SUPREME COURT OF THE UNITED STATES
MARVIN GREEN, PETITIONER v.
MEGAN J. BRENNAN, POSTMASTER GENERAL
on writ of certiorari to the united states court of appeals for the tenth circuit
[May 23, 2016]
Justice Alito, concurring in the judgment.
In its pursuit of a bright-line limitations rule for constructive discharge claims, the Court loses sight of a bedrock principle of our Title VII cases: An act done with discriminatory intent must have occurred within the limitations period. We have repeatedly held that the time to pursue an employment discrimination claim starts running when a discriminatory act occurs, and that a fresh limitations period does not start upon the occurrence of a later nondiscriminatory act—even if that later act carries forward the effects of the earlier discrimination. See, e.g., United Air Lines, Inc.
431 U. S. 553,
; Delaware State College
449 U. S. 250
–258 (1980); Chardon
454 U. S. 6,
v. AT&T Technologies, Inc.
490 U. S. 900
–908, 911 (1989); National Railroad Passenger Corporation
536 U. S. 101,
v. Goodyear Tire & Rubber Co.
550 U. S. 618,
. Without mentioning this consistent line of precedent, the Court categorically declares that the limitations period for constructive discharge cases starts upon the employee’s resignation, no matter when the last discriminatory act occurred. This effectively disposes of the discriminatory-intent requirement.
Rather than jettison our precedent, I would hold that the limitations period for constructive discharge claims—like all other employment discrimination claims—starts running upon a discriminatory act of the employer. But I would also hold that an employee’s resignation can, in many cases, be considered a discriminatory act of the employer. This is so where an employer subjects an employee to intolerable working conditions with the discriminatory intent to force the employee to resign
. In these circumstances, the employee’s consequent resignation is tantamount to an intentional termination by the em-ployer, and so gives rise to a fresh limitations period just as a conventional termination would. Absent such intent, however, the resignation is not an independent discriminatory act but merely a delayed consequence of earlier discrimination. The resignation may be a basis for enhancing damages in a claim brought on the underlying discrimination, but it cannot restart the limitations clock.
In this case, Green presented sufficient evidence that the Postal Service intended to force him to resign when it presented him with a settlement agreement requiring that he either retire or transfer to a distant post office for much less pay. Accordingly, the 45-day window for him to initiate counseling opened when he gave the Postal Service notice of his resignation.
The regulation at issue here requires a federal employee who complains of unlawful discrimination to initiate contact with an Equal Employment Opportunity (EEO) counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1) (2015). The Court observes that this language “is not particularly helpful” in resolving the question presented, and so it quickly moves on to other considerations. Ante,
at 5. I think that more can be discerned from the regulation’s text. The Court observes that a “matter” in this context is “an allegation forming the basis of a claim or defense.” Black’s Law Dictionary 1126 (10th ed. 2014); ante,
at 5. But the Court fails to plug in the regulation’s critical qualifier: The matter must be (alleged to be) discrimina-tory
. The phrase “matter alleged to be discriminatory” is thus most fairly read to refer to the allegation of discrimination
that underlies an employee’s claim, not just any fact that supports the claim.
Even if the regulation’s text were unclear on this point, the next place I would look is not to a “standard rule” governing limitations periods, as the majority does, ibid.
, but to the specific limitations rules we apply in other Title VII cases. Private-sector Title VII plaintiffs are required to file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days “after the alleged unlawful employment practice occurred.”
42 U. S. C. §2000e–5(e)(1); see Morgan
(construing this statutory provision).[1
] Although this language is not identical to the regulation at issue here, nothing in either text requires that they be read as setting different rules. Indeed, the EEOC’s Compliance Manual treats them the same—it describes the regulation as requiring federal employees to contact a counselor within 45 days of “the alleged discriminatory employment practice
,” and it cites Morgan
as providing the governing standard.[2
] We also granted review in this case on the premise that the same rule would apply to both federal-sector and private-sector Title VII cases: Green’s petition and merits brief ask us to decide when the filing period for constructive discharge claims begins as a matter of “federal employment discrimination law” generally, Pet. for Cert. i; Brief for Peti-tioner i, and the Circuit split he alleges consists primarily of cases in which the limitations period ran from the date of an unlawful employment “practice,” see Pet. for Cert. 11–16. The majority, for its part, seems to agree that the same rules should apply in the federal and private sectors, and it too relies on private-sector cases in describing the Circuit split that today’s decision is meant to “resolve.” Ante,
at 4–5, and nn. 2–4. The majority’s relegation of our Title VII timeliness cases to its rebuttal argument, see ante,
at 12–14, is thus surprising.
Our Title VII precedents set somewhat different limitations rules for claims based on a discrete act of discrimination (such as termination, failure to hire, or demotion) and claims based on a hostile work environment. I will focus on the former set of rules because Green’s resignation was a discrete act that was precipitated by another discrete act—namely, the settlement agreement that required him to retire or transfer to a far-off, lower paying position. For private-sector claims based on discrete acts, the limitations period starts to run on the day the discriminatory act occurred and expires 180 or 300 days later. Morgan
, 536 U. S., at 110. This means that an act done with discriminatory intent
—not merely some act bearing on the claim—must have occurred within the limitations period. We therefore held in Morgan
that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges,” and that “a time-barred act [cannot] justify filing a charge concerning a termination that was not independently discriminatory
at 113 (emphasis added).
We spoke even more directly to the point in Ledbetter
. There we described “discriminatory intent” as the “defining element” of a Title VII disparate-treatment claim, 550 U. S.,
at 624, and held that the plaintiff’s claim of pay discrimination was untimely because she did not allege that any “intentionally discriminatory conduct occurred during the [limitations] period,” id.,
at 628. Although the plaintiff had suffered lower pay within the limitations period because of earlier alleged discrimination, we explained that under our precedents a new limitations pe-riod “does not commenc[e] upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Ibid.
431 U. S. 553
449 U. S. 250
490 U. S. 900
, and Morgan
Relying on nondiscriminatory acts to establish a timely claim, we reasoned, would impermissibly “shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent.” 550 U. S., at 629. At the same time, we recognized that when multiple acts that are each “intentionally discriminatory” occur, “a fresh violation takes place”—and thus a new limitations period starts running—“when each act is committed.” Id.,
These principles lead to the following rule for constructive discharge cases: An employee’s resignation triggers a fresh limitations period if the resignation itself constitutes an “intentionally discriminatory” act of the employer. In my view, an employee’s resignation in the face of intoler-able working conditions can be considered a discriminatory act of the employer when the employer makes conditions intolerable with the specific discriminatory intent of forcing the employee to resign
. If the employer lacks that intent, however, the limitations period runs from the discriminatory act that precipitated the resignation.
This approach reflects the fact that there are two kinds of constructive discharge. Much of the disagreement between the majority and dissent stems from their differing views of the nature of constructive discharge. To the majority, constructive discharge is always a standalone “claim distinct from the underlying discriminatory act.” Ante,
at 11. To Justice Thomas and the friend of the Court we appointed to defend the judgment below, constructive discharge is never a separate claim, but merely “a counterdefense to an employer’s contention that a resignation was voluntary” that allows the resigning employee to recover backpay and other relief unavailable to employees who quit voluntarily. Post,
at 9. As I see it, each side is partly right. The label “constructive discharge” is best understood to refer to two different (though related) concepts, one a distinct claim and one not. This case requires us to distinguish between the two and to “identify with care the specific employment practice that is at issue.” Ledbetter
, at 624 (citing Morgan
, at 110–111).
The first kind of constructive discharge occurs when an employer subjects an employee to intolerable conditions with the specific discriminatory intent
of forcing the employee to quit. In this situation, the employer has deliberately terminated the employee—a discrete employment action. The discharge is termed “constructive,” however, because it is formally effected by the employee’s resignation rather than the employer’s pink slip. The termination can nevertheless be considered a discriminatory act of the employer because the employer intends to terminate the employee and—through the imposition of intolerable conditions—forces the employee to “rubberstamp” that decision by resigning. Cf. Staub
v. Proctor Hospital
562 U. S. 411,
(Alito, J., concurring in judgment); id.,
at 419 (majority opinion) (“Animus and responsibility for [an] adverse action can both be attributed to [an] ear-lier agent . . . if the adverse action is the intended consequence of that agent’s discriminatory conduct”). Because the resignation is the “act that consummates the discriminatory employment practice” of terminating the employee, Ledbetter
at 629, it triggers a fresh limitations period. In such cases, the constructive discharge should, like a formal discharge, be treated as a distinct cause of action—what we might call a proper “constructive discharge claim.”
The employer’s discriminatory intent sometimes will manifest itself only outside the limitations period. Consider, for example, an employer that demotes an employee (say, from executive to office assistant) for discriminatory reasons and with the intent that the loss of prestige will force the employee to quit. By the time the employee finally cracks and resigns, the discriminatory demotion
may be outside the limitations window and not independently actionable. But the employer’s discriminatory intent to terminate
the employee can carry forward to the eventual resignation. We recognized this possibility in Ledbetter
. We explained that a plaintiff generally cannot create a timely Title VII claim by “attach[ing]” the discriminatory intent accompanying an act outside the limitations period to another act that occurred within the limitations period. 550 U. S., at 625, 629. At the same time, we acknowledged that “there may be instances where the elements forming a cause of action”—discriminatory intent and an employment action—“span more than 180 days” (that is,
the applicable limitations period). Id.,
at 631, n. 3. In such a case, we said, the limitations period would start to run when “the employment practice was executed,” because that is when “[t]he act and intent had . . . been joined.” Ibid.
Under my example, then, the employer “forms an illegal discriminatory intent” to terminate the employee at the time of the demotion, but the termination is not “executed” or “consummated” until the employee resigns some time later. Ibid.
at 629. Only at that point have the discriminatory intent to terminate and the act of termination been “joined,” and therefore only at that point does the limitations period for the wrongful discharge start to run.
The second kind of constructive discharge occurs when an employer imposes intolerable conditions for discriminatory reasons but does not
intend to force an employee to resign. This is quite different from an ordinary discharge because the critical element of intent is missing. The resignation cannot be considered an intentionally discriminatory act of the employer because it is not something the employer deliberately brought about; it is simply a later-arising consequence of the earlier discrimination. The resignation thus does not trigger a fresh limitations period or give rise to a separate cause of action. See Evans
, 431 U. S., at 558 (A nondiscriminatory act that “gives present effect to a past act of discrimination” is not actionable); Ricks
, 449 U. S., at 258 (“[T]he proper focus is upon the time of the discriminatory acts
, not upon the time at which the consequences
of the acts became most painful” (internal quotation marks and brackets omitted)); Ledbetter
, at 628 (“A new violation does not occur, and a new [limitations] period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination”).
This does not let the employer off the hook. It is still liable for the acts of discrimination that precipitated the resignation, provided that the employee properly and timely challenges them. And in a suit brought on those underlying acts, the resignation—if reasonable—“is assimilated to a formal discharge for remedial purposes
.” Pennsylvania State Police
542 U. S. 129,
(emphasis added). The resigning employee can recover, as damages for the underlying discrimination, “all damages [that would be] available for formal discharge” but which are normally unavailable to employees who voluntarily quit. Id.,
at 147, n. 8; see post
8–9 (Thomas, J., dissenting). A resignation that is the reasonable but unintended result of the employer’s discriminatory acts thus does not lead to a standalone “constructive discharge claim.” Instead, it is a basis for increasing damageson the underlying discrimination claim—what we might call a “constructive discharge damages enhancement.”See Suders
at 148 (analogizing constructive discharge to “an actual termination in damages-enhancing respects”).[4
The majority asserts that in Suders
the Court “expressly held” that constructive discharge is always its own distinct claim. Ante,
at 11. I do not think that the Suders
Court would have taken such pains to qualify its statements that a constructive discharge is akin to an actual termination “for remedial purposes” and “in damages-enhancing respects,”
542 U. S., at 141, 148, had that been its intention. Nor was it necessary for the Court to resolve whether constructive discharge is a separate cause of action or merely a basis for enhancing damages. The majority observes that Suders
referred to a “claim” for constructive discharge. See ante,
at 11. But the use of that term does not indicate that constructive discharge is (always) an independent cause of action any more than stray references to a “claim for punitive damages,” e.g., BMW of North America, Inc.
517 U. S. 559,
v. Shearson Lehman Hutton, Inc.
514 U. S. 52,
, mean that punitive damages are actionable independent of an underlying tort claim.
The majority also asserts that intent to cause a resignation is unnecessary for a constructive discharge cause of action because the “whole point” of constructive discharge is to treat the resignation like a firing. Ante,
at 11. I had thought that the “whole point” of a Title VII disparate-treatment claim was to combat intentional
discrimination. See, e.g.
v. Fort Worth Bank & Trust
487 U. S. 977,
(Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and concurring in judgment) (“[A] disparate-treatment challenge focuses exclusively on the intent of the employer”). A resignation cannot be deemed the equivalent of an actionable intentional termination if the employer lacks intent to terminate. See Staub
, 562 U. S., at 417–418 (holding that a person who “did not intend to cause [a] dismissal” cannot be deemed “responsible” for the dismissal, even if the dismissal was the “result” or “foreseeable consequence” of the person’s actions); see also id.,
at 417 (“Intentional torts such as this . . . generally require that the actor intend the consequences
of an act, not simply the act itself” (internal quotation marks omitted)). But as I have explained, a resignation in those circumstances may still be treated like a firing for damages purposes. Our cases demand nothing more.
The framework I propose respects the fundamental rule that an act done with discriminatory intent must have occurred within the limitations period. It also comports with the default rule that limitations periods start to run when a cause of action accrues. When an employer intends to force an employee to resign, the resignation gives rise to a new cause of action for constructive discharge, with a limitations period that runs from the date of the resignation. But when an employer does not intend to force the employee to resign, the employee’s only cause of action is based on the underlying discriminatory acts, and the limitations period runs from the time that
] It is thus entirely unnecessary for the majority to abandon the discriminatory-intent requirement in service of the “standard” limitations rule. These two rules fit together perfectly once one appreciates the dual nature of constructive discharge.
It is abundantly clear that the majority has abandoned the discriminatory-intent requirement and would deem a constructive discharge claim timely even if no discriminatory act occurred within the limitations period. The majority admits as much. It declares that the employer’s discriminatory conduct and the employee’s resignation are both “part of the ‘matter alleged to be discriminatory,’ ” and therefore (in its view) the resignation may trigger the limitations period “whatever
the role of discrimination in [the resignation] element.” Ante,
at 8 (emphasis added). To support this dubious proposition, the majority cites Morgan
’s holding that an individual act contributing to a hostile work environment need not be independently actionable for the act to start a fresh limitations period. Ante
, at 8–9. This analogy is particularly inapt because Green’s constructive discharge claim is based on a discrete act, not a hostile work environment. See supra,
at 4. Even setting that aside, Morgan
held only that an act contributing to a hostile work environment need not be independently actionable by dint of its severity
. That is because a hostile work environment claim is based on the “cumulative
effect of individual acts” that may not “ ‘sufficiently affect the conditions of employment to implicate Title VII’ ” unless considered in the aggregate. 536 U. S., at 115 (emphasis added). Nothing in Morgan
suggests that the limitations period for a hostile work environment claim can run from an act that is not discriminatory
. To the contrary, the Court referred to individual “act[s] of harassment
”—such as “racial jokes, . . . racially derogatory acts, . . . negative comments regarding the capacity of blacks to be supervisors, and . . . various racial epithets”—as triggering the limitations period. Id.,
at 115, 120 (emphasis added).
The majority opines that its rule is better for employees because it prevents the limitations period from expiring before an employee resigns. Ante,
at 9. Things are not that simple. The majority’s rule benefits only those employees who can meet the demanding standard for constructive discharge, while setting a springe for those who cannot. Constructive discharge is an “aggravated” form of discrimination involving truly “intolerable” working conditions that leave an employee no choice but to resign. Suders
, 542 U. S., at 146–147. This is an objective standard, id.,
at 141, and what is subjectively intolerable to a particular employee may strike a court or jury as merely unpleasant.
So imagine an employee who is subjected to sexual harassment at her federal workplace but—relying on the majority’s rule—does not pursue EEO counseling until 45 days after the harassment leads her to resign. Suppose too that the last act of harassment occurred the day before she resigned. If a court ultimately concludes that the harassment was objectively intolerable and the employee was justified in resigning, she can recover for the constructive discharge. But if it turns out that she has proved only “ordinary discrimination” without the “something more” needed to establish constructive discharge, id.,
at 147 (internal quotation marks omitted), the employee is doubly out of luck: Not only does her constructive discharge fail on the merits, but any “lesser included” hostile work environment claim that she might have brought (and prevailed on), id.,
at 149, is time barred. Encouraging employees to wait until after resigning to pursue discrimination claims thus may needlessly deprive unwary discrimination victims of relief.
The better approach is to encourage employees to seek EEO counseling (or, in the private sector, file an EEOC charge) at the earliest opportunity, based on the underlying discriminatory acts.[6
] Every allegation of constructive discharge must be based on an actionable discriminatory practice, see ibid.
; 1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 21–49 (5th ed. 2012), for which the employee can immediately seek counseling and pursue a discrimination claim. If the employee later resigns, he or she can seek damages from the resignation as part of that timely claim. See supra
, at 9, and n. 4. Under the framework I have set forth, an employee who fails to pursue the underlying discrimination claim can still pursue a standalone constructive discharge claim so long as there is sufficient evidence that the employer acted with intent to force the employee to resign. This will often be the case when working conditions are so intoler-able that a reasonable employee would be compelled to quit. The employer will usually be aware that conditions are terrible, and “[p]roof that a defendant acted knowingly very often gives rise to a reasonable inference that the defendant also acted purposely.” Loughrin
v. United States
, 573 U. S. ___, ___ (2014) (Alito, J., concurring in part and concurring in judgment) (slip op., at 3).[7
] But the possibility of recovering damages for only the constructive discharge, and not for discrimination suffered before the resignation, will be an unsatisfactory alternative for many employees who have suffered through unendurable working conditions.
It remains to apply the foregoing principles to this case. The Tenth Circuit held that the Postal Service was entitled to summary judgment on its limitations defense. The question therefore is whether Green adduced sufficient evidence from which a jury could reasonably conclude that the Postal Service intended
to force his resignation whenit presented him with the settlement agreement. If so, then the limitations period ran from the date of Green’s resignation.
I have little trouble concluding that Green has carried his burden. Indeed, the Postal Service virtually concedes the point. It observes that the agreement expressly stated that Green would
retire, and provided for his reporting to duty in Wamsutter, Wyoming, only in the event that the retirement fell through. App. 60–61; Brief for Respondent 33. A jury could reasonably conclude that the Postal Service, by offering Green a choice between retiring and taking a lower paying job hundreds of miles away, in-tended to make him choose retirement. Accordingly, for sum-mary judgment purposes, the 45-day window for contacting an EEO counselor ran from the date on which Green resigned—or, more precisely, the date on which he gave the Postal Service notice of his retirement, see ante,
I am inclined to agree with Green that—viewing the evidence in the light most favorable to him—he did not give notice of his retirement until he submitted his retirement papers, making his claim timely. Although the settlement agreement provided that he would retire, it alternatively allowed him to transfer to Wyoming. Unless Green would have been turned away from the Wamsutter Post Office despite that language had he chosen to go there, it was not until Green submitted his retirement papers that one could say with certainty that his position would be terminated rather than transferred. That said, like the majority I am content to leave this question for the Tenth Circuit to tackle on remand. I accordingly concur in the judgment.