Green v. Brennan Brief of Amici Curiae

    No. 14-613

In  Th e

Supreme Court of tfje fHmteti States!

M a r v in  G r e e n ,

v.
Petitioner,

M e g a n  J .  B r e n n a n , P o s t m a s t e r  G e n e r a l ,

Respondent.

On Writ o f Certiorari to the  
U nited States Court o f Appeals 

for the Tenth Circuit

BRIEF OF AMICI CURIAE  
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. AND THE NATIONAL WOMEN’S 

LAW CENTER IN SUPPORT OF PETITIONER

Sh e r r il y n  If il l  
Director- Counsel 

J a na i N e l s o n  
Ch r ist in a  Sw a rn s  
J in  H e e  Le e  
L ilia n a  Zaragoza  
NAACP Le g a l  De f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006

July 13, 2015

J o h n  P a u l  S c h n a p p e r - 
Ca ste r a s  *

NAACP Le g a l  D e f e n s e  & 
E d u c a t io n a l  F u n d , In c . 

1444 I Street NW 
Washington, DC 20005 
202-682-1300 
j schnapper@naacpldf. org

* Counsel o f  Record

[Additional Counsel On Inside Cover]



M a rc ia  D. Gr e e n b e r g e r  
Co-President 

E m ily  J . M a r t in  
F a tim a  G o ss  Gra v es  
Am y  K. M a t su i 
N a tio n a l  W o m e n ’s Law  

Ce n t e r
11 Dupont Circle, NW #800 
Washington, DC 20036



TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... .....ii
INTEREST OF AM IC I CURIAE .....................................1
BACKGROUND..............................................   ..2
SUMMARY OF ARGUMENT.........................................6
ARGUMENT..................................   9
I. EXTENSIVE EXPERIENCE IN COMBATING

EMPLOYMENT DISCRIMINATION DEMANDS 
A CLEAR, SIMPLE FILING PERIOD FOR 
CONSTRUCTIVE DISCHARGE CLAIMS............. 9
A. Practice and Policy........................................ ...10
B. Supporting Case L aw ........................................17

II. THE “LAST DISCRIMINATORY ACT” 
STANDARD IS UNWIELDY, UNFAIR,
AND CONTRARY TO THE PURPOSES OF 
TITLE V II.........................   .20

CONCLUSION..................   26



11
TABLE OF AUTHORITIES 

Cases

Adames v. M itsubishi Bank Ltd.,
751 F, Supp. 1565 (E.D.N.Y. 1990)....................... 19

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)......................................... 1, 2, 10

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974).................................................... 10

American Airlines, Inc. v. Cardoza-Rodriguez,
133 F.3d 111 (1st Cir. 1998)............................... ......5

Brown v. Puget Sound Elec.
Apprenticeship S, Training Trust,
732 F.2d 726 (9th Cir. 1984).....................................4

Cavalier v. Clearlake Rehab. Hosp., Inc.,
306 F. App’x 104 (5th Cir. 2009)............................16

City of Richmond v .J .A . Croson Co.,
488 U.S. 469 (1989)........................ ........................-  1

Coffman v. Tracker Marine,
141 F.3d 1241 (8th Cir. 1998)................................ 12

Davidson v. Indiana-American Water Works,
953 F.2d 1058 (7th Cir. 1992)............................6, 18

Del. State College v. Ricks,
449 U.S. 250 (1980)..............................  10, 17, 18, 23

Draper v. Coeur Rochester, Inc.,
147 F.3d 1104 (9th Cir. 1998)...............5, 19, 21, 25



Ill
Eatmon u. Bristol Steel & Iron Works, Inc.,

769 F.2d 1503 (11th Cir, 1985).............................. 11

Fitzgerald v. Henderson,
251 F.3d 345 (2d Cir. 2001)...................................... 4

Flaherty v. Metromail Corp.,
235 F.3d 133 (2d Cir. 2000)................................5, 19

Goss v. Exxon Office Sys. Co.,
747 F.2d 885 (3rd Cir. 1984)..................... ...............3

Green u. Donahoe,
760 F.3d 1135 (10th Cir. 2014)................................5

Green v. Harris Publ’ns, Inc.,
331 F. Supp. 2d 180 (S.D.N.Y. 2004)................ . 16

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)...............................................  1, 2

Hukannen v. In t’l Union of Operating 
E ng’rs, Hoisting & Portable Local 
No. 101, 3 F.3d 281 (8th Cir. 1993)...................5, 19

Hunt v. State of Dep’t of Corrections,
297 F.3d 735 (8th Cir. 2002).................................. 22

In t’l Bhd. Teamsters v. United States,
431 U.S. 324 (1977)....................................................2

Johnson v. Runyon,
47 F.3d 911 (7th Cir. 1995)............................. ........ 5

Kimzey v. Walmart Stores, Inc.,
107 F.3d 568 (8th Cir. 1997).................................. 22



IV
Landrau-Romero v. Banco Popular 

de Puerto Rico,
212 F.3d 607 (1st Cir. 2000)....................................25

Lewis v. City of Chicago,
560 U.S. 205 (2010)....... ............................................ 1

Love v. Pullm an Co.,
404 U.S. 522 (1972).................................................... 4

Mayers v. Laborers’ Health & Safety Fund,
478 F.3d 364 (D.C. Cir. 2007)....................... 6, 18

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).................................. ................. 2

Moore v. KUKA Welding Sys. & Robot Corp.,
171 F.3d 1073 (6th Cir. 1999)......... .......................17

Pa. State Police v. Suders,
542 U.S. 129 (2004).......................................3, 11, 20

Reedy v. Quebecor Printing Eagle, Inc.,
333 F.3d 906 (8th Cir. 2003)........................ . 17

Ricci v. DeStefano,
557 U.S. 557 (2009)............................... .................... 1

Rosier v. Holder,
833 F. Supp. 2d 1 (D.D.C. 2011)........................... 19

Scott v. Lee Cty. Youth Dev. Ctr.,
232 F. Supp. 2d 1289 (M.D. Ala. 2002)................. 18

Serrano-Nova v. Banco Popular 
de Puerto Rico, Inc.,
254 F. Supp. 2d 251 (D.P.R. 2003)........................  19



V
Tawwaab v. Va. Linen Serv., Inc.,

729 F. Supp. 2d 757 (D. Md. 2010).................... 16

Webster v. Town of Warsaw,
66 F. Supp. 3d 706 (E.D.N.C. 2014)......................16

Winder u. Postmaster Gen.,
528 F. App’x 253 (3d Cir. 2013)...............................4

Young v. N a t’l Ctr. for Health Servs. Research,
828 F.2d 235 (4th Cir. 1987)....................... 5, 13, 18

Statu tes and R egulations

29 C.F.R. § 1614.105(a)(1)..................... .........................4

Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-200e-17............ .................passim

42 U.S.C. § 2000e-5(b)............................................. 10
42 U.S.C. § 2000e-5(e)(l)....................................... ...4

Other A uthorities

Annual Report on the Federal Work 
Force Part II, Workforce Statistics,
Fiscal Year 2011, EEOC,
h ttp : // www. eeoc. gov/feder al/report s/fs
p2011_2/upload/fsp2011_2.pdf...............................15

Beiner, Theresa M., Sex, Science and  
Social Knowledge: The Implications 
of Social Science Research on 
Im puting Liability to Employers for 
Sexual Harassment, 7 Wm. & Mary 
J. Women & L. 273 (2001).........................  12, 21, 24



VI
Beiner, Theresa M., Using Evidence of 

Women’s Stories in Sexual 
Harassment Cases, 24 U. Ark. Little 
Rock L. Rev. 117 (2001)........................................... 14

Brake, Deborah L. & Joanna L.
Grossman, The Failure of Title VII as 
a Rights-Claiming System, 86 N.C. L.
Rev. 859 (2008)...................................................  15, 25

Brief of the EEOC as Amicus Curiae in
Support of the Appellant, Bailey v.
United Airlines, Inc., 279 F.3d 194 
(3d Cir. 2002) (No. 00-2537),
2001 WL 34105245...................................... 11, 20, 24

Chamallas, M artha, Title V II’s Midlife 
Crisis: The Case of Constructive 
Discharge, 77 S. Cal. L. Rev. 307 
(2004)..................................................... .............. 14, 21

Davidson, Joe, Report Shows Lack of 
Diversity in Top Civil Service ranks,
Wash. Post (Aug. 19, 2014) 
http://www.washingtonpost.com/polit 
ics/federal_government/report-shows- 
lack-of-diversity-in-top-civil-service..................... 16

Kaiser, Cheryl R. & Brenda Major, A  
Social Psychological Perspective on 
Perceiving and Reporting 
Discrimination, 31 Law & Soc.
Inquiry 801 (2006)....................................................  15

Keren, A. Hila, Consenting Under Stress,
64 Hastings L.J. 679 (2013).................................... 15

http://www.washingtonpost.com/polit


Morgan, Phoebe A., Risking
Relationships: Understanding the
Litigation Choices o f Sexually
Harassed Women, 33 Law & Soc’y
Rev. 67 (1999)............. .......... .................................. 14

Race-Based Charges F Y 1999 -  F Y  2014,
EEOC, http://www.eeoe.gov/eeoc/ 
statistics/enforcement/race.cfm .............................9

Shuck, Cathy, That’s It, I  Quit:
Returning to First Principles in
Constructive Discharge Doctrine, 23
Berkeley J. Emp. & Lab. L. 401 (2002)......... 12, 14

Sex-Based Charges F Y  1997 -  F Y  2014,
EEOC, http://www.eeoc.gov/eeoc/ 
statistics/enforcement/sex.cfm............

Sexual Harassment Charges EEOC and  
FEPAs Combined: F Y  1997- F Y  
2011, EEOC, http://www.eeoc.gov/
eeoc/statisties/enforcement/sexual_ 
harassm ent.cfra.....................................

Smith, Terry, Everyday Indignities:
Race, Retaliation, and the Promise of 
Title VII, 34 Colum. Hum. Rts. L.
Rev. 545 (2003)...............................

vii

15

http://www.eeoe.gov/eeoc/
http://www.eeoc.gov/eeoc/
http://www.eeoc.gov/


INTEREST OF AMICI CURIAE1
The NAACP Legal Defense and Educational Fund, 

Inc. (LDF) is a non-profit legal organization that, for 
more than  seven decades, has fought to achieve racial 
justice and to ensure th a t America fulfills its promise 
of equality for all. To this end, LDF has litigated a 
range of employment discrimination cases in this 
Court, as well as the lower courts, appearing as 
counsel of record or amicus curiae. See, e.g., Lewis v. 
City of Chicago, 560 U.S. 205 (2010); Ricci v. 
DeStefano, 557 U.S. 557 (2009); City o f Richmond u. 
J.A. Croson Co., 488 U.S. 469 (1989). Since 1964, 
LDF has also worked ceaselessly to enforce Title VII, 
litigating on behalf of individual plaintiffs and 
plaintiff classes against private and public employers 
to challenge discriminatory employment practices in 
such cases as Griggs v. Duke Power Co., 401 U.S. 424 
(1971), and Albemarle Paper Co. u. Moody, 422 U.S. 
405 (1975), whose rulings were ultim ately codified in 
the Civil Rights Act of 1991.

The National Women’s Law Center (NWLC) is a 
nonprofit legal advocacy organization dedicated to the 
advancement and protection of women’s legal rights. 
Since 1972, NWLC has worked to secure equal 
opportunity for women in the workplace and has 
promoted voluntary compliance by employers with

1 Pursuan t to Supreme Court Rule 37.6, counsel for amici 
curiae state th a t no counsel for a party  authored this brief in 
whole or in part and th a t no person other than  amici curiae, 
their members, or their counsel made a m onetary contribution 
to the preparation or submission of this brief. All parties have 
consented to the filing of this brief.



2

federal and sta te  civil rights laws. Securing equal 
opportunity for women requires not only the right to 
a workplace th a t is free from all forms of 
discrim ination and exploitation, but also access to 
effective means of enforcing th a t right. NWLC has 
prepared or participated in the preparation of 
num erous amicus briefs in cases seeking to protect 
Title VII rights and the availability of effective m eans 
of enforcing them  in th is Court and in federal courts 
of appeals.

Given their expertise, NWLC and LDF believe their 
perspectives will help th is Court resolve the issues 
presented by this case. Amici curiae urge the Court to 
reverse the Tenth Circuit’s ruling and rem and for 
fu rther proceedings.

BACKGROUND
Title VII of the Civil Rights Act of 1964 was 

enacted to detect and elim inate discrimination in 
employment. Its “central statu tory  purpose [is] . . . 
eradicating discrimination throughout the economy 
and m aking persons whole for injuries suffered 
through past discrimination.” Albemarle, 422 U.S. a t 
421. See also In t’l Bhd. of Teamsters v. United States, 
431 U.S. 324, 364 (1977) (couching prim ary objective 
as “to achieve equal employment opportunity and to 
remove the barriers th a t have operated to favor white 
male employees over other employees”) (citing Griggs, 
401 U.S. a t 427; Albemarle, 422 U.S. a t 416). In order 
to achieve th is goal, Title VII not only prohibits 
discriminatory employment practices th a t are express 
and direct, but also those th a t are subtle and indirect. 
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
801 (1973) (“Title VII tolerates no racial
discrimination, subtle or otherwise.”).



3

The doctrine of constructive discharge is a key 
component of Title VII’s anti-discrim ination mandate. 
“The constructive discharge concept originated in the 
labor-law field in the 1930’s,” in the face of 
intolerable working conditions experienced by 
employees who engaged in union activity. Pa. State 
Police v. Suders, 542 U.S. 129, 141 (2004) (citations 
omitted). “Over the next two decades, Courts of 
Appeals sustained NLRB [National Labor Relations 
Board] constructive discharge rulings.” Id.

“By 1964, the year Title VII was enacted, the 
doctrine [of constructive discharge] was solidly 
established in the federal courts.” Id. a t 142 (citation 
omitted). Since then, the circuits “have recognized 
constructive discharge claims in a wide range of Title 
VII cases,” including claims involving discrimination 
and harassm ent based on race, pregnancy, national 
origin, sex, and religion. Id. (collecting cases). See 
also id. (“[Application of the constructive discharge 
doctrine to Title VII cases has received apparently 
universal recognition among the courts of appeals.”) 
(citing Goss u. Exxon Office Sys. Co., 747 F.2d 885, 
887 (3rd Cir. 1984)).

Today, the basic contours of a constructive 
discharge claim are well-settled: “the plaintiff . . .
m ust show th a t the abusive working environment 
became so intolerable th a t [his or] her resignation 
qualified as a fitting response.” Suders, 542 U.S. at 
134. Before a court may consider a Title VII claim, a 
plaintiff generally m ust first seek redress through



4

adm inistrative channels.2 In the private sector, 
employees m ust file adm inistrative charges w ith the 
U.S. Equal Employment Opportunity Commission 
(EEOC) within 180 or 300 days of an alleged 
unlawful employment practice.3 Federal employees 
“m ust in itiate contact w ith [an EEOC] Counselor 
w ithin 45 days of the date of the m atter alleged to be 
discriminatory. . . .” 29 C.F.R. § 1614.105(a)(1). While 
other deadlines and requirem ents apply to other 
parts of the process, the 45-day period applicable to 
federal employees effectively operates as a sta tu te  
of lim itations.4

2 See generally Brown v. Puget Sound Elec. Apprenticeship & 
Training Trust, 732 F.2d 726, 729 (9th Cir. 1984) (“Title VII 
places prim ary responsibility for disposing of employment 
discrim ination complaints w ith the EEOC in order to encourage 
informal conciliation of employment discrimination claims and 
foster voluntary compliance with Title VII . . . .  Title VII 
plaintiffs m ust therefore exhaust their adm inistrative remedies 
before seeking judicial relief from discriminatory action.”); see 
also Love v. Pullm an Co., 404 U.S. 522, 527 (1972) (finding tha t 
adm inistrative procedures form part of a system “in which 
laymen, unassisted by tra ined  lawyers, initiate the process”).

3 In  the private sector, “[a] charge . . . shall be filed w ithin one 
hundred and eighty days after the alleged unlawful employment 
practice occurred,” or, if state  proceedings are also initiated, 
“within three hundred days after the alleged unlawful 
employment practice occurred, or w ithin th irty  days after 
receiving notice th a t the State or local agency has term inated 
the proceedings under the S tate or local law, whichever is 
earlier.” 42 U.S.C. § 2000e-5(e)(l) (Title VII).

4 See Winder v. Postmaster Gen., 528 F. App’x 253, 255 (3d 
Cir. 2013) (unpublished) (“This 45-day time lim it operates akin 
to a sta tu te  of lim itations.”); Fitzgerald v. Henderson, 251 F.3d



5

W ith respect to constructive discharge claims, the 
circuits disagree about when th is 45-day lim itations 
period begins to run. A majority of circuits have held 
th a t the filing period begins to run  on the date of the 
employee’s resignation, with some courts reasoning 
th a t the resignation itself constitutes the employer’s 
last discriminatory act (hereinafter, “Date-of- 
Resignation Rule”).5 A minority of circuits, including 
the Tenth Circuit in this case, have held th a t the 
employer’s last discriminatory act triggers the 
relevant filing period (hereinafter, “Last 
Discriminatory Act S tandard”).6

345, 359 (2d Cir. 2001) (“The 45-day period serves as a sta tu te  of 
lim itations.”); Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 
1995) (“This deadline is construed as a s ta tu te  of lim itations.”).

5 See Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 
2000) (“[T]he date of discharge triggers the lim itations period in 
a constructive discharge case, just as in all other cases of 
wrongful discharge.”); American Airlines, Inc. v. Cardoza- 
Rodriguez, 133 F.3d 111, 123 (1st Cir. 1998) (holding th a t the 
filing period begins to run  from the date of an employee’s formal 
resignation); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 
1111 (9th Cir. 1998) (“ [I] n constructive discharge cases periods 
of lim itation begin to run  on the date of resignation.”); 
H ukannen v. In t’l Union of Operating E ng’rs, Hoisting & 
Portable Local No. 101, 3 F.3d 281 (8th Cir. 1993) (holding th a t 
a forced resignation itself constitutes the employer’s last 
discriminatory act); Young v. N a t’l Ctr. for Health Servs. 
Research, 828 F.2d 235, 238 (4th Cir. 1987) (“[Rjesignation is a 
constructive discharge -  a distinct discriminatory ‘act’ for which 
there is a distinct cause of action.”).

6 Three circuits have adopted the minority position. See Green 
v. Donahoe, 760 F.3d 1135, 1137 (10th Cir. 2014) (finding tha t 
employee did not exhaust his adm inistrative remedies because



6

SUMMARY OF ARGUMENT
In our civil legal system, sta tu tes of lim itations and 

filing deadlines function to strike a careful balance 
between upholding principles of equity and access to 
justice on one hand, and fostering finality and clarity 
on the other. That equilibrium is especially im portant 
in the context of civil rights laws th a t combat 
discrim ination and are intended to be navigated by 
laypersons, unaided by an attorney. The Tenth 
Circuit’s position has upset this careful balance.

The imm ediate question here is when the 45-day 
filing period in which federal employees are required 
to report workplace discrim ination commences. But 
the broader issue is w hether the Court should 
m aintain  the clear, simple Date-of-Resignation Rule 
th a t is already embraced by the majority of circuits — 
or w hether it should instead shift to the unworkable 
Last Discriminatory Act S tandard which erects an 
unnecessary procedural barrier to the fair
adjudication of workplace discrim ination and
harassm ent claims. Title VII, precedent, and 
prudence counsel in favor of the former approach for 
two overarching reasons.

the filing period for a constructive discharge claim begins to run 
on the date of the employer’s “last misconduct”); Mayers v. 
Laborers’ Health & Safety Fund, 478 F.3d 364, 368 (D.C. Cir. 
2007) (per curiam) (applying Last Discriminatory Act Standard 
and dismissing a constructive discharge claim under the ADA as 
untimely); Davidson v. Indiana-American Water Works, 953 
F.2d 1058, 1059 (7th Cir. 1992) (holding th a t the filing period for 
a claim of constructive discharge is triggered on the date th a t an 
employer “takes some adverse personnel action” against an 
employee).



7

First, considerable experience in tackling 
employment discrimination augurs in favor of a 
clearly dem arcated filing period for constructive 
discharge claims. As part of Title VITs m andate to 
eradicate discrimination in the economy, the law 
encourages employers and employees to reach m utual 
understandings and work together to overcome 
prejudice. The Date-of-Resignation Rule is clear and 
accomplishes the im portant goal of encouraging 
private resolution: because the filing period does not 
begin until an employee has resigned, it allows the 
employee to explore internal channels before 
engaging in litigation. This rule therefore recognizes 
th a t employees who suffer discrimination should 
have the time to weigh their employment options and 
consider the various professional and personal 
consequences -  like the need to support their 
families, pay rent, and meet other financial 
obligations -  before quitting and in itiating litigation. 
The case law confirms th a t this simpler rule has 
proven to be adm inistrable and advisable across a 
variety of situations, including cases of racial and 
gender discrimination and sexual harassm ent.

Second, there are real problems w ith the Tenth 
Circuit’s Last Discriminatory Act Standard. It is 
unwieldy and innately indeterm inate, particularly 
since it is often unclear -  in the midst of a series of 
discriminatory m easures -  which particular act is the 
“last” one. Moreover, it is unfair and implausible to 
expect a layperson to recognize th a t the filing period 
commences before the employee has resigned or could 
be considered “constructively discharged” as a m atter 
of law. And for those employees th a t do properly 
identify the trigger date, the Last Discriminatory Act 
Standard encourages snap decision-making, contrary 
to Title VII’s goal of fostering conciliation. This



8

standard  not only needlessly injects complexity into 
w hat should be a straightforw ard sta tu te  of 
lim itations determ ination, in some instances, it also 
puts employees in a hazardous Catch-22, whereby 
resigning and rem aining employed both involve 
legal pitfalls.

The Tenth Circuit’s prim ary defense for this 
standard  tu rns on the m istaken premise th a t 
employees may indefinitely delay their claims and it 
overlooks the fact th a t employers have a strong 
incentive -  and considerably more power -  to drag 
their feet and run  out the clock.

The ultim ate consequence of the Tenth Circuit’s 
standard  is stark: in ju st over one traditional pay
cycle, employees could scramble to resolve serious 
issues of discrimination or harassm ent and still miss 
their one opportunity at relief. This is unjust and 
unnecessary. Employees already confront significant 
obstacles to proving constructive discharge, with 
cases involving the most odious racial slurs routinely 
discarded a t the sum m ary judgm ent stage. There is 
no basis for contorting the sta tu te  of lim itations 
period such th a t constructive discharge claims are 
rendered functionally unavailable. Instead, this 
Court should ratify the simple and fair Date-of- 
Resignation Rule th a t a majority of circuits have 
already implemented and found to be readily 
adm inistrable.



9

ARGUMENT
I. EXTENSIVE EXPERIENCE IN 

COMBATING EMPLOYMENT
DISCRIMINATION DEMANDS A 
CLEAR, SIMPLE FILING PERIOD FOR 
CONSTRUCTIVE DISCHARGE
CLAIMS.

Racial discrimination and harassm ent in the 
workplace rem ain serious problems for individual 
employees and the labor m arket as a whole.7 
Likewise, sexual harassm ent and gender 
discrimination are disconcertingly prevalent in the 
economy.8 Thus, despite this country’s real progress 
towards inclusion and equality in employment, the 
strong protections of Title VII rem ain as im portant 
as ever.

7 See generally Race-Based, Charges F Y  1999 -  F Y  2014, 
EEOC, http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm 
(last visited July 7, 2015) (summarizing the total num ber of 
charges filed and resolved under Title VII alleging race-based 
discrimination).

8 See generally Sex-Based Charges F Y  1997 -  F Y  2014, 
EEOC, h ttp ://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm 
(last visited July  7, 2015) (summarizing the total num ber of 
charges filed and resolved under Title VII alleging sex-based 
discrimination); Sexual Harassment Charges EEOC and FEPAs 
Combined: F Y  1997- F Y 2011, EEOC, http://www.eeoc.gov/eeoc/ 
statistics/enforcem ent/sexualjharassm ent.cfm  (last visited 
July  7, 2015) (summarizing the total num ber of charges filed 
and resolved under Title VII alleging sexual harassm ent 
discrimination).

http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm
http://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm
http://www.eeoc.gov/eeoc/


10

LDF and NWLC share more than  a century of 
experience fighting for civil rights. T hat litigation 
record, combined w ith our practical experience in the 
field of employment law, confirms th a t a 
straightforw ard and comprehensible rule to 
determ ine when the sta tu te  of lim itations begins to 
run  -  like an employee’s resignation date -  is 
necessary for Title VII to achieve its goal of 
elim inating unlawful discrimination in 
the workplace.

A. P ractice  and Policy.
As this Court made clear in Ricks, “lim itations 

periods should not commence to run  so soon th a t it 
becomes difficult for a laym an to invoke the 
protection of the civil rights sta tu tes.” Del. State 
College v. Ricks, 449 U.S. 250, 262 n.16 (1980). In the 
context of constructive discharge law, the Date-of- 
Resignation Rule offers a straightforw ard sta tu te  of 
lim itations trigger date th a t comports w ith the 
objectives of Title VIL

The goal of Title VII is to elim inate discrimination 
in the workplace. See, e.g., Albemarle, 422 U.S. a t 421 
(asserting Title VIPs “central statu tory  purpose 
[is] . . . eradicating discrimination throughout the 
economy”). The sta tu te  seeks to achieve th a t objective 
by, inter alia, promoting policies of conciliation, 
mediation, and non-litigation remedies in order to 
encourage employers and employees to work together 
to achieve m utual understandings and overcome 
discrimination. See 42 U.S.C. § 2000e-5(b) (“[T]he 
Commission shall endeavor to eliminate any such 
alleged unlawful employment practice by informal 
methods of conference, conciliation, and 
persuasion.”); see also Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44 (1974) (finding “cooperation and



11

voluntary compliance were selected as the preferred 
means for achieving [the] goal[s]” of Title VII); 
Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 
1503, 1509 (11th Cir. 1985) (“[T]he legislative history 
of Title VII indicate[s] th a t Congress intended Title 
VII to be enforced prim arily through conciliation and 
voluntary compliance.”).

The Date-of-Resignation Rule advances these goals 
by incentivizing employees to explore such options as 
mediation and other internal channels before 
resorting to litigation. Conversely, the Last 
Discriminatory Act S tandard encourages employees 
to forgo or fast-forward informal resolution efforts 
and lodge a formal legal claim as early as possible, 
since the filing period begins to run  before there has 
been a resignation or “constructive discharge” as 
defined by law. Indeed, the EEOC has confirmed th a t 
the Date-of-Resignation Rule better promotes careful 
and considered decision-making by employees. See 
Brief of the Equal Employment Opportunity 
Commission as Amicus Curiae in Support of the 
Appellant (hereinafter “EEOC Bailey Am icus”), 
Bailey v. United Airlines, 279 F.3d 194 (3d Cir. 2002) 
(No. 00-2537), 2001 WL 34105245 at *12 (Mar. 26, 
2001) (“Employees are free to file charges w ith the 
Commission when they feel th a t they have been 
subjected to unlawful discrimination. An employee, 
however, should not have his hand forced before a 
claim has ripened.”).

The courts have also recognized the value of having 
employees stay in their jobs while informally 
resolving employment disputes and m itigating 
damages -  even in the face of prospective retaliation. 
For example, this Court in Suders held that, when a 
discrimination claim does not hinge on a “tangible



12

employment action,” employers may avail themselves 
of the Ellerth/Faragher defense, whereby the 
employer m ust show th a t “(a) [it] exercised 
reasonable care to prevent and correct promptly any 
sexually harassing behavior,” and (b) the employee 
“unreasonably failed to take advantage of any 
preventive or corrective opportunities provided by the 
employer or to avoid harm  otherwise.”
542 U.S. a t 129.9

The Date-of-Resignation Rule is also prudent in 
practice. In some instances, the date of resignation

9 Furtherm ore, circuit splits have developed as to whether 
constructive discharge doctrine requires an employee to 
complain to higher m anagem ent prior to resigning. See generally 
Brief of Am icus Curiae for the National Employment Lawyers 
Association (identifying circuit splits). In other ways, the 
pressures to stay in the workplace can be problematic, and give 
rise to an impossible situation for employees, infra  a t 13-15. 
Compare Coffman v. Tracker Marine, 141 F.3d 1241, 1247 (8th 
Cir. 1998) (“[SJociety and the policies underlying Title VII will 
be best served if, wherever possible, unlawful discrim ination is 
attacked w ithin the context of existing employment 
relationships.”) (citation and internal quotation m arks omitted) 
with  Cathy Shuck, T h a t’s It, I  Quit: Returning to First
Principles in Constructive Discharge Doctrine, 23 Berkeley J. 
Emp. & Lab. L. 401, 430 (2002) (“[Requiring a plaintiff to 
m itigate her damages by rem aining in a discrim inatory 
environm ent is contrary to Title VU’s rules for post-term ination 
mitigation of damages.”); and  Theresa M. Beiner, Sex, Science 
and Social Knowledge: The Implications o f Social Science
Research on Im puting Liability to Employers for Sexual 
Harassment, 7 Wm. & M ary J. Women & L. 273, 335 (2001) (“By 
overemphasizing preventive efforts, the Court ignores 
deterrence through damages and compensation (making victims 
whole) as other im portant goals of Title VII.”).



13

and the date of the last discrim inatory act are the 
same day. See Pet. M erits Br. 32. And, as detailed 
below, infra a t 18-20, several courts have found the 
resignation itself constitutes the employer’s last 
discriminatory act. See e.g., Young, 828 F.2d a t 237- 
38; supra n.5 (discussing the position of the majority 
of circuits).

In other instances, employees need, and should 
have, sufficient time to weigh their options and any 
personal and professional consequences. The Date-of- 
Resignation Rule recognizes this basic reality by 
beginning the sta tu te  of lim itations only after an 
employee has gone through th a t process and decided 
to resign, whereas the Last Discriminatory Act 
Standard truncates these considerations by starting 
the sta tu te  of lim itations after a very brief period of 
time which is not likely to allow for meaningful 
in ternal negotiation or consideration of alternatives. 
It is particularly im portant for employees facing 
racial, gender and/or sexual harassm ent to duly 
consider their options, for two notable reasons.

First, like all people of good faith, employees facing 
discrimination and harassm ent struggle in earnest to 
make the best of a bad situation. This can involve an 
effort to resolve problems w ith the existing 
(discriminatory) m anagers or colleagues, only to later 
learn th a t resolution is difficult or impossible to 
achieve. W hether formal or informal, these internal 
processes and means of addressing discrimination in 
the workplace can be protracted and involved. And it 
is often the employer’s failure to reasonably respond 
to concerns raised through these in ternal processes 
th a t makes resignation the only meaningful option.

The stakes involved in a decision to resign are often 
enormous for the personal life, economic livelihood,



14

and professional trajectory of the employee. In 
practice, employees need to gauge their ability to 
provide for their families, assess the availability of 
continuing health  care, and determ ine their ability to 
pay ren t before deciding to resign. See, e.g., Shuck, 
supra n.9, a t 428 (“Given the plaintiffs job position, 
or age, or gender, or race, or previous work 
experience, or any of a myriad of other factors, 
perhaps a ‘reasonable’ response would be to keep a 
low profile, or simply abandon the situation.”). Many 
fear that, even if they are legally protected from 
retaliation, a formal report of discrimination 
functionally term inates the employment 
relationship.10 Given th is reasonable fear, 
particularly in discrim inatory and hostile work 
environments, employees often resign first and then 
seek EEOC assistance. See M artha Chamallas, Title 
VII’s Midlife Crisis: The Case of Constructive
Discharge, 77 S. Cal. L. Rev. 307, 310-11 (2004) 
(“[Ejmployees are reluctant to sue their current 
employer and will often file a claim only after they 
have left their job.”) Moreover, social science confirms 
th a t a whole range of personal and psychological

10 See Phoebe A. Morgan, Risking Relationships: 
Understanding the Litigation Choices of Sexually Harassed 
Women, 33 Law & Soc’y Rev. 67, 75 (1999) (recounting survey of 
female employees th a t “job loss, or fear of it, was the prim ary 
consideration for a serious consideration of litigation”); Theresa 
M. Beiner, Using Evidence o f Women’s Stories in Sexual 
Harassment Cases, 24 U. Ark. Little Rock L. Rev. 117, 124-25 
(2001) (“[0]nce an employee complains about discrim ination on 
the job, he or she can usually consider th a t employment 
relationship over.”).



15

pressures bear upon an individual who m ust decide 
w hether to immediately quit or report 
discrim ination.11 A Date-of-Resignation Rule is best 
suited to address these circumstances.

These pressures are especially acute for federal 
employees, who face one of the shortest sta tu tes of 
lim itations in employment law. And while the federal 
sector now employs large numbers of women and 
racial m inorities,12 it still grapples w ith a significant 
num ber of discrimination claims.13

11 See A. Hila Keren, Consenting Under Stress, 64 H astings 
L.J. 679, 711-13 (2013) (explaining th a t race and racism have a 
significant impact on how individuals experience stress and can 
trigger changes in cognition, behavior, and sociological 
perceptions of helplessness in  certain workplace conditions); 
Terry Smith, Everyday Indignities: Race, Retaliation, and the 
Promise o f Title VII, 34 Colum. Hum. R ts. L. Rev. 545, 547 
(2003) (summarizing studies which found th a t working-class 
African Americans facing discrimination experience higher 
stress and blood pressure and sometimes accept unfair 
trea tm ent as a fact of life); Deborah L. Brake & Joanna L. 
Grossman, The Failure of Title VII as a Rights-Claiming  
System, 86 N.C. L. Rev. 859, 896-901 (2008) (summarizing social 
science on women’s responses to harassm ent, the social cost of 
complaining, and why some employees are reluctant to 
challenge discrimination); Cheryl R. Kaiser & Brenda Major, A  
Social Psychological Perspective on Perceiving and Reporting 
Discrimination, 31 Law & Soc. Inquiry 801, 804 (2006) 
(discussing studies and surveys showing th a t  “minimization 
bias” leads women and people of color experiencing 
discrim ination to resist acknowledging it as such and to fear 
being perceived as hypersensitive troublemakers).

12 See e.g., A nnual Report on the Federal Work Force Part II, 
Workforce Statistics, Fiscal Year 2011, EEOC, 
http://www.eeoc.gov/federal/reports/fsp2011_2/upload/fsp2011_2.

http://www.eeoc.gov/federal/reports/fsp2011_2/upload/fsp2011_2


16

Second, because it is already difficult to bring a 
successful constructive discharge claim, the sta tu te  of 
lim itations period should not make it any harder. 
Laboring under w hat is supposed to be a system for 
laypersons, employees face a num ber of disconcerting 
obstacles to having their claims heard on the merits. 
For example, constructive discharge claims involving 
the most heinous racial slurs are routinely jettisoned, 
often at the sum m ary judgm ent stage, on the dubious 
ground th a t the slurs were not unbearable enough.13 14

pdf (last visited July  7, 2015) (finding th a t women and racial 
minorities comprise 43.8 percent and 34.8 percent of the federal 
workforce, respectively).

13 See, e.g., Joe Davidson, Report Shows Lack of Diversity in
Top Civil Service Ranks, Wash. Post (Aug. 19, 2014)
http://www.washingtonpost.com/politics/federal_government/rep 
ort-shows-lack-of-diversity-in-top-civil-service-ranks/2014/08/19/ 
372all30-27c8-lle4-86ca-6f03cbdl5cla_story.htm l (describing 
role of discrim ination and retaliation).

14 See Cavalier v. Clearlake Rehab. Hosp., Inc., 306 F. App’x 
104, 106, 107 (5th Cir. 2009) (unpublished) (concluding co­
worker’s repeated use of the term  ‘hoy” and th rea t to “beat the 
ta r  off o f’ the plaintiff were not sufficiently hostile or 
intolerable); Tawwaab v. Va. Linen Serv., Inc., 729 F. Supp. 2d 
757, 766, 774, 776, 783-84 (D. Md. 2010) (finding th a t 
statem ents “black m otherfucker” or “black bastard” and co­
workers displaying of monkey sta tue  while stating “This is w hat 
I th ink of you. You are monkeys to me,” were insufficient to 
support constructive discharge claim); Green v. Harris Publ’ns, 
Inc., 331 F. Supp. 2d 180, 192, 195 (S.D.N.Y. 2004) (finding co­
worker’s statem ents in reference to a rumor employer was 
looking for a “token nigger” were not intolerable); see also 
Webster v. Town of Warsaw, 66 F. Supp. 3d 706, 709-10 
(E.D.N.C. 2014) (granting motion to dismiss on the grounds th a t

http://www.washingtonpost.com/politics/federal_government/rep


17

Moreover, the inconsistent application of the law 
around constructive discharge has created disjointed 
and unfair circuit splits as to w hether essentially 
identical, discriminatory messages constitute a 
constructive discharge. Compare Reedy v. Quebecor 
Printing Eagle, Inc., 333 F.3d 906, 909-10 (8th Cir. 
2003) (concluding th a t bathroom graffiti associated 
directly with plaintiff, such as “kill all niggers,” 
“coon,” and “all niggers m ust die,” was insufficient to 
make out a constructive discharge claim) with Moore 
v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 
1077, 1080 (6th Cir. 1999) (concluding th a t bathroom 
graffiti, such as “kill all niggers,” was sufficient to 
show th a t conditions were so intolerable th a t a 
reasonable person would quit).

B. Supporting Case Law.
The case law confirms th a t a simple filing period, 

rooted in an employee’s unambiguous resignation, is 
more adm inistrable and advisable across a range of 
scenarios. Indeed, the bulk of the circuits -  five out of 
eight — have already reached th is reasoned conclusion 
and held th a t the filing period begins to run  on the 
date of the employee’s resignation. See supra n.5.15

the repeated use of ‘hoy” directed a t the police chief was 
offensive but not intolerable).

15 The origins of the circuit split in this case further 
dem onstrate th a t the Date-of-Resignation Rule is more 
consistent with this Court’s jurisprudence. The split arose in the 
early 1990s, largely over divergent understandings of Ricks, 
which involved a scholar who was denied tenure and offered a 
term inal one-year contract. In Ricks, th is Court ruled th a t the 
lim itations period began to run  when the employee was offered



18

Moreover, even under the Tenth Circuit’s “last 
discriminatory act” view, some courts have ruled th a t 
an employee’s resignation is itself the operative 
“discriminatory act.” For instance, the Fourth Circuit 
held th a t when an employee is constructively 
discharged, his or her resignation itself is “a distinct 
discriminatory ‘act’ for which there is a distinct cause 
of action,” and from which to m easure the applicable 
adm inistrative deadlines. Young, 828 F.2d a t 237-39 
(reversing lower court ruling).

In the context of racial discrimination, lower courts 
have also used the date of resignation as the relevant 
benchm ark in a variety of constructive discharge 
cases. See e.g., Scott v. Lee Cty. Youth Dev. Ctr. 232 F. 
Supp. 2d 1289, 1295 (M.D. Ala. 2002) (adopting “the 
uniform rule” th a t the “filing period is m easured from 
the date the employee gives notice of his in ten t to 
resign” because “in a constructive discharge case only 
the employee can know when the atm osphere has 
been made so intolerable th a t he m ust leave” due to

the term inal contract, ra ther than  one year later, when the 
contract expired. Ricks, 449 U.S. a t 261-62. Early on, several 
circuits -  namely the Fourth, Eighth, and N inth -  read Ricks as 
supporting the Date-of-Resignation Rule because the resignation 
was functionally equivalent to Ricks’ discharge (his denial of 
tenure). But later, the Last Discriminatory Act S tandard 
emerged when the Seventh Circuit compared an employee’s 
resignation to the mere “consequences” of the employer’s 
original discrim ination and therefore concluded it was irrelevant 
for purposes of commencing the s ta tu te  of lim itations. Davidson, 
953 F.2d at 1059 (7th Cir. 1992) (filing period triggered when 
employer “takes some adverse personnel action”). Only one other 
court, beyond the Tenth Circuit, adopted the minority view. 
Mayers, 478 F.3d at 369-70.



19

racially hostile work environment); Adames v. 
M itsubishi Bank Ltd., 751 F. Supp. 1565, 1570 
(E.D.N.Y. 1990) (measuring the filing period for an 
EEOC claim “from the date the employee gave notice 
of her in ten t to resign” in a race and national origin 
discrimination case); see also Rosier v. Holder, 833 F. 
Supp. 2d 1, 7 (D.D.C. 2011) (discussing why the 
ongoing nature  of hostile conduct th a t gave rise to a 
constructive discharge claim makes the reporting 
timeline more expansive); Serrano-Nova v. Banco 
Popular de Puerto Rico, Inc., 254 F. Supp. 2d 251, 262 
(D.P.R. 2003) (finding th a t a resignation th a t 
constitutes a constructive discharge constitutes a 
discriminatory act, but holding that, given a delay in 
th a t case between the discriminatory act and 
resignation, the plaintiff could not use her 
resignation as an “anchor” for earlier acts).

Likewise, when confronting gender discrimination 
and sexual harassm ent, many courts have adopted 
the Date-of-Resignation Rule. See, e.g., Flaherty, 235 
F.3d a t 138 (concluding, in a constructive discharge 
claim based on age and sex discrimination, th a t the 
accrual date “was the date when [plaintiff] gave 
definite notice of her intention to retire, and the rule 
should be the same in all cases of constructive 
discharge”); Draper, 147 F.3d at 1111 (finding, in 
Title VII action alleging hostile work environment, 
constructive discharge, and sexual harassm ent, th a t 
the date of discharge triggers the lim itations period); 
Hukannen, 3 F.3d a t 285 (holding, in a sexual 
harassm ent claim, th a t “[w]hen Title VII violations 
are continuing in nature, the lim itations period” does 
not run  until the employee’s constructive discharge, 
which also constitutes “the last occurrence 
of discrimination”).



20

The use of the Date-of-Resignation Rule in the 
eases described above is particularly effective given 
the unique natu re  of a constructive discharge, where 
the employee’s decision to resign is a crucial element 
of the cause of action. Indeed, th is Court has made 
clear th a t the employer’s acts prior to the employee’s 
resignation constitute merely “precipitating conduct” 
leading up to the key constituent element of the 
claim: the employee’s resignation. Suders, 542 U.S. 
a t 148 (“A constructive discharge involves both an 
employee’s decision to leave and  precipitating 
conduct.”) (emphasis added).

The EEOC has also endorsed the Date-of- 
Resignation Rule, filing an amicus brief in support of 
the rule in the Third Circuit. See EEOC Bailey 
Amicus, supra, a t *12. Drawing upon precedent from 
the First, Second, Fourth, and N inth Circuits, the 
EEOC concluded th a t the “operative date” for the 
filing window was “the date on which the employee 
acts on the option under the term s specified by the 
employer.” Id. a t *10. The EEOC also explained th a t 
“[t]his approach to the tim eliness issue is fully 
compatible w ith the Supreme Court’s decision in 
Ricks,” id. a t *10, and most faithful to the policies 
undergirding Title VII, id. a t *12.

II. THE “LAST DISCRIMINATORY ACT” 
STANDARD IS UNWIELDY, UNFAIR, 
AND CONTRARY TO THE PURPOSES  
OF TITLE VII.

In contrast to the many advantages of the Date-of- 
Resignation Rule, the Tenth Circuit’s Last 
Discriminatory Act Standard is needlessly unwieldy 
and unfair, and cannot be fairly administered. In 
some instances, the Last Discriminatory Act 
Standard may place employees in a perilous Catch-



21

22, in which both resigning from, and rem aining in, 
an employment position may impose obstacles to 
challenging discrimination. The Last Discriminatory 
Act S tandard should therefore be rejected by 
this Court.

First, the standard  itself is inherently nebulous. 
W hether the last “act” includes a resignation itself is 
disputed among the circuit courts, see supra a t 5 
nn.5-6 (discussing circuit split). Moreover, the “last 
discriminatory act” is often not immediately clear, 
particularly when a series of discriminatory, 
retaliatory, or harassing acts give rise to the 
constructive discharge. See, e.g., Draper, 147 F.3d at 
1107 (finding th a t “persistent harassm ent” and 
disparate treatm ent over two years, ra th e r than  a 
particular instance, gave rise to the constructive 
discharge). In the heat of the moment, it can be 
difficult to ascertain whether a particular act is the 
“last” one, let alone w hether a court would consider it 
to be independently or aggregately actionable. See 
Beiner, supra  n.9, a t 331 (“H arassm ent victims 
should not be sum m arily dismissed for initially 
failing to report or delaying reporting until the 
incidents are repeated or become more severe. 
Indeed, expecting immediate reporting is counter­
intuitive, especially given th a t the sexual harassm ent 
might not yet have reached an actionable level or a 
level th a t the victim believes she can no 
longer handle.”).

This is particularly true when lower courts have 
drawn fuzzy -  and sometimes indecipherable lines -  
between a work environment th a t is hostile but 
somehow bearable and another th a t is hostile but 
intolerable. See Chamallas, supra, a t 316 
(“Factfinders are thus called on to make fine



22

calibrations of the m agnitude of the harassm ent faced 
by the plaintiff, implicitly judging between 
harassm ent th a t is bad enough to am ount to a change 
in working conditions for the plaintiff (the ‘severe or 
pervasive’ standard  for hostile environments), but not 
bad enough to justify plaintiff quitting her job (the 
‘intolerable’ standard  for constructive discharge).”). 
See supra  a t 17 (discussing circuit splits regarding 
sim ilar racial slurs and death th rea ts inscribed 
in bathroom).

These determ inations will be further complicated in 
cases where the employer’s ongoing failure to address 
discrim ination in the workplace forces an employee’s 
resignation, as a “last act” standard  does not easily 
map on to discrimination th a t is perpetuated based 
on an employer’s failure to remedy a hostile 
environment. See, e.g., Kimzey u. Walmart Stores, 
Inc., 107 F.3d 568, 575 (8th Cir. 1997) (allowing 
constructive discharge claim to go to the jury based 
on employer’s inaction in the face of complaints of 
sexual harassm ent); Hunt v. State o f Mo. D ept of 
Corrections, 297 F.3d 735, 744 (8th Cir. 2002) (same). 
The victimized employee should not bear the burden 
of parsing each encounter w ith the employer to 
determ ine which act would constitute the legally 
acceptable “last straw ” in the employer’s 
discrim inatory conduct.

The lack of clarity in the Tenth Circuit’s standard 
injects an unnecessary degree of complexity into w hat 
can and should be a straightforw ard sta tu te  of 
lim itations determination. As a result, the standard 
incentivizes frontloading needless and onerous 
substantive questions into m ini-trials about whether 
an employer’s acts were, or were not, part of a



23

discriminatory course of conduct and when the last 
discriminatory act took place.

Additionally, the Tenth Circuit’s Last
Discriminatory Act Standard creates a real risk of 
unfairness by placing artificial barriers to 
enforcement of the civil rights laws. Ricks rightly 
warned against the dangers of making it “difficult for 
a laym an to invoke the protection of the civil rights 
sta tu tes.” 449 U.S. a t 262 n.16. The Last
Discriminatory Act Standard imposes just th is kind 
of difficulty because it is profoundly counterintuitive 
to ask laypersons to recognize th a t the clock has 
begun to run  on their constructive discharge claim 
before they have resigned and, thus, before they have 
a constructive discharge claim as a m atter of law. See 
also M erits Br. 32-34. I t is simply unrealistic to 
expect employees facing hostile work environments 
and weighing their options to calculate, in real-time, 
when the “last discriminatory act” may have occurred 
and when the 45-day clock may sta rt running.

Furtherm ore, in some parts of the country, 
employees facing a constructive discharge may also 
find themselves in a Catch-22. The circuit courts are 
split as to whether employees m ust complain to 
higher m anagem ent prior to resigning.16 Thus, in

16 See generally Brief of Am icus Curiae for the National 
Employment Lawyers Association (identifying circuit splits). 
While the Court need not resolve th a t split in th is case, it should 
be aware th a t there are serious problems with how some courts 
have required the use of internal grievance procedures. See also 
supra n.9 (discussing how overemphasis of mitigation of



24

some circuits, employees who quit immediately after 
an employer’s discriminatory act are more likely to 
meet the 45-day filing deadline, but risk rejection of 
their claim for failure to utilize their employers’ 
in ternal remedies to address the complained of 
discrimination -  while those who stay in their jobs 
after a discriminatory act and try  to resolve m atters 
in ternally  risk missing the filing deadline.17 This is 
patently  unworkable in a system for federal 
employees, who are laypersons working around a 
condensed, 45-day filing period.

Ultim ately, the repercussions of the Last 
Discriminatory Act S tandard frustrate  the central 
purposes of Title VII altogether, supra  a t 10. As the 
EEOC has previously explained, incentivizing snap 
decisions and a rush  to adversarial processes is 
counter to the spirit of Title VII. Rather, it is 
im portant to ensure th a t employees are “not rushed 
into the filing of an  EEOC charge” as they carefully 
weigh considerations. See EEOC Bailey Amicus, 
supra, a t *2.

In the face of th is onslaught of practical problems 
th a t attend  the Last Discriminatory Act Standard, 
the Tenth Circuit’s holding hinges on the dubious 
premise th a t a simple Date-of-Resignation Rule

damages and requiring employees to stay in discriminatory 
workplace is contrary to the aims of Title VII).

17 See also Beiner supra n.9, at 331 (noting tha t harassment 
victims can be “caught in a difficult catch twenty-two.”); Brake 
&. Grossman, supra n . l l ,  at 886 (explaining that the “time 
spent trying to resolve discrimination complaints internally 
seriously jeopardizes employees’ formal assertion of rights”).



25

somehow leads employees to game the system by 
delaying their resignation, thus controlling the 
tim ing of their claims. But an employee who 
indefinitely delays resignation without rationale is 
unlikely to succeed on the m erits of a constructive 
discharge claim. See Landrau-Romero v. Banco 
Popular De Puerto Rico, 212 F.3d 607, 613 (1st Cir. 
2000) (“If a plaintiff does not resign within a 
reasonable time period after the alleged harassm ent, 
he was not constructively discharged.”); Draper, 147 
F.3d at 1110 n.2 (noting “[t]he frequency and 
freshness of the instances of harassm ent” affects any 
adjudication on the merits). For this reason alone, 
employees are unlikely to m anipulate a Date-of- 
Resignation Rule to their benefit.

Moreover, the notion th a t the filing period m ust be 
constructed to discourage employees from sitting on 
their claims ignores the fact th a t a Last 
Discriminatory Act S tandard gives employers a 
strong incentive to delay in ternal adm inistrative 
processes th a t an employee may tu rn  to first in order 
to address discrimination -  as well as the fact th a t 
employers have considerable power to delay the 
process. “Employers have a great deal of control over 
the length of time such processes take, whether 
employees use them, and the extent of employees’ 
reliance on and hopes for such processes,” and “it is 
all too easy for such in ternal processes to run  out the 
clock on asserting rights through the formal statutory 
mechanisms.” Brake & Grossman, supra n . l l ,  a t 886.

For all these reasons, the Date-of-Resignation Rule 
would best address these concerns by providing a 
date certain on which both employers and employees 
can rely while best serving the aims of Title VII.



26

CONCLUSION
The standard  adopted by the Tenth Circuit 

presents a serious procedural barrier to the 
adjudication of workplace discrimination and 
harassm ent claims and may prevent aggrieved 
federal employees from receiving appropriate relief. 
The Court should adopt a simple, fair, and 
adm inistrable rule, as the majority of the circuits 
have implemented. For the foregoing reasons, this 
Court should reverse and remand.

Respectfully submitted,

Sh e r r il y n  I f il l  
Director- Counsel 

J a n a i N e l s o n  
Ch r is t in a  Sw a rn s  
J in  H e e  L e e  
L il ia n a  Zara go za  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , In c . 
40 Rector S treet, 5 th  Floor 
New York, NY 10006

Ju ly  13, 2015

JOHN PAUL SCHNAPPER- 
CASTERAS *

NAACP L e g a l  D e f e n s e  & 
E d u c a t io n a l  F u n d , I n c . 

1444 I S tree t NW 
W ashington, DC 20005 
202-682-1300 
jschnapper@ naacpldf.org

M a r c ia  D. Gr e e n b e r g e r  
Co-President 

E m ily  J . M a r t in  
F a tim a  G o ss  Gra v es  
Am y  K. M a t su i 
N a tio n a l  W o m e n ’s La w  

Ce n t e r
11 D upont Circle, NW #800 
W ashington, DC 20036

* Counsel of Record

mailto:jschnapper@naacpldf.org