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Friday, June 3, 2016

When the Litigation Clock Starts

By: Thomas Eden

Marvin Green, a black male, worked for the Postal Service for 35 years. In 2008, he was serving as the postmaster for Englewood, Colorado when he applied for a promotion to the vacant postmaster position in nearby Boulder. When Green was passed over he claimed race discrimination. At that point Green’s relations with his supervisors crumbled according to his court complaint. Tensions peaked on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail, a criminal offense.

They informed Green that the Postal Service’s Office of the Inspector General (OIG) was investigating the charge and that OIG agents had arrived to interview him as part of their investigation. After Green met with the OIG agents, his supervisors gave him a letter reassigning him to off-duty status until the matter was resolved. Even though the OIG agents reported to Green’s supervisors that no further investigation was warranted, the supervisors continued to represent to Green that “the OIG is all over this” and that the “criminal” charge “could
be a life changer.”

On December 16, 2009, Green and the Postal Service signed an agreement where the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave
his post in Englewood.

On March 22, 41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16, Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement. His case was dismissed by the District Court as not being timely filed.

Last week, the U.S. Supreme Court issued a decision reinstating Green’s case and resolving disagreements over the question of when a constructive discharge claim accrues. The lower courts didn’t agree on when the clock should start ticking on claims by employees that they were forced to quit, creating uncertainty for plaintiffs who faced the possibility that their claims would be barred by the statute of limitations if they didn’t sue soon enough.

As with claims of wrongful discharge, the clock will start running when the employee is notified, or gives notice of termination, not necessarily the last day of work. Justice Sotomayor wrote: “Likewise, here, we hold that a constructive-discharge claim accrues and the limitations period begins to run when the employee gives notice of his resignation, not on the effective date of that resignation.”

Common Sense Counsel: Sometimes determining the “last discriminatory act” can be difficult and murky. The Supreme Court’s rule is easy to follow and a plaintiff will still have a strong incentive to act promptly. As Justice Sotomayor noted, a constructive discharge claim “requires proof of a causal link between the allegedly intolerable conditions and the resignation.” The longer the employee waits to resign (after the employer’s last discriminatory act), the weaker that showing of “intolerability” becomes.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at