June 14, 2016

Resolving a split amongst circuit courts, the U.S. Supreme Court recently ruled in Green v. Brennan that the statute of limitations for a constructive discharge claim begins to run when the employee resigns, as opposed to when the last discriminatory act occurred that prompted the resignation.

Marvin Green, an African-American man, had worked for the Postal Service for 35 years. While serving as the Postmaster in Englewood, CO, he applied for a promotion to nearby Boulder, but was passed over. Green complained that he was denied the promotion because of his race. Following his complaint, Green’s relationship with his supervisors deteriorated, culminating in two supervisors accusing Green of intentionally delaying the mail – a criminal offense. Even though the Inspector General concluded that no further investigation was warranted, Green’s supervisors continued to threaten him with criminal charges.

On December 16, 2009, Green and the Postal Service entered into an agreement whereby the Postal Service agreed not to pursue criminal charges in exchange for Green’s promise to either retire or transfer to Wamsutter, WY, at a considerable reduction in salary, by March 31, 2010. Green chose to retire and submitted his resignation on February 9, 2010.

On March 22, 2010, 41 days after submitting his resignation, but 96 days after signing the agreement, Green reported an unlawful constructive discharge to an Equal Employment Opportunity (EEO) counselor. While private sector employees must file discrimination charges with the Equal Employment Opportunity Commission (EEOC) within 180 days of the incident or 300 days if the claim is pursued with a state or local agency, federal employees must begin the process by contacting an EEO counselor in their agency within 45 days of the “matter alleged to be discriminatory.”

The issue was whether the 45 days started running after the Postal Service’s last discriminatory act or the date of Green’s resignation. The Court noted there was a split between circuits on this issue, with our Ninth Circuit among those that have held the limitations period does not begin to run until the employee resigns.

In a 7-1 decision, the Court held that the limitations period begins to run when the employee resigns. The Court found the phrase “matter alleged to be discriminatory” unclear, so it relied upon the “standard rule” for limitations periods which is that the period begins to run when the plaintiff has a “complete and present” cause of action, and a cause of action is not complete and present until the plaintiff can file suit and obtain relief. Applying this standard rule, the Court found that the “matter alleged to be discriminatory” in a constructive discharge claim necessarily includes the employee’s resignation for three reasons.

First, resignation is a necessary element of a constructive discharge claim. Even though an employer discriminates by making working conditions so intolerable that a reasonable person in the employee’s position would feel compelled to resign, the cause of action does not accrue until the employee actually resigns. Second, the regulations do not indicate any intent to displace the standard rule. Third, starting the limitations period before a plaintiff can actually file suit does not serve the remedial goals of Title VII.

The Court also clarified that an employee resigns when the employee gives definite notice of intent to resign. For example, if an employee gives a “two weeks’ notice,” the limitations period begins to run on the day of the notice, not the last day of work.


  • The Court noted that the EEOC treats public and private sector employee limitations periods as identical in operations, even though the language differs. Accordingly, this holding should apply equally to private sector employees.
  • This provides a clear date on which the statute of limitations for a constructive discharge claim begins to run – the notice of resignation date.
  • Employers should ensure that all resignation notices are in writing and signed by the employee.


Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.