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WASHINGTON, D.C. — The clock starts ticking in cases brought under Title VII of the Civil Rights Act of 1964 “when the cause of action is complete,” meaning that “a constructive discharge claim is complete only after the employee resigns,” the attorney representing a former U.S. Postal Service (USPS) employee argued Nov. 30 before the U.S. Supreme Court (Marvin Green v. Megan J. Brennan, Postmaster General, United States Postal Service, No. 14-613, U.S. Sup.) .
Brian Wolfman of Stanford Law School Supreme Court Litigation Clinic in Stanford, Calif., represents Marvin Green, who sued the USPS alleging retaliation after making racial discrimination claims.
“The court has indicated that limitations principles should be as simple as possible. The Tenth Circuit’s rule, however, injects unnecessary complexity,” Wolfman argued, urging the high court justices to reverse the appellate court’s decision. He went on to claim that in the case of Green, who is alleging constructive discharge, there are “two elements, both the precipitating conduct and the resignation. Without both, there is no constructive discharge claim.”
Assistant to the Solicitor General Curtis E. Gannon of Washington told the high court on behalf of the USPS that Green was correct. “We agree with petitioner that the period for initiating administrative consideration of a constructive discharge claim should begin when the employee gives notice of resignation and not when the employer commits the last act which might or might not lead to that resignation,” Gannon argued.
However, he continued, Green’s claim fails because Green failed to contact an equal employment opportunity counsel within 45 days of giving his notice, which Gannon claims occurred Dec. 16, 2009, when Green agreed to retire, and not the date it became effective, which was March 31, 2010.
Catherine M.A. Carroll of Wilmer, Cutler, Pickering, Hale & Dorr in Washington presented arguments on behalf of court-appointed amicus curiae in support of the judgment below. “We agree that the [Delaware State College v.] Ricks [449 U.S. 250 (1980)], [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], rule should apply here as it does to any other kind of claim under Title VII, a constructive discharge claim has to challenge actionable conduct by the employer,” Carroll argued.
Green, a black man, began working for the USPS in 1973. From 2002 until he retired in 2010, he worked as the postmaster at the Englewood, Colo., post office. In 2008, Green applied for a promotion. Green's supervisor, Gregory Christ, selected a Hispanic person instead. In August 2008, Green filed a formal charge with the Postal Service’s Equal Employment Opportunity (EEO) Office. He alleged that he had been denied a promotion because of his race. After the EEO Office completed its investigation, Green requested a hearing before the Equal Employment Opportunity Commission. The matter was ultimately settled.
Green filed an informal EEO charge, alleging that the Postal Service had begun retaliating against him for his prior EEO activity. Green alleged that Christ had threatened, demeaned and harassed him. He filed a third informal charge in July 2009, alleging that Christ and Jarman Smith, who replaced Christ as Green's supervisor, had harassed him because of his race and his EEO activity. The EEO Office completed its investigation of the charges. It informed Green that he could file a formal charge. However, he did not do so.
In November 2009, Green received a letter from Charmaine Ehrenshaft, 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.” Ehrenshaft and her supervisor, David Knight, conducted the investigative interview on Dec. 11, 2009. Green was represented by Robert Podio of the National Association of Postmasters. During the interview, Knight questioned Green about the processing of grievances, 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. Knight and Ehrenshaft 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.”
Green subsequently signed a settlement agreement that provided that he would immediately give up his position as Englewood postmaster and would use accrued annual and sick leave to receive pay until March 31, 2010, after which he could choose to retire or to accept a position at significantly lower pay in Wamsutter, Wyo. The Postal Service agreed that "no charges will be pursued based on the items reviewed during interviews conducted on December 11, 2009." After Green signed the agreement, he was paid retroactively for the three days he had been on emergency placement.
Green filed an informal charge with the EEO, alleging that he had been retaliated against on Dec. 11, 2009, when he was removed from his postmaster position and was issued the emergency-placement letter. Green filed a follow-up formal charge. The EEO Office dismissed the claim a few days later because Green had entered into a settlement agreement. The EEOC upheld the dismissal. Green submitted his retirement papers, effective March 31, 2010. On March 22, 2010, he initiated counseling. The Information for Pre-Complaint Counseling that he signed March 31 alleged that he had been constructively discharged by being forced to retire.
In September 2010, Green sued the postmaster general in the U.S. District Court for the District of Colorado. He amended his complaint to allege five retaliatory acts in violation of Title VII: the letter notifying him of the investigative interview, the investigative interview, the threat of criminal prosecution, his constructive discharge and the emergency placement. The District Court dismissed the first three claims for lack of subject matter jurisdiction, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], ruling that Green had failed to exhaust his administrative remedies. It later found that Ehrenshaft had, in bad faith, destroyed records of other postal employees charged with similar misconduct. As a sanction, the court said 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 District Court granted summary judgment for the postmaster general on the remaining claims, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. The 10th Circuit U.S. Court of Appeals affirmed, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], the District Court's judgment except as to the emergency placement claim, which was remanded for further proceedings.
On Nov. 25, 2014, Green filed a petition for writ of certiorari with the U.S. Supreme Court. The Supreme Court agreed to hear the petition on April 27, [subscribers can access an enhanced version of this order: lexis.com | Lexis Advance],. The question before the Supreme Court is: “under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation?”
Wolfman and Jeffrey L. Fisher of Stanford Law School Supreme Court Litigation Clinic in Stanford, John Mosby and Elisa Moran of Denver and Marilyn Cain Gordon of Washington represent Green.
Gannon, Solicitor General Donald B. Verrilli Jr., Principal Deputy Assistant Attorneys General Benjamin C. Mizer and Vanita Gupta, Deputy Solicitor General Ian H. Gershengorn and Attorneys Marleigh D. Dover, Tovah R. Calderon, Stephanie R. Marcus and Donnie I. Robin-Vergeer in Washington represent the postmaster general.
Karen R. Harned and Elizabeth Milito of National Federation of Independent Business Small Business Legal Center in Washington and Rae T. Vann and Amy B. Leasure of Norris, Tysse, Lampley & Lakis in Washington filed an amicus brief on behalf of Equal Employment Advisory Council and National Federation of Independent Business Small Business Legal Center. Benjamin G. Robbins and Martin J. Newhouse of New England Legal Foundation in Boston filed an amicus brief on behalf of New England Legal Foundation.
Sherrilyn Ifill, Janai Nelson, Christina Swarns, Jin H. Lee and Liliana Zaragoza of NAACP Legal Defense & Educational Fund Inc. in New York, John P. Schnapper-Casteras of NAACP Legal Defense & Educational Fund Inc. in Washington and Marcia D. Greenberger, Emily J. Martin, Fatima G. Graves and Amy K. Matsui of National Women’s Law Center in Washington filed an amicus brief on behalf of NAACP Legal Defense & Educational Fund Inc. and The National Women’s Law Center. Eric Schnapper of University of Washington School of Law in Seattle filed an amicus brief on behalf of The National Employment Lawyers Association.
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