Green v. Brennan

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GREEN v. BRENNAN, POSTMASTER GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 14–613. Argued November 30, 2015—Decided May 23, 2016

After petitioner Marvin Green complained to his employer, the United

States Postal Service, that he was denied a promotion because he was

black, his supervisors accused him of the crime of intentionally delay-

ing the mail. In an agreement signed December 16, 2009, the Postal

Service agreed not to pursue criminal charges, and Green agreed ei-

ther to retire or to accept another position in a remote location for

much less money. Green chose to retire and submitted his resigna-

tion paperwork on February 9, 2010, effective March 31.

On March 22—41 days after resigning and 96 days after signing

the agreement—Green reported an unlawful constructive discharge

to an Equal Employment Opportunity counselor, an administrative

prerequisite to filing a complaint alleging discrimination or retalia-

tion in violation of Title VII of the Civil Rights Act of 1964. See 29

CFR §1614.105(a)(1). Green eventually filed suit in Federal District

Court, which dismissed his complaint as untimely because he had not

contacted the counselor within 45 days of the “matter alleged to be

discriminatory,” ibid. The Tenth Circuit affirmed, holding that the

45-day limitations period began to run on December 16, the date

Green signed the agreement.

Held:

1. Because part of the “matter alleged to be discriminatory” in a

constructive-discharge claim is an employee’s resignation, the 45-day

limitations period for such action begins running only after an em-

ployee resigns. Pp. 4–15.

(a) Where, as here, the regulatory text itself is not unambiguous-

ly clear, the Court relies on the standard rule for limitations periods,

which provides that a limitations period ordinarily begins to run

“ ‘when the plaintiff has a complete and present cause of action,’ ”

2 GREEN v. BRENNAN

Syllabus

Graham County Soil & Water Conservation Dist. v. United States ex

rel. Wilson, 545 U. S. 409, 418. Applied here, that rule offers three

persuasive reasons to include the employee’s resignation in the limi-

tations period. Pp. 4–10.

(i) First, resignation is part of the “complete and present cause

of action” in a constructive-discharge claim, which comprises two

basic elements: discriminatory conduct such that a reasonable em-

ployee would have felt compelled to resign and actual resignation,

Pennsylvania State Police v. Suders, 542 U. S. 129, 148. Until he re-

signs, an employee does not have a “complete and present cause of

action” for constructive discharge. Under the standard rule, only af-

ter the employee has a complete and present cause of action does that

trigger the limitations period. In this respect, a constructive-

discharge claim is no different from an ordinary wrongful-discharge

claim, which accrues only after the employee is fired. Pp. 6–8.

(ii) Second, although the standard rule may be subject to ex-

ception where clearly indicated by the text creating the limitations

period, nothing in Title VII or the regulation suggests such displace-

ment. To the contrary, it is natural to read “matter alleged to be dis-

criminatory” as including the allegation forming the basis of the

claim, which confirms the standard rule’s applicability. Pp. 8–9.

(iii) Third, practical considerations also confirm the merit of

applying the standard rule. Starting the clock ticking before a plain-

tiff can actually file suit does little to further the limitations period’s

goals and actively negates Title VII’s remedial structure. A “limita-

tions perio[d] should not commence to run so soon that it becomes dif-

ficult for a layman to invoke the protection of the civil rights stat-

utes.” Delaware State College v. Ricks, 449 U. S. 250, 262, n. 16.

Nothing in the regulation suggests a two-step process in which an

employee would have to file a complaint after an employer’s discrimi-

natory conduct, only to be forced to amend that complaint to allege

constructive discharge after resigning. Requiring that a complaint be

filed before resignation occurs would also, e.g., ignore that an em-

ployee may not be in a position to leave his job immediately. Pp. 9–

10.

(b) Arguments against applying the standard rule here are re-

jected. Suders stands not for the proposition that a constructive dis-

charge is tantamount to a formal discharge for remedial purposes on-

ly, but for the rule that constructive discharge is a claim distinct from

the underlying discriminatory act, 542 U. S., at 149. Nor was Green’s

resignation the mere inevitable consequence of the Postal Service’s

discriminatory conduct. Ricks, 449 U. S. 250, distinguished. Finally,

the important goal of promoting conciliation through early, informal

contact with a counselor does not warrant treating a constructive dis-

Cite as: 578 U. S. ____ (2016) 3

Syllabus

charge different from an actual discharge for purposes of the limita-

tions period. Pp. 10–15.

2. A constructive-discharge claim accrues—and the limitations pe-

riod begins to run—when the employee gives notice of his resigna-

tion, not on the effective date thereof. The Tenth Circuit is left to de-

termine, in the first instance, the date that Green in fact gave notice.

P. 16.

760 F. 3d 1135, vacated and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. ALITO,

J., filed an opinion concurring in the judgment. THOMAS, J., filed a dis-

senting opinion.

Cite as: 578 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–613

_________________

MARVIN GREEN, PETITIONER v. MEGAN J.

BRENNAN, POSTMASTER GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[May 23, 2016]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as

amended, 42 U. S. C. §2000e et seq., prohibits employers

from discriminating on the basis of race, color, religion,

sex, or national origin, or retaliating against their employ-

ees for opposing or seeking relief from such discrimination.

Before a federal civil servant can sue his employer for

violating Title VII, he must, among other things, “initiate

contact” with an Equal Employment Opportunity counse-

lor at his agency “within 45 days of the date of the matter

alleged to be discriminatory.” 29 CFR §1614.105(a)(1)

(2015).

If an employee claims he has been fired for discrimina-

tory reasons, the “matter alleged to be discriminatory”

includes the discharge itself and the 45-day limitations

period begins running only after the employee is fired.

We address here when the limitations period begins to

run for an employee who was not fired, but resigns in the

face of intolerable discrimination—a “constructive” dis-

charge. We hold that, in such circumstances, the “matter

alleged to be discriminatory” includes the employee’s

2 GREEN v. BRENNAN

Opinion of the Court

resignation, and that the 45-day clock for a constructive

discharge begins running only after the employee resigns.

I

We recite the following facts in the light most favorable

to petitioner Marvin Green, against whom the District

Court entered summary judgment. Green is a black man

who worked for the Postal Service for 35 years. In 2008,

he was serving as the postmaster for Englewood, Colorado

when he applied for a promotion to the vacant postmaster

position in nearby Boulder. He was passed over. Shortly

thereafter, Green complained he was denied the promotion

because of his race.

Green’s relations with his supervisors crumbled follow-

ing his complaint. Tensions peaked on December 11,

2009, when two of Green’s supervisors accused him of

intentionally delaying the mail—a criminal offense. See

18 U. S. C. §1703. They informed Green that the Postal

Service’s Office of the Inspector General (OIG) was inves-

tigating the charge and that OIG agents had arrived to

interview him as part of their investigation. After Green

met with the OIG agents, his supervisors gave him a letter

reassigning him to off-duty status until the matter was

resolved. Even though the OIG agents reported to Green’s

supervisors that no further investigation was warranted,

the supervisors continued to represent to Green that “the

OIG is all over this” and that the “criminal” charge “could

be a life changer.” App. 53.

On December 16, 2009, Green and the Postal Service

signed an agreement whose meaning remains disputed.

Relevant here, the Postal Service promised not to pursue

criminal charges in exchange for Green’s promise to leave

his post in Englewood. The agreement also apparently

gave Green a choice: effective March 31, 2010, he could

either retire or report for duty in Wamsutter, Wyoming—

population 451—at a salary considerably lower than what

Cite as: 578 U. S. ____ (2016) 3

Opinion of the Court

he earned in his Denver suburb. Green chose to retire and

submitted his resignation to the Postal Service on Febru-

ary 9, 2010, effective March 31.

On March 22—41 days after submitting his resignation

paperwork to the Postal Service on February 9, but 96

days after signing the settlement agreement on December

16—Green contacted an Equal Employment Opportunity

(EEO) counselor to report an unlawful constructive dis-

charge. He contended that his supervisors had threatened

criminal charges and negotiated the resulting agreement

in retaliation for his original complaint.1 He alleged that

the choice he had been given effectively forced his resigna-

tion in violation of Title VII.

Green eventually filed suit in the Federal District Court

for the District of Colorado, alleging, inter alia, that the

Postal Service constructively discharged him. The Postal

Service moved for summary judgment, arguing that Green

had failed to make timely contact with an EEO counselor

within 45 days of the “matter alleged to be discrimina-

tory,” as required by 29 CFR §1614.105(a)(1). The District

Court granted the Postal Service’s motion for summary

judgment.

The Tenth Circuit affirmed, holding that the “matter

alleged to be discriminatory” encompassed only the Postal

Service’s discriminatory actions and not Green’s inde-

pendent decision to resign on February 9. Green v. Do­

nahue, 760 F. 3d 1135 (2014). Therefore, the 45-day limi-

tations period started running when both parties signed

the settlement agreement on December 16, 2009. Accord-

ingly, because 96 days passed between the agreement and

when Green contacted an EEO counselor on March 22,

——————

1 We assume without deciding that it is unlawful for a federal agency

to retaliate against a civil servant for complaining of discrimination.

See Gómez-Pérez v. Potter, 553 U. S. 474, 488, n. 4 (2008); Brief for

Respondent 2.

4 GREEN v. BRENNAN

Opinion of the Court

2010, his constructive-discharge claim was time barred.

Two other Courts of Appeals agree with the Tenth Cir-

cuit’s view that the limitations period begins to run for a

constructive-discharge claim after the employer’s last

discriminatory act.2 As the Tenth Circuit recognized,

however, other Courts of Appeals have held that the limi-

tations period for a constructive-discharge claim does not

begin to run until the employee resigns.3

We granted certiorari to resolve this split. 575 U. S. ___

(2015). Because no party here supports the Tenth Cir-

cuit’s holding that an employee’s resignation is not part of

the “matter alleged to be discriminatory,” we appointed

Catherine M. A. Carroll to defend that aspect of the

judgment below. 576 U. S. ___ (2015). She has ably

discharged her duties and the Court thanks her for her

service.

II

Before a federal civil servant can sue his employer in

court for discriminating against him in violation of Title

VII, he must first exhaust his administrative remedies. 42

U. S. C. §2000e–16(c). To exhaust those remedies, the

Equal Employment Opportunity Commission (EEOC) has

promulgated regulations that require, among other things,

that a federal employee consult with an EEO counselor

prior to filing a discrimination lawsuit. Specifically, he

“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

——————

2 Mayers v. Laborers’ Health and Safety Fund of North America, 478

F. 3d 364, 370 (CADC 2007) (per curiam); Davidson v. Indiana-

American Water Works, 953 F. 2d 1058, 1059 (CA7 1992).

3 Flaherty v. Metromail Corp., 235 F. 3d 133, 138 (CA2 2000); Draper

v. Coeur Rochester, Inc., 147 F. 3d 1104, 1111 (CA9 1998); Hukkanen v.

Operating Engineers, 3 F. 3d 281, 285 (CA8 1993); Young v. National

Center for Health Servs. Research, 828 F. 2d 235, 238 (CA4 1987).

Cite as: 578 U. S. ____ (2016) 5

Opinion of the Court

date of the action.” 29 CFR §1614.105(a)(1).4 The timeli-

ness of Green’s claim therefore turns on our interpretation

of this EEOC regulation implementing Title VII.5

Although we begin our interpretation of the regulation

with its text, the text in this case is not particularly help-

ful. Nowhere does §1614.105 indicate whether a “matter

alleged to be discriminatory” in a constructive-discharge

claim includes the employee’s resignation, as Green con-

tends, or only the employer’s discriminatory conduct, as

amica contends. The word “matter” simply means “an

allegation forming the basis of a claim or defense,” Black’s

Law Dictionary 1126 (10th ed. 2014)—a term that could

readily apply to a discrimination-precipitated resignation.

So the “matter alleged to be discriminatory” could refer

to all of the allegations underlying a claim of discrimina-

tion, including the employee’s resignation, or only to

those allegations concerning the employer’s discrimina-

tory conduct. We therefore must turn to other canons of

interpretation.

The most helpful canon in this context is “the ‘standard

rule’ ” for limitations periods. Graham County Soil &

Water Conservation Dist. v. United States ex rel. Wilson,

545 U. S. 409, 418 (2005). Ordinarily, a “ ‘limitations

period commences when the plaintiff has a complete and

present cause of action.’ ” Ibid. “[A] cause of action does

not become ‘complete and present’ for limitations purposes

——————

4 Thisregulation, applicable to federal employees only, has a statutory

analog for private-sector Title VII plaintiffs, who are required to file a

charge with the EEOC within 180 or 300 days “after the alleged unlaw-

ful employment practice occurred.” 42 U. S. C. §2000e–5(e)(1). Al-

though the language is different, the EEOC treats the federal and

private-sector employee limitations periods as identical in operation.

See EEOC Compliance Manual: Threshold Issues §2–IV(C)(1), n. 179.

5 Green does not contend that his alleged constructive discharge is a

“personnel action.” See Brief for Petitioner 17–18; Green v. Donahoe,

760 F. 3d 1135, 1144, n. 3 (CA10 2014). We therefore address the

“matter alleged to be discriminatory” clause only.

6 GREEN v. BRENNAN

Opinion of the Court

until the plaintiff can file suit and obtain relief.” Bay Area

Laundry and Dry Cleaning Pension Trust Fund v. Ferbar

Corp. of Cal., 522 U. S. 192, 201 (1997). Although the

standard rule can be displaced such that the limitations

period begins to run before a plaintiff can file a suit, we

“will not infer such an odd result in the absence of any

such indication” in the text of the limitations period.

Reiter v. Cooper, 507 U. S. 258, 267 (1993).

Applying this default rule, we are persuaded that the

“matter alleged to be discriminatory” in a constructive-

discharge claim necessarily includes the employee’s resig-

nation for three reasons. First, in the context of a

constructive-discharge claim, a resignation is part of the

“complete and present cause of action” necessary before a

limitations period ordinarily begins to run. Second, noth-

ing in the regulation creating the limitations period here,

§1614.105, clearly indicates an intent to displace this

standard rule. Third, practical considerations confirm the

merit of applying the standard rule here. We therefore

interpret the term “matter alleged to be discriminatory” for

a constructive-discharge claim to include the date Green

resigned.

A

The standard rule for limitations periods requires us

first to determine what is a “complete and present cause of

action” for a constructive-discharge claim. We hold that

such a claim accrues only after an employee resigns.

The constructive-discharge doctrine contemplates a

situation in which an employer discriminates against an

employee to the point such that his “working conditions

become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.”

Pennsylvania State Police v. Suders, 542 U. S. 129, 141

(2004). When the employee resigns in the face of such

circumstances, Title VII treats that resignation as tanta-

Cite as: 578 U. S. ____ (2016) 7

Opinion of the Court

mount to an actual discharge. Id., at 142–143.

A claim of constructive discharge therefore has two

basic elements. A plaintiff must prove first that he was

discriminated against by his employer to the point where a

reasonable person in his position would have felt com-

pelled to resign. Id., at 148. But he must also show that

he actually resigned. Ibid. (“A constructive discharge

involves both an employee’s decision to leave and precipi-

tating conduct . . .” (emphasis added)). In other words, an

employee cannot bring a constructive-discharge claim

until he is constructively discharged. Only after both

elements are satisfied can he file suit to obtain relief.

Under the standard rule for limitations periods, the

limitations period should begin to run for a constructive-

discharge claim only after a plaintiff resigns. At that

point—and not before—he can file a suit for constructive

discharge. So only at that point—and not before—does he

have a “complete and present” cause of action. And only

after he has a complete and present cause of action does a

limitations period ordinarily begin to run. Cf. Mac’s Shell

Service, Inc. v. Shell Oil Products Co., 559 U. S. 175, 189–

190 (2010) (the limitations period for a constructive termi-

nation of a franchise agreement starts running when the

agreement is constructively terminated).

In this respect, a claim that an employer constructively

discharged an employee is no different from a claim that

an employer actually discharged an employee. An ordi-

nary wrongful discharge claim also has two basic ele-

ments: discrimination and discharge. See St. Mary’s

Honor Center v. Hicks, 509 U. S. 502, 506 (1993); 1 B.

Lindemann, P. Grossman, & C. Weirich, Employment

Discrimination Law 21–33 (5th ed. 2012) (Lindemann)

(“The sine qua non of a discharge case is, of course, a

discharge”). The claim accrues when the employee is

fired. At that point—and not before—he has a “complete

and present cause of action.” So at that point—and not

8 GREEN v. BRENNAN

Opinion of the Court

before—the limitations period begins to run.

With claims of either constructive discharge or actual

discharge, the standard rule thus yields the same result: a

limitations period should not begin to run until after the

discharge itself. In light of this rule, we interpret the term

“matter alleged to be discriminatory” in §1614.105 to refer

to all of the elements that make up a constructive-

discharge claim—including an employee’s resignation.

B

Although the standard rule dictates that a limitations

period should commence only after a claim accrues, there

is an exception to that rule when the text creating the

limitations period clearly indicates otherwise. See, e.g.,

Dodd v. United States, 545 U. S. 353, 360 (2005). Nothing

in the text of Title VII or the regulation, however, suggests

that the standard rule should be displaced here. To the

contrary, the language of the regulation confirms our

application of the default rule.

As noted previously, the word “matter” generally refers

to “an allegation forming the basis of a claim or defense.”

Black’s Law Dictionary 1126. The natural reading of

“matter alleged to be discriminatory” thus refers to the

allegation forming the basis of the discrimination claim—

here, a claim of constructive discharge. And as discussed

above, a constructive discharge claim requires two basic

allegations: discriminatory conduct by the employer that

leads to resignation of the employee. So long as those acts

are part of the same, single claim under consideration,

they are part of the “matter alleged to be discriminatory,”

whatever the role of discrimination in each individual

element of the claim. Cf. National Railroad Passenger

Corporation v. Morgan, 536 U. S. 101, 115–121 (2002)

(holding that a hostile-work-environment claim is a single

“unlawful employment practice” that includes every act

composing that claim, whether those acts are inde-

Cite as: 578 U. S. ____ (2016) 9

Opinion of the Court

pendently actionable or not).

C

Finally, we are also persuaded that applying the stand-

ard rule for limitations periods to constructive discharge

makes a good deal of practical sense. Starting the limita-

tions clock ticking before a plaintiff can actually sue for

constructive discharge serves little purpose in furthering

the goals of a limitations period—and it actively negates

Title VII’s remedial structure. Cf. Zipes v. Trans World

Airlines, Inc., 455 U. S. 385, 398 (1982) (holding that

the Title VII limitations period should be construed to

“honor the remedial purpose of the legislation as a whole

without negating the particular purpose of the filing

requirement”).

This Court has recognized “that the limitations perio[d]

should not commence to run so soon that it becomes diffi-

cult for a layman to invoke the protection of the civil

rights statutes.” Delaware State College v. Ricks, 449

U. S. 250, 262, n. 16 (1980). If the limitations period

begins to run following the employer’s precipitating dis-

criminatory conduct, but before the employee’s resigna-

tion, the employee will be forced to file a discrimination

complaint after the employer’s conduct and later amend

the complaint to allege constructive discharge after he

resigns. Nothing in the regulation suggests it intended to

require a layperson, while making this difficult decision,

to follow such a two-step process in order to preserve any

remedy if he is constructively discharged.

Moreover, forcing an employee to lodge a complaint

before he can bring a claim for constructive discharge

places that employee in a difficult situation. An employee

who suffered discrimination severe enough that a reason-

able person in his shoes would resign might nevertheless

force himself to tolerate that discrimination for a period of

time. He might delay his resignation until he can afford to

10 GREEN v. BRENNAN

Opinion of the Court

leave. Or he might delay in light of other circumstances,

as in the case of a teacher waiting until the end of the

school year to resign. Tr. 17. And, if he feels he must stay

for a period of time, he may be reluctant to complain about

discrimination while still employed. A complaint could

risk termination—an additional adverse consequence that

he may have to disclose in future job applications.

III

Amica and the dissent read “matter alleged to be dis-

criminatory” as having a clear enough meaning to displace

our reliance on the standard rule for limitations periods.

They argue that “matter” is not equivalent to “claim” or

“cause of action,” and that the use of the phrase “matter

alleged to be discriminatory” is a sufficiently clear state-

ment that the standard claim accrual rule should not

apply. According to amica and the dissent, “matter” refers

only to the discriminatory acts of the Postal Service, not

Green’s resignation.

We disagree. There is nothing inherent in the phrase

“matter alleged to be discriminatory” that clearly limits it

to employer conduct. Rather, as discussed above, the term

can reasonably be interpreted to include the factual basis

for a claim. Green is not alleging just that the Postal

Service discriminated against him. He claims that the

discrimination left him no choice but to resign.

Amica and the dissent dispute that a constructive dis-

charge is a separate claim. According to amica and the

dissent, the constructive-discharge doctrine merely allows

a plaintiff to expand any underlying discrimination claim

to include the damages from leaving his job, thereby in-

creasing his available remedies. See 1 Lindemann 21–49

(constructive discharge allows plaintiff to seek backpay,

front pay, or reinstatement). In support of this argument,

amica and the dissent emphasize this Court’s statement in

Suders that “[u]nder the constructive discharge doctrine,

Cite as: 578 U. S. ____ (2016) 11

Opinion of the Court

an employee’s reasonable decision to resign because of

unendurable working conditions is assimilated to a formal

discharge for remedial purposes.” 542 U. S., at 141 (em-

phasis added); see also id., at 148 (“[A] constructive dis-

charge is functionally the same as an actual termination

in damages-enhancing respects”).

But the Court did not hold in Suders that a constructive

discharge is tantamount to a formal discharge for remedial

purposes exclusively. To the contrary, it expressly held

that constructive discharge is a claim distinct from the

underlying discriminatory act. Id., at 149 (holding that a

hostile-work-environment claim is a “lesser included

component” of the “graver claim of hostile-environment

constructive discharge”). This holding was no mere dic-

tum. See id., at 142 (“[A] claim for constructive discharge

lies under Title VII”). We see no reason to excise an em-

ployee’s resignation from his constructive-discharge claim

for purposes of the limitations period.

The concurrence sets out a theory that there are two

kinds of constructive discharge for purposes of the limita-

tions period: constructive discharge “claims” where the

employer “makes conditions intolerable with the specific

discriminatory intent of forcing the employee to resign,”

and constructive discharge “damages” where the employer

does not intend to force the employee to quit, but the

discriminatory conditions of employment are so intolerable

that the employee quits anyway. Post, at 6–11 (ALITO, J.,

concurring in judgment). According to the concurrence,

the limitations period does not begin to run until an em-

ployee resigns under the “claim” theory of constructive

discharge, but begins at the last discriminatory act before

resignation under the “damages” theory.

This sometimes-a-claim-sometimes-not theory of con-

structive discharge is novel and contrary to the construc-

tive discharge doctrine. The whole point of allowing an

employee to claim “constructive” discharge is that in cir-

12 GREEN v. BRENNAN

Opinion of the Court

cumstances of discrimination so intolerable that a reason-

able person would resign, we treat the employee’s resigna-

tion as though the employer actually fired him. Suders,

542 U. S., at 141–143.6 We do not also require an em-

ployee to come forward with proof—proof that would often

be difficult to allege plausibly—that not only was the dis-

crimination so bad that he had to quit, but also that his

quitting was his employer’s plan all along.

Amica and the dissent also argue that their interpreta-

tion is more consistent with this Court’s prior precedent

on when the limitations period begins to run for discrimi-

nation claims. Under their interpretation, Green’s resig-

nation was not part of the discriminatory “matter,” but

was instead the mere inevitable consequence of the Postal

Service’s discriminatory conduct, and therefore cannot be

used to extend the limitations period. See Brief for Court-

Appointed Amica Curiae in Support of Judgment Below

——————

6 The concurrence suggests that its theory is consistent with state-

ments in the Suders opinion that constructive discharge is akin to an

actual discharge “ ‘for remedial purposes’ ” and in “ ‘damages-enhancing

respects.’ ” Post, at 10 (opinion of ALITO, J.) (quoting Suders, 542 U. S.,

at 141, 148). This ignores the more obvious explanation for this qualifi-

cation: The Court was distinguishing between the merits of a claim of

constructive discharge generally, where resignation is imputed as a

discriminatory act of the employer, and the affirmative defense avail-

able to an employer in a hostile work environment claim specifically,

which allows an employer to defend against a hostile work environment

claim in certain circumstances if it took no “ ‘official act’ ” against the

employee. Id., at 143–146. The Court in Suders recognized that it

would be bizarre to always impute resignation as an “official act” of the

employer in a constructive discharge hostile work environment case

and prohibit the employer from relying on the no-“official-act” defense,

because it would make it easier to prove the “graver” claim of a con-

structive discharge hostile work environment than to prove a hostile

work environment claim. Id., at 148–149. Thus, the Court declined to

hold that resignation in a constructive discharge case was categorically

an “official act” in all instances. Ibid. In other words, the Court sought

a measure of parity between constructive discharge and ordinary

discrimination—parity that we extend to the limitations period here.

Cite as: 578 U. S. ____ (2016) 13

Opinion of the Court

21–27 (Brief for Amica Curiae) (citing Ledbetter v. Good­

year Tire & Rubber Co., 550 U. S. 618 (2007), overruled by

statute, Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5;

Delaware State College v. Ricks, 449 U. S. 250; United Air

Lines, Inc. v. Evans, 431 U. S. 553 (1977)); post, at 3–7

(THOMAS, J., dissenting) (citing Ricks, 449 U. S. 250, and

Chardon v. Fernandez, 454 U. S. 6 (1981) (per curiam)).

Similarly, the concurrence argues these cases require that

an act done with discriminatory intent must occur within

the limitations period. Post, at 4 (opinion of ALITO, J.).

But these cases are consistent with the standard rule

that a limitations period begins to run after a claim ac-

crues, not after an inevitable consequence of that claim.

In Ricks, for example, the Court considered the discrimi-

nation claim of a college faculty member who was denied

tenure and given a 1-year “ ‘terminal’ ” contract for his last

year teaching. 449 U. S., at 258. The plaintiff ’s claim

accrued—and he could have sued—when the college in-

formed him he would be denied tenure and gave him

“explicit notice that his employment would end” when his

1-year contract expired. Ibid. The Court held that the

limitations period began to run on that date, and not after

his 1-year contract expired. That final year of teaching

was merely an inevitable consequence of the tenure denial

the plaintiff claimed was discriminatory.

Green’s resignation, by contrast, is not merely an inevi-

table consequence of the discrimination he suffered; it is

an essential part of his constructive-discharge claim. That

is, Green could not sue for constructive discharge until he

actually resigned. Of course, Green could not resign and

then wait until the consequences of that resignation be-

came most painful to complain. For example, he could not

use the date of the expiration of his health insurance after

his resignation to extend the limitations period. But the

“inevitable consequence” principle of Ricks, Ledbetter, and

Evans does not change the focus of the limitations period,

14 GREEN v. BRENNAN

Opinion of the Court

which remains on the claim of discrimination itself. See

Lewis v. Chicago, 560 U. S. 205, 214 (2010) (holding Evans

and its progeny “establish only that a Title VII plaintiff

must show a present violation within the limitations

period” (internal quotation marks omitted)); National

Railroad Passenger Corporation v. Morgan, 536 U. S., at

115–121 (holding limitations period for hostile-work-

environment claim runs from the last act composing the

claim).7 For a constructive discharge, the claim does not

exist until the employee resigns.

Finally, amica contends that her interpretation of the

regulation better advances the EEOC’s goal of promoting

conciliation for federal employees through early, informal

contact with an EEO counselor. See Exec. Order No.

11478, §4, 34 Fed. Reg. 12986 (1969) (counseling for federal

employees “shall encourage the resolution of employee

problems on an informal basis”). The dissent suggests

that our holding will make a discrimination victim the

master of his complaint, permitting him to “ ‘exten[d] the

limitation[s period] indefinitely’ ” by waiting to resign. Post,

at 7 (opinion of THOMAS, J.). The concurrence claims that

an employee who relies on the limitations period in waiting

——————

7 The dissent relies on Morgan’s other holding that, unlike a hostile-

work-environment claim that may comprise many discriminatory acts,

discrete claims of discrimination based on independent discriminatory

acts cannot be aggregated to extend the limitations period. See post, at

3 (opinion of THOMAS, J.) (citing 536 U. S., at 109–113). But this just

proves the point: The analysis for the limitations period turns on the

nature of the specific legal claim at issue. In Morgan, the Court noted

that even if a claim of discrimination based on a single discriminatory

act is time barred, that same act could still be used as part of the basis

for a hostile-work-environment claim, so long as one other act that was

part of that same hostile-work-environment claim occurred within the

limitations period. Id., at 117 (“It is precisely because the entire hostile

work environment encompasses a single unlawful employment practice

that we do not hold, as have some of the Circuits, that the plaintiff may

not base a suit on individual acts that occurred outside the statute of

limitations . . . ”).

Cite as: 578 U. S. ____ (2016) 15

Opinion of the Court

to resign is “doubly out of luck” if his otherwise-meritorious

discrimination claim is time barred and he cannot show the

discrimination was so intolerable that it amounted to a

constructive discharge. Post, at 13 (opinion of ALITO, J.).

These concerns are overblown. Amica may be right that

it is more difficult to achieve conciliation after an employee

resigns. But the same is true for a federal civil servant

who is fired by his agency for what the employee believes

to be a discriminatory purpose. And neither decision is

necessarily permanent—a resignation or a termination

may be undone after an employee contacts a counselor.

Conciliation, while important, does not warrant treating a

constructive discharge different from an actual discharge

for purposes of the limitations period.

As for the dissent’s fear, we doubt that a victim of em-

ployment discrimination will continue to work in an intol-

erable environment merely because he can thereby extend

the limitations period for a claim of constructive dis-

charge. If anything, a plaintiff who wishes to prevail on

the merits of his constructive discharge claim has the

opposite incentive. A claim of constructive discharge

requires proof of a causal link between the allegedly intol-

erable conditions and the resignation. See 1 Lindemann

21–45, and n. 106.

And as for the concurrence’s double-loser concern, no

plaintiff would be well advised to delay pursuing what he

believes to be a meritorious non-constructive-discharge-

discrimination claim on the ground that a timely filed

constructive discharge claim could resuscitate other time-

lapsed claims. The 45-day limitations period begins run-

ning on any separate underlying claim of discrimina-

tion when that claim accrues, regardless of whether the

plaintiff eventually claims constructive discharge. The

limitations-period analysis is always conducted claim by

claim.

16 GREEN v. BRENNAN

Opinion of the Court

IV

Our decision that a resignation triggers the limitations

period for a constructive-discharge claim raises the ques-

tion of when precisely an employee resigns. Here, Green

and the Government agree that an employee resigns when

he gives his employer definite notice of his intent to re-

sign. If an employee gives “two weeks’ notice”—telling his

employer he intends to leave after two more weeks of

employment—the limitations period begins to run on the

day he tells his employer, not his last day at work. (This

issue was not addressed by the Tenth Circuit and, accord-

ingly, amica takes no position on it. See Brief for Amica

Curiae 42.)

We agree. A notice rule flows directly from this Court’s

precedent. In Ricks, 449 U. S., at 250, and Chardon v.

Fernandez, 454 U. S. 6, the Court explained that an ordi-

nary wrongful-discharge claim accrues—and the limita-

tions period begins to run—when the employer notifies the

employee he is fired, not on the last day of his employ-

ment. Ricks, 449 U. S., at 258–259; Chardon, 454 U. S., at

8. Likewise, here, we hold that a constructive-discharge

claim accrues—and the limitations period begins to run—

when the employee gives notice of his resignation, not on

the effective date of that resignation.

One factual issue remains: when exactly Green gave the

Postal Service notice of his resignation. The Government

argues that Green resigned on December 16, 2009—when

he signed the settlement agreement—and that his claim is

therefore still time barred. Green argues that he did not

resign until February 9, 2010—when he submitted his

retirement paperwork—and that his claim is therefore

timely. We need not resolve this issue. Having concluded

that the limitations period for Green’s constructive-

discharge claim runs from the date he gave notice of his

resignation, we leave it to the Tenth Circuit to determine

when this in fact occurred.

Cite as: 578 U. S. ____ (2016) 17

Opinion of the Court

* * *

For these reasons, we vacate the judgment of the Tenth

Circuit and remand the case for further proceedings con-

sistent with this opinion.

So ordered.

Cite as: 578 U. S. ____ (2016) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–613

_________________

MARVIN GREEN, PETITIONER v. MEGAN J.

BRENNAN, POSTMASTER GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[May 23, 2016]

JUSTICE ALITO, concurring in the judgment.

In its pursuit of a bright-line limitations rule for con-

structive discharge claims, the Court loses sight of a bed-

rock principle of our Title VII cases: An act done with

discriminatory intent must have occurred within the

limitations period. We have repeatedly held that the time

to pursue an employment discrimination claim starts

running when a discriminatory act occurs, and that a

fresh limitations period does not start upon the occurrence

of a later nondiscriminatory act—even if that later act

carries forward the effects of the earlier discrimination.

See, e.g., United Air Lines, Inc. v. Evans, 431 U. S. 553,

558 (1977); Delaware State College v. Ricks, 449 U. S. 250,

257–258 (1980); Chardon v. Fernandez, 454 U. S. 6, 8

(1981) ( per curiam); Lorance v. AT&T Technologies, Inc.,

490 U. S. 900, 907–908, 911 (1989); National Railroad

Passenger Corporation v. Morgan, 536 U. S. 101, 113

(2002); Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S.

618, 628 (2007). Without mentioning this consistent line

of precedent, the Court categorically declares that the

limitations period for constructive discharge cases starts

upon the employee’s resignation, no matter when the last

discriminatory act occurred. This effectively disposes of

the discriminatory-intent requirement.

Rather than jettison our precedent, I would hold that

2 GREEN v. BRENNAN

ALITO, J., concurring in judgment

the limitations period for constructive discharge claims—

like all other employment discrimination claims—starts

running upon a discriminatory act of the employer. But I

would also hold that an employee’s resignation can, in

many cases, be considered a discriminatory act of the

employer. This is so where an employer subjects an em-

ployee to intolerable working conditions with the discrimi-

natory intent to force the employee to resign. In these

circumstances, the employee’s consequent resignation is

tantamount to an intentional termination by the em-

ployer, and so gives rise to a fresh limitations period just

as a conventional termination would. Absent such intent,

however, the resignation is not an independent discrimi-

natory act but merely a delayed consequence of earlier

discrimination. The resignation may be a basis for en-

hancing damages in a claim brought on the underlying

discrimination, but it cannot restart the limitations clock.

In this case, Green presented sufficient evidence that

the Postal Service intended to force him to resign when it

presented him with a settlement agreement requiring that

he either retire or transfer to a distant post office for much

less pay. Accordingly, the 45-day window for him to initi-

ate counseling opened when he gave the Postal Service

notice of his resignation.

I

A

The regulation at issue here requires a federal employee

who complains of unlawful discrimination to initiate con-

tact with an Equal Employment Opportunity (EEO) coun-

selor “within 45 days of the date of the matter alleged to

be discriminatory.” 29 CFR §1614.105(a)(1) (2015). The

Court observes that this language “is not particularly

helpful” in resolving the question presented, and so it

quickly moves on to other considerations. Ante, at 5. I

think that more can be discerned from the regulation’s

Cite as: 578 U. S. ____ (2016) 3

ALITO, J., concurring in judgment

text. The Court observes that a “matter” in this context is

“an allegation forming the basis of a claim or defense.”

Black’s Law Dictionary 1126 (10th ed. 2014); ante, at 5.

But the Court fails to plug in the regulation’s critical

qualifier: The matter must be (alleged to be) discrimina-

tory. The phrase “matter alleged to be discriminatory” is

thus most fairly read to refer to the allegation of discrimi-

nation that underlies an employee’s claim, not just any

fact that supports the claim.

Even if the regulation’s text were unclear on this point,

the next place I would look is not to a “standard rule”

governing limitations periods, as the majority does, ibid.,

but to the specific limitations rules we apply in other Title

VII cases. Private-sector Title VII plaintiffs are required

to file a charge with the Equal Employment Opportunity

Commission (EEOC) within 180 or 300 days “after the

alleged unlawful employment practice occurred.” 42

U. S. C. §2000e–5(e)(1); see Morgan, supra (construing

this statutory provision).1 Although this language is not

identical to the regulation at issue here, nothing in either

text requires that they be read as setting different rules.

Indeed, the EEOC’s Compliance Manual treats them the

same—it describes the regulation as requiring federal

employees to contact a counselor within 45 days of “the

alleged discriminatory employment practice,” and it cites

Morgan as providing the governing standard.2 We also

granted review in this case on the premise that the same

——————

1 This 180- or 300-day period is often referred to as the “charging” or

“filing” period. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550

U. S. 618, 624 (2007); National Railroad Passenger Corporation v.

Morgan, 536 U. S. 101, 117 (2002). Because the 45-day period at issue

in this case involves initiating counseling rather than filing a charge,

for simplicity I refer to all of these periods as “limitations” periods.

2 EEOC Compliance Manual: Threshold Issues §2–IV(C)(1), and

n. 179 (emphasis added), online at http://www.eeoc.gov/policy/docs/

threshold.html (as last visited May 20, 2016).

4 GREEN v. BRENNAN

ALITO, J., concurring in judgment

rule would apply to both federal-sector and private-sector

Title VII cases: Green’s petition and merits brief ask us to

decide when the filing period for constructive discharge

claims begins as a matter of “federal employment discrim-

ination law” generally, Pet. for Cert. i; Brief for Peti-

tioner i, and the Circuit split he alleges consists primarily of

cases in which the limitations period ran from the date of

an unlawful employment “practice,” see Pet. for Cert. 11–

16. The majority, for its part, seems to agree that the

same rules should apply in the federal and private sectors,

and it too relies on private-sector cases in describing the

Circuit split that today’s decision is meant to “resolve.”

Ante, at 4–5, and nn. 2–4. The majority’s relegation of our

Title VII timeliness cases to its rebuttal argument, see

ante, at 12–14, is thus surprising.

B

Our Title VII precedents set somewhat different limita-

tions rules for claims based on a discrete act of discrimina-

tion (such as termination, failure to hire, or demotion) and

claims based on a hostile work environment. I will focus

on the former set of rules because Green’s resignation was

a discrete act that was precipitated by another discrete

act—namely, the settlement agreement that required him

to retire or transfer to a far-off, lower paying position. For

private-sector claims based on discrete acts, the limita-

tions period starts to run on the day the discriminatory act

occurred and expires 180 or 300 days later. Morgan, 536

U. S., at 110. This means that an act done with discrimi-

natory intent—not merely some act bearing on the claim—

must have occurred within the limitations period. We

therefore held in Morgan that “discrete discriminatory

acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges,” and that “a

time-barred act [cannot] justify filing a charge concerning

a termination that was not independently discriminatory.”

Cite as: 578 U. S. ____ (2016) 5

ALITO, J., concurring in judgment

Id., at 113 (emphasis added).

We spoke even more directly to the point in Ledbetter.

There we described “discriminatory intent” as the “defin-

ing element” of a Title VII disparate-treatment claim, 550

U. S., at 624, and held that the plaintiff ’s claim of pay

discrimination was untimely because she did not allege

that any “intentionally discriminatory conduct occurred

during the [limitations] period,” id., at 628. Although the

plaintiff had suffered lower pay within the limitations

period because of earlier alleged discrimination, we ex-

plained that under our precedents a new limitations pe-

riod “does not commenc[e] upon the occurrence of subse-

quent nondiscriminatory acts that entail adverse effects

resulting from the past discrimination.” Ibid. (discussing

Evans, 431 U. S. 553, Ricks, 449 U. S. 250, Lorance, 490

U. S. 900, and Morgan, supra). Relying on nondiscrimina-

tory acts to establish a timely claim, we reasoned, would

impermissibly “shift intent from one act (the act that

consummates the discriminatory employment practice) to

a later act that was not performed with bias or discrimina-

tory motive. The effect of this shift would be to impose

liability in the absence of the requisite intent.” 550 U. S.,

at 629. At the same time, we recognized that when multi-

ple acts that are each “intentionally discriminatory” occur,

“a fresh violation takes place”—and thus a new limitations

period starts running—“when each act is committed.” Id.,

at 628.3

——————

3 Congress has since abrogated Ledbetter’s precise holding in the con-

text of “discrimination in compensation,” Lilly Ledbetter Fair Pay Act

of 2009, §3, 123 Stat. 5, codified at 42 U. S. C. §2000e–5(e)(3)(A), but it

did not disturb the reasoning of the precedents on which Ledbetter was

based. Cf. Ledbetter, supra, at 627, n. 2 (discussing similar amendment

abrogating the precise holding of Lorance v. AT&T Technologies, Inc.,

490 U. S. 900 (1989)).

6 GREEN v. BRENNAN

ALITO, J., concurring in judgment

C

These principles lead to the following rule for construc-

tive discharge cases: An employee’s resignation triggers a

fresh limitations period if the resignation itself constitutes

an “intentionally discriminatory” act of the employer. In

my view, an employee’s resignation in the face of intoler-

able working conditions can be considered a discriminatory

act of the employer when the employer makes conditions

intolerable with the specific discriminatory intent of forc-

ing the employee to resign. If the employer lacks that

intent, however, the limitations period runs from the

discriminatory act that precipitated the resignation.

This approach reflects the fact that there are two kinds

of constructive discharge. Much of the disagreement

between the majority and dissent stems from their differ-

ing views of the nature of constructive discharge. To the

majority, constructive discharge is always a standalone

“claim distinct from the underlying discriminatory act.”

Ante, at 11. To JUSTICE THOMAS and the friend of the

Court we appointed to defend the judgment below, con-

structive discharge is never a separate claim, but merely

“a counterdefense to an employer’s contention that a

resignation was voluntary” that allows the resigning

employee to recover backpay and other relief unavailable

to employees who quit voluntarily. Post, at 9. As I see it,

each side is partly right. The label “constructive dis-

charge” is best understood to refer to two different (though

related) concepts, one a distinct claim and one not. This

case requires us to distinguish between the two and to

“identify with care the specific employment practice that is

at issue.” Ledbetter, supra, at 624 (citing Morgan, supra,

at 110–111).

1

The first kind of constructive discharge occurs when an

employer subjects an employee to intolerable conditions

Cite as: 578 U. S. ____ (2016) 7

ALITO, J., concurring in judgment

with the specific discriminatory intent of forcing the em-

ployee to quit. In this situation, the employer has deliber-

ately terminated the employee—a discrete employment

action. The discharge is termed “constructive,” however,

because it is formally effected by the employee’s resigna-

tion rather than the employer’s pink slip. The termination

can nevertheless be considered a discriminatory act of the

employer because the employer intends to terminate the

employee and—through the imposition of intolerable

conditions—forces the employee to “rubberstamp” that

decision by resigning. Cf. Staub v. Proctor Hospital, 562

U. S. 411, 425 (2011) (ALITO, J., concurring in judgment);

id., at 419 (majority opinion) (“Animus and responsibility

for [an] adverse action can both be attributed to [an] ear-

lier agent . . . if the adverse action is the intended conse-

quence of that agent’s discriminatory conduct”). Because

the resignation is the “act that consummates the discrimi-

natory employment practice” of terminating the employee,

Ledbetter, supra, at 629, it triggers a fresh limitations

period. In such cases, the constructive discharge should,

like a formal discharge, be treated as a distinct cause of

action—what we might call a proper “constructive dis-

charge claim.”

The employer’s discriminatory intent sometimes will

manifest itself only outside the limitations period. Con-

sider, for example, an employer that demotes an employee

(say, from executive to office assistant) for discriminatory

reasons and with the intent that the loss of prestige will

force the employee to quit. By the time the employee

finally cracks and resigns, the discriminatory demotion

may be outside the limitations window and not inde-

pendently actionable. But the employer’s discriminatory

intent to terminate the employee can carry forward to the

eventual resignation. We recognized this possibility in

Ledbetter. We explained that a plaintiff generally cannot

create a timely Title VII claim by “attach[ing]” the dis-

8 GREEN v. BRENNAN

ALITO, J., concurring in judgment

criminatory intent accompanying an act outside the limi-

tations period to another act that occurred within the

limitations period. 550 U. S., at 625, 629. At the same

time, we acknowledged that “there may be instances

where the elements forming a cause of action”—

discriminatory intent and an employment action—“span

more than 180 days” (that is, the applicable limitations

period). Id., at 631, n. 3. In such a case, we said, the

limitations period would start to run when “the employ-

ment practice was executed,” because that is when “[t]he

act and intent had . . . been joined.” Ibid. Under my

example, then, the employer “forms an illegal discrimina-

tory intent” to terminate the employee at the time of the

demotion, but the termination is not “executed” or “con-

summated” until the employee resigns some time later.

Ibid.; id., at 629. Only at that point have the discrimina-

tory intent to terminate and the act of termination been

“joined,” and therefore only at that point does the limita-

tions period for the wrongful discharge start to run.

2

The second kind of constructive discharge occurs when

an employer imposes intolerable conditions for discrimina-

tory reasons but does not intend to force an employee to

resign. This is quite different from an ordinary discharge

because the critical element of intent is missing. The

resignation cannot be considered an intentionally discrim-

inatory act of the employer because it is not something the

employer deliberately brought about; it is simply a later-

arising consequence of the earlier discrimination. The

resignation thus does not trigger a fresh limitations period

or give rise to a separate cause of action. See Evans, 431

U. S., at 558 (A nondiscriminatory act that “gives present

effect to a past act of discrimination” is not actionable);

Ricks, 449 U. S., at 258 (“[T]he proper focus is upon the

time of the discriminatory acts, not upon the time at which

Cite as: 578 U. S. ____ (2016) 9

ALITO, J., concurring in judgment

the consequences of the acts became most painful” (inter-

nal quotation marks and brackets omitted)); Ledbetter,

supra, at 628 (“A new violation does not occur, and a new

[limitations] period does not commence, upon the occur-

rence of subsequent nondiscriminatory acts that entail

adverse effects resulting from the past discrimination”).

This does not let the employer off the hook. It is still

liable for the acts of discrimination that precipitated the

resignation, provided that the employee properly and

timely challenges them. And in a suit brought on those

underlying acts, the resignation—if reasonable—“is assim-

ilated to a formal discharge for remedial purposes.” Penn-

sylvania State Police v. Suders, 542 U. S. 129, 141 (2004)

(emphasis added). The resigning employee can recover, as

damages for the underlying discrimination, “all damages

[that would be] available for formal discharge” but which

are normally unavailable to employees who voluntarily

quit. Id., at 147, n. 8; see post, at 8–9 (THOMAS, J., dis-

senting). A resignation that is the reasonable but unin-

tended result of the employer’s discriminatory acts thus

does not lead to a standalone “constructive discharge

claim.” Instead, it is a basis for increasing damages

on the underlying discrimination claim—what we might

call a “constructive discharge damages enhancement.”

See Suders, supra, at 148 (analogizing constructive dis-

charge to “an actual termination in damages-enhancing

respects”).4

The majority asserts that in Suders the Court “expressly

held” that constructive discharge is always its own distinct

——————

4 These enhanced damages would also be available in a suit based on

the underlying discrimination where the employer intended to make

the employee resign. Intent to force the resignation is necessary to

pursue constructive discharge as a separate claim from the underlying

discrimination, but it certainly does not prevent an employee from

pursuing greater damages for the underlying discrimination on a

constructive discharge theory.

10 GREEN v. BRENNAN

ALITO, J., concurring in judgment

claim. Ante, at 11. I do not think that the Suders Court

would have taken such pains to qualify its statements that

a constructive discharge is akin to an actual termination

“for remedial purposes” and “in damages-enhancing re-

spects,” 542 U. S., at 141, 148, had that been its intention.

Nor was it necessary for the Court to resolve whether

constructive discharge is a separate cause of action or

merely a basis for enhancing damages. The majority

observes that Suders referred to a “claim” for constructive

discharge. See ante, at 11. But the use of that term does

not indicate that constructive discharge is (always) an

independent cause of action any more than stray refer-

ences to a “claim for punitive damages,” e.g., BMW of

North America, Inc. v. Gore, 517 U. S. 559, 564 (1996);

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S.

52, 58 (1995), mean that punitive damages are actionable

independent of an underlying tort claim.

The majority also asserts that intent to cause a resigna-

tion is unnecessary for a constructive discharge cause of

action because the “whole point” of constructive discharge

is to treat the resignation like a firing. Ante, at 11. I had

thought that the “whole point” of a Title VII disparate-

treatment claim was to combat intentional discrimination.

See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S.

977, 1002 (1988) (Blackmun, J., joined by Brennan and

Marshall, JJ., concurring in part and concurring in judg-

ment) (“[A] disparate-treatment challenge focuses exclu-

sively on the intent of the employer”). A resignation can-

not be deemed the equivalent of an actionable intentional

termination if the employer lacks intent to terminate. See

Staub, 562 U. S., at 417–418 (holding that a person who

“did not intend to cause [a] dismissal” cannot be deemed

“responsible” for the dismissal, even if the dismissal was

the “result” or “foreseeable consequence” of the person’s

actions); see also id., at 417 (“Intentional torts such as this

. . . generally require that the actor intend the consequences

Cite as: 578 U. S. ____ (2016) 11

ALITO, J., concurring in judgment

of an act, not simply the act itself ” (internal quotation

marks omitted)). But as I have explained, a resignation in

those circumstances may still be treated like a firing for

damages purposes. Our cases demand nothing more.

II

A

The framework I propose respects the fundamental rule

that an act done with discriminatory intent must have

occurred within the limitations period. It also comports

with the default rule that limitations periods start to run

when a cause of action accrues. When an employer in-

tends to force an employee to resign, the resignation gives

rise to a new cause of action for constructive discharge,

with a limitations period that runs from the date of the

resignation. But when an employer does not intend to

force the employee to resign, the employee’s only cause of

action is based on the underlying discriminatory acts, and

the limitations period runs from the time that claim ac-

crued.5 It is thus entirely unnecessary for the majority to

abandon the discriminatory-intent requirement in service

of the “standard” limitations rule. These two rules fit

together perfectly once one appreciates the dual nature of

constructive discharge.

It is abundantly clear that the majority has abandoned

the discriminatory-intent requirement and would deem a

constructive discharge claim timely even if no discrimina-

tory act occurred within the limitations period. The ma-

jority admits as much. It declares that the employer’s

——————

5 For example, if an unintended resignation was prompted by a dis-

crete act like a humiliating demotion or transfer, the limitations period

would run from the date of demotion or transfer. See Morgan, 536

U. S., at 110–113. If the resignation was prompted by an intolerable

hostile work environment, the limitations period would run from any

act that contributed to the hostile work environment. See id., at 117–

118.

12 GREEN v. BRENNAN

ALITO, J., concurring in judgment

discriminatory conduct and the employee’s resignation are

both “part of the ‘matter alleged to be discriminatory,’ ”

and therefore (in its view) the resignation may trigger the

limitations period “whatever the role of discrimination in

[the resignation] element.” Ante, at 8 (emphasis added).

To support this dubious proposition, the majority cites

Morgan’s holding that an individual act contributing to a

hostile work environment need not be independently

actionable for the act to start a fresh limitations period.

Ante, at 8–9. This analogy is particularly inapt because

Green’s constructive discharge claim is based on a discrete

act, not a hostile work environment. See supra, at 4.

Even setting that aside, Morgan held only that an act

contributing to a hostile work environment need not be

independently actionable by dint of its severity. That is

because a hostile work environment claim is based on the

“cumulative effect of individual acts” that may not “ ‘suffi-

ciently affect the conditions of employment to implicate

Title VII’ ” unless considered in the aggregate. 536 U. S.,

at 115 (emphasis added). Nothing in Morgan suggests

that the limitations period for a hostile work environment

claim can run from an act that is not discriminatory. To

the contrary, the Court referred to individual “act[s] of

harassment”—such as “racial jokes, . . . racially derogatory

acts, . . . negative comments regarding the capacity of

blacks to be supervisors, and . . . various racial epithets”—

as triggering the limitations period. Id., at 115, 120 (em-

phasis added).

B

The majority opines that its rule is better for employees

because it prevents the limitations period from expiring

before an employee resigns. Ante, at 9. Things are not

that simple. The majority’s rule benefits only those em-

ployees who can meet the demanding standard for con-

structive discharge, while setting a springe for those who

Cite as: 578 U. S. ____ (2016) 13

ALITO, J., concurring in judgment

cannot. Constructive discharge is an “aggravated” form of

discrimination involving truly “intolerable” working condi-

tions that leave an employee no choice but to resign.

Suders, 542 U. S., at 146–147. This is an objective stand-

ard, id., at 141, and what is subjectively intolerable to a

particular employee may strike a court or jury as merely

unpleasant.

So imagine an employee who is subjected to sexual

harassment at her federal workplace but—relying on the

majority’s rule—does not pursue EEO counseling until 45

days after the harassment leads her to resign. Suppose

too that the last act of harassment occurred the day before

she resigned. If a court ultimately concludes that the

harassment was objectively intolerable and the employee

was justified in resigning, she can recover for the con-

structive discharge. But if it turns out that she has

proved only “ordinary discrimination” without the “some-

thing more” needed to establish constructive discharge,

id., at 147 (internal quotation marks omitted), the em-

ployee is doubly out of luck: Not only does her constructive

discharge fail on the merits, but any “lesser included”

hostile work environment claim that she might have

brought (and prevailed on), id., at 149, is time barred.

Encouraging employees to wait until after resigning to

pursue discrimination claims thus may needlessly deprive

unwary discrimination victims of relief.

The better approach is to encourage employees to seek

EEO counseling (or, in the private sector, file an EEOC

charge) at the earliest opportunity, based on the underly-

ing discriminatory acts.6 Every allegation of constructive

discharge must be based on an actionable discriminatory

practice, see ibid.; 1 B. Lindemann, P. Grossman, & C.

——————

6 The majority seems to agree that employees should promptly chal-

lenge the underlying discrimination, see ante, at 15, so why it disparag-

es the idea elsewhere in its opinion, see ante, at 9, is beyond me.

14 GREEN v. BRENNAN

ALITO, J., concurring in judgment

Weirich, Employment Discrimination Law 21–49 (5th ed.

2012), for which the employee can immediately seek coun-

seling and pursue a discrimination claim. If the employee

later resigns, he or she can seek damages from the resig-

nation as part of that timely claim. See supra, at 9, and

n. 4. Under the framework I have set forth, an employee

who fails to pursue the underlying discrimination claim

can still pursue a standalone constructive discharge claim

so long as there is sufficient evidence that the employer

acted with intent to force the employee to resign. This will

often be the case when working conditions are so intoler-

able that a reasonable employee would be compelled to quit.

The employer will usually be aware that conditions are

terrible, and “[ p]roof that a defendant acted knowingly

very often gives rise to a reasonable inference that the

defendant also acted purposely.” Loughrin v. United

States, 573 U. S. ___, ___ (2014) (ALITO, J., concurring in

part and concurring in judgment) (slip op., at 3).7 But the

possibility of recovering damages for only the constructive

discharge, and not for discrimination suffered before the

resignation, will be an unsatisfactory alternative for many

employees who have suffered through unendurable work-

ing conditions.

III

It remains to apply the foregoing principles to this case.

The Tenth Circuit held that the Postal Service was enti-

tled to summary judgment on its limitations defense. The

——————

7 Given this inference, it is hard to see why the majority thinks that it

“would often be difficult to allege plausibly” that such an employer

intended to force the employee to resign. Ante, at 12. It is not inher-

ently more difficult (and it will often be easier) to allege and prove that

an employer intended the foreseeable consequences of its actions than

it is to allege and prove that an employer acted because of discrimina-

tory animus against an employee’s race, sex, religion, or other protected

characteristic—a burden every Title VII plaintiff must carry.

Cite as: 578 U. S. ____ (2016) 15

ALITO, J., concurring in judgment

question therefore is whether Green adduced sufficient

evidence from which a jury could reasonably conclude that

the Postal Service intended to force his resignation when

it presented him with the settlement agreement. If so,

then the limitations period ran from the date of Green’s

resignation.

I have little trouble concluding that Green has carried

his burden. Indeed, the Postal Service virtually concedes

the point. It observes that the agreement expressly stated

that Green would retire, and provided for his reporting to

duty in Wamsutter, Wyoming, only in the event that the

retirement fell through. App. 60–61; Brief for Respondent

33. A jury could reasonably conclude that the Postal

Service, by offering Green a choice between retiring and

taking a lower paying job hundreds of miles away, in-

tended to make him choose retirement. Accordingly, for sum-

mary judgment purposes, the 45-day window for contact-

ing an EEO counselor ran from the date on which Green

resigned—or, more precisely, the date on which he gave

the Postal Service notice of his retirement, see ante, at 16.

I am inclined to agree with Green that—viewing the

evidence in the light most favorable to him—he did not

give notice of his retirement until he submitted his re-

tirement papers, making his claim timely. Although the

settlement agreement provided that he would retire, it

alternatively allowed him to transfer to Wyoming. Unless

Green would have been turned away from the Wamsutter

Post Office despite that language had he chosen to go

there, it was not until Green submitted his retirement

papers that one could say with certainty that his position

would be terminated rather than transferred. That said,

like the majority I am content to leave this question for

the Tenth Circuit to tackle on remand. I accordingly

concur in the judgment.

Cite as: 578 U. S. ____ (2016) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–613

_________________

MARVIN GREEN, PETITIONER v. MEGAN J.

BRENNAN, POSTMASTER GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[May 23, 2016]

JUSTICE THOMAS, dissenting.

Title VII of the Civil Rights Act of 1964 prohibits em­

ployers from engaging in discriminatory acts against their

employees. Under a 1992 Equal Employment Opportunity

Commission (EEOC) regulation implementing Title VII,

federal employees “who believe they have been discrimi­

nated against” “must consult a[n] [EEOC] Counselor prior

to filing a complaint in order to try to informally resolve

the matter.” 29 CFR §1614.105(a) (2015). In particular,

the aggrieved employee “must initiate contact with a

Counselor within 45 days of date of the matter alleged to

be discriminatory.” §1614.105(a)(1).

Today, the majority holds that a “matter alleged to be

discriminatory” includes a matter that is not “discrimina­

tory” at all: a federal employee’s decision to quit his job.

Ante, at 5–6. The majority reaches this conclusion by

adopting an atextual reading of the regulation that ex­

pands the constructive-discharge doctrine. Consistent with

the text of the regulation and history of the constructive-

discharge doctrine, I would hold that only an employ­

er’s actions may constitute a “matter alleged to be discrim­

inatory.” Because the only employer action alleged to be

discriminatory here took place more than 45 days before

petitioner Marvin Green contacted EEOC, his claims are

untimely. I therefore respectfully dissent.

2 GREEN v. BRENNAN

THOMAS, J., dissenting

I

The meaning of a “matter alleged to be discriminatory”

refers to actions taken by the employer, not the employee.

This follows from the ordinary meaning of “matter” and

“discriminatory,” as well as this Court’s precedents.

A

I begin with “ ‘the language [of the regulation] itself and

the specific context in which that language is used.’ ”

McNeill v. United States, 563 U. S. 816, 819 (2011) (brack­

ets omitted). When a word or phrase is left undefined—as

“matter alleged to be discriminatory” is—we consider its

“ordinary meaning.” Asgrow Seed Co. v. Winterboer, 513

U. S. 179, 187 (1995). A “matter” is “a subject under

consideration, esp. involving a dispute or litigation” or

“[s]omething that is to be tried or proved; an allegation

forming the basis of a claim or defense.” Black’s Law

Dictionary 992 (7th ed. 1999); The Oxford English Dic­

tionary 481 (2d ed. 1989) (“matter” means “[a]n event,

circumstance, fact, question, state or course of things, etc.,

which is or may be an object of consideration or practical

concern; a subject, an affair, a business”); see ante, at 5

(embracing this view). The term “discriminatory” means

characterized by differential treatment that lacks a sound

justification. See The Random House Dictionary of the

English Language 564 (2d ed. 1987) (“discriminatory”

means “characterized by or showing prejudicial treatment

esp. as an indication of racial, religious, or sexual bias”);

B. Garner, A Dictionary of Modern Legal Usage 191 (1987)

(“discriminatory” means “applying discrimination in

treatment, esp. on ethnic grounds”); Black’s Law Diction­

ary 479 (“discrimination” means characterized by

“[d]ifferential treatment; esp., a failure to treat all persons

equally when no reasonable distinction can be found be­

tween those favored and those not favored”). Thus, a

“matter alleged to be discriminatory” means an employee’s

Cite as: 578 U. S. ____ (2016) 3

THOMAS, J., dissenting

allegation that he was treated in an unjustifiably differen­

tial manner.

In the context of employment discrimination, only an

employer can discriminate against—or apply unjustifiable

differential treatment to—an employee.1 An employee

cannot plausibly be said to discriminate against himself.

It therefore makes no sense to say that an employee’s act

of quitting constitutes an action in which he was treated

in a differential manner that lacked a sound justification.

And, it does not make any more sense to say that an

employee’s decision to quit is itself “discriminatory” simply

because it may result from antecedent discriminatory

conduct. As two of our precedents—National Railroad

Passenger Corporation v. Morgan, 536 U. S. 101 (2002),

and Delaware State College v. Ricks, 449 U. S. 250

(1980)—illustrate, the “matter alleged to be discrimina-

tory” is the reason the employee quit, and not the quitting

itself.

In Morgan, we rejected the argument that a phrase

similar to “matter alleged to be discriminatory”—namely,

an “alleged unlawful employment practice”—“connotes an

ongoing violation that can endure or recur over a period of

time.” 536 U. S., at 109–111. We held that discrete dis­

criminatory acts of the employer occurring outside a filing

period were not actionable, even if connected to other acts

within the period. Id., at 113. The word “practice,” we

explained, did not “conver[t] related discrete acts into a

single unlawful practice for the purposes of timely filing.”

Id., at 111. The same is true of the word “matter.” See,

e.g., EEOC Compliance Manual: Threshold Issues §2–

IV(C)(1), n. 179 (equating “matter alleged to be discrimi­

natory” with “the alleged discriminatory employment

——————

1 Title VII defines the term “employer” to include “agent[s]” of the

employer. 42 U. S. C. §2000e(b).

4 GREEN v. BRENNAN

THOMAS, J., dissenting

practice”), online at http://www.eeoc.gov/policy/docs/

threshold.html (as last visited Mar. 29, 2016) (equating

“matter alleged to be discriminatory” with “the alleged

discriminatory employment practice”).

Ricks complements Morgan by holding that discrimina­

tion occurs when an employer takes some adverse action

against the employee, and not when the employee feels the

consequences of that action. 449 U. S., at 257–258. In

Ricks, we considered the timeliness of an EEOC complaint

that a professor filed after he was allegedly denied tenure

on account of his national origin. Id., at 252–254. The

employer offered him a contract to teach one more year

after it denied tenure. Id., at 255. The professor contended

that his claim did not accrue until his 1-year contract

expired, because the offer of the contract constituted a

“ ‘continuing violation.’ ” Id., at 257. We rejected that

argument and explained that “[m]ere continuity of em­

ployment, without more, is insufficient to prolong the life

of a cause of action for employment discrimination.” Ibid.;

see also Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per

curiam) (holding that claims of administrators of the

Puerto Rican Department of Education were untimely

because their claims accrued when they received notice

that they would be fired and not on the effective date of

their terminations).

The alleged employer conduct that most immediately

prompted Green’s decision to quit was the Postal Service’s

request on or about December 15, 2009, that he sign a

settlement agreement. See App. 17, ¶72; App. 19, ¶83. It

is irrelevant whether Green’s decision to quit “g[a]v[e]

present effect to the past illegal act[s] and therefore per­

petuate[d] the consequences of forbidden discrimination.”

Ricks, supra, at 258 (internal quotation marks omitted).

Because the Postal Service’s December 15 request is the

Cite as: 578 U. S. ____ (2016) 5

THOMAS, J., dissenting

“matter alleged to be discriminatory,” Green had 45 days

from December 15 to initiate contact with EEOC.2

Because he was 52 days late in doing so, his claim was

untimely.

B

The majority reaches the opposite conclusion for three

reasons. None withstands scrutiny.

First, the majority observes that the text of the regula­

tion is “not particularly helpful” because the word “matter”

simply means “ ‘an allegation forming the basis of a claim or

defense,’ ” which “could readily apply to a discrimination-

precipitated resignation.” Ante, at 5. Thus, the ma-

jority contends, “matter” could “reasonably be interpreted

to include the factual basis for a claim,” which, in its view,

includes Green’s decision to resign. Ante, at 10. But, as

explained, that interpretation does not grapple with the

entire phrase, “matter alleged to be discriminatory,” which

does not encompass the subsequent nondiscriminatory

actions that the employee takes.

Second, the majority contends that the “standard rule

for limitations periods” informs its understanding of 29

CFR §1614.105. Ante, at 6 (internal quotation marks

omitted). Under this rule, the majority contends, a limita­

tions period does not begin to run until there is a “com­

plete and present cause of action.” Ante, at 6 (internal

quotation marks omitted). The majority concludes that

——————

2 Title VII does not provide federal employees with a cause of action

for retaliation. Ante, at 3, n. 1. Title VII’s federal-sector provision

incorporates certain private-sector provisions related to discrimination

but does not incorporate the provision prohibiting retaliation in the

private sector. See 42 U. S. C. §2000e–16(d) (incorporating §§2000e–

5(f ) to (k) but not §2000e–3(a), which forbids private-sector retaliation).

In light of this text, I have grave doubts that Green—as a federal

employee—has a claim for retaliation. But because the parties do not

raise this issue, and the majority leaves it open, I need not resolve it.

6 GREEN v. BRENNAN

THOMAS, J., dissenting

there is no “complete and present cause of action” for

constructive discharge until “an employee resigns.” Ibid.

(internal quotation marks omitted).

Even assuming that an employee’s resignation was an

essential part of a constructive discharge “claim” (but see

Part II, infra) the “standard rule” is merely a “default”

rule. Graham County Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U. S. 409, 418 (2005).

That “default rule” does not apply, however, where—as

here—the text confirms that the limitations period begins

to run before the cause of action accrues.

Pillsbury v. United Engineering Co., 342 U. S. 197

(1952), confirms this point. In that case, the Court consid­

ered a statute that provided that “ ‘[t]he right to compen­

sation for disability . . . shall be barred unless a claim

therefor is filed within one year after the injury.’ ” Id., at

197 (quoting 33 U. S. C. §913(a) (1952)). The Court held

that the 1-year period began at the time of injury, not

when the employee later became disabled as a result of the

injury and concluded that “Congress meant what it said

when it limited recovery to one year from date of injury,

and ‘injury’ does not mean ‘disability.’ ” 342 U. S., at 199–

200. Although that reading meant that “an employee

[could] be barred from filing his claim before his right to

file it arises,” the Court refused to “rewrite the statute of

limitations” to avoid that result. Ibid.; see also, e.g., Dodd

v. United States, 545 U. S. 353, 357–360 (2005) (giving

effect to the clear text of a limitations provision even

though that reading “ma[de] it difficult” for certain mo­

vants “to obtain relief” and could lead to “harsh results”).

Like the limitations provision in Pillsbury, 29 CFR

§1614.105 makes clear that the limitations period could

begin before any constructive-discharge claim accrues, lest

“what was intended to be a limitation [be] no limitation at

all.” 342 U. S., at 200. The regulation instructs that the

limitations period begins to run when the “matter alleged

Cite as: 578 U. S. ____ (2016) 7

THOMAS, J., dissenting

to be discriminatory” occurs—i.e., the discriminatory

conduct of the employer. To say that this includes Green’s

resignation could “have the effect of extending the limita­

tion indefinitely.” Ibid.; see Part I–A, supra.

Finally, the majority downplays Morgan and Ricks by

claiming that Green’s resignation was “not merely an

inevitable consequence of the discrimination he suffered; it

is an essential part of his constructive-discharge claim.”

Ante, at 13. “[A] claim that an employer constructively

discharged an employee,” the majority contends, “is no

different from a claim that an employer actually dis­

charged an employee.” Ante, at 7. This reasoning cannot

be reconciled with the regulatory text and fails to grapple

with our precedents. By isolating Green’s late response to

the settlement agreement rather than his employer’s

alleged coercion of Green to sign that agreement, the

majority ignores the discriminatory act and bestows on

Green an advantage that other employees subject to

wrongful discrimination do not have. Had Green signed

termination papers rather than settlement papers, there

would be no question about the untimeliness of his claims.

As in Ricks, the time for Green’s claim would have begun

to run when his employer discriminated against him, even

if the termination was not effective until months later.

449 U. S., at 257; see also Chardon, 454 U. S., at 8 (same).

But today, the majority decides that Green’s claim is

different. In doing so, the majority elevates constructive

discharge to the status of a super termination capable of

extending a limitations period far beyond the time the

employer acted discriminatorily.

II

The majority’s error is not merely one of regulatory

misinterpretation. By misreading the regulation, the

majority expands the constructive-discharge doctrine

beyond its original bounds. In particular, the majority

8 GREEN v. BRENNAN

THOMAS, J., dissenting

cements the (mistaken) notion that constructive discharge

is an independent cause of action—and not a mere coun­

terdefense—by unjustifiably focusing on an employee’s

response to an employer’s conduct. See, e.g., ante, at 6–14.

In doing so, the majority exacerbates the problems that

Pennsylvania State Police v. Suders, 542 U. S. 129 (2004),

first created in adopting a capacious definition of “con­

structive discharge.”

A

In holding that a discrimination claim based on con­

structive discharge accrues when an employee resigns, the

majority wrongly assumes that constructive discharge is a

separate claim equivalent to an actual discharge under

Title VII. Ante, at 10–11. But the constructive-discharge

doctrine is best understood as “a counter-defense to the

employer[’]s defense that the worker [voluntarily] quit,”

and not a separate claim. EEOC v. R. J. Gallagher Co.,

959 F. Supp. 405, 408 (SD Tex. 1997), vacated in part on

other grounds, 181 F. 3d 645 (CA5 1999).

The National Labor Relations Board (NLRB) developed

the constructive-discharge doctrine in the 1930’s “to ad­

dress situations in which employers coerced employees to

resign, often by creating intolerable working conditions, in

retaliation for employees’ engagement in collective activi­

ties.” Suders, supra, at 141; see also Shuck, Comment,

That’s It, I Quit: Returning to First Principles in Con­

structive Discharge Doctrine, 23 Berkeley J. Empl. & Lab.

L. 401, 406–407 (2002). An employee who voluntarily quit

usually lost the right to backpay and other remedies,

whereas an employee who was fired for discriminatory

reasons did not. See id., at 403. The constructive-

discharge doctrine enabled courts to provide a remedy to

those employees who voluntarily quit based on the fiction

that their decision to quit was not actually voluntary. See

ibid.; Suders, supra, at 147, n. 8. Thus, as it was originally

Cite as: 578 U. S. ____ (2016) 9

THOMAS, J., dissenting

conceived, constructive discharge was not an independ-

ent cause of action but instead a counterdefense to an

employer’s contention that a resignation was voluntary,

and thus, should “factor into the damages.” Knabe v.

Boury Corp., 114 F. 3d 407, 408, n. 1 (CA3 1997); see also

Russ v. Van Scoyoc Assoc., Inc., 122 F. Supp. 2d 29, 35–36

(DC 2000) (collecting cases). So understood, an employee’s

resignation does not complete any cause of action, and

thus does not trigger the limitations period.

The majority contends that Suders marked a departure

from this original conception of constructive discharge by

“expressly h[o]ld[ing] that constructive discharge is a

claim distinct from the underlying discriminatory act.”

Ante, at 11. But, that case does not resolve the issue one

way or the other. To be sure, Suders contains a few

statements suggesting that constructive discharge is a

claim. As the majority points out, for example, Suders

states that a hostile work environment claim is less

“grav[e]” than a “claim of hostile-environment constructive

discharge,” and “a claim for constructive discharge lies

under Title VII.” Ante, at 11 (citing Suders, 542 U. S., at

142, 149; emphasis added); see also id., at 133 (referring to

“sexual harassment/constructive discharge claim”); id., at

143 (referring to “constructive discharge claims”). At the

same time, however, the question at issue in Suders was

the availability of affirmative defenses. In that vein,

Suders held only that employers could avail themselves of

those defenses if an “official act” of the company “d[id] not

underlie the constructive discharge.” Id., at 148. There

are also statements throughout the Suders opinion that

are flatly inconsistent with the reading that the majority

suggests. For example, it points out that an employee’s

resignation is “assimilated to a formal discharge” for

“remedial purposes,” without mentioning liability. Id., at

141 (emphasis added); see also id., at 147, n. 8 (noting that

“a prevailing constructive discharge plaintiff is entitled to

10 GREEN v. BRENNAN

THOMAS, J., dissenting

all damages available for formal discharge,” including

“backpay” and sometimes “frontpay”); id., at 148 (“a con­

structive discharge is functionally the same as an actual

termination in damages-enhancing respects” (emphasis

added)). In short, Suders does not resolve whether con­

structive discharge depends on the underlying discrimina­

tory act. And, it does not hold that constructive discharge

is a cause of action that is distinct from the underlying

discrimination claim.

B

The majority today not only exploits Suders’ imprecision

about whether constructive discharge is an independent

claim, but also takes advantage of that opinion’s ambig-

uity as to what an employee must establish to invoke the

doctrine. In Suders, I objected to the Court’s statement

that the constructive-discharge doctrine encompasses

those situations in which “working conditions become so

intolerable that a reasonable person in the employee’s

position would have felt compelled to resign.” Id., at 141.

That description does “not in the least resemble actual

discharge” because it permits an employee “to allege a

constructive discharge absent any adverse employment

action” and absent any employer intent to cause a resigna­

tion. Id., at 153–154 (THOMAS, J., dissenting).

Despite the Suders Court’s overly broad description of

the doctrine, the Court at least retained some focus on an

employer’s conduct. The Court in Suders explained that

whether to “assimilat[e]” a constructive discharge “to a

formal discharge for remedial purposes” entailed an “ob­

jective” inquiry that focused on the “working conditions”

themselves. Id., at 141. And, it held that an employer

could raise certain affirmative defenses to stave off liabil­

ity when no official action forced an employee to resign.

Id., at 147.

Today, the majority goes even further than Suders in

Cite as: 578 U. S. ____ (2016) 11

THOMAS, J., dissenting

eviscerating the limitations on the constructive-discharge

doctrine. The majority’s rule transforms constructive

discharge into a claim focused on the employee’s conduct,

instead of the employer’s. Green does not allege that,

after he signed the settlement agreement, any other act—

by a supervisor or even a co-worker—occurred or other­

wise immediately precipitated his decision to quit. See

App. 19, ¶¶83–85. The majority’s holding—that Green’s

claim accrued when he resigned—must rest then on

Green’s own subjective feelings about the forced settle­

ment. By ignoring the date on which an employer’s dis­

criminatory act occurred and instead focusing only on an

employee’s subjective response to that discriminatory act

(see ante, at 12–14), the majority dispenses with the func­

tion of an employer’s conduct. The effect of the majority’s

analysis, then, is that constructive discharge no longer

involves any sort of objective inquiry.

I cannot agree. The concept of constructive discharge is

already on tenuous footing. It is not based on the text of

Title VII but instead on the fiction that an employee’s

resignation can be attributed to his employer in limited

circumstances. As initially conceived by the NLRB, this

fictitious attribution could be justified if an employer’s

unlawful employment practice “standing alone, render[ed]

an employee’s resignation reasonable and [thus] entitle[d]

the employee to backpay.” Shuck, 23 Berkeley J. Empl. &

Lab. L., at 409 (emphasis added); see, e.g., In re Waples-

Platter Co., 49 N. L. R. B. 1156, 1174–1175 (1943) (con­

cluding that it was reasonable per se for the employees to

quit in light of the nature of the employer’s intentional,

discriminatory transfers). Such attribution cannot be

justified, however, where—as here—the constructive

discharge accrues based solely on an employee’s subjective

response to alleged discrimination.

* * *

12 GREEN v. BRENNAN

THOMAS, J., dissenting

Because Green has not proffered any evidence that

discrimination continued to occur after he signed the

settlement agreement, his contact with EEOC was un­

timely under 29 CFR §1614.105. Accordingly, I would

affirm the judgment of the Court of the Appeals.