Too Early or Too Late: U.S. Supreme Court Should Rule Constructive Discharge Claims Accrue Upon Resignation

INTRODUCTIONMarvin Green worked for the U.S. Postal Service for thirty-five years, starting as a letter carrier and working his way up to postmaster for Englewood, Colorado.1 In 2008, Green applied for an open postmaster position in Boulder, Colorado, but was denied the promotion.2 Green believed the Postal Service discriminated against him for being black because the person hired for the position had less experience and did not even submit an application.3 Green filed a formal charge with the Equal Employment Opportunity ("EEO") Office regarding his denied promotion.4 Subsequently, Green believed the Postal Service retaliated against him for making the discrimination complaint and filed two informal charges alleging retaliation.5On December 11, 2009, the Postal Service held an investigative interview in which Green was accused of several transgressions, the most serious of which was "intentionally delaying the mail," a criminal offense.6 Green was put on "emergency-placement," a type of probationary administrative leave, and his pay was suspended.7 Unbeknownst to Green, immediately after the interview on December 11, the investigative agents concluded that Green did not intentionally delay the mail.8 The Postal Service's human resources manager warned Green's union representative that the criminal charge could be a "life changer" and the two worked on negotiating an agreement.9The parties eventually reached an agreement, which was signed on December 16, 2009.10 The agreement ended Green's emergency placement and allowed him to use his accumulated paid leave to cover his salary through March 2010.11 The agreement also removed Green from his current position, demoted him to a position in Wyoming that was almost three hundred miles away, and cut his salary by about $40,000 per year.12 Per the agreement, Green could either report to his new position in Wyoming on April 1 or retire by March 31, 2010.13Green submitted his resignation on February 9, effective on March 31, 2010. 14 On March 22, forty-one days after submitting his resignation, Green contacted an EEO counselor and alleged that he was constructively discharged in retaliation for a protected Title VII activity.15 In 2013, in Green v. Donahoe, the U.S. District Court for the District of Colorado dismissed Green's constructive discharge claim for being untimely.16 The court held that Green's constructive discharge claim began to accrue when he signed the agreement and he did not properly act within the forty-five day limitations period set for federal employees.17 In 2014, the U.S. Court of Appeals for Tenth Circuit affirmed the district court's decision.18The U.S. Courts of Appeals are divided regarding when an employee's Title VII constructive discharge claim begins to accrue.19 Federal regulations set out various restrictions regarding the timing of notice and filing requirements for alleged Title VII violations.20 The circuits disagree, however, on when the clock starts running in constructive discharge claims.21 The Seventh, Tenth, and District of Columbia Circuits have held that a claim begins to accrue against the filing window when the adverse employment action occurs.22 In contrast, the First, Second, Fourth, Eighth, and Ninth Circuits have held that Title VII constructive discharge claims begin to accrue when the employee resigns.23This Note argues that the U.S. Supreme Court should overturn the Tenth Circuit's 2014 decision in Green v. Donahoe, which held that an employee's constructive discharge claim began to accrue prior to his resignation.24 Part I of this Note outlines the legal context for Title VII constructive discharge claims and the current circuit split over when those claims begin to accrue.25 Part II of this Note discusses the implications of the circuit split, including its creation of uncertain outcomes and unequal results for similarly situated claimants.26 Part III of this Note recommends the U.S. Supreme Court resolve the circuit split by adopting the rule that a constructive discharge claim begins to accrue when the employee resigns. …