As the Supreme Court of the United States begins their October 2015 term, the Employment Law Lookout Blog Team wanted to provide our readers with a preview (and then later a “post-view”) of the several cases being heard by the “Supremes” that will likely have an impact on the world of employment law.   Installment 1, Green v. Brennan, is below.  Be on the “Lookout” for periodic installments in our series.

And then check back for the post-decision analysis, to get insight and analysis on how the SCOTUS opinion may impact you and your employees.  Enjoy!

When Does the Clock Start Ticking?
SCOTUS to Decide When the
Filing Period
for Constructive Discharge Claims Starts Running

 By Megan Toth

On April 27, 2015, the U.S. Supreme Court agreed to hear the appeal of Green v. Brennan, a Tenth Circuit case holding that the filing period for constructive discharge claims starts running with the employer’s last discriminatory act, not when the employee resigns.

Green, an ex-postmaster, filed suit against the Postmaster General in Colorado alleging, among other things, that he was constructively discharged when the Postal Service bullied him into retirement by launching a formal criminal investigation against him and then forcing him into a settlement agreement that required a significant demotion or retirement. Upholding the District Court’s decision, the Tenth Circuit found that Green’s constructive discharge claim was time-barred because signing the settlement agreement was the “last discriminatory act” triggering the applicable filing deadline, which Green failed to meet.

The only issue to be decided by the Supreme Court is whether the filing period for constructive discharge claims starts running at the time of the employer’s last discriminatory act or when the employee resigns.

Majority View. Although few courts have addressed this issue, either under Title VII or in other contexts, the majority find constructive discharge claims accrue when the employee resigns or “gives notice of departure.”

Why This Case Is Different. Of the few cases addressing the constructive discharge limitations period, those courts chose not to decide between the date of the last discriminatory act and the employee’s resignation, finding that the employers “last discriminatory act” was the employee’s resignation. The Tenth Circuit scoffed at this reasoning, calling it a “legal fiction” and giving no merit to a view that would allow an employee considerable and indefinite time to contemplate whether the employer’s conduct was intolerable.

Why This Case Matters. If the Supreme Court finds that the limitations period for constructive discharge claims does not start running until the employee resigns, employees will be able to indefinitely self-toll the limitations period until they decide it’s time to resign. It will also open the door to constructive discharge claims based on an alleged discriminatory act that took place months, or even years prior, even when there is a non-discriminatory, intervening reason for an employee’s resignation.  Although Green v. Brennan was decided in the context of a federal employee, this case gives the Supreme Court a chance to clarify an issue that is sure to have significant implications for private sector employees as well.

Stay Tuned… This case is set for oral argument on Monday, November 30, 2015 so be on the lookout for a follow up blog post here when a decision is reached.

If you would like more information regarding this article, please contact the author or your Seyfarth attorney.