SCOTUS will decide timelines of discrimination claim

Circuits split on filing period for a constructive discharge claim.

The US Supreme Court has granted certiorari in Green v. Brennan, which raises this issue:

Whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation, as three other circuits have held.

Federal employees have special rulesas to the time lines they must follow when filing employment discrimination claims. A federal employee “must initiate contact with a Counselor within 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.”

Green was a Postal Service employee who claimed he was constructively discharged. He says he was forced to resign due to harassment and bullying by the Postal Service. All the allegedly discriminatory actions occurred by December 16, 2009. On February 9, 2010, Green submitted his retirement papers, effective March 31, 2010. He made his contact with an EEO counselor on March 22, 2010.

If the 45 days began to run on the date of the last discriminatory action, then Green's claim is time barred. If the 45 days began to run when he announced his resignation, then his claim was timely.

The 10th Circuit held that the claim was time-barred because all the allegedly discriminatory actions occurred by December 16, 2009, so his March 22, 2010 contact with the EEO office about his constructive discharge was beyond the 45-day deadline. Green v. Donahoe (10th Cir 07/28/2014).

The US Supreme Court granted certiorari to the review the 10th Circuit judgment, and will schedule oral arguments for the Fall of 2015.

My bet is that the Supreme Court will affirm -- by a lopsided margin -- and hold that the clock begins to run on the date of the last alleged discriminatory action by the employer, not on the later date when the employee decides to quit or resign. Why? Simple. It is the employer's conduct, not the employee's conduct, that constitutes "the matter alleged to be discriminatory."