Opinion analysis: Pro-plaintiff ruling in federal employment discrimination case
on May 23, 2016 at 7:48 pm
Today the Supreme Court issued its opinion in the case of Marvin Green, a former employee of the United States Postal Service who alleges that he was the victim of racial discrimination on the job. The Court didn’t rule on the merits of Green’s allegations, and it’s not yet clear whether any court will actually reach that question. But today’s decision allows Green’s lawsuit against the Postal Service to go forward, holding that a lower court was wrong to dismiss it on the ground that Green had not met a procedural requirement for filing suit.
In 2008, Green – who was then working as the postmaster for Englewood, a Denver suburb – applied for a job as the postmaster in nearby Boulder. When Green, who had worked for the Postal Service for thirty-five years, didn’t get the job, he complained that it was because he is black. Things deteriorated at the office for Green, culminating in accusations by his supervisors of criminal wrongdoing. In December 2009, Green and the Postal Service reached an agreement: Green would leave his job in Englewood to either retire or take a less lucrative job in Wyoming; in exchange, the Postal Service would not pursue criminal charges against him.
On February 9, 2010, Green submitted his resignation, to take effect on March 31. Forty-one days later, he contacted a Equal Employment Opportunity counselor, alleging that he had been the victim of a constructive discharge — that is, he had been forced to resign because conditions in his workplace had become intolerable.
Green would eventually file a lawsuit in federal district court. Federal regulations require that, before a federal employee can sue the government for employment discrimination under Title VII of the Civil Rights Act, he must contact a Equal Employment Opportunity at his agency “within 45 days of the date of the matter alleged to be discriminatory.” The Postal Service argued that Green’s lawsuit should be dismissed because he had contacted the counselor too late.
The district court agreed, and the Tenth Circuit affirmed. It ruled that the forty-five-day period had begun to run on December 16, 2009, when Green and the Postal Service signed their agreement. The lower court ruled that Green’s decision to resign was not part of “the matter alleged to be discriminatory”; therefore, going to the EEO counselor forty-one days after his resignation was too late.
Green asked the Supreme Court to review his case, and it agreed. Because the United States declined to defend the lower court’s reasoning, the Court appointed Catherine Carroll – a Washington lawyer and former clerk to Justice David Souter — to do so. Today the Court reached a different conclusion. In a seven-to-one decision by Justice Sonia Sotomayor, the Court concluded that, for purposes of a constructive-discharge claim, the phrase “the matter alleged to be discriminatory” includes the employee’s resignation, so that the forty-five-day clock to contact an EEO counselor will only start running once the employee resigns.
The Court began by explaining that the text of the federal regulation which requires a federal employee to contact an EEO counselor before going to court does not shed any real light on whether the phrase “the matter alleged to be discriminatory” includes the employee’s resignation in constructive-discharge cases. But the “standard rule,” the Court noted, is that a limitations period begins to run when a plaintiff has a “complete and present cause of action.” For constructive-discharge claims, the Court concluded, this happens only once the employee has resigned – because until then, the employee has not actually been discharged.
Including the employee’s resignation as part of the “matter alleged to be discriminatory” also makes sense as a practical matter in constructive-discharge cases, the Court reasoned. A contrary rule, the Court suggested, could require employees to jump through overly complicated hoops; for example, if the forty-five-day period started to run before the employee resigned, the employee might have to file a complaint alleging discrimination and then add a constructive-discharge claim later, after he had resigned.
The Court also agreed with Green and the Postal Service that the limitations period begins to run in constructive-discharge cases when the employee gives notice of his resignation, rather than on the date when that resignation takes effect. Even with that conclusion, though, today’s decision was not a complete victory for Green, because the Court left open an important factual issue in the case: the precise date on which Green resigned. Green contends that he met the forty-five-day requirement because he resigned on February 9, 2010, when he gave his notice and turned in his retirement paperwork, and contacted an EEO counselor forty-one days later. The government counters that Green resigned nearly two months before, when he signed the agreement with the Postal Service on December 16, 2009, so that he still went to the EEO counselor too late. The lower courts will have to decide this question – and with it, ultimately, the fate of Green’s lawsuit.
Justice Samuel Alito agreed with the majority that, in Green’s case, the forty-five-day limitations period began to run when he resigned. But he would not necessarily apply this rule to all constructive-discharge cases. Instead, he emphasized that all cases brought under Title VII require an intentionally discriminatory act to have occurred within the limitations period. For him, then, whether an employee’s resignation can start the forty-five-day limitations period hinges on whether the employer intended to force the employee to resign. If it did, then the resignation will start the limitations period, but otherwise the limitations period will begin to run earlier, when there is an intentionally discriminatory act by the employer.
Justice Clarence Thomas – a former chairman of the EEOC – was the lone dissenter and, unlike Alito, believed that Green could not prevail at all. In his view, “a federal employee’s decision to quit his job” is “not ‘discriminatory’ at all.” Because “only an employer’s actions may constitute a ‘matter alleged to be discriminatory,’” he would hold that Green went to the EEO counselor too late: the forty-five-day period began running in December 2009, when the Postal Service asked Green to sign the agreement to leave his job in Englewood.
Today’s decision didn’t dominate the headlines. But it shows that virtually every case is important to someone: without a ruling in his favor, Green would have been unable to maintain his lawsuit at all. More broadly, the Court’s ruling is decisively a plaintiff-friendly one. As a purely procedural matter, it eliminates uncertainty for others who may be in Green’s shoes about when the limitations period begins to run in constructive-discharge cases, establishing a nationwide rule. And as a substantive matter, many employees who believe that they have been the victims of discrimination may not realize that they have a possible constructive-discharge complaint until they reach the point at which they resign; today’s opinion makes it easier for them to eventually bring a lawsuit.