By Deryn Sumner

I previously wrote about the Supreme Court’s grant of certiorari in the case of Green v. Donahoe in May 2015 as well as the oral arguments heard by the Justices in December 2015. The Court took up the case to address a circuit split as to when a federal employee must contact an EEO counselor to allege a claim of constructive discharge: when an employee resigns (as the First, Second, Fourth, Eighth, and Ninth Circuits held), or at the time the employer commits the last act alleged to be discriminatory (as the Seventh, Tenth, and D.C. Circuits held).

To recap the facts of the case, Mr. Green worked for the U.S. Postal Service and filed an EEO complaint in August 2008, arguing that he was not selected for a promotion because he was African-American. He filed another formal complaint alleging retaliation in May 2009. After he filed his formal complaint, the Office of Inspector General began investigating him for delaying the mail.  The IG ultimately concluded that Mr. Green did not commit misconduct; however, his managers placed him on emergency off-duty status after the interview anyway.  A few days later, Mr. Green and the Agency entered into a settlement agreement which provided that he would use leave to stay on the payroll until March 31, 2010, after which time he would either retire or accept a downgrade to a position 300 miles away.  Mr. Green subsequently contacted an EEO counselor to allege that the agency constructively discharged him by forcing him to retire under the settlement agreement.  After exhausting his administrative remedies, he filed in U.S. District Court and it concluded he had not made timely EEO counselor contact.  Mr. Green appealed the decision to the Court of Appeals for the Tenth Circuit and the Court of Appeals agreed that Mr. Green’s EEO counselor contact was untimely because it was beyond the 45 day timeframe.

In a 7-1 decision issued on May 23, 2016, the Supreme Court vacated the decision of the Court of Appeals and held that the 45-day window begins running only after the employee resigns.

The majority opinion began its analysis by reviewing the Commission’s regulation at 29 C.F.R. 1614.105(a)(1), which states, “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” The Court did not find that regulation helpful, noting that the reference to “matter” does not identify whether that means the employee’s actions (here, an employee’s resignation) or the employer’s actions (here, the settlement agreement).

Looking to Black’s Law Dictionary and other canons of interpretation, the Court concluded that the “matter alleged to be discriminatory” in cases alleging a constructive discharge claim includes the date of the employee’s resignation.  The Court provided three reasons for this holding: (1) that in a constructive discharge claim, a resignation is part of the “complete and present cause of action” necessary before the 45-day time limit begins to run; (2) the regulation at 29 C.F.R. 105 does not contain any language that is contrary to this idea; and (3) a catch-all of practical considerations, which the Court identified as not making it difficult for a layperson to invoke the protections of the civil rights statutes, to support this conclusion.


Justice Sotomayor delivered the opinion of the Court.  Justice Alito filed a concurring opinion and Justice Thomas issued a dissenting opinion.  The Court vacated the grant of summary judgment and remanded the case for further proceedings.  And thus ends, for now at least, the excitement of the Supreme Court delving into the quirky EEO federal sector process.  [email protected]

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