News from the Supreme Court: On May 23, 2016, the Supreme Court issued its decision in Green v. Brennan, No. 14-613, holding that federal employees’ 45-day deadline for initiating EEO complaints for constructive discharge cases runs from the date the employee announces his/her resignation, not the date of the last precipitating discriminatory act by the agency.
Under 29 C.F.R. § 1614.105(a)(1), federal employees’ deadline to initiate EEO complaints is “45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action”. At issue in Green was what starting date to use to calculate that 45 day deadline for constructive discharge claims (where the agency forces the employee to resign/retire, but never removes the employee).
Mr. Green (a Postal Service employee in Colorado)–after alleged EEO retaliation–signed a settlement agreement in December 2009; Green agreed to either be reassignment to Wyoming or retire effective March 31, 2010. Mr. Green submitted his resignation in February 2010, effective March 31st. On March 22, 2010–41 days after submitting his resignation but 96 days after the settlement agreement–Mr. Green filed an EEO complaint, claiming constructive discharge. The claim was later dismissed for untimeliness in district court, a decision Mr. Green appealed.
Before the Supreme Court was whether the 45 calendar day deadline should be calculated from the date of the last alleged discriminatory action by the Postal Service (as the 10th Circuit had held below) or the date of the resignation (as was the rule in other Circuits). Writing for the majority, Justice Sotomayor held that there is no constructive discharge until the employee actually resigns or retires, and so the date of the resignation or retirement (specifically, when the resignation is filed, not its effective date) is the correct date for purposes of calculating the 45 day deadline–not the date of the agency’s last alleged intentionally discriminatory act. The majority remanded for consideration of whether, on Mr. Green’s facts, the date of his resignation was the date of the settlement agreement or the date of the February 2010 resignation.
In concurrence, Justice Alito came to the same result, but would set different deadlines depending on whether or not the evidence showed that the agency specifically intended to force the employee to resign. In dissent, Justice Thomas calculated the 45 day deadline was based on the agency’s alleged last discriminatory act.