On July 28, 2014, the Tenth Circuit joined the Seventh and D.C. Circuits in holding that some discriminatory act leading to an employee's constructive discharge claim must have occurred within the limitations period. The Second, Fourth and Ninth circuits have held that the cause of action accrues on resignation or notice of resignation instead.
The plaintiff in Green v. Donahoe worked as a postmaster before his retirement. A federal employee follows a different course of action before filing a charge for employment discrimination than does a private sector employee; the first step requires the federal employee to visit the agency's Equal Employment Opportunity (EEO) counselor within 45 days of the matter alleged to be discriminatory or within 45 days of the effective date of a disputed personnel action.
Here, the plaintiff alleged that harassment and bullying forced him to retire. Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign. The plaintiff's allegations potentially had a timing problem, though. The latest of the alleged acts of harassment and bullying occurred in December 2009 — more than 45 days before he visited the EEO counselor — but he resigned in February 2010 — less than 45 days before he visited the EEO counselor.
When Did the Cause of Action Accrue?
Generally a cause of action accrues when all its elements can be satisfied. In the employment discrimination context, a cause of action accrues when the disputed employment practice occurred — when the employee receives notice of the demotion, discharge, refusal to hire, etc. The Second, Fourth and Ninth Circuits have concluded that a constructive discharge claim accrues when the employee gives notice of resignation.
The Tenth Circuit disagreed: "[W]e cannot endorse the legal fiction that the employee's resignation, or notice of resignation, is a ‘discriminatory act' of the employer. Such a fiction stretches the language of 29 C.F.R. § 1614.105(a)(1) too far." Instead, the Tenth Circuit joined the Seventh and D.C. Circuits in requiring that a discriminatory act fall within the limitations period, concluding that the period still gives the employee "time for contemplation." Additionally, the court noted that, as a practical matter, the employee must generally quit his job to have a claim for constructive discharge, but the charge must only include facts concerning the underlying discrimination or retaliation. Thus, if the employee has timely complained and later decides to quit, he can likely amend the timely charge to add an allegation of constructive discharge.
Because the plaintiff did not visit the EEO counselor within 45 days of the alleged harassment and bullying, the court affirmed the dismissal of the claim.
Parties to a lawsuit complaining of constructive discharge should take note of the timing of the alleged discriminatory or retaliatory acts to determine whether the statute of limitations might bar the claim. It remains to be seen whether this circuit split regarding accrual of constructive discharge claims will interest the U.S. Supreme Court.