PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

MARVIN GREEN,

 Plaintiff - Appellant,

v.

PATRICK R. DONAHOE, Postmaster 

General, United States Postal Service,

 Defendant - Appellee.

No. 13-1096

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

(D.C. No. 1:10-CV-02201-LTB-KMT)

 

John Mosby, (Elisa Moran and Marilyn Cain Gordon with him on the briefs), Denver, 

Colorado, for Plaintiff – Appellant. 

Paul Farley, Assistant United States Attorney, (John F. Walsh, United States Attorney, 

with him on the brief), Denver, Colorado, for Defendant – Appellee. 

 

Before HARTZ, McKAY, and MATHESON, Circuit Judges. 

HARTZ, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 28, 2014

Elisabeth A. Shumaker 

Clerk of Court

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Marvin Green, a former postmaster, claims that the U.S. Postal Service retaliated 

against him after he made employment-discrimination claims. He was investigated, 

threatened with criminal prosecution, and put on unpaid leave. Shortly after being put on 

leave, he signed a settlement agreement with the Postal Service that provided him paid 

leave for three and a half months, after which he could choose either to retire or to work 

in a position that paid much less and was about 300 miles away. Ultimately, he decided 

to retire. He then filed a complaint against Defendant Patrick Donahoe, the Postmaster 

General, in the United States District Court for the District of Colorado, alleging five 

retaliatory acts in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000e et seq.: (1) a letter notifying him to attend an investigative interview; (2) the 

investigative interview; (3) a threat of criminal charges against him; (4) his constructive 

discharge; and (5) his placement on unpaid leave (also known as emergency placement). 

The district court dismissed the first three claims for failure to exhaust administrative 

remedies. On the two remaining claims it granted summary judgment for Defendant, 

ruling that the constructive-discharge claim was untimely and that emergency placement 

was not a materially adverse action. This appeal followed. 

We have jurisdiction under 28 U.S.C. § 1291. We affirm the judgment below 

except for the emergency-placement claim. We agree with Green that the emergency 

placement was a materially adverse action (being put on unpaid leave would dissuade a 

reasonable employee from engaging in protected activity), and we remand the claim for 

further proceedings. 

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I. BACKGROUND 

Green, who describes himself as a black American, began working for the Postal 

Service in 1973. He was a manager for 25 years, including 14 years as a postmaster. 

From 2002 until his retirement in 2010, he was the postmaster at the Englewood, 

Colorado, post office. At the time of the pertinent events, he had no disciplinary report in 

his permanent file. 

In early 2008 a postmaster position opened in Boulder. Green applied for the 

position, but his supervisor, Gregory Christ, selected a Hispanic instead. In August 2008, 

Green filed a formal charge with the Postal Service’s Equal Employment Opportunity 

(EEO) Office, alleging that he had been denied a promotion because of his race. That 

November, after the EEO Office had completed its investigation, Green requested a 

hearing before the Equal Employment Opportunity Commission (EEOC). The matter 

was settled. 

In May 2009, Green filed an informal EEO charge alleging that the Postal Service 

had begun retaliating against him for his prior EEO activity. He alleged that Christ, his 

supervisor, had threatened, demeaned, and harassed him. He filed a similar informal 

charge in July, alleging that Christ and Jarman Smith, who had replaced Christ as Green’s 

supervisor, had threatened, demeaned, and harassed him because of his race and his EEO 

activity regarding the Boulder position. In August the Postal Service’s EEO Office 

completed its investigation of the May and July charges. It informed Green that he could 

file a formal charge, but he did not do so. 

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In November 2009, Green received a letter at his home from Charmaine 

Ehrenshaft, who was the Postal Service’s Manager of Labor Relations for his district. 

The letter instructed Green “to appear for an investigative interview regarding allegations 

of non-compliance in the grievance procedure.” Aplt. App., Vol. 2 at 433. The letter 

provides no specifics, but Defendant claims that Green was derelict in his handling of 

employee grievances between April and December of 2009, resulting in multiple adverse 

decisions that required the Postal Service to pay damages and penalties to grievants. 

Green asserts that he and his facility managers had contacted the appropriate person for 

assistance with the grievances but that the person would not help. 

Ehrenshaft and her supervisor, David Knight, the Manager of Human Resources, 

conducted the investigative interview on December 11, 2009. Green was represented by 

Robert Podio of the National Association of Postmasters. During the interview Knight 

asked Green about the processing of grievances, about allegations that he had 

intentionally delayed the mail by failing to timely sign and return receipts for certified 

letters related to the grievances, and about allegations that he had sexually harassed a 

female employee. 

When the interview ended, two agents from the Postal Service Office of the 

Inspector General (OIG) arrived. Knight instructed Green to meet with them. The OIG, 

an independent branch of the Postal Service, had initiated its own investigation into delay 

of the mail, which can be a federal crime. 

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Knight and Ehrenshaft reappeared when the OIG interview ended. They gave 

Green a letter informing him that under the Postal Service’s emergency-placement policy 

he was “placed in off-duty status immediately” because of “[d]isruption of day-to-day 

postal operations.” Id., Vol. 3 at 600. It stated that under the policy “[t]he employee is 

returned to duty status when the cause for nonpay status ceases.” Id. Knight ordered 

Green to surrender his Postal Service identification and cell phone and not to return to the 

Englewood post office. 

Unknown to Green, the OIG agents had concluded at the end of the interview that 

Green had not intentionally delayed the mail. The next day, Podio began negotiating 

with Knight to resolve the matter. During negotiations Knight e-mailed Podio that the 

OIG was “all over” the delay-of-mail issue and that “the criminal issue could be a life 

changer.” Id., Vol. 5 at 974.

On December 16, 2009, Green signed a settlement agreement. It provided that he 

would immediately give up his position as the Englewood postmaster and that he would 

use accrued annual and sick leave to receive pay until March 31, 2010, after which he 

could choose either to retire or to accept a position at significantly lower pay in 

Wamsutter, Wyoming, about 300 miles away. In exchange, the Postal Service agreed 

that “no charges will be pursued based on the items reviewed during interviews 

conducted on December 11, 2009.” Id., Vol. 3 at 610. After Green signed, he was paid 

retroactively for the three days he had been on emergency placement. 

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On January 7, 2010, Green met with an EEO counselor and filed an informal 

charge alleging that he had been retaliated against on December 11, the day of the 

investigative interview, when he was removed from his postmaster position and was 

issued the emergency-placement letter. He filed the follow-up formal charge on 

February 17. The EEO Office dismissed the claim a few days later because Green had 

entered into a settlement agreement. The EEOC upheld the dismissal in August. 

On February 9, 2010, Green submitted his retirement papers, effective March 31, 

2010. On March 22 he initiated counseling. The Information for Pre-Complaint 

Counseling that he signed on March 31 alleged that he had been constructively 

discharged by being forced to retire. On April 23 he followed up with another formal 

charge. The EEO Office sent Green a letter on April 26 indicating that it had accepted 

three claims for investigation: (1) that he was constructively discharged (no date 

specified); (2) that he was downgraded from a level 22 postmaster to a level 13 

postmaster on December 19, 2009; and (3) that his pay-for-performance salary increase 

was stopped. Green’s attorney then sent the EEO Office a letter advising it that “the only 

issue that should be investigated by you is the constructive discharge claim,” because the 

other two claims had been raised in the earlier February 17 charge and dismissed. Id., 

Vol. 1 at 83. The EEO Office issued a second acceptance letter acknowledging Green’s 

request and stating that it would investigate only the constructive-discharge claim. 

In September 2010 Green filed his complaint in this lawsuit. He filed an amended 

complaint in July 2011 alleging five retaliatory acts in violation of Title VII: (1) the 

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letter notifying him of the investigative interview, (2) the investigative interview, (3) the 

threat of criminal prosecution, (4) his constructive discharge, and (5) the emergency 

placement.

 The district court dismissed the first three claims for lack of subject-matter 

jurisdiction, ruling that Green had not exhausted his administrative remedies because he 

had not adequately presented those claims in his EEO charges. It later found that 

Ehrenshaft had in bad faith destroyed records of postal employees charged with 

misconduct similar to that alleged against Green. As a sanction, the court said that it 

would inform the jury that it could infer pretext from the destruction and would consider 

the same inference in ruling on a pending summary-judgment motion. The possible 

sanction was mooted, however, because in February 2013 the district court granted 

summary judgment for Defendant on the remaining claims. It ruled that Green’s 

emergency placement was not a materially adverse employment action and that his 

constructive-discharge claim was time-barred because he had not contacted an EEO 

counselor about it within 45 days of December 16, 2009, when he signed the settlement 

agreement. Green appeals the disposition of all five claims. 

II. DISCUSSION

A. Title VII Administrative Procedures

A brief summary of administrative procedures under Title VII will help set the 

stage. To avoid confusion when reading Title VII case law, it is worth noting that the 

obligations of federal employees are somewhat different from those of other workers. 

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See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1311 (10th Cir. 2005). See 

generally Laber v. Harvey, 438 F.3d 404, 416–17 & n.9 (4th Cir. 2006). For privatesector employees, a charge of discrimination must be filed with the EEOC within 180 

days, although the time can be extended to as much as 300 days if the claim is pursued 

initially with a state or local agency empowered to prosecute discriminatory employment 

practices. See 42 U.S.C. § 2000e-5(e)(1).1

 If the EEOC finds no discrimination or is 

unsuccessful at resolving the claim, the employee can then seek judicial review. See id.

§ 2000e-5(f)(1). Federal employees, however, must begin the process by contacting 

within 45 days an EEO counselor in the employee’s agency. See 29 C.F.R. 

§ 1614.105(a)(1).2

 If the counselor does not resolve the matter, the employee can file a 

 

1

 The pertinent language of the paragraph is as follows: 

 

 A charge under this section shall be filed within one hundred and eighty 

days after the alleged unlawful employment practice occurred . . . , except 

that in a case of an unlawful employment practice with respect to which the 

person aggrieved has initially instituted proceedings with a State or local 

agency with authority to grant or seek relief from such practice or to 

institute criminal proceedings with respect thereto upon receiving notice 

thereof, such charge shall be filed by or on behalf of the person aggrieved 

within three hundred days after the alleged unlawful employment practice 

occurred, or within thirty days after receiving notice that the State or local 

agency has terminated the proceedings under the State or local law, 

whichever is earlier . . . . 

42 U.S.C. § 2000e-5(e)(1). 

2

 Section 1614.105(a) states in full: 

Continued . . . 

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charge with the employing agency. See id. § 1614.106. Once the agency has 

investigated and issued a final decision, the employee can either appeal to the EEOC and 

then pursue judicial review, or opt out of further administrative proceedings and file 

directly in court. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.108-.110, 1614.401, 

1614.407. 

B. Exhaustion 

Before filing suit under Title VII, a private plaintiff must exhaust administrative 

remedies. “[E]ach discrete incident of alleged discrimination or retaliation constitutes its 

own unlawful employment practice for which administrative remedies must be 

 

 Aggrieved persons who believe they have been discriminated against on 

the basis of race, color, religion, sex, national origin, age, disability, or 

genetic information must consult a Counselor prior to filing a complaint in 

order to try to informally resolve the matter. 

(1) An aggrieved person 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. 

(2) The agency or the Commission shall extend the 45-day time limit 

in paragraph (a)(1) of this section when the individual shows that he 

or she was not notified of the time limits and was not otherwise 

aware of them, that he or she did not know and reasonably should 

not have been known that the discriminatory matter or personnel 

action occurred, that despite due diligence he or she was prevented 

by circumstances beyond his or her control from contacting the 

counselor within the time limits, or for other reasons considered 

sufficient by the agency or the Commission. 

29 C.F.R. § 1614.105(a). 

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exhausted.” Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (internal quotation 

marks omitted). Two components of the exhaustion requirement are at issue in this case. 

The first relates to the content of the administrative charge. To establish exhaustion, a 

Title VII plaintiff must show that the claim is within the scope of the administrative 

investigation that could reasonably be expected to follow from the allegations raised in 

the charge. See id. Thus, “the charge must contain facts concerning the discriminatory 

and retaliatory actions underlying each claim.” Id. Second, the plaintiff must submit the 

administrative charge in a timely fashion. See Sizova v. Nat’l Inst. of Standards & Tech., 

282 F.3d 1320, 1325‒28 (10th Cir. 2002); Johnson v. Orr, 747 F.2d 1352, 1356‒57 (10th 

Cir. 1984). Exhaustion serves the dual purposes of “protect[ing] employers by giving 

them notice of the discrimination claims being brought against them” and “providing the 

EEOC [or EEO office] with an opportunity to conciliate the claims.” Foster v. 

Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004). 

In this circuit the failure to comply with the first component of exhaustion 

deprives the court of jurisdiction. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 

1996) (Title VII claim by Postal Service employee). But the untimeliness of an 

administrative claim, although an exhaustion issue, see Sizova, 282 F.3d at 1327, is not 

jurisdictional, see id. at 1325. 

Defendant filed a motion under Fed. R. Civ. P. 12(b)(1) to dismiss Green’s first 

three claims—based on the letter notifying him of the investigative interview, the 

investigative interview itself, and the threat of criminal charges—for lack of jurisdiction 

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because Green had not presented them administratively. The district court granted the 

motion. Defendant then moved for summary judgment on Green’s constructivedischarge claim on the ground that it was untimely. The court granted that motion as 

well. The court based both rulings on undisputed facts regarding the content and timing 

of Green’s administrative charges. Our review of both rulings is de novo. See Holt v. 

United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (dismissal for lack of jurisdiction); 

Dahl v. Dahl, 744 F.3d 623, 628 (10th Cir. 2014) (summary judgment). The district 

court’s consideration of the administrative pleadings when ruling on the Rule 12(b)(1) 

motion was proper. See Holt, 46 F.3d at 1003 (court has “wide discretion” to consider 

documents “to resolve disputed jurisdictional facts under Rule 12(b)(1)”). We affirm the 

district court’s rulings on exhaustion, but our reasoning differs from the district court’s on 

the threat-of-criminal-charge claim. 

1. Notice and Interview Claims

Green’s charge submitted to the EEO Office on February 17, 2010, alleged 

retaliation and harassment on December 11, 2009, when he was removed from his 

position and placed on off-duty status. He contends that his claims based on the 

investigative interview and the letter notifying him of the interview were within the scope 

of that charge because the investigation into the charge would have included an 

investigation into the letter and the interview. We disagree. 

The February 17 charge does not mention the letter at all, and the single reference 

to the interview is only that Smith “was not involved.” Aplt. App., Vol. 1 at 60. Because 

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the charge did not contain a description of the letter or the interview that would have 

caused the EEO Office to investigate them as separate instances of discrimination, the 

district court properly dismissed both claims. 

2. Threat Claim

The analysis of Green’s third claim—based on the threat of criminal 

prosecution—is a bit more complicated. The factual basis of the claim is contained in his 

April 23, 2010 charge. The charge alleges that he was constructively discharged by being 

forced to retire, and it states that the Postal Service intimidated him with a false threat of 

criminal charges. Green’s unedited statement reads: 

Since filling my changes of discrimination the Agency has engaged in 

harassing, bulling and attempting to force me to quit or retire. I was forced 

out of my job as Postmaster Englewood, CO EAS-22, by Charmaine 

Ehrenshaft, or to move to the state of Wyoming about 400 miles from 

Denver, CO for a Postmaster position EAS-13 without save pay which 

would be a cut in pay of approximately $38,784.00 dollars and without any 

relocation cost. They also stopped my 2009, Pay-For-Performance Salary 

Increase that should have taken place in the month of January 2010. On 

December 19, 2009, Charmaine Ehrenshaft, downgraded me to an EAS-13 

Postmaster Wamsutter, Wyoming. They also used bulling, harassment, 

intimidation by possible criminal charges for delay of mail which I never 

delayed any mail in my Postal Career. 

Alternatively, if I did not retire, a Criminal Attorney would cost me to start 

any where from $25,00.00 to $50,000.00, or if I did not retire, I was 

ordered to report to the Postmaster position in Wamsutter, Wyoming which 

is approximately 400 miles from Denver, CO, and be downgraded from a 

level EAS-22 to a level EAS-13, without saved pay. 

Id. at 78 (italics added, bold omitted).

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In a later communication, however, Green’s attorney limited the charge. About 

two weeks after Green filed the April 23 charge, the EEO Office sent him a letter 

accepting his complaint for investigation and stating that the investigation would include 

only the following issues: (1) that he was forced to retire (constructive discharge), (2) 

that he was downgraded from a level 22 postmaster to a level 13 postmaster, and (3) that 

his pay-for-performance salary increase was stopped. Green’s attorney responded with a 

letter advising that “the only issue that should be investigated by you is the constructive 

discharge claim.” Id. at 83. The EEO Office then issued a second acceptance letter 

acknowledging Green’s request and identifying the constructive-discharge claim as the 

only claim it would investigate. Thus, Green’s attorney took the opportunity to correct 

the EEO Office’s erroneous inclusion of two claims not being raised, yet made no 

mention that another claim had been omitted. The obvious inference is that the charge 

had not raised any other claims. See Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir. 

2011). As a general rule, we have liberally construed administrative pleadings, see UPS, 

502 F.3d at 1186 (EEOC filing); but that practice is limited to pleadings filed without the 

assistance of counsel, see Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) (“We 

are required to construe appellants’ EEOC charges with utmost liberality since they are 

made by those unschooled in the technicalities of formal pleading.” (internal quotation 

marks omitted)); Mitchell v. City & Cnty. of Denver, 112 F. App’x 662, 667 (10th Cir. 

2004) (“This more lenient pleading standard contemplates the fact that administrative 

charges . . . are regularly filled out by employees who do not have the benefit of 

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counsel.”); cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to 

be liberally construed, and a pro se complaint, however inartfully pleaded, must be held 

to less stringent standards than formal pleadings drafted by lawyers.” (citations and 

internal quotation marks omitted)). 

Nevertheless, the charge may have been adequate. Exhaustion depends on 

whether “the charge . . . contain[s] facts concerning the discriminatory and retaliatory 

actions underlying [the] claim.” Jones, 502 F.3d at 1186. And the April 23 charge 

certainly contains facts concerning the alleged threat of criminal prosecution. Green did 

not necessarily withdraw his factual allegations when he withdrew all his claims other 

than constructive discharge; he may have based that claim in part on any discriminatory 

act against him, including the alleged threat of prosecution. Hence, we are reluctant to 

affirm dismissal of this claim on the ground that it was not included in his charge. 

Green’s escape from dismissal, however, is short-lived. The claim was untimely. 

Under 29 C.F.R. § 1614.105(a)(1), 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.” It is 

undisputed that the alleged threat of criminal prosecution occurred in December 2009. 

The March 2010 consultation was well past the 45-day deadline. 

3. Constructive-Discharge Claim

“Constructive discharge occurs when an employer unlawfully creates working 

conditions so intolerable that a reasonable person in the employee’s position would feel 

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forced to resign.” Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1133 

(10th Cir. 2013) (internal quotation marks omitted). Green claims that harassment and 

bullying by the Postal Service forced him to retire. The district court, however, 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 of 29 C.F.R. § 1614.105(a)(1). 

We agree with the district court. 

Green argues that the 45-day limitations period did not begin to run until he 

announced his resignation, even though that was well after the last alleged discriminatory 

act against him. In our view, however, the start of the limitations period for constructivedischarge claims is the same as for other claims of discrimination. 

To reach that conclusion, we begin by reviewing the rationale behind recognition 

of constructive discharge as a distinct claim. The chief function of such a claim is to 

expand the remedies available to an employee subjected to improper employer conduct. 

Ordinarily, an employee who quits a job after employer misconduct is treated as having 

voluntarily left the employment and is not entitled to reinstatement or to damages, such 

as back pay, resulting from having left the job. See Mallinson-Montague v. Pocrnick, 

224 F.3d 1224, 1236–37 (10th Cir. 2000) (employees who resigned after being sexually 

harassed were not entitled to back or front pay because they had not been constructively 

discharged); Derr v. Gulf Oil Corp., 796 F.2d 340, 342 (10th Cir. 1986) (“[T]he remedies 

of back pay and reinstatement are not available . . . unless [the plaintiff] was 

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constructively discharged.”). But employers should not be able to escape such remedies 

simply by making the job so intolerable that the employee resigns, making it unnecessary 

to fire him. See 1 Barbara T. Lindemann et al., Employment Discrimination Law 21-33 

(5th ed. 2012) (“An employer . . . should not be able to accomplish indirectly what the 

law prohibits being done directly.”). To deal with that circumstance, various tribunals 

have embraced the concept of constructive discharge. Apparently the first to do so was 

the National Labor Relations Board (NLRB) in the 1930s in the context of alleged unfair 

labor practices. See Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). If there had 

been a constructive discharge, the NLRB could order reinstatement and backpay, 

remedies otherwise available only if the worker had been fired. See Sure-Tan, Inc. v. 

NLRB, 467 U.S. 883, 888, 902 (1984) (holding that NLRB could order reinstatement with 

back pay as a remedy for constructive discharge); In re Sterling Corset Co., Inc., 

9 N.L.R.B. 858, 871 (1938) (ordering reinstatement and back pay as a remedy for 

constructive discharge). Courts have since recognized constructive-discharge claims in a 

variety of contexts, including Title VII, to enhance damages. See Suders, 542 U.S. at 

142. Courts treat “a constructive discharge [as] functionally the same as an actual 

termination in damages-enhancing respects.” Id. at 148 (emphasis added). 

But when should a constructive-discharge claim accrue? For most federal 

limitations periods, “the clock starts running when the plaintiff first knew or should have 

known of his injury.” Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th 

Cir. 2011). In the employment-discrimination context, “this rule generally means that a 

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claim accrues when the disputed employment practice—the demotion, transfer, firing, 

refusal to hire, or the like—is first announced to the plaintiff.” Id. at 1177. Unlike 

formal discharges, however, “[a] constructive discharge involves both an employee’s 

decision to leave and [the employer’s] precipitating conduct.” Suders, 542 U.S. at 148 

(emphasis added). This feature creates interesting issues regarding when such a claim 

accrues, and hence when a claim is untimely. 

The interesting issue here is whether the date of accrual can be postponed from the 

date of the employer’s misconduct until the employee quits or announces his future 

departure. Supporting such postponement is that quitting is an element of the claim, see 

Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 184 (2010) (“To recover for 

constructive discharge, . . . an employee generally is required to quit his or her job.”), and 

generally a claim does not accrue before all its elements can be satisfied, see Wallace v. 

Kato, 549 U.S. 384, 388 (2007) (“[I]t is the standard rule that accrual occurs when the 

plaintiff has a complete and present cause of action.” (brackets and internal quotation 

marks omitted)). 

Few court opinions have discussed the issue, either under Title VII or in other 

contexts. Of these, it appears that the majority have said that the constructive-discharge 

claim accrued when the employee gave notice of departure. In most of these decisions, 

however, the court had no occasion to choose between the date of the employer’s last 

misconduct and the employee’s resignation announcement. See, e.g., Jeffery v. City of 

Nashua, 48 A.3d 931, 936 (N.H. 2012) (plaintiff unsuccessfully argued that claim 

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accrued on effective date of resignation, not when she gave notice of resignation); 

Patterson v. Idaho Dept. of Health & Welfare, 256 P.3d 718, 725 (Idaho 2011) (same);

Whye v. City Council, 102 P.3d 384, 387 (Kan. 2004) (same); Hancock v. Bureau of Nat’l 

Affairs, Inc., 645 A.2d 588, 590 (D.C. 1994) (same). 

Still, in several decisions under Title VII, courts have said that a claim accrued on 

the date the employee resigned. See Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d 

Cir. 2000); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1111 (9th Cir. 1998); Young 

v. Nat’l Center for Health Servs. Research, 828 F.2d 235, 237–38 (4th Cir. 1987). The 

reasoning in Young was as follows: 

[T]he applicable administrative deadlines run from the time of the 

discriminatory act, not from the time of a later, inevitable consequence of 

that act. Whether an employer’s action is a “discriminatory act” or merely 

an “inevitable consequence” of prior discrimination depends on the 

particular facts of the case. A resignation is not itself a “discriminatory act” 

if it is merely the consequence of past discrimination, but if the employer 

discriminates against an employee and purposely makes the employee’s job 

conditions so intolerable that a reasonable person would feel forced to 

resign, then the resignation is a constructive discharge—a distinct 

discriminatory “act” for which there is a distinct cause of action. 

828 F.2d at 237–38 (emphasis added) (citations omitted); accord Draper, 147 F.3d at 

1110‒11 (quoting Young); Flaherty, 235 F.3d at 138 (quoting Young and saying that 

cause of action accrued when employee gave notice of intent to retire). 

 Perhaps these decisions of our sister circuits could be distinguished on the ground 

that the last act of discrimination was within the limitations period. But in any event, we 

cannot endorse the legal fiction that the employee’s resignation, or notice of resignation, 

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is a “discriminatory act” of the employer. Such a fiction stretches the language of 

29 C.F.R. § 1614.105(a)(1) too far. The regulation provides that federal employees 

“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,3

 within 45 days of the effective date 

of the action.” Id. And the Supreme Court has said that “the proper focus is upon the 

time of the discriminatory acts, not upon the time at which the consequences of the acts 

became most painful.” Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (internal 

quotation marks omitted). “Mere continuity of employment, without more, is insufficient 

to prolong the life of a cause of action for employment discrimination.” Id. at 257. Of 

particular concern is that delaying accrual past the date of the last discriminatory act and 

setting it at the date of notice of resignation would run counter to an essential feature of 

limitations periods by allowing the employee to extend the date of accrual indefinitely, 

thereby “placing the supposed statute of repose in the sole hands of the party seeking 

relief.” Wallace, 549 U.S. at 391. As previously noted, the Supreme Court has stated 

that “a constructive discharge is functionally the same as an actual termination in 

damages-enhancing respects.” Suders, 542 U.S. at 148 (emphasis added). It does not 

follow, however, that it should be treated as the functional equivalent for purposes of the 

limitations period. 

 

3

 We are uncertain of the meaning of personnel action in the regulation, but we have no 

doubt that it must refer to the acts of the employer, not the employee, and Green has not 

suggested that his notice of resignation was a personnel action under the regulation. 

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No policy reason, certainly not the policy behind recognition of constructivedischarge claims as a means to provide appropriate relief to employees, commends itself 

as a ground for postponing the accrual of constructive-discharge claims until the 

employee leaves work. Such postponement would be contrary to the proposition that 

“society and the policies underlying Title VII will be best served if, wherever possible, 

unlawful discrimination is attacked within the context of existing employment 

relationships.” Derr, 796 F.2d at 342–43 (internal quotation marks omitted). 

There is certainly merit to the view that the employee should have time to 

contemplate whether the employer’s misconduct has become intolerable. But the 

employee need not raise the claim instantaneously. The limitations period provides time 

for contemplation. Indeed, the EEOC took this consideration into account in setting the 

45-day limit for claims, despite arguments that more time was necessary “to reflect, 

secure advice, or realize the impact of a discriminatory action.” 57 Fed. Reg. 12634, 

12634 (Apr. 10, 1992). It is not our office to expand the time limits beyond what the 

EEOC has set. 

We recognize that an employee cannot file suit before presenting a charge in 

administrative proceedings, and a constructive-discharge charge cannot be submitted 

before the employee quits his job. But exhaustion of a Title VII claim requires only that 

“the charge . . . contain facts concerning the discriminatory and retaliatory actions 

underlying [the] claim.” Jones, 502 F.3d at 1186. The charge need not allege that the 

employee responded to the improper action by quitting. And an employee who later 

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decides he cannot take it any longer and therefore quits his job could likely amend a 

timely charge to include an allegation of constructive discharge. See 29 C.F.R. 

§ 1601.12(b) (permitting amendments).

We therefore agree with the courts that have required some discriminatory act by 

the employer within the limitations period. See Mayers v. Laborers’ Health & Safety 

Fund, 478 F.3d 364, 367, 370 (D.C. Cir. 2007) (notice of resignation was within 

limitations period but no discriminatory act of employer was); Davidson v. Ind.-Am. 

Water Works, 953 F.2d 1058, 1059–60 (7th Cir. 1992) (same).4

 

Green does not claim that the Postal Service did anything more to him after 

December 16, 2009, the day he signed the settlement agreement. He first initiated EEO 

counseling on his constructive-discharge claim on March 22, 2010, well beyond 45 days 

later. That was too late. 

C. Emergency-Placement Claim 

Finally, we consider the emergency-placement claim. The district court dismissed 

the claim on summary judgment. “We review the district court’s grant of summary 

judgment de novo, applying the same standards that the district court should have 

applied.” Dahl, 744 F.3d at 628 (internal quotation marks omitted). Summary judgment 

 

4

 The Seventh Circuit later described Davidson as agreeing with Flaherty and Draper. 

See Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 334 (7th Cir. 2004) (“Like other 

circuits, we have held that the clock starts with the events that constitute a constructive 

discharge.”). But Cigan held that the employee had not been constructively discharged, 

see id., and it did not purport to overrule Davidson. 

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is appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“[W]e examine the record and all reasonable inferences that might be drawn from it in 

the light most favorable to the non-moving party.” Dahl, 744 F.3d at 628 (internal 

quotation marks omitted). 

Green claims that his emergency placement was retaliation for his protected 

conduct of filing his 2008 EEO charge (which alleged that the Postal Service 

discriminatorily denied him the Boulder postmaster position) and his 2009 charge (which 

alleged that the Postal Service retaliated against him for his 2008 charge). An employee 

who does not have direct evidence of retaliation may prove such a claim under the threestep framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir. 2013). The 

employee must first establish a prima facie case that the action taken by the employer 

was retaliation for protected conduct by proving “(1) that he engaged in protected 

opposition to discrimination, (2) that a reasonable employee would have found the 

challenged action materially adverse, and (3) that a causal connection existed between the 

protected activity and the materially adverse action.” Somoza v. Univ. of Denver, 513 

F.3d 1206, 1212 (10th Cir. 2008) (internal quotation marks omitted). The challenged 

action is materially adverse if “it well might have dissuaded a reasonable worker from 

making or supporting a charge of discrimination.” Id. (internal quotation marks omitted). 

If the prima facie case is made, the burden shifts to the employer to respond with 

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“legitimate, nonretaliatory reasons” for its actions. Debord, 737 F.3d at 655 (brackets 

and internal quotation marks omitted). If the employer does so, the burden shifts back to 

the employee to show that the employer’s “stated reasons were pretextual.” Id.

In granting Defendant summary judgment, the district court held that Green could 

not prove that his emergency placement was materially adverse. We disagree. 

On appeal Defendant argues that the emergency placement was not materially 

adverse for several reasons: (1) Green does not “take issue” with the district court’s 

determination that there is no evidence that the placement was materially adverse, Aplee. 

Br. at 40; (2) Green never missed a regular paycheck, so the emergency placement was 

equivalent to administrative leave, which has not been considered materially adverse; and

(3) Green does not dispute that the placement did not dissuade him from engaging in 

protected activities.

We are not persuaded. In our view, Green adequately preserved below and on 

appeal his claim that the placement was materially adverse. As for Defendant’s second 

argument, it misses a key fact: Although Green did not miss a paycheck, he did not know 

that he would be paid when he was handed the letter notifying him of the emergency 

placement. The letter referred to the placement as “nonpay status,” and said that the 

status would “continue until you are advised otherwise.” Aplt. Appl, Vol. 3 at 600. 

Green later received his regular paycheck only because he agreed to a settlement with the 

Postal Service, a settlement that he may have been induced to accept so that he could be 

paid. Indeed, Knight testified as follows: 

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Q: Why did you tell Mr. Podio that you would not pay [Green]? 

A: It’s my right. If we’re going to negotiate a settlement, that’s a 

negotiation tool. 

Id., Vol. 5 at 1022. As we have said, “Actions such as suspensions or terminations are by 

their nature adverse, even if subsequently withdrawn.” Roberts v. Roadway Express, 

Inc., 149 F.3d 1098, 1104 (10th Cir. 1998). We do not doubt that losing one’s income 

could “dissuade[] a reasonable worker from making or supporting a charge of 

discrimination.” Somoza, 513 F.3d at 1212 (internal quotation marks omitted); see 

Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012) (postal employee’s placement 

“on unpaid off-duty status” was an adverse employment action); Scott v. Potter, 182 F. 

App’x 521, 524 (6th Cir. 2006) (expressing “no doubt” that postal employee’s emergency 

placement was an adverse employment action). The possibility that one could recover 

that income by caving to the employer’s demands would not provide much comfort. 

Finally, Green’s admittedly continuing to engage in protected activities (such as 

filing more charges) after the emergency placement does not affect our conclusion. True, 

“the fact that an employee continues to be undeterred in his or her pursuit of a remedy . . . 

may shed light as to whether the actions are sufficiently material and adverse to be 

actionable.” Somoza, 513 F.3d at 1214. But here the obvious consequence of the 

placement was to induce Green to settle on terms favorable to the Postal Service. And 

once he had settled (particularly after he decided to quit), there was little the Postal 

Service could do to retaliate against him for his subsequent claims of discrimination. 

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More importantly, we look at the likely effect of the adverse action on a “reasonable 

worker.” Id. at 1212 (internal quotation marks omitted). Green does not lose his claim 

just because he may be more resilient than most. We repeat that a reasonable worker 

would be deterred by cutting off his pay. 

Whether Green can establish the other elements of his emergency-placement claim 

and what damages, if any, he may be entitled to are unclear. But we leave that to the 

district court to decide in the first instance. 

III. CONCLUSION 

 We AFFIRM the district court’s dismissal of the claims based on the investigativeinterview letter, the investigative interview itself, the threat of criminal charges, and the 

alleged constructive discharge. We REVERSE summary judgment for Defendant on the 

emergency-placement claim, and we REMAND for proceedings consistent with this 

opinion. 

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