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Argument analysis: Choosing a rule in employment-discrimination case

After an hour of oral arguments today in Green v. Brennan, one thing seemed fairly clear:  despite the very able efforts of Washington attorney Catherine Carroll, who was appointed to defend the lower court’s ruling in favor of the U.S. Postal Service after the United States declined to do so, the Court is unlikely to adopt the reasoning of the U.S. Court of Appeals for the Tenth Circuit.  That court had ruled that the forty-five-day clock for former U.S.P.S. employee Marvin Green to contact an equal employment opportunity (EEO) counselor – a prerequisite to file his lawsuit alleging that he had been “constructively discharged” in retaliation for complaining about discrimination – began to run on the date of the “last discriminatory act” alleged in his lawsuit.  What remains less clear is what rule the Court will ultimately adopt, particularly when several Justices expressed doubt that, at least in this case, the two rules proffered by Green and the United States would actually lead to different results.

Representing Marvin Green, Brian Wolfman began his argument by emphasizing that, under basic rules governing when a statute of limitations begins to run, the clock does not begin until the plaintiff’s cause of action is complete.  Starting the clock in constructive discharge cases when the employee resigns, and therefore has a cause of action, he explained, creates a “simple” rule; by contrast, the Tenth Circuit’s “last discriminatory act” rule “injects unnecessary complexity” into the process, by requiring courts to determine when the last discriminatory act occurred.

Wolfman quickly drew questions from Justice Antonin Scalia, perhaps the only Justice squarely on board with the Tenth Circuit’s rule.  What, Scalia asked Wolfman, does the regulation establishing the forty-five-day deadline say?  When Wolfman answered that the regulation refers to the “matter alleged to be discriminatory,” Scalia then asked whether the employee’s resignation is the “matter.”  Wolfman responded, “Absolutely,” which then prompted Scalia to ask (somewhat sarcastically) whether the “employee is discriminating against himself?”  Justice Anthony Kennedy also expressed skepticism about the complexity supposedly associated with the Tenth Circuit’s “last discriminatory act” rule, observing that, for a constructive discharge claim to succeed, the plaintiff must point to an unlawful discriminatory act.  “So we have to do that anyway,” Kennedy reminded Wolfman.

Justice Sonia Sotomayor, on the other hand, was more supportive of Wolfman and Green’s proposed rule.  Isn’t the constructive discharge also discriminatory, she asked Wolfman, because the employee has reached the point where working conditions are so bad that you have to resign?

Assistant to the Solicitor General Curtis Gannon appeared on behalf of the USPS and the federal government.  He began with the government’s proposed rule, which differs slightly from Green’s:  the forty-five-day clock should begin to run not when the employee resigns, but instead when the employee gives notice of his resignation – which, he emphasized, would have the added advantage that actual discharges and constructive discharges would follow the same rule.  Although Green would lose under the government’s proposed rule (because the forty-five-day clock would start running on December 16, 2009, when the government says he agreed to resign, rather than in February 2010, when he actually resigned), Gannon agreed with Wolfman that a constructive discharge requires both a decision to resign and a discriminatory act:  employees can’t file before they resign.

Justice Samuel Alito acknowledged that the government’s proposed rule was a “sensible” one, but he wondered aloud why the government didn’t amend the forty-five-day regulation to make it clearer when the clock begins to run.  (Gannon responded that the Equal Employment Opportunity Commission might do so.)  And Scalia returned to a concern that he had raised during Wolfman’s time at the lectern:  the idea that, if the forty-five-day clock doesn’t begin to run until the employee resigns or gives notice of his resignation, there is no opportunity to resolve the dispute first.

Gannon’s argument was sidetracked, however, when Justice Ruth Bader Ginsburg asked him to explain the difference between Green’s position and the government’s.  Gannon responded that the December 16, 2009 settlement agreement that Green signed reflected his “unequivocal notice of intent to resign,” thereby triggering the forty-five-day clock.  But several Justices appeared less convinced that Green had provided that notice.  Ginsburg told Gannon that the settlement agreement gave Green “a choice” – to resign or move three hundred miles away to Wyoming, where he would take a significant pay cut.  Alito asked what would have happened if Green had in fact shown up in Wyoming.  Gannon told Alito that, if he had done so, Green would have been in breach of the settlement agreement, but Sotomayor voiced doubt, telling Gannon that “that’s not what the agreement says.”

Defending the Tenth Circuit’s reasoning, Catherine Carroll told the Justices that a constructive discharge claim has to challenge actionable conduct by the employer, and the forty-five-day clock starts running when that conduct occurs.  Here, she emphasized, Green did not allege any discriminatory conduct after 2009.  But Justice Elena Kagan challenged Carroll’s premise, telling her that the “matter” to which the forty-five-day regulation refers might be the constructive discharge claim as a whole, rather than the discriminatory conduct that is the predicate for the claim.  Justice Stephen Breyer echoed Kagan’s sentiment, telling Carroll that the “matter complained of” in cases like Green’s is his constructive discharge.  Carroll’s rule would create “a nightmare,” Breyer asserted, as courts try to figure out which acts did produce harm, as compared with the simple rule espoused by Green:  “he quit.”

Ginsburg chimed in, reminding Carroll that Green can’t file his constructive discharge claim until he resigns from his job.  When Carroll suggested that he could challenge the discriminatory conduct itself before resigning, that got her into hot water with Kennedy, who asked whether she was “saying that constructive discharge will lead to a cause of action only when it is very close in time to the discriminatory conduct?” Chief Justice John Roberts also seemed to express support for the plight of employees under Carroll’s proposed rule:  responding to Carroll’s suggestion that her reading won’t actually cut off legitimate claims, because the employee can initiate counseling on a discrimination claim even if he hasn’t resigned and therefore doesn’t have a constructive discharge claim yet, Roberts told Carroll that “I think that will be a problem a lot of times.”  Quitting your job, he added, is a “big deal.”

The choice between the government’s proposed rule and Green’s may not seem terribly significant.  Indeed, depending on whether the Court takes at face value the government’s assertion that Green gave notice of his resignation when he signed the December 16, 2009, settlement agreement, it might not even matter in Green’s own case.  But perhaps most importantly, whatever rule the Court adopts will provide much-needed clarity to the law in future cases.

Recommended Citation: Amy Howe, Argument analysis: Choosing a rule in employment-discrimination case, SCOTUSblog (Nov. 30, 2015, 8:17 PM),