No. 14-613

IN THE

SUPREME COURT OF THE UNITED STATES

____________________

OCTOBER TERM 2015 ____________________

MARVIN GREEN, Petitioner,

v.

MEGAN J. BRENNAN, POSTMASTER GENERAL, Respondent.

____________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

____________________

BRIEF FOR PETITIONER Round 2, 6:45pm Arash B. Razavi March 29, 2016 200 McAllister Street San Francisco, CA 94102 (213) 514-0351 Counsel for Petitioner

i

QUESTION PRESENTED Under Title VII, does the statute of limitations on a constructive discharge cause of action begin to run at the time of resignation of the employee or at the time of the employer’s last

discriminatory act?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................................................................ i

TABLE OF CONTENTS ........................................................................................... ii

TABLE OF AUTHORITIES ..................................................................................... iii

OPINION BELOW .................................................................................................... 1

JURISDICTION ........................................................................................................ 1

STATEMENT OF THE CASE .................................................................................. 2

Statement of Facts .......................................................................................... 2

Preliminary Statement .................................................................................... 3

SUMMARY OF ARGUMENT ................................................................................. 4

ARGUMENT ............................................................................................................. 6

I. CONSISTENT WITH THE GENERAL RULE, THE FILING PERIOD OF A CONSTRUCTIVE DISCHARGE CLAIM DOES NOT BEGIN UNTIL ALL ELEMENTS OF THE CLAIMS ARE PRESENT. ............................................ 6 A. Limitations Claims Does not Begin Until a Claimant Can File a Claim and

Obtain Relief Unless There is Clear Textual Indication to the Contrary. . .... 6

B. This Rule is Consistent With Title VII and the Regulation at Issue. ............ 8

C. In Other Situations Where a Claimant’s Conduct Completes the Cause of Action, Courts Hold that the Limitations Period Does Not Begin to Run Until the Cause of Action Exists. .................................................................. 11

II. PUBLIC POLICY JUSTIFIES A STRONG PREFERENCE FOR

THE FEBRAURY 9, 2010 AS THE DATE OF ACCURAL. ............................ 16

A. Date-of-Resignation Rule is Easy to Administer. ......................................... 16

B. Date-of-Resignation Rule Promotes Fairness for Lay Claimants. ................ 17

CONCLUSION .......................................................................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

CASES

UNITED STATES SUPREME COURT

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ....................................................................................... 10 Dodd v. United States, 545 U.S. 353 (2005) ....................................................................................... 8 Delaware State College v. Ricks, 449 U.S. 250 (1980) ....................................................................................... 13,14,15 Graham Cnty. Soil & Water Conservation, et al. v. United States,

545 U.S. 409 (2005) ....................................................................................... 6,7 Heimeshoff v. Harford Life & Acc. Inc. Co., 134 S. Ct. 604 (2013) .................................................................................... 8 Mac’s Shell Service, Inc. v. Shell Oil Products,

559 U.S. 175 (2010) ....................................................................................... passim Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ....................................................................................... 14 Pa. State Police v. Suders, 542 U.S. 129 (2004). ...................................................................................... 11-12,14 Wilson v. Garcia,

471 U.S. 261 (1985) ....................................................................................... 16

UNITED STATES COURT OF APPEALS

Draper v. Coer Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998) ....................................................................... 8,10 Ekstrand v. School District of Somerset,

583 F.3d 972 (7th Cir. 2009) ......................................................................... 10 Flaherty v. Metromail Corp., 235 F. 3d 133 (2nd Cir. 2000)........................................................................ 13

iv

TABLE OF AUTHORITIES (CONT.) Page(s) Green v. Donahoe,

760 F.3d 1135 (10th Cir. 2014) ..................................................................... passin

Young v. Nat’l Center for Health Services Research, 828 F. 2d 235 (4th Cir. 1989) ........................................................................ 8,10-11

STATE COURT

Harmon v. Higgins, 426 S.E. 2d 344 (W. Va. 1992). ..................................................................... 12

STATUTES AND REGULATIONS 29 U.S.C. §§ 1132(a)(1)(B) (2014) ............................................................................ 9 28 U.S.C. § 2255(3) (2008) ....................................................................................... 9 29 C.F.R. § 1614.105(a)(1) (2014) ............................................................................ 5 29 C.F.R. § 2560.503–1 (2012) ................................................................................. 9

OTHER AUTHORITIES Maggie Strauss, Too Early or Too Late: U.S. Supreme Court Should Rule Constructive Discharge Claims Accrue Upon Resignation,

56 B.C.L. Rev. 1613 (2015). .......................................................................... 14,18 1 Barbara T. Lindermann et al., Employment Discrimination Law,

ABA Section of Labor and Employment Law (2015) ................................. 17

1

No. 14-613

IN THE

SUPREME COURT OF THE UNITED STATES

____________________

OCTOBER TERM 2015 ____________________

MARVIN GREEN, Petitioner,

v.

MEGAN J. BRENNAN, POSTMASTER GENERAL, Respondent.

____________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

____________________

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the United States Court of Appeals for the Tenth Circuit is reported at

Green v. Donahoe, 760 F.3d 1135 (10th Cir. 2014), cert granted, 135 S. Ct. 1892 (Apr. 27,

2015).

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

2

STATEMENT OF THE CASE

Statement of Facts

Marvin Green was an employee of United States Postal Office until a settlement

agreement signed on December 16, 2009, compelled him to choose between a demotion

motivated by retaliation or retirement. (J.A. 21.) Mr. Green was a Post Office Manager for

twenty five years, fourteen years of which he served as a Postmaster. (J.A. 12.) On September

29, 1986, Mr. Green started working towards a promotion in the Officer in Charge (“OIC”)

program. (J.A. 12.) During this time Mr. Green received very positive evaluations on his

assignments. (J.A. 12.) Mr. Green has no disciplinary reports on his permanent record. (J.A.

12.) Mr. Green’s last “readiness” (for the OIC promotion) assignment ended on September 1,

2007. (J.A. 13.) On February 2008, Mr. Green submitted his OIC application, officially

requesting to be detailed to the open Postmaster position in the Boulder Post Office position.

(J.A. 13.) Nobody responded to Mr. Green’s application. (J.A. 13.) Mr. Green is African

American. (J.A. 13.) Subsequent to his application Mr. Green learned that his immediate

supervisor Greg Christ appointed another non-African American person to the position. (J.A.

14.) The incumbent never joined the OIC program, never requested a detail to a higher position

or applied to be promoted to the position. (J.A 14.)

On July 11, 2008, Mr. Green filed a request for hearing with the Equal Employment

Opportunity Commission (“EEOC”). (J.A. 14.) Following this request, Mr. Green experienced

harassment and bullying in the workplace in retaliation for filing his EEO claim. (J.A. 14.) Mr.

Green pursued and received support from EEO counseling, but the harassment continued. (J.A.

15). Thereafter, on May 14, 2009, Mr. Green filed an informal complaint with the EEOC. (J.A.

16.) The EEOC conducted an investigative interview on December 11, 2009. (J.A. 18.) At the

end of the interview, without any prior notice, two agents from the Office of Inspector General

3

(“OIG”) informed Mr. Green that he had been investigated for “intentionally delaying the mail”

(J.A. 18.) The United States Attorney’s Office would decide whether criminal charges would be

filed against him. (J.A. 18-19.) Without discussion, Mr. Green was ordered to sign an

Emergency Placement memorandum and to surrender his agency identification and agency cell

phone. (J.A. 19.) Mr. Green received a settlement offer, the terms of which included sick leave

of more than forty-five days. (J.A. 18-19.) Thereafter Mr. Green would return to a demoted

position with $38,000 loss in pay, 300 miles away in Wyoming, or retire by March 31, 2010.

(J.A. 20.) Mr. Green signed the settlement agreement on December 16, 2009, and he resigned

from his position when signed his retirement plan on February 9, 2010. (J.A. 21.) Forty-one

days later, on March 22, 2010, Mr. Green contacted an EEO Counselor to make a informal

complaint. (J.A. 21.)

Preliminary Statement

Following Mr. Green’s informal complaint to the EEO Counselor forty-one days after he

resigned, he filed a formal EEO complaint on April 26, 2010. (J.A. 21.) The EEO Office

accepted three claims for investigation: 1) that he [Mr. Green] was constructively discharged (no

date specified), 2) that his employer downgraded him from a Level 22 postmaster to Level 13

postmaster on December 19, 2009, and 3) that his employer stopped his pay-for-performance

salary increase. Green v. Donahoe, 760 F.3d 1135, 1138 (10th Cir. 2014). On September 2010,

Mr. Green filed a Title VII complaint, amended in 2011 to allege: 1) the letter notifying him of

the investigative interview, 2) the investigative interview, 3) the threat of criminal prosecution,

4) his constructive discharge, and 5) the emergency placement. (J.A. 10.) In granting

defendant’s motion for summary judgment, the district court dismissed the first three claims for

lack of subject-matter jurisdiction, and the last two as time-barred. Id. at 1138.

4

On appeal, the Tenth Circuit dismissed all but one of the complaint’s allegations. Green,

760 F.3d at 1147. The court upheld the district court’s dismissal of the notice and interview

claims because “the charge[s] did not contain a description of the letter or the interview that

would have caused the EEO Office to investigate them as separate instances of discrimination.

Id. at 1141. The court held that the charge of threat of false criminal prosecution, made in March

2010, was untimely because it was not within the forty-five day period after the threat incident in

December 2009 as 29 C.F.R. §1614.105(a)(1) required. Id. The Tenth Circuit held the

constructive-discharge claim to be untimely because the settlement as the last discriminatory act

occurred in December 16, 2009. Id. at 1145. However, the Tenth Circuit reversed the district

court’s grant of defendant’s motion for summary judgment on the emergency placement claim,

noting that the placement was a non-pay status and as such a discriminatory act that took place

within forty-five days prior to the time of filing. Id. at 1147. Therefore, the Tenth Circuit held

that the Emergency Placement complied with 29 C.F.R. § 1614.105(a)(1) and concluded that the

date of accrual was the time of employer’s last discriminatory act, not the time of resignation.

Id. On April 27, 2015, the Court granted the petitioner’s writ of certiorari. Id.

SUMMARY OF ARGUMENT

The date on Mr. Green’s cause of action may not be on any day prior to the date in which

Mr. Green chose to sign his retirement papers instead of accepting a demotion. This created a

resignation and a definite and apparent termination of employment. A constructive discharge

cause of action may not accrue until every element including the actual discharge or termination

of employment has occurred. At no date prior to February 9, 2010, was there a discharge or

termination of employment effectively completing the elements of the cause of action. Courts

have consistently held that the date of accrual for claims in which the claimant’s action

5

completes the cause of action may have no earlier accrual date than that of the date in which the

termination, eviction, or discharge occurs.

Under the hostile work environment theory, this Court has held that constructive

discharge occurs no earlier than the resignation date. Under the continuing violation theory, the

Supreme Court has consistently concluded that the accrual date will not occur prior to a definite

and apparent notice of termination. Thus, regardless the theory employed, and consistent with

statutory and regulatory authority, a constructive discharge accrual date occurs no earlier than a

resignation or notice of termination. No such termination or employee resignation existed prior

to February 9, 2010 when Mr. Green selected retirement over demotion. Thus, no earlier date of

accrual is recognizable.

Public policy favors a certain date of accrual that limits litigation and controversy. This

is inconsistent with allowing for a date prior to the presence of all the elements of cause of

action, to be the accrual date as the “last discriminatory act.” Furthermore, it is counterintuitive

for a court to hold that a lay person must file a claim prior to the presence of the elements of

cause of action based on indefinite and arbitrary alleged “last discriminatory act.” In addition,

defining a date of accrual prior to termination of employment which allows delays to any

effectuation of discharge or resignation beyond the forty-five day limits creates a legal loophole

in which an employer may create adhesion agreements that prevent meritorious claims from

reaching the judicial system. This result is contrary to the legislative intent, language of the

regulation, and public policy.

6

ARGUMENT

I. CONSISTENT WITH THE GENERAL RULE, THE FILING PERIOD FOR A CONSTRUCTIVE DISCHARGE CLAIM DOES NOT BEGIN UNTIL ALL ELEMENTS OF THE CLAIM ARE PRESENT.

To file a discriminatory Title VII constructive discharge complaint, a federal employee

must initiate contact with an EEO Counselor within “forty-five days of the matter alleged to have

been discriminatory.” 29 C.F.R. § 1614.105(a)(1) (2016). Mr. Green’s constructive discharge

cause of action is a Title VII action by a federal employee, and as such it is subject to

§ 1614.105(a)(1). Thus, the timeliness of Mr. Green’s claim depends on compliance with the

forty-five day time limit. Mr. Green’s constructive discharge cause of action complies with the

time limit for filing because the date for the accrual date on this cause of action may not occur

prior to the termination of employment effectuating the discharge.

A. Limitations Claims Do Not Begin Until a Claimant can File a Claim and Obtain Relief Unless There is Clear Textual Indication to the Contrary.

“[C]ongress generally drafts statutes of limitations to begin when the cause of action

accrues. See Graham Cnty. Soil & Water Conversation v. United States, 545 U.S. 409, 418

(2005). This Court has repeatedly recognized that Congress legislates against the “standard rule

that the limitation period commences when the plaintiff has a complete and present cause of

action.” Id. A constructive termination has not occurred until there has actually been a

termination. Id.

In Graham County Soil, the plaintiff filed a False Claims Act retaliation claim for her

constructive discharge. Id. The statute provided for a retaliatory constructive discharge action

where the discharge relates to the whistleblowing. Id. But the statute was ambiguous as to

whether the statute of limitation applied to the retaliation cause of action. Id. The Supreme

Court held that it did not. Id. The Court reasoned that a retaliation discharge cause of action

7

may not be time barred before it even accrues, because the Court concluded that the time of

accrual to be at the time of actual discharge where the elements of the cause of action become

complete. Graham Cnty., 545 U.S. at 418.

Here, Mr. Green’s time of discharge is analogous to the applicable accrual in Graham

County. Accordingly, February 9, 2010, the time in which Mr. Green selected the retirement

option in lieu of the demotion as coerced by the settlement terms is the accrual date. At no time

prior to this selection were all the elements of a constructive discharge cause of action all

present. To be consistent with the Supreme Court’s prescribed approach in finding the accrual

date for a constructive discharge cause of action in the face of ambiguity, no earlier date than that

of February 9, 2016, may be held to be the accrual date. Any such date, occurring prior to the

actual selection of retirement effectuating a discharge, would be a time bar prior to the date that

the cause of action become effective. Thus, the date of Mr. Green’s constructive discharge

accrual may not be any earlier than February 9, 2010.

In Mac’s Shell Service v. Shell Oil Products, the branch sued the franchise for

constructive termination prior to any actual termination of contract or service. 559 U.S. 175, 180

(2010). The Court was confronted with the question of whether an accrual date for constructive

termination may be held to be “the date the franchisor fails to comply with the requirements” in

lieu of “the date of termination of franchise.” Id. The Court reasoned that “[b]ecause none of

the dealers in the litigation abandoned any element of their franchise operations in response to

[franchisee]’s elimination of the rent subsidy, they cannot maintain a constructive termination

claim on the basis of that conduct.” Id. at 190. The Court held that “franchisee cannot sue until

the franchisee relationship has been abandoned.” Id. at 184.

8

Here, similar to Mac’s Shell Service, “the last discriminatory act” may not be considered

an accrual date for a constructive discharge cause of action because no termination of

employment relationship occurred prior to that date. Mr. Green’s settlement created options

which could at a later time be exercised. Thus, the date of the December 2009 settlement may

not be identified as an accrual date because it effectuated no termination date. February 9, 2010,

the date of resignation is the date when Mr. Green served notice of retirement which effectuated

a termination of employment.

Exceptions exist where Congress has explicitly defined and legislated an alternative

accrual date, but in the absence of such legislative exercise, the general rule is operative. See

Heimeshoff v. Harford Life & Acc. Inc. Co, 134 S. Ct. 604, 610 (2013) (providing an earlier

accrual date, 29 U.S.C.A. §§ 1132(a)(1)(B) (2014), and 29 C.F.R. § 2560.503–1 (2012); See

also Dodd v. United States, 545 U.S. 353, 358 (2005) (providing an earlier accrual date, 28

U.S.C.A. § 2255(3)). Thus, the silence of the statute on the topic of explicitly differing accrual

date is to be interpreted as legislative intent to apply the general rule on the causes of action in

which claimant action triggers the presence of the elements.

B. The Date of Resignation Rule is Consistent with Title VII and the Regulation at Issue.

1. 29 C.F.R. § 1614 is consistent with Title VII.

Once the EEOC has investigated the complaint, the EEOC pursues judicial review or opts

out of further administrative proceedings and files directly in court. 42 U.S.C. §2000e-16(b)

(2012). This process is consistent with 29 C.F.R. § 1614.105(a)(1) requiring a consultation with

the commission within forty-five days of the constructive discharge. Several courts agree with

this interpretation. See Draper v. Coer Rochester, Inc., 147 F.3d 1004, 1110-11 (9th Cir. 1998);

Young v. Nat’l Center for Health Service Research, 828 F.2d 235, 238 (4th Cir. 1989).

9

2. EEOC Regulation.

The Title VII process requires a claimant to initiate process in form of a prejudicial

administrative remedial measure by consulting an EEO Counselor. Section 29 C.F.R. §

1614.105(a)(1) states:

Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. An 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.

29 C.F.R. § 1614.105(a)(1) (2014).

Thus, the regulation is consistent with the resignation rule noting that the accrual date

occurs when all elements of the cause of action are present.

Title VII, 42 U.S.C. §2000e-16(b), does nothing to override the general rule, but merely

authorizes the EEOC to issue regulation to implement Title VII’s protection for federal

employees. Far from establishing an intent to upend settlement practice, the relevant EEOC

regulation is consistent with the general rule. The regulation, 29 C.F.R. § 1614.105(a)(1),

provided that an “aggravated person” has forty-five days to initiate contact with an EEO

Counselor from the date of a “matter alleged to be discriminatory.” The Tenth Circuit, however,

ignored the words “matter alleged” and instead held that the limitation period runs from the

defendant’s last allegedly discriminatory “act.” Green, 760 F.3d at 1135.

The Tenth Circuit strays from the clear text of statute and invents a word that appears

nowhere in the regulation. Section 1614.105(a)(1) says “matter alleged to be discriminatory.”

The Tenth Circuit says “last discriminatory act.” “Act” is no where here. A “matter” refers to

more than just a particular “act”; rather, it broadly describes the “subject under construction.”

Black’s Law Dictionary 1126 (10th ed. 2014). Where a claimant seeks to prove constructive

10

discharge, the subject under consideration necessarily compromises resignation, not just an

employee’s earlier act. See Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 978 (7th Cir.

2009).

Similarly, by using the phrase “matter alleged,” the regulation focuses on the employee’s

grievance and ensures that the complainant is “the master of the claim” with the right to define

the legal matter to be adjusted. Caterpillar Incorporated v. Williams, 482 U.S. 386, 392 (1987).

Because a claimant cannot properly “allege” constructive discharge before they resign, a rule that

could time-bar constructive discharge claims prior to resignation would prevent some claimants

from alleging the legal matter they adjudicated.

In Young, the plaintiff, a federal employee, contacted an EEO counselor twenty-nine

days after her resignation. Young, 828 F.2d at 238. The court held that her claim was compliant

with § 1614.105(a) because the claim becomes actionable on the resignation date, and as such

starts to accrue time. Id. at 237-38. The Court reasoned that constructive discharge is a distinct

cause of action with its own elements. Id. at 238. In the current case, the date of resignation is

analogous to the day Mr. Green selected retirement over the demotion effectively ending his

employment. Therefore, because the effective termination of employment occurred on February

9, 2010, Title VII allows for no earlier accrual date.

Constructive discharge is a recognized category of wrongful termination. Draper, 147

F.3d at 1110. Resignation date is not “an inevitable consequence of unlawful employment

action,” but it completes the elements of cause of action. Id. A constructive discharge is not

possible prior to the date of resignation. Ekstrand, 583 F.3d at 978. The language of the

regulation refers to the date from which “the aggravated person” has forty-five days to initiate

contact with an EEO Counselor as the date of “matter alleged to be discriminatory,” emphasizing

11

a cumulative definition of conduct in contrast to the Tenth Circuits notion of “discriminatory

act.” 29 C.F.R. § 1614.105(a)(1).

Further, the Fourth Circuit has held that a resignation is not itself a “discriminatory act” if

it is merely the consequence of past discrimination, but if the employer discriminates against an

employee and purposely makes the employee's job conditions so intolerable that a reasonable

person would feel forced to resign, then the resignation is a constructive discharge—a distinct

discriminatory “act” for which there is a distinct cause of action on that date. Young, 828 F. 2d

at 238.

C. In Other Situations Where a Claimant’s Conduct Completes the Cause of Action, Courts

Hold that the Limitations Period Does Not Begin to Run Until the Cause of Action Exists. In constructive discharge cases, the claimant’s conduct completes the cause of action. Pa.

State Police v. Suders, 542 U.S. 129, 141 (2004). In other areas where this occurs, courts

routinely find that the limitation period does not begin before a claimant seeks relief.

Termination by claimant has been a recognized element of cause of action for

constructive termination claims. Mac’s Shell Services, Inc., 559 U.S. at 175. For example in

constructive termination cases, an owners of a franchise cannot file a claim against a franchisor’s

wrongful conduct until the franchisee abandons the franchise. Id.

A review of other situations demonstrates a consistent application of this rule. Another

example is the landlord-tenant relationship in which a constructive eviction does not accrue until

the tenant actually moves out. Mac’s Shell, 599 U.S. at 184. In Mac’s Shell, the defendant had

argued that the accrual date for constructive termination action had run, but the Court held that

“constructive termination cannot be filed as an action, until the franchisee actually abandons the

franchise as the result of the defendant’s wrong doing.” Id. at 186.

12

Here, the coerced selection of retirement over demotion effectuating a termination of

employment is analogous to termination of franchise and the termination of landlord tenant

relationship by constructive eviction. It would be inconsistent with the statute, the language of

regulation, and judicial stare decisis on the notion of constructive termination to hold that an

accrual date prior to a discharge date may bar a constructive discharge claim.

Another example is seen in state common law and state wrongful employment

termination claims. Several (seven out of eight states) to address the issue follow the general

rule by holding that the limitation period begins at the same time an employee’s cause of action

accrues – whether that happens at or after resignation. The only state that holds to the contrary is

West Virginia. Harmon v. Higgins, 426 S.E. 2d 344, 347 (W. Va. 1992).

In Suders, the plaintiff sued for a sexual harassment constructive discharge. Suders, 542

U.S. at 129. The defendant argued that the plaintiff had not exhausted employer-provided

remedial measures. Id. at 129-130. The Supreme Court noted that in a constructive discharge

claim that “an employee’s reasonable decision to resign because of unendurable working

conditions is assimilated to a formal discharge for remedial purposes.” Id. at 141. In its

justification for the extension of employer affirmative defenses, the Supreme Court likened a

constructive discharge cause of action to other causes of action where the claimant action gives

rise to the cause of action. Id. at 148-49. Thus, constructive discharge is a similar cause of

action in terms of its completion of elements and accrual date to any other claim in which the

claimant’s conduct and not defendant’s official action controls.

Consistent with Supreme Court decisions regarding causes of action in which the

claimant action gives rise to the claim, the Second Circuit has adopted the Ninth Circuit’s

“distinct action” rational, leaving no doubt that the date of accrual is the date at which the

13

employee serves notice of discharge from employment. Flaherty v. Metromail Corp., 235 F.3d

133, 138-139 (2nd Cir. 2000). In Flaherty, the plaintiff alleged unlawful discrimination on the

basis of sex and age. Id. at 134. The Second Circuit adopted a hostile work environment theory

to hold that the accrual date is on the date employee gave finite notice of resignation selection of

option to retire. Id. at 135. The court noted that it is the plaintiff action in notice of resignation

that gives rise to the cause of action. Id. at 138.

A third example of where a claimant’s conduct completes a cause of action is wrongful

termination of employment, where all states but one have applied the accrual date to be the time

of definite and apparent notice of termination of employment. See Delaware State College v.

Ricks, 449 U.S. 250, 253 (1980). Thus, a hostile work environment with a resignation date

accrual is consistent with the statute and the regulation.

Here, Mr. Green noted his decision to retire in lieu of continuing in the hostile working

condition on February 9, 2010. Mr. Green’s work environment was made hostile by a criminal

accusation that he had intentionally delayed mail, and the coerced selection between retirement

and a significant demotion. This hostility finally resulted in his constructive resignation in the

form of choosing retirement over demotion. Prior to this date, there was no indication to the

employer on whether there would be a termination of employment or placement in a demotion.

Thus, a wrongful termination cause of action would not have risen without Mr. Green’s distinct

action to serve notice of his decision to retire. If constructive discharge is to be classified as a

wrongful termination cause of action consistent with the rationale of the Ninth and Second

Circuits, the date of accrual would be on February 9, 2010 when Mr. Green notified his employer

of his retirement selection. Thus, the date to calculate the limitation of 29 C.F.R. §

14

1640.105(a)(1) is the resignation date, or better defined in the current case as the date of notice

of unwilling selection of retirement.

The Respondent may counterargue that the Tenth Circuit operates under a different

theory of “continuing violation,” in which the last discriminatory act of the employer and not

date of resignation of employee controls a constructive discharge cause of action. Green, 760

F.3d at 1145. This approach requires a “discriminatory act” within the limitation period, holding

that the accrual date starts to run upon the “last discriminatory act” that the employer has done to

give rise to the claim. Id. This would be inconsistent with the Supreme Court’s holding on the

notion of constructive termination, eviction, and discharge. See Mac’s Shell Service, 559 U.S. at

191; See also Suders, 542 U.S. at 141. Therefore, this approach should be abandoned in favor

of the consistent application of law in areas where the claimant’s action triggers the cause of

action. But it is noteworthy that even if such an inconsistent approach, namely the continuing

violations theory, is employed, the Supreme Court has directed the effectuation of the accrual

date under this theory to assure that the result would be consistent. See Ricks, 449 U.S. at 253.

Thus, this argument would fail to support the Tenth Circuit’s inconsistent holding that an accrual

date may take place prior to the effectuation of the cause of action.

Constructive discharge involves not one discrete act, but rather a series of separate acts

that collectively constitute one “unlawful employment practice.” Nat’l Railroad Passenger Corp.

v. Morgan, 122 U.S. 2061, 2067 (2002). The “discriminatory act” of terminating an employment

(whether by employer or constructively though the employee) occurs on the date in which its

notice and terms are apparent. Id. at 2062.

In Delaware State College v. Ricks, the Supreme Court confronted the issue of whether

an accrual date after the date of notice of a discriminatory act may be justified under the

15

continuing violation theory. Ricks, 449 U.S. at 253. In Ricks, the plaintiff alleged that he was

discriminatorily barred from receiving tenure. Id. at 252. The employer offered Ricks a

termination agreement in which within a year of employment the termination would take effect.

Id. Ricks argued that the actual termination date and not the date of notice of the termination

agreement should be considered the accrual date. Id. at 253. The Court rejected this reasoning

noting that it is the date of notification and not the date of effect that triggers the accrual date. Id.

at 261. The Court reasoned that no additional discriminatory violation had taken place after the

employer “had established position apparent,” emphasizing the definiteness of notice as the

quality that distinguishes the time of act under a continuing violation theory. Id. at 262.

Where the alleged last discriminatory act in Ricks was in the form of notification of

termination of employment in definite terms, no such notification was ever delivered by the

employer in the current case. The settlement offer of December 2009 does not specifically

define the terms of a future termination. It is not until Mr. Green’s selection of retirement over

demotion that the employer’s position becomes “apparent.” Thus, Mr. Green was not notified of

his employer’s position in December 2009 where the terms were indefinite and subject to

determination and selection. In this sense, the employer did not act to serve notice of his “last

discriminatory act” because the terms were indefinite and subject to determination. The notice

of employer’s position becomes definite and apparent only on or after the day Mr. Green was

forced to select between retirement and demotion which serves apparent and definite notice of

termination of employment. So, in applying the Supreme Court’s established standard for

identifying the “last discriminatory act” under the continuing violation theory, the February 9,

2010 date when the positions and act become definite and apparent, and no earlier date, is the

recognizable accrual date.

16

Thus, because the December 2009 settlement agreement is indefinite and unapparent in

its terms, and because affirmative acts after this settlement were both required and executed, and

made actionable after this date, December 2009 may not be an accrual date. Instead, February

9, 2010 is the date in which terms of notice of termination of employment and constructive

discharge became definite and apparent, and no earlier date may be the accrual date.

II. PUBLIC POLICY JUSTIFIES A STRONG PREFERENCE FOR FEBRAURY 9, 2010 AS THE DATE OF ACCURAL.

A. Date-of-Resignation Rule is Easy to Administer. The legislative purpose to create an effective remedy is frustrated by “uncertainty in the

applicable statute of limitations, for scarce resources must be dissipated by useless litigation on

collateral matter.” Wilson v. Garcia, 471 U.S. 261, 275 (1985). In Wilson, the plaintiff brought

action for violation of his civil rights in police arrest. The defendant countered action as

untimely and the Court held that ambiguity on statute of limitation must be interpreted with a

policy for “simple, and broad characterization.” Id. at 272. The date of resignation or date of

definite notice of termination of employment are certain accrual dates consistent with the

application of law in the area, intuitive to the lay person, and supported by the decisions of the

Supreme Court. Id. The “last discriminatory act” approach where a date prior to any notice of

termination of employment serves as the accrual date is uncertain. This uncertainty and

inconsistency causes unavoidable litigation in determination of whether the act is part of series of

acts giving rise to the cause of action or whether it is on itself sufficient, and in determination of

whether the act was the last act. Therefore the administration of the accrual date on the date of

definite notice of termination of employment or date of resignation is preferable.

Mr. Green’s date of selection of retirement over demotion effectuating a resignation date

is easily identified as the date in which the cause of action presents all its elements. But the date

17

of the settlement served no definite notice of termination. After the date of settlement, Mr.

Green continued employment under compulsory “sick leave.” It is linguistically absurd to hold

it to be a “last discriminatory act” because it required future acts of the same nature. Thus, Mr.

Green’s date of effectuation of discharge and not a date of an arbitrary adhesion agreement

requiring future conduct of discriminatory nature should be legally recognized as the accrual

date.

B. Date-of-Resignation Rule Promotes Fairness for Lay Claimants. The Tenth Circuit correctly identifies the legislative intent behind the constructive

discharge cause of action as follows: “[E]mployers should not be able to escape such remedies

(remedies for wrongful termination) simply by making the job so intolerable that the employee

resigns, making it unnecessary to fire [the employee.]” Green, 760 F.3d at 1142 (citing 1

Barbara T. Lindermann et al., Employment Discrimination Law.) The court clarifies: “An

employer . . . should not be able to accomplish indirectly what the law prohibits done directly.”

Green, 760 F.3d at 1143. Unfortunately, identifying the employer’s December 2009

announcement of all future discriminatory adverse acts in the form of an adhesion contract to be

the accrual date does just that.

As a matter of application, it is not practical that an employee be required to file a

constructive discharge claim before it has become certain that employment has been or will

terminate at a certain date. An offer to terminate employment or select another employment

option becomes active on the date of acceptance. Mr. Green’s employment notice of termination

was produced on February 9, 2010 when he resigned. At no prior time did definite terms of

termination exist. The simple principle of law, holding the “date of resignation” under a hostile

work environment theory or the equivalent date or notice of termination of employment under a

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continuing violation theory is the intuitive process of events to follow for the lay claimant who is

subject to the time limitation. Maggie Strauss, Too Early or Too Late: U.S. Supreme Court

Should rule Constructive Discharge Claims Accrue Upon Resignation, 56 B.C.L. Rev. 1613,

1642-43 (2015).

As a matter of public policy, there cannot be drastic differences in the applicability of

constructive discharge requirement between the hostile work environment and continuing

violation theories. The latter may not be used as an instrument for an employer to procedurally

block a substantively meritorious claim. This negation of legislative intent in creating the cause

of action would take effect if the law under a continuing violations theory recognizes an accrual

date of a “last discriminatory act” which precedes any definite notice of termination of

employment.

Thus, while a hostile work environment theory is a more consistent application of law,

and offers less risk of employer engineered procedural blockage of meritorious claims; it is

essential that a court operating under the continuing violations approach adopt an accrual date no

earlier than the date in which notice of definite terms of termination is apparent as the Supreme

Court has directed in Ricks. An employer may not engineer itself out of legislative intent by

proclaiming its last discriminatory act to be a constructive coercion in form of coerced selection

between a demotion and retirement at a future date more than forty-five days away. Any

standard of law that would allow for this, as does the Tenth Circuit’s application would

undermine the legislative intent for the cause of action by allowing employers to procedurally

block meritorious claims. Therefore, any holding in which a constructive discharge may accrue

on a date earlier from the date in which the notice of a discharge or termination becomes definite

and apparent is inconsistent with the Supreme Court, legislative intent, and public policy.

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CONCLUSION

Mr. Green’s accrual date on his constructive cause of action may not be on any date

earlier than the date in which there is either a resignation or a definite and apparent notice of

termination of employment. At no time prior to the February 9, 2010 selection of the retirement

option was there a constructive discharge cause of action by either a resignation or a definite and

apparent termination of employment. Thus, Mr. Green’s cause of action started to accrue time

no earlier than February 9, 2010, the date in which he effectuated a the discharge from his

employment by selecting a retirement over a demotion. It would violate the legislative intent

inherent in Title VII, language of the EEOC’s regulation, and public policy to hold that an earlier

date to this first presence of all the elements of cause of action may time bar the claim as a

judicially held accrual date.

Dated: March 1, 2016 Respectfully submitted, ___________________ Arash B. Razavi Counsel for Petitioner

No.14-613

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________

OCTOBER TERM 2015 __________________________________

MARVIN GREEN, Petitioner,

v.

MEGAN J. BRENNAN, POSTMASTER GENERAL, Respondent.

__________________________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

__________________________________

CERTIFICATE OF SERVICE

I, Arash B. Razavi, attorney for Petitioner, do swear and declare that on the 1st day of

March, 2016, as required by Supreme Court Rule 29, I have served the enclosed BRIEF FOR

PETITIONER on each party to the above proceeding or that party’s counsel, and on every other

person required to be served, by personally serving a copy to each of them.

The names and addresses of the served are as follows:

Michelangeo Macchiarella 100 McAllister Street – Apt. 706 San Francisco, CA 94102 Antoinette Young UC Hastings College of the Law – Moot Court 200 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury that the foregoing is true and correct. Dated: March 1, 2016 _______________________________