All lawyers know the importance of time and timing. Time limitations govern a lawyer’s practice and every lawyer knows that the failure to file within the Statute of Limitations period can be devastating to the client and the lawyer. In employment discrimination practice under Title VII, there are significant deadlines which must be met.
For a plaintiff to commence a Title VII claim she must first exhaust her administrative remedies with the filing of a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days of the last act of discrimination by the employer.1 In New York, where there is a corresponding state agency to file such claims, namely, the New York State Division of Human Rights, the administrative complaint must be filed within 300 days of the last act of discrimination supporting the claim.2
If the claim is based on a discrete act such as the failure to hire or promote, termination, and/or quid pro quo harassment, the time period is easily measured from the date of the complained of act. Where the claim is based on a hostile work environment, as long as there is evidence of continuous and pervasive unlawful treatment based on a protected class within the 300-day period, even unlawful actions prior to the 300 days may be offered in evidence as discrimination.3
It should be noted that for Federal employees, the filing deadline is much shorter. For these employees, they must begin the process by contacting within 45 days an EEOC counselor in the employee’s agency.4 The failure to file administratively within the requisite period will result in any ensuing District Court action being barred jurisdictionally resulting in its dismissal.
Constructive Discharge: Green v. Donahoe
The timing of a Title VII action is presently before the Supreme Court in the case Green v. Donahoe. In this case, the plaintiff, a United States Postal worker, had several claims of discrimination pending but it was his constructive discharge claim which is at issue before the high court. Yet, after lodging the complaints claiming discrimination, the plaintiff was faced with the prospect of being terminated for other alleged unrelated inappropriate behavior. After being presented with the charges brought by the Postal Service, the plaintiff signed an agreement on December 16, 2008, agreeing to retire on or before March 31, 2009. Plaintiff then submitted his resignation on February 9, 2009, yet, on March 22, 2009 — 41 days after resigning — he contacted the Postal Service’s EEO counselor to report his constructive discharge purportedly based on claims that harassment and bullying by the Postal Service had forced him to retire.
Title VII recognizes a claim for constructive discharge when an employee makes the reasonable decision to resign because of “unendurable working conditions” which is treated as a termination by the employer.5 Like a claim for wrongful termination, a claim for constructive discharge cannot be brought until an employee has left his employ.6
The Tenth Circuit noted that the date of the Postal Service’s last misconduct occurred before December 16 and not on the date he resigned.7 Accordingly, because the last discriminatory act took place outside of the 45-day window for federal employees, the court noted “we cannot endorse the legal fiction that the employee’s resignation . . . is a ‘discriminatory act’ of the employer.”8
However, since a constructive discharge claim can only accrue when the employee quits, how could a claim that only matures upon the termination from employment be barred by the fact that the last discriminatory act, which the plaintiff contends supports his claim for constructive discharge, accrued prior to the termination and outside of the statute of limitations window? Furthermore, with the Supreme Court recognizing that “a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief,” how will the Court reconcile this well settled principle within the framework of a Title VII constructive discharge suit?9
The Circuits are split on this issue. The First, Second,10 Fourth, Eighth and Ninth Circuits have held that constructive discharge claims accrue on the date when the employee resigns or when the employee gives notice of his resignation. The D.C., Seventh, and now the Tenth Circuit, require an employee to allege that the employer committed some discriminatory act within the limitations period. The Tenth Circuit recognized the apparent conflict between the Circuits but found that the “mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.”11 The Supreme Court will now seek to clarify the issue.
Effect of Green on Title VII Damages
The significance of this for plaintiffs is simple: the measure of damages increases exponentially where an employee has been terminated (constructively or otherwise) from his employment to include back pay and potential front pay. Moreover, from a plaintiff’s perspective, the more time a plaintiff has to file a claim- the better.12
Of the many arguments presented by each party before the Supreme Court, one of the most interesting is the question of whether the “date of resignation rule,” rejected by the Tenth Circuit, is the statute of limitations or a statute of repose.
Statutes of limitations and statutes of repose are fundamentally different. Statutes of limitations measure the time from the date the plaintiff’s cause of action accrues and are subject to equitable defenses, such as tolling.13 A statute of repose, however, measures the time from the date of defendant’s last relevant act (such as manufacturing and the selling of a particular product) regardless of whether the plaintiff’s claim has accrued. Unlike the statute of limitations, a statute of repose is not subject to equitable tolling under any circumstances. As argued by the petitioner, the “two key distinctions between statutes of limitations statutes of repose — when the clock starts running and whether the clock may be paused.”14
As there is no question that a constructive discharge claim cannot be maintained until such time that the employee removes himself from the workplace, an affirmance of the Tenth Circuit’s decision would mean that an employee must make the very difficult decision of when to leave his job and to begin the long and tortured process of litigation in a timely manner.
As stated above, in those states that do not have a corresponding state agency where one can file a claim of discrimination, like New York, the employee would have 180 days from the last discriminatory act to make that decision as to whether to resign and seek damages for constructive discharge. Obviously, in New York the time period is 300 days which might seem like enough time for an employee to make a determination as to whether a discriminatory act occurring during the time period was enough to justify a constructive discharge claim.
However, in Green, one can see how the 45-day statutory window is quite short and probably an insufficient amount of time for an employee to make this potentially life changing decision. Nevertheless, if the Supreme Court were to agree that a constructive discharge claim can only accrue on the date of discharge, there would be no reason not to apply the same standard in every constructive discharge case no matter how long the window to file. One outcome is fairly certain, the Supreme Court will not be revising the 45 day limit set by the EEOC for federal employees.
Conceivably, if the Supreme Court determines that a constructive discharge claim is valid only when filed, and not subject to various limitations periods, an employee in New York could file a constructive discharge claim in excess of 300 days after he could establish the last day of discriminatory conduct under the date of resignation rule. Thus, even while underlying claims of discrete acts of discrimination that could have been actionable individually might be time-barred, the evidence of these acts could arguably be used to support a constructive discharge claim made whenever the employee chooses to file.
Of course, as a practical matter, it would be supremely difficult for an employee to legally support a constructive discharge claim where he could not point to any activity of a recent origin which allegedly gave that employee no choice but to terminate his own employment.15 As a matter of fact and law, the employee would face a difficult burden under such circumstances.
Even so, a Supreme Court’s ruling reversing the Tenth Circuit could permit the filing of stale claims which, although lacking in many material respects, would still have to be defended at a cost and always with some risk. There is also the uncertainty such a situation could create for employers. An employer might never really know if and when a disgruntled employee may leave the job and thus have a claim – even when the employer may have gone to great lengths to resolve an unpleasant situation in the workplace involving that employee in the past. As such, the resolution of this case is important for employers who understand that managing risk is an essential component to running a successful enterprise.
1Pietri v. N.Y.S. Office of Court Admin., 936 F.Supp.2d 120 (E.D.N.Y. 2013).
3National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
429 C.F.R. Section 1614.105(a) (1).
5Pa. State Police v. Suders, 542 U.S. 129, 141 (2004).
6Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 978 (7th Cir. 2009).
7Green v. Donahoe, 760 F.3d 1135,1143 (10th Cir. 2014).
8 Id. at 1144.
9Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, Inc., 522 U.S. 192, 201 (1997).
10Flaherty v. Metromail Corp., 235 F.3d 133 (2d Cir. 2000).
11Green, 760 F.3d at 1145.
12Suders, 542 U.S. at 148 (a constructive discharge is functionally the same as an actual termination in damage-enhancing respects)
13Irwin v. Dept’ of Veterans Affairs, 498 U.S. 89, 94-95 (1990).
14Brief for Petitioner at 19, green v. Brennan, No. 14-613 (U.S. Jul. 6, 2015).
15The standard for establishing a constructive discharge claim is indeed demanding. An employee would have to show that the employer created or
permitted circumstances under which a reasonable employee would have felt compelled to resign; Suders, 542 U.S. at 141, 148-149.