Friday, July 29, 2016

Title VII’s reach to protect employees is co-extensive with breadth of employers’ retaliation

A recent case out of California demonstrates that Title VII’s anti-retaliation protections of employees are just as broad as some employers’ destructive sweep to get rid of “problem” employees. In Equal Employment Opportunity Commission v. Zoria Farms, Inc., the court on July 22, 2016, ordered Z Foods, Inc., (the successor corporation to Zoria Farms) to pay $1,470,000 in compensatory and punitive damages to several female employees who had been sexually harassed by two supervisors, and to male and female employees who were terminated after they either complained about the harassment or were merely related to the persons who had complained.

Title VII makes it “an unlawful employer practice for an employer…to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” “‘Discriminatory conduct includes harassment,’” Zoria Farms (quoting Meritor Savings Bank v. Vinson), when that harassment occurs because of sex.” Id. (citing Oncale v. Sundowner Offshore Servs.). An employer violates Title VII when it subjects an employee to harassment that constitutes a hostile work environment. A hostile work environment based on sex exists when there is unwelcome conduct that is based on the plaintiff’s sex, which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment, and which is imputable to the employer. Boyer-Liberto v. Fontainebleau Corp. In measuring the severity of the harassing conduct, “the status of the harasser may be a significant factor–e.g., ‘a supervisor’s [harassment] impacts the work environment far more severely than use by co-equals.’” Id. “‘…[A] supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.’” Id. (quoting Burlington Indus., Inc. v. Ellerth).

In Zoria Farms, the court granted the EEOC’s unopposed motion for default judgment and found that the EEOC had set forth prima facie claims of sexual harassment. Over a two-year period, Rosa Mendez’s supervisor Martin Ramirez made inappropriate comments to her, such as how good she looked in pants, he dreamed about having sex with her, she had a beautiful body, he desired her breasts, he liked the way her breasts moved when she walked, he was imagining her naked, and he thought about what it would be like to have sex with her. Ramirez also inappropriately touched Mendez: he would walk by and brush up against her or stand next to her while rubbing up against her; he would come up from behind her and grab her buttocks or fondle her breasts. He also often propositioned Mendez, telling her that if she had sex with him, he would offer her a better employment position. Ramirez also sent Mendez to remote areas of the work facility so that he could further harass her. This terrified Mendez, as she had heard rumors that he had raped other female employees in similar, isolated areas. In these isolated areas, he grabbed her from behind with both hands. Mendez complained about Ramirez’s behavior to Martha Sanchez, the Human Resources Manager, and to Jill Brooks, the Plant Manager. Mendez told them that she refused to go to isolated areas because she knew Ramirez was going to try to sexually assault her. Rather than defend or protect Mendez, Sanchez and Brooks told her that she was being insubordinate for refusing to obey Ramirez’ orders, and subsequently wrote her up for being insubordinate. Mendez was not the only female employee whom Ramirez sexually harassed.

That Ramirez’s harassment altered the conditions of Mendez’s employment was unquestionably clear to the court: His conduct caused her to experience feelings of anxiety and stress, which led to her having difficulties sleeping and recurring nightmares. After her complaints to Human Resources and the Plant Manager went unanswered, her feelings of depression, sadness, anxiety, stress, and humiliation continued. She had to force herself to go to work. Her feelings of depression became so intense that she attempted suicide in October 2007.

Supervisor Francisco Guerra sexually harassed Rocio Guevara and other female employees. Guerra placed harassing telephone calls to Guevara, solicited her to go on dates with him, made numerous comments about her body, told her he was in love with her, offered to promote her if she went out with him, and leered at her. With regard to the other female employees, Guerra identified which of them were good at oral sex, discussed sexual positions, propositioned female employees with offers of promotion in exchange for sex, threatened their continued employment unless they acquiesced to his advances, leered at their buttocks, subjected them to unwanted touching, and enlisted other female employees to solicit female employees on his behalf.

The court found the two supervisors’ harassing actions were imputable to the employer because it utterly failed to take appropriate remedial action to stop the harassment after numerous employees complained of the harassment. An employer is “strictly liable for the supervisor’s harassing behavior if it ‘culminates in a tangible employment action,’ but otherwise may escape liability if two conditions are met: (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the preventive or correction opportunities the employer offered. Boyer-Liberto.

Not only did Mendez and Rocia Guevara complain about the sexual harassment, but numerous other male and female employees complained as well. In April 2008, Mendez and several of her co-workers participated in a meeting to talk to management (Human Resources Manager Sanchez and Plant Manager Brooks) about Ramirez’s conduct. Ramirez was thereafter terminated. Sanchez and Brooks assured the employees that they should not worry about losing their jobs.

In order to establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: “(1) she engaged in a protected activity under Title VII; (2) defendants were aware of the activity; (3) plaintiff was subject to an adverse employment action; and (4) there was a causal nexus between plaintiff’s protected activity and the adverse employment action.” Burt v. Maple Knoll Communities, Inc. An “adverse employment action ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Id. (quoting Burlington Indus., Inc.).  The causal connection can be established when the employer treated the plaintiff differently than similarly-situated employees, or when the adverse action was taken shortly after the plaintiff’s exercise of protected rights. Id.

In June 2008, Mendez and all of her co-workers who participated in the April 2008 meeting were terminated. Another employee, Maria Coronado, complained to Human Resources about Ramirez sexually harassing her and other female employees. On one occasion in 2007, she saw Ramirez trying to grab and kiss Mendez against her will. Upon seeing Coronado, Ramirez released Mendez, but he thereafter began criticizing Coronado’s work. Coronado was terminated after she participated in the April 2008 meeting with management to discuss Ramirez’s conduct.

Mireya Torres, another Zoria Farms employee, witnessed Ramirez harassing Mendez. She was upset about Ramirez’ conduct towards Mendez and attempted to limit the time Mendez had to spend alone with him. She attended the April 2008 meeting with management to discuss Ramirez’ conduct. A few weeks later, she was terminated.

Bacilia Barajas also worked at Zoria Farms and witnessed Ramirez harassing Mendez. He encouraged Mendez to complain to Sanchez about Ramirez’s harassing conduct, which Mendez did. Nothing was done about Mendez’ situation, though. Barajas also saw Ramirez harassing other female employees. When Ramirez became aware that Barajas had witnessed his behavior, Ramirez became more aggressive toward Barajas and assigned him more strenuous work. Barajas attended the April 2008 meeting and was shortly thereafter terminated.

The court found that the EEOC had sufficiently pled the retaliation claims, as employees had reported Ramirez’ and Guerra’s conduct to Human Resources and the Plant Manager. See Brooks v. City of San Mateo (reporting sexual harassment to supervisor constitutes protected activity), and were shortly thereafter terminated.

What is most interesting about this case is the extent to which Z Foods went to eradicate not only the complaining employees, but also employees who were related to the complaining employees. Title VII allows for third-party retaliation claims for plaintiffs who are within the “zone of interests” sought to be protected by Title VII. See Thompson v. North Am. Stainless, L.P. Title VII’s “zone of interests” includes employees, as the purpose of Title VII is to protect employees from their employers’ unlawful actions. Id. In Thompson, the Supreme Court held that a third-party retaliation claim under Title VII was properly made by an employee who was terminated after his fiancée filed a claim of discrimination with the EEOC against the same employer. The Court reasoned that “Title VII’s antiretaliation provision prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White). The Court in Thompson stated, “[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.” Id. The Court declined to identify a fixed-class of relationships for which third-party reprisals are unlawful because “‘the significance of any given act of retaliation will often depend upon the particular circumstances.’” Id. (quoting Burlington).

In October 2008, Arnulfo Guevara reported Guerra’s sexual harassment of his sister Rocia Guevara to John Zoria, a manager with Z Foods. Zoria told Guevara to tell the women to find a way to submit a complaint against Guerra. Zoria then called Guevara back, asked him how long the harassment had been going on, then told Guevara not to say anything. In November 2008, Guevara was fired.
Carlos Garcia is Arnulfo Guevara’s brother-in-law, and also worked at Zoria Farms. In May 2009, the Assistant Plant Manager began asking Garcia questions about Guevara, and asked him whether he knew that Guevara had filed a charge of discrimination with the EEOC. In August 2009, Garcia was terminated. The court found that Garcia’s termination as a result of his association with Arnulfo Guevara was sufficiently pled to establish a third-party retaliation claim under Title VII and Thompson.

In awarding not only compensatory but also punitive damages against Z Foods, the court considered that it “did not have or did not enforce an anti-discrimination policy, failed to take action in response to numerous complaints, and permitted and ratified multiple violations of Title VII prohibitions on harassment and retaliation.” Z Foods. The court concluded that, “[a]s these intentional acts deprived these claimants of their civil rights, a punitive damages award of $200,000 per individual – or $1,800,000 total – is appropriate.” Because the predecessor employer, Zoria Farms, had already settled for $330,000, the court held Z Foods as the successor employer jointly liable for the balance of $1,470,000.

This case should send an unequivocal message to employers who insist on eradicating not only problematic complaining employees–but also their relatives– that such conduct is prohibited under Title VII and will result in significant damages awards against them.

This blog was written by Valerie Chastain. 

Tuesday, July 19, 2016

Knowing Where You Come From: Perception of National Origin Discrimination

It turns out it may be national origin discrimination even if the harassers don’t actually know where you’re from.

In June 2016, the EEOC issued Proposed Enforcement Guidance on National Origin Discrimination and opened the document for comments until July 5th.  Both the Proposed Guidance and the submitted comments are available online.

One point that drew considerable attention was the guidance on “Perception” discrimination, which the Proposed Guidance describes as follows:
Perception: Employment discrimination based on the belief that an individual (or her ancestors) is from one or more particular countries, or belongs to one or more particular national origin groups. For example, Title VII prohibits employment discrimination based on the perception that someone is from Middle Eastern countries or is of Arab ethnicity, regardless of how she identifies herself or whether she is, in fact, from one or more Middle Eastern countries or ethnically Arab.
Proposed Guidance, p. 6. In support, the Guidance cites a case of an Indian man inaccurately and derisively called at work an “Arab” or “Taliban.” Id. at note 26.  In that case, the Fifth Circuit reversed a Texas court’s summary judgment granted to the defendant because “none of the alleged harassment related to the fact that [the Appellant] is from India.”  E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 401 (5th Cir. 2007).  The Appeals Court, citing both the EEOC’s own guidelines and a number of district court cases, concluded that even erroneous conclusions as to a person’s place of origin can provide a basis for a national origin discrimination claim.  As one decision cited by the court said, “The plaintiff may still establish a cause of action under the Civil Rights Act despite the defendant’s mistaken belief that his ethnic characteristics are those of a person of Italian, rather than Greek, descent.”  Id.  (quoting Kanaji v. Children’s Hosp. of Philadelphia, 276 F. Supp.. 2d 399, 401-04 (E.D. Pa 2003) ).

In comments to the EEOC’s proposed guidelines, the Equal Employment Advisory Council (“a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination”) objected that “perceived discrimination” was nowhere to be found by language or implication in Title VII.  EEAC comments, p. 4.  Quoting the language of the statute at 42 U.S.C. § 2000e-2(a), the EEAC declares that “Nowhere does the statute state explicitly, or even imply indirectly, that ‘perceived’ national origin is a legally-protected characteristic.”  Id.  While it is admittedly difficult to prove a negative, the EEAC does not even attempt to support the declaration that the implication of “perception discrimination” is lacking in the language of Title VII.

Moreover, the EEAC’s objections to the guidance on “perceived” national origin discrimination ignore last year’s Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015), which placed on employers the burden of demonstrating that Title VII precludes the use of “perceived” discrimination.  In that 8-1 decision (Thomas dissented in part), the Court explained that, “It is significant that § 2000e–2(a)(1) does not impose a knowledge requirement.”  Id. at 2032.  Abercrombie’s defense that it had chosen not to hire a hijab-wearing applicant without knowing that  any religious significance attached to the hijab she wore was insufficient to defend against the EEOC’S claim of religion-based disparate treatment.  The Court made clear that Title VII’s prohibition of intentional discrimination “prohibits certain motives, regardless of the state of the actor’s knowledge.  Motive and knowledge are separate concepts.”  Id. at 2033.   Thus, an actor who intends to discriminate may do so even if his knowledge of the person’s protected category is imperfect.

This is not true, the Court reminded us in Abercrombie, in another civil rights law.  In the Americans with Disabilities Act, an employer’s knowledge of a worker’s disability is a prerequisite to a finding that the employer failed to accommodate that worker.  Id. at 2032-33 (“the Americans with Disabilities Act of 1990 defines discrimination to include an employer's failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. § 12112(b)(5)(A) (emphasis added)”).  However, the ADA expressly provides for disparate treatment claims based on a claim that the employee was “perceived” to be disabled, thus permitting a finding of intentional discrimination even when the employer’s conduct is based on faulty – and even incorrect – information.

Nevertheless, the Court’s holding in Abercrombie makes clear that the EEOC’s guidance on perceived national origin discrimination is sound.  Intentional discrimination requires intent, but not knowledge. The flawed perception of where a person is from or his or her ethnicity is sufficient to support a claim for discrimination.  As in many other areas of the law, ignorance is no defense.

Written by Mary Kuntz

Tuesday, July 12, 2016

Two appellate courts look at hostile work environments from the victim’s point of view

Two federal appellate decisions shed helpful light on claims arising from hostile work environments (HWEs).

On July 6, 2016, the Fourth Circuit issued its decision in Guessous v. Fairview Properties Investments, Inc. In reversing summary judgment for the defendant on all claims, the Guessous Court agreed with an amicus brief filed by the Equal Employment Opportunity Commission (EEOC).

Monica Guessous (pictured, in the middle position; photo courtesy of Ms. Guessous) is an Arab Muslim woman from Morocco. She was an assistant property manager and bookkeeper for FPI from 2007-2013. In 2008, Greg Washenko (a white Christian American) became FPI’s new Chief Financial Officer. During Washenko’s initial “meet and greet” session, he told Guessous that he had previously worked with “a bunch of Middle Easterners and they are a bunch of crooks, [who] will stop at nothing to screw you,” and he thereafter subjected Guessous to close supervision. Guessous testified that Washenko’s behavior upset her and made her feel that she did not belong. “He made me feel like an outsider,” she testified. “He put this disease in me, where I was more aware that I was a foreigner, that I was different.” Guessous frequently left the office to cry in her car or the restroom. She testified that the harassment affected her concentration and her ability to do her job.)

On December 6, 2012, Guessous confronted Washenko about his treatment of her. She told him that she felt targeted by him because she was an Arab Muslim woman from Morocco. She said, “I’m a new mom. I can’t do this. My work environment needs to be healthy. It has not been healthy. Please let’s put this behind us.” Washenko stated that he decided to fire Guessous around the time of this conversation. Washenko informed Guessous of her termination in March 2013.

The district court granted summary judgment and Guessous appealed. In its amicus brief, the EEOC urged reversal. The EEOC argued that the lower court failed to consider the “totality of the circumstances,” citing to Conner v. Schrader-Bridgeport Int’l, Inc. and Harris v. Forklift Sys., Inc. The hostility of Guessous’s working environment must be viewed “from the perspective of a reasonable person in her position.” The Commission’s brief continues:
Although Washenko’s comments were less frequent than those found to constitute a hostile work environment in some other cases, see, e.g., Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995), each comment carried a lasting impact. Guessous felt profoundly demeaned, and Washenko reinforced this feeling by obsessively checking up on her (and no one else)[.]
The Court of Appeals said that Washenko’s first comment to Guessous “set the stage for Guessous’ and Washenko’s working relationship from that point forward.” This holding makes clear that courts must consider how one hostile comment can affect the employee’s perception of other hostile comments and actions. Even though the other hostile actions might not be explicitly discriminatory, they can add to the material impact of another hostile action that is more clearly discriminatory. The Commission argued, “The question at the summary judgment stage is not whether a jury is sure to find a verdict for the plaintiff; the question is whether a reasonable jury could rationally so find.”

The appellate court agreed. The Court held that summary judgment was improper because the trial judge had limited his consideration to one comment (about “camel people”) that it considered overtly racial. The Court added that Washenko’s first comment to Guessous, “set the stage for Guessous’ and Washenko’s working relationship from that point forward.” “The manner in which Washenko delivered this statement left Guessous feeling less than human, a hallmark of racially insensitive conduct.” This is not a determination that is suitable for summary judgment and the district court erred when it “put itself in the place of the jury.”

As to whether the hostility was severe or pervasive, “the district court erred by failing to take into account the totality of the circumstances[.]” A trial court must consider “intimidating and intrusive management,” whether the victim “felt demeaned” and “the underlying assumption that she was not to be trusted.” “The evidence suggests Washenko thought Guessous was untrustworthy—and intended to make that clear to her—from the moment she disclosed her origins to him at their initial meeting.”

Courts have long held that “whether harassment was sufficiently severe or pervasive is quintessentially a question of fact,” and here Guessous has presented diverse evidence sufficient to create a material dispute as to the severity of the unwelcome conduct.

The Fourth Circuit also held that trial courts were required to consider whether the environment “unreasonably interfere[d] with [Guessous’] work performance”:
[Guessous] often left the office to cry and that she was concerned about how the stress from her work environment might affect her pregnancy—that Guessous’ “psychological well-being” was at risk, which “is, of course, relevant to determining whether the plaintiff actually found the environment abusive.”
In this analysis of the HWE claim, the issue is not whether the employee’s perception was objectively reasonable, but rather whether the employee “actually found the environment abusive.” This is a point that is often overlooked in HWE claims.

On February 10, 2016, the Sixth Circuit issued its decision in Smith v. Rock-Tenn Services, Inc., a same-sex harassment case. The Smith Court noted that:
The Supreme Court has construed Title VII to allow hostile work environment claims where the harasser and the victim are of the same sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, (1998).
Quoting Oncale, the Court continued:
The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
Following Oncale, the Court held that a plaintiff alleging same-sex harassment in hostile work environment cases can establish the inference of discrimination based on sex in three ways:
(1) where the harasser making sexual advances is acting out of sexual desire; (2) where the harasser is motivated by general hostility to the presence of men [or women] in the workplace; and (3) where the plaintiff offers ‘direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’
The Court also rejected the employer’s contention that the harassment was “horseplay” and not harassment, explaining that the issue is one for the trier of fact after hearing the evidence. This means that summary judgment is unsuitable in making this type of determination.

As to the severity or pervasiveness of the harassment, the Smith Court explained:
Like several of our fellow circuits, we consider whether harassment was so severe and pervasive as to constitute a hostile work environment to be “quintessentially a question of fact.” Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006); see also Mosby–Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010); E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 798 (10th Cir. 2007).
(The Smith Court erred in referring to “severe and pervasive” harassment. Under Harris v. Forklift Sys., the legal standard is whether the harassment is severe or pervasive.) Again, this means that courts should not dismiss HWE claims when there is evidence that would permit a jury to find in favor of the victim.

By Richard Renner

Wednesday, July 6, 2016

Supreme Court decision clarifies constructive discharge claims

On May 23, 2016, the Supreme Court resolved an important split among the circuit courts of appeals regarding when the clock for filing a constructive discharge claim begins to run. In Green v. Brennan, the Supreme Court held that the time for employees to file a constructive discharge claim runs from the date they give notice of their resignation, not the date the employer took the action causing the resignation.

The employee, Marvin Green, is a black man who had worked for the Postal Service for 35 years. In 2008, he was the Postmaster for Englewood, Colorado, a suburb of Denver. He applied for a promotion to the vacant Postmaster position in nearby Boulder—a bigger city—but was not selected. Green told his employer that he believed he was denied the promotion because of his race. Subsequently, Green’s relations with his supervisors “crumbled.” Two supervisors accused him of intentionally delaying the mail—a criminal offense. They told Green that the Postal Inspector was investigating the charge and that agents would soon interview him as part of the investigation. After Green met with the agents, his supervisors placed him on an off-duty status.

The Postal Inspector reported to Green’s supervisors that no further investigation was warranted. However, Green’s supervisors continued to tell him that “the OIG [wa]s all over this” and that the “criminal” charge “could be a life changer.” On December 16, 2009, Green and the Postal Service came to an agreement. The Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood in one of two ways: effective March 31, 2010, Green could retire or report for duty in Wamsutter, Wyoming—population 451—at a much lower salary. Green chose to retire and submitted his resignation on February 9, 2010 (effective March 31st).

On March 22, forty-one (41) days after submitting his resignation, Green contacted an EEO counselor to report an unlawful constructive discharge. He contended that his supervisors threatened criminal charges and negotiated the agreement in retaliation for his original complaint. Green alleged that the Postal Service’s actions left him no choice but to resign, in violation of Title VII.

The federal district court in Colorado dismissed the case because Green’s March 22nd EEO complaint was filed 96 days after the December 16, 2009, resignation agreement. The district court held that Green missed the 45-day time limit set by an EEOC regulation, 29 CFR §1614.105(a)(1), which states: “[a]n 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 of Appeals for the Tenth Circuit affirmed but noted that, in the Second, Fourth, Eighth and Ninth Circuits, the time for filing a constructive discharge claim does not start to run until the employee actually resigns. The Supreme Court took the case to resolve the conflict.

Writing for the majority, including five other justices, Justice Sotomayor noted that the regulation only speaks of the “matter alleged to be discriminatory.” This language was not helpful because “the matter” could refer to the employer’s hostile actions or “all of the allegations underlying a claim of discrimination, including the employee’s resignation[.]” The Court did not address whether the constructive discharge was a “personnel action” because Green’s lawyers did not claim that it was. Perhaps some other plaintiff might later raise and preserve a claim based on “the effective date” of a “personnel action.”

The Court next looked to “the standard rule” for limitations periods. This rule says that a limitations period begins when the plaintiff has “a complete and present action.” A claim cannot be “complete and present” unless and until the plaintiff can file it. Although the Court did not use the word “ripe,” it well describes a claim that is fully ready to be filed. The Court held that a constructive discharge claim is not “complete and present” until an employee resigns; therefore, the clock cannot begin to run until the actual resignation.

The Court explained that its holding was consistent with the remedial purposes of the Civil Rights Act. “Starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure,” wrote Justice Sotomayor. She added that the Court had previously recognized “that the limitations perio[d] should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Quoting Delaware State College v. Ricks, the Court concluded that nothing in the regulations suggests it intended to require a layperson to follow a difficult two-step process to preserve a constructive discharge claim.

In his dissent, Justice Thomas expressed his belief that “only an employer’s actions may constitute a ‘matter alleged to be discriminatory.’” Justice Thomas cited National Railroad Passenger Corporation v. Morgan for the proposition that discrete adverse actions occurring outside the filing period were not actionable, even if they are connected to other acts within the filing period. The majority opinion rejected this interpretation by making clear that even discrete and time-barred adverse actions “could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period.” Justice Thomas’ dissent thus prompted the Court to make crystal clear that even discrete adverse actions can be considered part of a hostile work environment claim.

The majority also rejected the dissent’s argument that victims of discrimination would manipulate the new rule by delaying their resignations to extend the filing period. To the contrary, the Court argued that any federal employee who is aware of the Court’s rule could easily meet it by resigning and promptly sending an email to the Agency EEO office to commence the complaint process. Moreover, a victim of a hostile work environment would hardly wait any longer in such conditions, wrote the majority.

Justice Alito would not go as far as Justice Thomas. He filed a concurring opinion arguing that the time limit should start to run from the resignation only if the employee can prove that the employer intended to cause the employee to quit. This is a high hurdle for employees to meet and addresses discrimination claims from an employer point of view. From this viewpoint, if the employer intended to cause the resignation, then it is fair to the employer to start the clock with that resignation. The majority noted that the law has never required constructive discharge claimants to prove that the employer intended to force the employee to quit. In Pennsylvania State Police v. Suders, the Court held that when the workplace becomes “so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him.” Thus, the prevailing rule is that constructive discharge claims are assessed from an employee’s point-of-view, not an employer’s.

Green’s lawyers previously argued that the time limit should start to run from the date Green provided notice of his resignation. The parties disagreed, however, on the date the resignation was submitted: December 2009 or February 2010. The Court declined to decide this factual question and returned the case to the Tenth Circuit for further proceedings.

The intricacies of this case show the real value of having experienced employment lawyers from the very beginning of any legal claim. With legal advice from experienced lawyers, employees can identify and preserve their best claims. To speak with an experienced employment lawyer about your case, contact Kalijarvi, Chuzi, Newman & Fitch.

By Richard Renner and Alex Kutrolli