Utah Whistleblower Hotline

“Constructive Discharge” and Whistleblowers

Whistleblowers often face hard choices if their decision to report a problem within their workplace later leads to hostility and employment discrimination. Many times, an employee experiencing workplace retaliation will feel unfairly forced into tendering their resignation. Whistleblower cases are often accompanied by a corresponding complaint of “constructive discharge”.

Under federal regulations, an employee has 45 days from the moment a discriminatory act occurred to begin the complaint process against their employer.

Which seems simple enough. But in a case currently before the Supreme Court, the justices are being asked to decide exactly where in the process the clock starts ticking for federal workers.

In Green v Brennan, U.S. Postal Service (USPS) worker Marvin Green filed an internal complaint based on his suspicion of workplace racial discrimination. In return,

The Postal Service began its own investigation of Green. They accused him of intentionally delaying mail and placed him on indefinite unpaid leave. Nothing ever came of the accusations, and in the meantime, Green’s union cut a deal with USPS to offer Green retirement or a demotion with a $40,000 pay cut and a transfer to a remote Wyoming town.

Neither of those were options Green wanted to take. he tried to wait it out, hoping the job’s internal grievance procedure would allow him to keep his old job and salary. But with no resolution in sight, and having used up his accrued vacation and sick leave, Green decided to resign.

Green gave notice he’d resign effective March 31, 2010, his last day of sick leave. On March 22, or 41 days after giving notice, he contacted an employment counselor at the Postal Service one last time and complained of the constructive discharge – essentially, that he was forced to resign in retaliation for his initial complaint of race discrimination when seeking a promotion.

The question now before the Supreme Court on Monday is whether or not Green filed his constructive discharge complaint within the 45-day timeline.

Courts don’t agree on “constructive discharge”.

Courts across the nation are divided on the issue: Some courts have decided that the clock begins ticking with the “last discriminatory act” leading to the resignation, while other courts hold that the actual date of resignation is the date that counts.

In Green’s case, an appellate court said that the “last discriminatory act” was his employer’s offer to resign or be demoted, not the date Green actually tendered his resignation. Based on this finding, Green, the appellate court said, had filed too late.

The NAACP Legal Defense Fund filed a brief urging the justices to adopt the simpler date-of-resignation rule on the basis that employees already face considerable difficulty in proving “constructive discharge” because people often don’t report incidents that happen early in the process.

A rule forcing employees to identify the final act that triggered their resignation would further complicate the “burden of proof” – especially in settings where harassment and discrimination are already a part of the workplace culture.

At least one justice appeared to be sympathetic to the worker’s dilemma. “Isn’t a constructive discharge the moment that the environment has gotten so hostile that you feel overwhelmed and have to leave?” Justice Sonia Sotomayor asked, “Isn’t that the discriminatory act as well?”

The Supreme Court should decide Green v. Brennan sometime before the end of June. 2016. Hopefully, their decision will support what federal employment discrimination law protects against – unjust termination of employment.

We know quitting your job is a very big deal. People who consider leaving and later suing don’t do so lightly. Whistleblowers are often torn between hard choices because they simply can’t afford to not get a paycheck. To protect your rights, be sure to contact us early. We offer a free, confidential evaluation of your case.

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