Monday, May 23, 2016

Green v. Brennan: Timeliness, Constructive Discharge, and the Court's "Difficult Situation" Argument

In Green v. Brennan, No. 14-613 (S. Ct. May 23, 2016), the Supreme Court, in an opinion by Justice Sonya Sotomayor, held that the limitations period for bringing a constructive discharge claim begins to run when an employee notifies the employer of his intent to resign. Thus, even if an employer did not take any discriminatory actions against the employee within the filing period, a constructive discharge claim is timely so long as the announced resignation occurred within the filing period, since the employee's resignation is an essential component of the claim.

While I don't question the Court's reasoning for the most part, I am bewildered by what I'll call the Court's "difficult situation" argument:

[F]orcing an employee to lodge a complaint before he can bring a claim for constructive discharge places that employee in a difficult situation. An employee who suffered discrimination severe enough that a reasonable person in his shoes would resign might nevertheless force himself to tolerate that discrimination for a period of time. He might delay his resignation until he can afford to leave. Or he might delay in light of other circumstances, as in the case of a teacher waiting until the end of the school year to resign. Tr. 17. And, if he feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination -- an additional adverse consequence that he may have to disclose in future job applications.
This strikes me as a rather bewildering argument for a number of reasons. First, the Court almost entirely undercuts this rationale with other arguments it makes. As noted by Justice Alito in his concurrence, a plaintiff who delays complaining until after resigning risks being unable to challenge lesser included claims because they may be untimely. In response to Justice Alito, the Court states that "no plaintiff would be well advised to delay pursuing what he believes to be a meritorious non-constructive-discharge-discrimination claim on the ground that a timely filed constructive discharge claim could resuscitate other time-lapsed claims." Thus, the Court acknowledges that an employee's reluctance to complain does not extend the limitations period. Moreover, because a constructive discharge claim comprises lesser claims, as Justice Alito noted, there will almost always be other non-constructive-discharge claims that an employee could bring.

Second, the Court observes that an employee bringing a constructive discharge claim will not have an incentive to delay bringing his claim because delay may make it more difficult for him to prove that his resignation was caused by allegedly intolerable conditions created by the employer.

If, as the Court acknowledges, an employee's decision to delay bringing a constructive discharge claim can jeopardize both the ability to bring other included claims and to prevail on the merits of the constructive discharge claim, then one has to wonder when, if ever, an employee would be "well advised" based on "difficult situations" to delay pursuing a constructive discharge claim.

Third, the Court's "difficult situation" argument suggests that an employee's subjective perception of the intolerability of his working conditions is irrelevant in establishing a constructive discharge claim. In a hostile work environment claim, a plaintiff is required to show not only that a reasonable person would have perceived the work environment as hostile but also that the plaintiff himself perceived the work environment as hostile. The court observed in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), that it would be anomalous if the graver claim of a constructive discharge is easier to prove than a lesser included hostile work environment claim. So if a constructive discharge claim does not require a showing that the plaintiff subjectively perceived the working conditions as intolerable, that would likely be contrary to Suders.
But if an employee decides not to resign but to continue working under certain conditions, such as for one of the reasons the Court suggested, I find it hard to understand how the employee could subsequently establish that he subjectively perceived his working conditions to be intolerable. After all, if someone decided to delay his resignation until a later more convenient time, then it would seem to necessarily follow that he was not constructively discharged since he, in fact, decided to tolerate the conditions.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.