employee gives “definite notice” of his or her intent to resign. Accordingly, the Supreme Court ruled that Green’s constructive discharge claim was timely so long as he contacted his EEO counselor within 45 days of giving “definite notice” of his intent to resign.
The Supreme Court did not elaborate on what constitutes “definite notice” to an employer. As a result, it remains unclear whether ambiguous statements such as “I am going to quit” or “I’m leaving” are sufficient, particularly if the employee does not identify a separation date. Regardless, employers should document any and all employee statements relating to separation or potential separation. Documentation of an employee’s statements may serve as a basis for dismissal of a subsequent lawsuit if the employee delays his or her pursuit of administrative remedies.
The full text of the Supreme Court’s decision can be found here.
As always, HRLegalist urges our readers to consult legal counsel if you have any questions about how this decision may impact your business.
*The author would like to acknowledge Emily Friedman for providing assistance with the research and writing of this article.