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BNA Special Report: Justices Open New Term With Nine Cases On Labor and Employment-Related Docket

Bloomberg BNA—

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Title VII Limitations Period.

In Green v. Brennan, No. 14-613, the court will consider if the limitations period for filing a constructive discharge claim under Title VII of the 1964 Civil Rights Act begins to run when the employee resigns or at an earlier date when the employer commits the last discriminatory act creating the alleged intolerable working conditions. Federal appeals courts are split, with five circuits using the date of resignation and three courts opting for the last discriminatory act standard. In former postmaster Marvin Green’s case, the Tenth Circuit ruled he waited too long to file a constructive discharge claim under a 45-day limitations period applicable to federal sector Title VII claims ((146 DLR A-2, 7/30/14).

Although Green contacted an equal employment opportunity counselor within 45 days of his resignation, the court said Green had to act within 45 days of the employer’s last act contributing to the alleged intolerable working conditions. That was Dec. 16, 2009, when Green allegedly was forced to sign an agreement that he would retire or accept a much lower-paying position, the appeals court said. The court granted Green’s petition for review April 27 (80 DLR AA-1, 4/27/15).

In his Supreme Court brief, Green argued a date of resignation rule for triggering Title VII’s limitations period conforms with the principle that no limitations period begins before a cause of action arises. No constructive discharge claim accrues until the employee resigns, he said.

Date of resignation also is more consistent with Title VII’s enforcement mechanisms, which usually are triggered by laypersons filing bias claims rather than lawyers, Green said. Adopting a clear-cut, easily administered rule that resignation starts the limitations period rather than a complicated rule forcing claimants and courts to identify an employer’s last discriminatory act advances Title VII’s purposes, he said.

The Tenth Circuit rule could have the anomalous result that, particularly in the federal sector, the limitations period for a constructive discharge claim could expire while the worker is still employed, Green said.  

Solicitor General’s Unusual Stance.

In an unusual twist, the solicitor general is defending the Tenth Circuit’s result but not its reasoning. Instead, the solicitor general’s brief argued the date an employee gives notice of resignation triggers the running of the constructive discharge limitations period.

But the solicitor general said Green gave such notice on Dec. 16, 2009, when he signed the settlement that included his promise to retire. Unlike Green, the solicitor general doesn’t interpret that agreement as allowing him to remain with the Postal Service and decide later if he wanted to retire.

Because the solicitor general isn’t defending the lower court’s opinion, the court will appoint an amicus curiae to argue for the Tenth Circuit’s test.

The Equal Employment Advisory Council plans to file an amicus brief supporting the Tenth Circuit’s test, said Rae Vann of Norris Tysse Lampley & Lakis in Washington, who is EEAC’s general counsel.

Adopting a date of resignation test would allow plaintiffs potentially to game the system by timing their departure and controlling when their Title VII claim accrues, Vann told Bloomberg BNA Sept. 28.

But the Tenth Circuit’s concern that employees under a date of resignation standard could intentionally delay the running of the limitations period and disadvantage the employer seems far-fetched, said Paul Mollica, a plaintiffs’ attorney with Outten & Golden in Chicago.

Even if an employee were legally sophisticated enough to know Title VII limitations rules, an employee who delayed his departure could weaken, if not destroy, his constructive discharge claim, Mollica said. The employer would argue an employee who didn’t leave for an extended period of time obviously didn’t find working conditions intolerable.

The Supreme Court’s expressed concerns that Title VII isn’t ‘‘over-lawyered’’ and that employees with bias claims aren’t ‘‘entrapped’’ by complex procedural rules would seem to auger a ruling for Green’s position, Mollica told Bloomberg BNA Sept. 25.

Given the odd posture of the case, in which the solicitor general doesn’t defend the Tenth Circuit but also says Green’s claim was untimely, it’s also possible the justices could dismiss the case as one improvidently granted review, Mollica said.

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