In depth: Circuit split on accrual of constructive discharge claims

Yesterday, 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.

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 a private-sector employee; the first step requires the federal employee to visit the agency’s EEO counselor within 45 days of the date of the matter alleged to be discriminatory or 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 of its elements can be satisfied. In the employment discrimination context, the cause of action accrues when the disputed employment practice occurred — 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.

Takeaway:

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.

Tenth Circuit – July 28, 2014

The Tenth Circuit released two published civil opinions on July 28, 2014.

Ron Peterson Firearms, LLC v. Jones, (No. 13-2054 and 13-2055) involved a challenge to the Bureau of Alcohol, Tobacco, and Firearms’ authority to issue a demand letter to certain federal firearm licensees in Arizona, California, New Mexico, and Texas. The letter required recipients to report to ATF sales to the same customer within five consecutive business days of “two or more semiautomatic rifles capable of accepting a detachable magazine and with a caliber greater than .22.” Like the Fifth and D.C. Circuits, the Tenth Circuit concluded that the ATF had the statutory authority to make the demand, which was not arbitrary and capricious. (D. N.M.)

In Green v. Donahoe, (No. 13-1096), the plaintiff, a former postmaster, asserted several claims arising from his employment with the U.S. Postal Service. The Tenth Circuit affirmed the dismissal of three of the claims because the plaintiff had not exhausted his administrative remedies. Facing a circuit split, the court also considered the issue of when a constructive discharge cause of action accrues. Siding with the D.C. and Seventh Circuits, the Tenth Circuit determined that a discriminatory act must occur during the limitations period. The Second, Fourth, and Ninth Circuits, on the other hand, have held that the cause of action accrues when the employee resigns. Finally, the court reversed the district court’s conclusion relating to the plaintiff’s retaliation claim, finding that the Postal Service’s placement of the plaintiff on “emergency placement” was a materially adverse action. (D. Colo.)