Fedweek Legal

On April 27, 2015, the U.S. Supreme Court said it would take up Green v. Donahoe, No. 14-613, to resolve a split in the circuit courts as to when the filing period for a constructive discharge claim under federal employment law begins to run.

The constructive discharge doctrine provides that employees who resign because of unendurable working conditions are entitled to the same remedies available to employees who have been formally discharged in violation of anti-discrimination statutes.The doctrine aims to ensure that employers cannot circumvent prohibitions against removing employees for discriminatory and retaliatory reasons by subjecting them to intolerable treatment which forces them to resign.


Federal employees pursuing claims under any of the major employment discrimination statutes must initiate contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. See 29 C.F.R. § 1614.105(a)(1).Five circuit courts have held that the period for filing a constructive discharge claim begins to run when the employee resigns, and three circuits have held that the time period begins to run at the time of the employer’s last allegedly discriminatory act that leads to the employee’s resignation.The split over when the filing period begins causes employers’ liability for otherwise identical constructive discharge claims to vary by region.

In the lower court decision, Greenv. U.S. Postal Service, 760 F.3d 1135 (10th Cir. 2014), the 10th Circuit found that the complainant’s constructive discharge claim was time-barred because all of the allegedly discriminatory actions leading to his resignation occurred more than 45 days before he contacted an EEO counselor.However, under the rule currently prevailing in five circuits, the complainant’s constructive discharge claim would be timely because he raised it with an EEO counselor 41 days after he resigned from the agency.

This case – in which the choice between these two timeliness rules is determinative – provides the court with an ideal vehicle to restore uniformity to the legal landscape, ensuring that constructive discharge claims will no longer turn on geographical happenstance.If the court adopts the current majority rule, the filing period for constructive discharge claims will begin when all elements of the claim are present, consistent with the default rule for limitations periods, rather than before the claim arises.

* This information is provided by the attorneys at Passman & Kaplan, P.C.