Resignation triggers clock start for filing constructive discharge claims

Federal law requires a governmental employee to file a constructive discharge claim with the Equal Employment Opportunity Commission within 45 days of the “matter alleged to be discriminatory.”  The vagueness of that phrase has called into question when the clock actually starts.  Earlier this week, the U.S. Supreme Court made it clear in a 7-1 ruling in Green v. Brennan that the filing clock starts upon the employee’s resignation.


In 2008, Marvin Green was serving as the postmaster in Englewood, Colorado.  When a similar position opened up in the nearby town of Boulder, the 35-year veteran of the U.S. Postal Service made application but was denied the position.  Suspecting that he lost out on the promotion because of his race, he filed a compliant with the EEOC.

According to Green, his supervisors subsequently launched a campaign of harassment and retaliation against him, going so far as to conducting internal investigations and accusing him of mismanagement and the crime of intentionally delaying the mail.  A settlement was eventually reached on December 16, 2009, that allowed Green to avoid any charges, with Green being given two choices – either accept a significant demotion to a position in Wyoming or retire.  On February 9, 2010, Green informed the USPS that he would retire, effective March 31.

On March 22, 2009 – 41 days after submitting his resignation – Green contacted an EEO counselor to report unlawful constructive discharge, alleging his working environment had become so hostile that he was essentially forced to resign.  Several months later, he filed suit in federal court.  That court dismissed his constructive discharge claim, saying it was time-barred because Green did not contact an EEO counselor within 45 days of the last “matter alleged to be discriminatory” – namely, the signing of the agreement on December 16, 2009.  After the Tenth Circuit Court of Appeals affirmed the lower court’s decision, Green appealed.

SCOTUS rules resignation date triggers clock start

On appeal to the U.S. Supreme Court, Green’s lawyers argued that the clock for the 45-day filing deadline should have begun on the day Green resigned, not the day he signed the agreement.  The high court agreed, ruling that an employee in a constructive discharge lawsuit has a “complete and present cause of action” once he has actually given notice of his resignation.  The court additionally ruled that the clock starts at the time the employee submits his resignation and not on the last day actually worked.

  • Green v. Brennan, Case No. 14-613, U.S. Supreme Court (May 23, 2016)