we'll hear argument next in case fourteen six thirteen green versus granite mr wolf mr chief justice and made please the court the basic principles of this court's timeliness cases title seven and otherwise is that the clock starts when the cause of action is complete because a constructive discharge came is complete only after the employee resigns this court should reverse the court has indicated that limitations principles should be set as simple as possible the ten circuits rule however injects unnecessary complexity identifying the less discriminatory act in an alleged hostile work environment can be difficult and as this court said is there let you say can we look at the statute what what is the statute statute says matter aggrieved party has to bring within forty five days the matter alleged to be discriminatory the matter alleged to be discriminatory and is the resignation of  most of the lower courts say the matter is just a short handed way of referring to the cause of action that the the person is bringing here the matter and this is undisputed is a constructive discharge which is this court said in suiters has two elements both the precipitating conduct and the resignation without both there is no constructive discharge claim but for constructive discharge claim to succeed you have to point to a discriminatory or unlawful act that is andrew  we have to find this anyway it is true that that is one component there is no question that there are going to be pretty again souter said there would be both precipitating conduct and the resignation both elements must be present provision once the employee has quit i think not your honor conciliation process always anticipates that the claim will have occurred that the acts giving rise to the claiming  really true for any of the acts that could be brought prior to the forty five day trigger for instance a terminations would fit exactly the scenario you're suggesting a terminations which after all is the analogue to the quickly into a more adversarial stages and all of those stages presuppose that there is a cause of action that exists or a claim that exists and again that's quite consistent with this court's default rule that  that the limitations period is is not triggered until the claim is fully formed and that's perfectly consistent with all of this court's title seven timeliness cases if you look at for instance evidence if you look at ricks there was a fully formed cause of action and that's why the limitations period it was triggered because that limitations period was triggered by the denial of tenure i think it somehow feels you can even out too  much you can charge a discriminatory terminations correct and that's the employer making a decision that he's going to fire you for reasons that are not legitimate their script discriminatory isn't a constructive discharge that the moment that the environment has gotten so hostile that you feel overwhelmed and have to leave isn't that a discriminatory act as well  i think so that that that discharge itself is discriminatory because it the employer has proceeded in a pattern that has led you to that decision that's exactly right and i did not being to be retreating from that position at all that's the two elements of the claim so the resignation is part and parcel of the claim you have the precipitating conduct and you have the resignation that's what i'm saying but i don't think i think it's what you keep talking about it is two separate elem well there are discriminating against this employee for years and there's no additional discrimination for an entire year but the employees finally get gotten fed up with it and after a year during which the employer has done nothing else discriminatory he decides i'm going to quit now he'd still have a claim for do you know discriminatory provoking of of the quitting but that what the time period for the discrimination in the time period for the quoting are a year apart well that's certainly possible but again that would that would that would be the case in many search to asians so for instance let's assume for a second that there had been a discriminatory to motion  day one and then a year later there has been a discriminatory terminations with perhaps the exact same motive both no one disputes that both of those claims are independently actionable and no one disputes that there are limitations periods have a different trigger date isn't that the lawyer in quitting is not an act of the employer the act of the employer the only lawful act of the employer is coercing the quitting so you have to find an act on his part that coerces the quitting that's quite different from the employer discharging the person they're owed for are some differences but the point is that the resignation at the point of resignation when the cause of action accrues and no one here disputes that's when the cross of action accrues that  employer it's not simply in the can that's with this court said inserters but it's not simply purpose of remedy yes it is not essentially for purposes of remedy a cause of action for constructive discharge will be dismissed if the person is still on the job and not resigned if it misses art of the affirmative case if you might be pulled in two different directions here but you don't have to accept what justice sotomayor is saying to win this case isn't that right but in other words one could say yes if you had discriminatory act language that might point to the last predicate discriminatory act as opposed to the resignation it might or it might not but here that language doesn't exist here the language discriminatory matter that refers to the entire claim and when you refer to the entire claim it's clear that the resignation is part and parcel of that is right i mean and it at least creates ambiguity such that the d what op ed said i don't have to i think that is true that we have argued this into alternative ways one is simply that the cause of action is not complete until there is a resignation and we think this the regulation is clear but even if it were not clear the default rule kicks in and we win but there's no question also that one of the premises of the constructive discharge constructive addiction can stuff determination as in the match shell case no question that there is this idea that when the relationship is ended that is imputed to the employer some courts have focused more on that rationale and others have focused more on our principal rationale was simply that the cause of action is not complete until the resignation o will decide to quit well i think i think that is a concern in theory but not in practice it in in reality there are no such claims the claims would be so weak that those constructive discharge claims are not brought and amicus cites no claims of that nature and let me just say that in this case court's decision in bay area laundry which apply the default will the same the same concern was raised that the limitations period the trigger would be within the hands of the plaintiff and the court said well that may be so but that's the way the statute was written the limitations period was written and so be it and memorable and the court also added that the plaintiff would have incentives to bring the claim as soon as possible and that would of course be true here if in fact the person could no longer take it they would want to leave they certainly wouldn't want to bring a weak claim that came years after the precipitating years but you know maybe several months i mean you know yes you can't take it anymore but maybe you will soon need a paycheck or or you know you're going to be eligible for the bonus and six weeks may as well least wait till then that that is possible and that there are most cases most of the constructive discharge cases are bought brought promptly again no one has suggested here and there are many constructive discharge cases in the courts that there have been any significant delay my follow up on justice kagan's question you were discussing the possibility of deciding this case based on the particular language of the regulation that applies here but your question presented is phrase much more broadly you say under federal employment discrimination law so i took that to mean that the rule that you're advocating would be the same for public and private sector i think it would be your honor i think so i think this this court's decision would apply there  at least give significant guidance the private sector there is that this matter alleged to be discriminatory applies only to federal employment that is correct but if i might if i medics then my answer that the the private sector statute talks about an unlawful employment  occurring and again in light of the default rule even if there is ambiguity in that phraseology in light of the default rule i think it's very likely that you're going to have the same rule apply in both situations both of them seem to be describing the claim the cause of action what it is that the employee is complaining isn't it true that outside of the area of constructive discharge and maybe constructive discharge is different i think that's really the thrust of your argument but outside of that situation there must be an act of intentional discrimination within the limitations period well that is likely correct if by that you are rejecting the notion again in my discussion with justice sotomayor that the  resignation is imputed to him poor and that is that is the case your honor now that you're arguing that there's because there's this imputation it's different for constructive distrait but my my question is outside of that context under evans and  morgan and lead better there must be an act of intentional discrimination within the limitations yes your honor but let's be clear about what those cases stand for those cases do reflect the facts as you just stated them but it each of those cases the trigger date was when the claim first became actionable and that's the exact same rule we're asking for here and let me get extend my answer to you justice alito which it is true that constructive discharge could be unique in the sense you're suggesting in the title seven case in the title seven area but let's remember that constructive eviction constructive business terminations are treated the exact same way your are i do want to go back to some of the practical implications as i began saying the tenth circuit will inject unnecessary complexity by contrast the date of resignation is easy to identify most administrative claimants are laypeople and are unlikely to be cognizant of the last that will posited by the tenth circuit reasonable intuition that is common sense will tell an employee that i cannot and certainly need not bring my claim that i was forced out before i was actually forced out well but i think that the government suggests that this is exactly a case where it's not so easy to figure out when the constructive termination was when the resignation occurred when the resignation well let me just say your honor and that  court no one disputed that issue below and well that doesn't mean it was easy or no or well argue your honor i think it does mean it was easy every the all the parties below the administrative decision maker below and the ten circuit below all held that that all indicated that my client resigned on on february twenty fourth you know that the case you know someone says this is ridiculous i can't take it anymore i will resign in three months i mean what is the date of construct permit and then our rule is that definitive notice of resignation i think the government agrees with that and so if you hand in a letter or you state i am going to resign on friday or next monday that the trigger date would be the date no he the of the un i don't know it's you know i think it's fairly common for people to set a resignation date at some point in the future you know with a schoolteacher will say as soon as the school year is over i'm out of here i think the date of resignation is the date the resignation it's true that the person is still on the job he's still getting paid that is correct but but the person has resigned and the lower courts are he hasn't resigned he's given notice of his intention to resign three months from now i don't believe i f the court wishes to adopt the last day of work with all that obviously would benefit on his to adopting the rule of what he says if he says i resign he's resigned if he says i will resign in three months he doesn't he's on until three we believe that when someone for instance hands in a letter and said my last day of work i resigned my last day of work will be friday that that constitutes a resignation and that our rule is definitive date of resignation if the court wishes again to adopt  of of work rule that would obviously benefit my client but it is not necessary i would like to reserve the balance of my time thank you coun mr gannon mr chief justice and may it please the court we agree with petitioner that the period for initiating administrative consideration of a constructive discharge claim should began when the employee gives notice of resignation and not when the employer commits t last act which might or might not lead to that resignation and if i can turn to the colloquy that the chief justice and justice scalia were just having with my friend we think one of the virtues of this rule is that it leads to the same result in both cases of actual termination think this is a sensible rule it is a very clear rule and it's probably a sensible when you've got a forty five day period just change the regulation while the e e o c litigation the e e o c may well do that justice alito the same question is going to present itself with respect to we think materially the same question present itself in the nonfederal sector where the statute as has already been discussed refers to when the allegedly unlawful employment practice occurred and the e e o c has construed this portion of the regulation as being effectively the same as the rule in the non federal sector and the rule that we're asking for is this court's rule from rick's it's the exact same rule this rule about being when definitive notice has is is given for a terminations justice scalia you were saying that when somebody says i quit my last day of work is three months from now therefore he hasn't actually quit that's rick's the court concluded that when the employer there said you have been denied tenure here's your terminal contract you will be working here for only one more that the relevant date was the date on which the operative decision had been made and it had been communicated to the employee and so we think that the rule should be the same for cases of actual discharge but recurrent struck ric's districts alleged only the discrimination not discriminatory not constructive dyster that's true there is a difference here but i have a problem with rick's well i don't think rick's reads directly on what you're saying you're you want to have an extension and we're trying to say that we think that the same rule should apply to actual and constructive discharges and it is a rule that is state of notification rather than date of separation and that's the rule that everybody applies in the terminations side it's the rule that most of the courts of appeals of applied and in the discharge side in the context of terminations only just when we do think that you would have to make the decision the you want to apply the same rule across to the constructive discharge context but we think the reason you would do that is precisely because as the court acknowledged in suiters a constructive discharge requires both an employee's decision to resign and t precipitating conduct and until both of those things have happened there is no constructive discharge nobody can say i have been constructively discharged until both of those initially you're loading the dice when you say that it requires both a decision to resign well if it requires a receipt nation well the i mean that's that's the problem i was just quoting the court's decision in suiters justice scalia and we weren't discussing this very issue while we were discussing the court was discussing when a constructive actionable and that until and so we do think it's not just the decision in the employee's head we think that it the decision has to actually be communicated and so we this is one reason why actually this isn't this wouldn't interfere as much with the concern for conciliation that you were discussing with my friend which is that as in cases of terminations it could be that everybody knows that the discharge has happened it's a constructive discharge or an actual discharge everybody knows when the employer says you fired your last day of work is fourteen days from today same thing when the employee says i'm giving my notice i quit my last day is fourteen days from today at that point whichever one has happened the employee can go and initiate counseling he may not be out the door yet there may be a resolution that happens if he does end up going out the door counseling can happen afterwards but he doesn't have to initiate counseling before this happens there's a he doesn't even have to tell the employer why he's resigning that's that's i mean  days to initiate the counseling with with the agency he doesn't even have to specify in his notice of quitting that he's quitting because of discriminatory action he doesn't even have to specify that that is generally true in the rest of the doctrine that has nothing to do with the statute of limitations the e e o c will ask did you tell your employer this is why you were resigning it will be something that will make it more difficult to prove his case but if you think whether he has to say that or not has a lot to do with forced by the circumstances and we think that the doctrine itself is self limiting it limits the time period between when the employee is able to suffer the consequence of what the employer does to him and then actually say i can't take this anymore because as the court held in suiters the employee is going to have to prove that the situation was intolerable and doesn't have to say that he doesn't have this to say he doesn't have to say that anymore on the day he has to quit or say i'm quitting at the end of this term school and then later say over the reason i quit was it was i just couldn't take it anymore and he has to do that within forty five forty five days after after after when after after his saving the notice of the date of notification just as like as i was saying before just as if it were when the employer said you're fired your last day of work is two weeks from today the clock is ticking that's the rule from rick's we think it should be the same rule here and we think that the reason why this is called a constructive discharge is right there in the phrase is is pregnant with the idea that this is an action that is being imputed to the employer and so although it is true that unlike the regular the the other claim of discrimination that justice kennedy was mentioning before in ric's although the employer has not actually done  something necessarily during the limitations period the new act of discrimination that we think is relevant here is the act of the employee and it's one that it's called a constructive discharge precisely because it is not actually a discharge is instead an act of the employee it is a resignation but it is treated in law as a legal fiction as if it is a discharge and we think that that's that squares the circle here and we are as i would i would take the term constructive discharge to refer not to the notice of quitting but rather to the acts of the employer that forced the quicky even no the person hasn't been discharged you have constructively discharged because you made his life miserable i take a point but that's not enough to allege a constructive discharge until the employee actually says i'm quitting there has not been a constructive discharge and so just because an employer and this may be what justice sotomayor was asking about before but plaintiff might be the one that actually controls when the clock starts on the statute of limitations and take the case of a constructive eviction if somebody wants to bring a claim for breach of the covenant of warranty that's a claim that doesn't start until the tenant has been evicted either actually or one version of constructive eviction under the under the more classical version of constructive eviction that came up in cases involving breach of the covenant warranty the eviction would be constructive because no one actually came in forced you out instead you just yielded to a superior claim of paramount title and that was your choice of when you decided you weren't going to fight this anymore but in fact you don't have to get out in fact that you had not yet written you can bring a claim against your landlord for constructive action while you're still occupying well the court recognized in the decision that that's more of an innovation that that wasn't the way this was classically handled and shell said that it thought that there wasn't a constructive terminations or franchise until the franchise had actually until somebody had actually walked out an the classical case of constructive eviction and this case of constructive discharge we think that it's clear that if the employee says this would be bad enough for me to resign but i'm not going to resign i want to bring a claim for constructive discharge he couldn't do that he could see he could say i've been discriminated against he said he could say there's been a hostile work environment but we do think in disagreement with with with my friends the court appointed amica us we do think that these are these are two different claims in the court's opinion and suitors indicated that there's a distinction between for instance the underlying claim for a hostile work environment and then the more aggravated claim of a constructive discharge for hostetler credit that acts have to be independently actionable or not i don't think that they have to be in most cases they will weeks we take that point it's probably going to be an unusual case where you can bring a constructive discharge and nothing else the parodic matic case is the one that the court was hypothesizing in suiters where you have a hostile work environment where there are lots of things that would have been actual as discrimination but they wouldn't necessarily have warranted quitting and then the employee says this is too much it's crossed the line i'm quitting that second claim we think is a new claim that's where the court described it as a second as as an additional as a graver claim and in the discussion and of amending the complaints that that the amakosa invokes in the e e o c as management directive the reason why the court of appeals and the us can say that the employee could always just demand a timely complaint about the underlying discrimination and add a claim for constructive discharge is because the e e o c considers this to be a new incident of discrimination but you can actually amend depending complaint because it's related to what went before but the reason why you have to amend the complaint is because it's a new claim it's not just evidence that's relevant to damages for the underlying discrimination there's there's the employee is going to have to prove that he's made a decision to resign and also that the reason he did so is because the situation was so yes and so i take it you're talking about the factual question i don't understand this is having a disagreement about the legal question but with respect to applying the rule to this case the difference is that we think that the settlement agreement that petitioner signed on december sixteenth which is really the relevant clauses are reprinted in pages sixty and sixty one of the joint appendix manifested his unequivocal notice of his intention to resign we think that satisfies the rule that both of us are generally he we don't  know that that is not the way we think the agreement reached justice ginsburg the first two sentences of the clause that is that crosses the page from sixty to sixty one say mr green agrees to retire from the postal service no later than march thirty first and mr green agrees to take all necessary steps to affect his retirement let me done the next sentence says it doesn't say mr green has an option of not retiring if he decides to change his mind and then report for duty it says if retirement from the postal service does not occur if you report for duty in the station to suppose never showed up in the inn in wyoming what would you have done you any amount would you wouldn't have allowed him to take that job at lower pay you mean he had he had not taken all steps necessary to effect his resignation by march thirty first then you think we think he would have been in breach of the agreement i'm not sure what would have happened then but the reason the sentence is in the agreement is to take account of of circumstances that are no fault of his if the postal service or in particular the o p m takes part of grievances if he hasn't taken all the steps if it does not occur mr green will report for duty as it doesn't in wyoming and it doesn't say that he has a choice of doing that he will have already reached the second sentence if he decides not to retire why not have the second sentence there pardon why have the second sentence there all why giving him an option if he  retired we do not read this is giving him an option we read this wasn't punished by the court below correct this was reached by the district court it was an alternative holding by the district court the petitioner did not appeal that alternative holding and so in the court of appeals the court was just considering the antecedent question of whether we should only look to the act of the employer or also the act of the employee and so this factual question didn't actually come up before the court of appeals we noted in the statement of facts in our court of appeals brief that the greenman included his the settlement agreement included his agreement to retire but otherwise we did take the case on his premise and the court of appeals did not address this so we do think that it would be appropriate for the court here if it agrees with us that this agreement is sufficiently clear to say that petitioner will lose on the facts of this case if you want to rebound and have the court of appeals consider whether the district court was corrected reaching that that would also be appropriate but we think that this wouldn't be that different from what the court did in our window where in or when the court said well the court of appeals was wrong about finding that there was no possibility of equitable tolling nevertheless there is no way he will ever satisfy equitable tolling on the facts of this case so he loses and i do think that one final thing i would like to say is that the court should be able to take some comfort from the real world evidence that we have it's not much we don't have instant evidence of cases from the five circuits that have adopted a version of the notice of resignation rule between one thousand nine hundred seven in two thousand that that employers are being besieged with stale discrimination claims that are being revived by employees attempts to quit some months or years after the fact and so we think that it doesn't present those concerns frankly a little less moved by that because strong my personal experience those stale claims generally don't make it past the motion to dismiss well that that very few of them are appealed to consists there really that stand those constructive discharge claims are usually thrown out well  positive in this case we think that the things happened on the same day even under petitioners approach he had some weeks to make his decision but the reason why he wasn't prejudiced by being able to take some weeks to make his decision is precisely because he was using annual leave he wasn't suffering the consequences of a hostile work environment he hadn't taken the pay he had to move four hundred miles away and so this was an unusual case where he would have been able to take that much time and so it looks like as a mate in practicality say that that hasn't made a big difference and that's why we think it would be useful for the court to say this is effectively the ricks rule it should apply to both cases of actual and cases of constructive germination if the no further questions we would urge the court to affirm thank you counsel chief justice and may please the court we agree that the ricks rule should apply here as it does to any other kind of claim under title seven and like any other kind of claim under title seven a constructive discharge claim has to challenge actionable conduct by the equating the federal sector provision with the private sector provision has suggested that both of these provisions do focus on the alleged unlawful employment practice in addition when the e e o c promulgated this rule in its current form it explained that this rule quote continued the rule that had applied under the prior version which use the language alleged discriminatory event so i don't think the inclusion of the word matter by itself makes a difference after all it doesn't just say matter it says matter of alleged to be discriminatory and we think that has to be read as a whole to clearly focus on what is it that is the target of the claim and that language is does not become ambiguous just because it might be challenging to apply it in a particular fact pattern i think this court's decision and morgan is an excellent example of that where the court said we have a clear rule that requires us to identify what was the alleged unlawful employment practice and when did it o there is this this composite set of things that has to go on before a suit seems to me that it's at the least approach in the kind of possible ambiguous ambiguous stage to matter that's a practice that both of those things have to be part of it i think that that's difficult to reconcile with how morgan treated the word practice also bearing in mind that as the court has explained in a case like graham county for instance the kind of ambiguity that triggers resort to a default a cruel rule is ambiguity in the literal text of the provisions there it was unclear whether particular limitations period even applied and the court said literal text is ambiguous there are clues that point in one direction we think this points in the same direction but the court has an apply that background rule override language that that otherwise clearly calls for an analysis of in this case what is it that the plaintiff alleged to be discriminatory here mr green alleged a discrete act of retaliation that he says occurred in december of two thousand and nine he alleges no repeated or  here you are suggesting that the time runs from a time when he does not yet have a right claim well he does not have a right claim for constructive discharge he would have a right claim for discrimination or retaliation to and to challenge the underlying only when it is so close to the precipitating event that they are almost contemporaneous i'm not one hundred percent sure i follow the question but let me know when under your view  there a constructive discharge that itself leads  i think in a constructive discharge case and to be clear that label can be applied to a range of different fact patterns it will often be the case that the predicate conduct that precipitates the resignation is itself alleged to be discriminatory take the facts of souter's for instance where there was an ongoing pattern of harassing behavior individual acts contributing to that hostile work environment had occurred leading up to and indeed on i believe the very day of the resignation there i think it is as your honor suggests not going to matter at all which rule the court were to decide to adopt their almost contemporary they would be contemporaneous but in a case like this it's much clearer to see the  conceptual distinction between mr green's own individual independent decision to resign and his employer's predicate discriminatory conduct and suitors the court made very clear that those were two distinct harm i think that's generally true or if that's generally true in a tour and my guess is in a contract suit for breach of contract if the contracting party sent the ships out and you knew that it wouldn't be delivered it's not actionable until it isn't deliberate and my guests are ways around that but my point is generally in the law where the matter complained of is a certain kind of incident in the world negligence leading to harm action of a discriminatory it's a true nature that leads to a discharge normally the statute of limitations begins to run on the farm occurrence why should it be any different here in this case the discrimination the retaliation i should say that was challenge was the forcing or forcing of mr green into the settling settlement agreement in december he alleges that that was retaliatory and he was harmed by that at that time and he could have promptly initiated counseling on that complaint now it is true that as a consequence of that discriminatory retaliatory conduct the stakes got higher for him at a later point when he decided he could have but we're talking about only the back to my question about negligence because that was the first course i took in law school so i remember that but the fact is why should we treat this any differently so in general we don't think this should be analyzed any differently than any other kind of claim which is that we have to identify what is the alleged on lawful practice and when did it occur why is that you can't you have to as you said innocent in a tort case it's not just that the person a continuing intent to force mr green's resignation so you've got emails that say mr green is causing trouble for us by charging us with discrimination we're going to do a b c d and e to force him to retire and then on the day when he quits there's another e mail that says how will you we've achieved our objective he's he's retired now when would it run in that situation i think it would not run from the date of discharge because there would be an intent as of that date if i'm understanding the hypothetical correctly that sounds to me like a case that would be analyzed under the court's decision in morgan where you have a an environment of hostility that is composed of many individual acts some of which might not be independently and of themselves joined with a discriminatory won't let me clarify it so nothing more is done there are all these acts up to a certain point and then forty five days fifty days pass and the employee resigns but the employer has all along had the intention of forcing the resignation so on the date of the resignation the employer intends to cause a discharge for a discriminatory reason i still think morgan answers that question because morgan says there has to be an act contributing to the hostile work environment that occurs within the forty within the charging period and that's the exact same analysis whether on the forty six day employee decides that's it i quit or if he simply decides that's it i'm finally going to speak up about this hostile work environment that's been going on has nothing to do with construct i'm getting this more clearly because your response to my question which is no relevance as to is look the point if was heard on the very day that last act was performed indeed he suffered because he saw the act being perform and that was one of the things that led him later to quit so let's count that as the injury and let's count the whole thing complete as of that tom that's basically the argument for your side i think and now the argument against you is that's going to be a nightmare because there will be in fact a whole range of acts a whole series in many cases and will then in order to run the statute of limitations have to get into the question of which of those acts maybe there were some he didn't know about which of those acts actually did produce harm and which did not and you just really won't know going to bring his lawsuit as compared with the comparatively simple thing he quits right i understand that contention but i think that the so called difficulty is no different than the difficulty so called that w arise in a hostile work environment case where there was no resignation you would still have to figure out what were their acts within that forty five day period that contributed to the environment maybe that's going to be difficult on some facts but that's a result of this court's decision and morgan again nothing to do with constructive discharge not with a something or than just simplicity which is you know suppose you had a case where somebody is first demoted and then somebody is fired you would never say oh he was demoted he suffered the injury then it just raised the stakes you would say no there's two independent things and now he can bring the termination claim that's right and and the power of the constructive claim is to say the exact same thing really has happened here that once you lose the job it's more then the stakes have been raised it's that there's a separate injury that then becomes legally actionable well the an when there's a demotion followed by a terminations is not simply that there's been a second separate injury but that there's been a second separate violation of title seven by the employer that's why it is a discrete unlawful employment action triggering fresh limitations period in constructive discharge you know i the analysis that the second separate event of the employees decision to resign is itself the actionable thing that is the analysis that the court of appeals had applied in the suitors in suiters the question was do we street constructive discharge as a tangible employment action for purposes of determining vicarious liability the third circuit said well yes we treat these as equivalents for all intents and purposes so naturally when there's a constructive discharge that means there's been a tangible employment action this court rejected that analysis and said no the legal fiction does not extend that far to be sure the court says we treat those two as the same for remedial purposes in the sense that an employee who has been constructively discharge can recover for that to the same degree and to this for the same extent as if he or she had been actually discharge that makes sense because you have this background duty to mitigate and in the circumstance of a constructive discharge we don't think the employee should be tagged with the consequences of having so you know so called fail to mitigate damages but that's that's the purpose of if you were to go in and say yes these are these are different and for some purposes we're going to look to the fiction and for other purposes we're not going to look to the fiction it seems to me is though you know it makes sense to take account of the fiction in the sense that the person cannot bring a claim until the resignation has happened so that's the kind of parry did magic case in which boy there's something really powerful cushion that yes you c should recognize the constructive discharge as a discharge in this case but the limitations period here does not run from the accrual of the claim it runs from the time of the matter alleged to be discriminatory the on lawful employment action and  explained in suiters the constructive discharge entails both predicate discrimination and we do think it has to be independently actionable we think the court recognized that when it said in suiters that for ms suitors to prove her hostile work environment claim was quoting necessary predicate to her constructive discharge claim and that's also the uniform holding them in the courts of appeals there has to be predicate unlawful conduct by the employer and a subsequent decision by the employee to resign when you have a provision that singles out as the start of the limitations period one of those two components then the fact that the claim hasn't accrued yet is not something that the court can rely on to override that clear language and i think this court's decision and pillsbury is a really excellent example of that where under the longshoreman's act there was a limitation provision that ran from the time of injury and the plaintiffs pointed out well but we can't actually recover compensation for injury until a disability has manifested so we should say that we should interpret injury to mean disability and the court said no i mean it's true that that will run the limitation period before the but the language says what it says for what it's worth here i don't think that this reading is actually going to cut off claims except in cases of you know real lack of diligence because here it's not the case that there's no claim available after the initial act of discrimination by the employer there is a claim available the employee can initiate counseling on that and as a matter of the conciliation policy he or she ought to do that promptly in order to bring about the best chance of a prompt and informal reconciliation language we're seeing on here is the language you regulation statutory language that regulation is the cause of action for federal employees produced through this administrative process that has all the design of of the regulations so there unlike in the private sector provision that charging period here is purely a creature of the regulation the time limit that exists in the statute on the federal sector side is only the time limit for bringing the lawsuit once you have been aggrieved by the final agency decision you say this isn't going to be a problem how much i think it's going to be a problem a lot of times people are in jobs and they're you know suffering this particular type of adverse work environment or discrimination but quitting your job is a very big deal i think you have to plan out when that's going to be in just because you can't take it anymore doesn't mean that you could quit work work right away but this rule doesn't require you to quit in order to be able to raise and seek resolution oh sure it doesn't look for you to quit it just requires you to tell your boss you know i can't take this anymore  d now i've got to conciliate with you but you know it creates complications in the workforce if you raise that type of issue it can i mean to be clear that the e e o c regulations require that this must be all done anonymously and still be complaining employee the purpose of all of this is to try to prevent discrimination and to correct it as soon as it has occurred is unquestionably a very short provision and the court recognized in morgan that this very short provision exists because of the recognition that we want these sorts of alleged discriminatory retaliatory circumstances to be addressed right away there are safeguards built and this provision i think probably unique among such use of limitations that i know of actually mandates that it be extended if for example the employee didn't know about the time limit or didn't know didn't have a reasonable basis to suspect discrimination what is your position on the government's stance on the legal question or the factual factual question  we haven't taken a position on that because the court of appeals didn't didn't find it necessary to do so you know we get some examples of the difficulty of trying to figure out when the discrimination crewed if you have this last act kind of thing what to the contrary i think their dispute has arisen because they're trying to apply the date of resignation rule and are finding it difficult to agree on when that when that resignation occurred as i as i said earlier i think in our under the rule  appeals adopted in this case we think it asks the court or the agency to engage in precisely the same inquiry that it would have to do whether even if there had not been a constructive just charge it still in every case about identifying what is the i think souter's recognize that ms sitters had to prove up both pieces she had to prove unlawful conduct by the employer namely a severe and pervasive change in the terms and conditions of her employment amounting to a hostile work environment and she had to meet the constructive discharge standard and if the court's intent in saying so had been to equate constructive discharge with actual discharge for all intents and purposes then i don't see how the court could have come to the conclusion that the affirmative defense is is claim for constructive discharge what we would call in the old days a cause of action of pages one forty two and one forty three the court said it was considering whether a claim for constructive discharge lies under title seven and then it it holds we agree with the lower courts and the e e o c that title seven encompasses employer liability for constructive discharge not simply damages and handsome but liability for constructive discharge i do  want to turn to mr chief justice your question about the government's position on the date of resignation it is not entirely correct that the tenth circuit did not address this at petition appendix two way here's what the that the tenth circuit said that shortly after being put on leave he signed a settlement agreement in under which he would choose either to retire or to work in a position that paid much less and was about three hundred miles away that was the premise on which that i'm sorry that shoe and that's why i thought yes that was an open question but the government again and says that in fact the district court said that you chose to retire on in december and you didn't appeal that finding by the district court that is not corrected that the district court was of two minds on the question at one point in it it indicated that his son is agreement was a resignation at another point and this is in our reply brief the district court said the exact opposite it said with the tenth circuit said and the district court opinion its legal ruling is not premised on that what  the government is saying is a finding now let me also say that the ego decision in this case that is the postal service itself said this is that the joint appendix twenty three a fair reading of the agreement reveals that he was given the choice to retire or to report to a new job and was allowed to continue his career less a court as anything further what is your response to her i think she's saying in most of these cases there is a hostile work environment where there's a hostile work environment you have forty five days from the last attack and so what we should do is look at this injury is simply one more injury caused by a hostile work environment and just as you don't look at the date of injury is serious you know there you look to the environment et so do the same thing here it's simpler etc but there are two answers that justice pryor first of all i do want to challenge the premise of the seven alastor to have cases cited in suiters illustrative for constructive discharge three of them were stand e constructive discharges untethered to any other client that's number one and number two even if you have what this court in souter is called a subset of constructive discharge cases that is one arising out of a hostile work environment they are still distinct claims that's really the point of souter's they're distinct claims they're separately actionable and we know they're separately actionable because the constructive discharge claim is not actionable until resignation less the court is anything further thank you counsel miss carroll this court appointed you to brief and argue this case and in as an amicus curiae in support of the judgment below you have ably discharged that responsibility for which the court is grateful the case is submitted