Reply — Green v. Donahoe, 135 S. Ct. 1892 (2015) (No. 14-613)

No. 14-613

IN THE

Supreme Court of the United States

MARVIN GREEN,

Petitioner,

Vv.

MEGAN J. BRENNAN, POSTMASTER GENERAL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

John Mosby Brian Wolfman

621 17th Street Counsel of Record

Suite 2445 Jeffrey L. Fisher

Denver, CO 80293 STANFORD LAW SCHOOL

SUPREME COURT

Elisa Moran LITIGATION CLINIC

8451 East Oregon Place 559 Nathan Abbott Wa:

Denver, CO 80231 Stanford, CA 94305

(650) 498-8229

Marilyn Cain Gordon bwolfman@stanford.edt

7603 Georgia Avenue, NW

Suite 304

Washington, DC 20012

TABLE OF AUTHORITIES

REPLY BRIEF FOR PETITIONER

I.

IT.

TABLE OF CONTENTS

The Filing Period For A _ Constructive

Discharge Claim Does Not Begin To Run

Until The Employee Resigns. ..........................0

A. Under The Default Rule, Filing Periods

rool

Start Only Once A Claimant Can File A

Claim And Obtain Relief. ......................000000000 2

. Neither The Text Here Nor This Court’s

Title VII Jurisprudence Overcomes The

I ITIIIIID: incenicthiniedcitieinteiicnadenienieinendeniatinninenmineed 4

. Resignation Triggers The Filing Period

For A Constructive Discharge Claim. ............ 8

. The Date-Of-Resignation Rule Promotes

Title VII's Goals Of Conciliation,

Fairness, And Administrability.................... 12

Government’s New Argument

Concerning When Petitioner Resigned Is Not

Before The Court And Is Wrong In Any

RR aan a ener araae Seapan ow Scat SEN aC P a OnE

A. The Only Question Before This Court Is

Whether The Filing Period Runs From

The Date Of Resignation. ........................6..

B. The Settlement Agreement Gave Mr.

Green A Choice Either To Retire Or To

Accept A Transfer, Making His EEO

SI IIIT dindTh intdcnetennsineeennnhinnnineieninniants

CONCLUSION

17

.20

‘i

TABLE OF AUTHORITIES

Page(s)

CASES

14 Penn Plaza LLC v. Pyett,

I is icieltiaeinniniisarininidenten 17

Adarand Constructors, Inc. v. Mineta,

I TIT ess inseinciechncieincnaiilindalaigninvioniiiionsiibinl 19

Already, LLC v. Nike, Inc.,

I a a nical cdi cnincaaittaitc 19

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal.,

EE ee a eS 2

Brown v. Gen. Servs. Admin.,

A a eee 14

Burlington N. & Santa Fe Ry. Co. v. White,

I teidadeasiidinatleall 19

Chardon v. Fernandez,

454 U.S. 6 (1981) (per curiam) ......................0000008 7

Del. State Coll. v. Ricks,

ETT A a 6,7

Dodd v. United States,

ie 3

Edelman v. Lynchburg Coll.,

EN ea 13

Franconia Assocs. v. United States,

ETS Sa 8

Global-Tech Appliances, Inc. v. SEB S.A.,

fk 4 <I RSEEne 19-20

ili

Gomez-Perez v. Potter,

NE NSE eee nee eae 8

Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson,

a eel 2

Heimeshoff v. Hartford Life & Accident Ins. Co.,

TEATS N ER ELA ANE RE 3

Hertz Corp. v. Friend,

EGET Re ee 15

Irwin v. Dep’t of Veterans Affairs,

RR 8,13

Jones v. Res-Care, Inc.,

613 F.3d 665 (7th Cir. 2010).................0..ee eee. 13

Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

I a ceenbamieadaie 15

Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618 (2007), superseded by statute Lilly

Ledbetter Fair Pay Act of 2009,

i. SS BT | I eeeerEe 7

Lozman v. City of Riviera Beach,

SE Se iicaciinnciintnsnicentinineniannimnnienion 19

Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co.,

Cs SP CID ccccccccnccoseicccsonctvccases 9, 10, 11, 16

In re Methy! Tertiary Butyl Ether Prods.

Liab. Litig.,

be | TL | SS 15

Nat R.R. Passenger Corp. v. Morgan,

ceili 7, 10,14

Pa. State Police v. Suders,

| EEN 5,9, 10, 11

iv

Petrella v. Metro-Goldwyn-Mayer, Inc.,

I atlases 11

Pillsbury v. United Engg Co.,

EE RE eae ee 3,5

Reiter v. Cooper,

al 3

Rivera-Dtaz v. Humana Ins. of P.R., Inc.,

748 F.3d 387 (ist Cir. 2014) ................................ 13

Smith v. United States,

a 15

Sure-Tan, Inc. v. NLRB,

ETE TE ST a ee S)

Tolan v. Cotton,

134 S. Ct. 1861 (2014) (per curiam) .................0. 20

United Air Lines, Inc. v. Evans,

sas cetniaeidiiamiiniblilinl 6

United States v. Jones,

I ii i ala rceaaeeciatlls 17

United States v. Seckinger,

ERTS aaNet 22

United States v. Wong,

I ca eiteniaptlihanal 4

United States v. Wurts,

I lied leacil 2,3

Wilson v. Garcia,

ical inalacintiat anal 11, 15

Woods v. Stone,

ee ee cccesrcennincsimiesemvetincnmmmmmatinnes 2

Vv

Zivototsky ex rel. Zivototsky v. Clinton,

TEES 19

REGULATION

29 C.F.R. § 1614.105(aX1)...................00.cccc000. 1, 4, 8, 11

OTHER AUTHORITIES

Black’s Law Dictionary (6th ed. 1990)...............00000000- 4

Black’s Law Dictionary (10th ed. 2014).........000.....0000. 4

Lindemann, Barbara T.., et al.,

Employment Discrimination Law

ERE A SS g

Restatement (Second) of Contracts (Am.

a Ss ee a 22

U.S. Equal Employment Opportunity

Commission, EEOC Compliance

EEE )

Williston, Samuel & Richard A. Lord, A

Treatise on the Law of Contracts

I 22

REPLY BRIEF FOR PETITIONER

Without clear text to the contrary, filing periods

run only once the claimant has a complete and

present cause of action. Petitioner Marvin Green

asks this Court to apply this well-established default

rule to constructive discharge claims. Because a

constructive discharge claim is complete when the

claimant resigns, and not before, that is when the

filing period begins to run.

The Court-appointed Amica reaches a contrary

result only by reading into the applicable regulation

an absent command that courts must focus on one

element of a constructive discharge claim

(precipitating conduct) to the exclusion of the other

(resignation) that is no less essential. But the

relevant text — from “the date of the matter alleged to

be discriminatory,” 29 C.F.R. § 1614.105(a)(1) — offers

no basis for breaking the two elements apart. Thus,

resignation starts the clock.

The Government agrees with all of this.

Nevertheless, it seeks to create a dispute over the

date of Mr. Green’s resignation and asks this Court

to resolve it. The Court should not wade into this

fact-laden argument, which the Government never

raised in the court of appeals. In any event, the

Government is wrong. Mr. Green resigned on

February 9, 2010, which is when his claim for

constructive discharge first became actionable and

the filing period began. His claim, filed forty-one

days later, was therefore timely.

2

I. The Filing Period For A Constructive

Discharge Claim Does Not Begin To Run

Until The Employee Resigns.

A. Under The Default Rule, Filing

Periods Start Only Once A Claimant

Can File A Claim And Obtain Relief.

This Court interprets limitations periods

“against the ‘standard rule that the limitations

period commences when the plaintiff has a complete

and present cause of action.” Graham Cnty. Soil &

Water Conservation Dist. v. United States ex rel.

Wilson, 545 U.S. 409, 418 (2005) (quoting Bay Area

Laundry & Dry Cleaning, Pension Trust Fund v.

Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)); see

U.S. Br. 17-18; Petr. Br. 14. But Amica argues that

the default rule applies only when the relevant text

directs that accrual of a claim triggers the limitations

period. Am. Br. 15, 29-30, 32-33.

That is incorrect. This Court applies the default

rule whether or not the limitations provision at issue

refers to accrual. In Woods v. Stone, 333 U.S. 472

(1948), for instance, the Court applied the default

rule to determine which of two possible events

triggered a limitations provision that ran “from the

date of the occurrence of the violation.” Id. at 472,

476-77, 477 n.4. And, in United States v. Wurts, 303

U.S. 414 (1938), the Court applied the default rule to

a limitations period that required the government to

bring suit “within two years after the making of the

[tax] refund,” id. at 417 (emphasis omitted), rejecting

the argument that the period could “begin to run

before the right barred by it has accrued,” id. at 418.

These cases make sense because a default rule

that can be invoked only when the text specifies that

3

accrual starts the clock is not a default rule at all.

Rather, dispensing with the default rule “require(s]

language so clear as to leave room for no other

reasonable construction.” Wurts, 303 U.S. at 418; see

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

(noting that the Court “will not infer... [the] odd

result” of a deviation from the default rule “in the

absence of any such indication in the statute”).

The cases on which Amica relies underscore that

the Court deviates from this rule only when the text

of a statute, regulation, or contract demands it. Am.

Br. 29-31. In Pillsbury v. United Engineering Co.,

342 U.S. 197, 199-200 (1952), for example, the Court

relied on an unambiguous statutory distinction

between “injury” and “disability.” Because, under the

statute, the claimant’s “injury” triggered the statute

of limitations, while the claim accrued upon the

claimant’s “disability,” the Court was “not free” to

ignore the clear statutory distinction. Id.

Likewise, as our opening brief explains (at 16),

Dodd v. United States, 545 U.S. 353, 358-59, 360

(2005), held that the relevant limitations provision

unambiguously required the filing period to

commence on the date this Court recognized a new

right, even though the cause of action accrued when

tiis Court made the right retroactively applicable.

And MHeimeshoff v. Hartford Life & Accident

Insurance Co., 134 S. Ct. 604, 610 (2013), stands for

the unsurprising proposition that parties may “agree

[to] contract” around the default rule.

4

B. Neither The Text Here Nor This

Court’s Title VII Jurisprudence

Overcomes The Default Rule.

Nothing in the text of the regulation or this

Court’s Title VII jurisprudence provides any basis for

straying from the default rule.

1. The text at issue contains nothing “special”

that would “tag” it as a departure from the default

rule. United States v. Wong, 135 S. Ct. 1625, 1632

(2015) (requiring a “clear statement” to dispense with

the default rule that time bars are presumptively

nonjurisdictional); accord New England Legal

Foundation Br. 3 (recognizing that Title VII's

timeliness provisions contain “no special allowance”

for constructive discharge claims). It provides that a

claimant must “initiate contact with aln EEO)

Counselor within 45 days of the date of the matter

alleged to be discriminatory.” 29 C.F.R.

§ 1614.105(a)(1).'

Amica contends that “matter alleged to be

discriminatory” refers only to an employers

precipitating conduct — or, as she and the Tenth

Circuit put it, the “last discriminatory act.” Am. Br.

20; see Pet. App. 20a. But as our opening brief

explains (at 17), “matter” describes the whole of a

plaintiffs claim — a “subject under consideration,”

Black’s Law Dictionary 1126 (10th ed. 2014), or

“[s}ubstantial facts forming [the] basis of [a] claim,”

Black’s Law Dictionary 978 (6th ed. 1990). And as

‘ Mr. Green agrees with both the Government and Amica

that the “personnel action” clause of 29 C.F.R. § 1614.105(a\1)

is not before the Court. See U.S. Br. 15 n.5, 36; Am. Br. 28 n.11.

5

this Court held in Pennsylvania State Police v.

Suders, 542 U.S. 129, 148 (2004), the whole of a

constructive discharge claim is comprised of both

precipitating conduct and a resignation. The default

rule thereby directs that the filing period for a

constructive discharge claim does not run until the

claimant has resigned.

Amica’s interpretation of the text requires that

the resignation element of a constructive discharge

claim be disregarded, when in fact it is necessary to

prove the claim. See Suders, 542 U.S. at 148. Under

the default rule, privileging one element over another

to determine when the filing period begins, as Amica

urges, would require an express textual command.

Pillsbury v. United Engineering Co., 342 US.

197 (1952), illustrates this point. There, the statute

unambiguously differentiated the elements of the

claim, specifying that the plaintiffs disability made

the claim actionable, but that the statute of

limitations nevertheless ran from the time of injury.

Id. at 199-200. Here, in contrast, “matter alleged”

calls no attention to any particular element of any

claim, let alone the precipitating conduct element of a

constructive discharge claim.

2. Nor do this Court’s employment discrimination

cases support Amica’s suggestion that “matter

alleged to be discriminatory” refers to the employer’s

last discriminatory act. Am. Br. 20-21. Amica reads

these cases as a set of affirmative holdings that

limitations periods run from that act. Jd. at 21-28.

But the Court did not hold this in any of those cases.

In each case, the relevant conduct fell on the same

date that the cause of action accrued. Thus, each

case reflects the unexceptional proposition that,

6

consistent with the default rule, the filing period

begins to run when the relevant claim first becomes

actionable.

Consider United Air Lines, Inc. v. Evans, 431

U.S. 553 (1977), and Delaware State College v. Ricks,

449 U.S. 250 (1980), on which Amica heavily relies.

Am. Br. 21-25. In those cases, the plaintiffs had

actionable claims only once they were forced to resign

and denied tenure, respectively. Consistent with the

default rule, these were also the dates when the

Court determined that the filing periods began to

run. Evans, 431 U.S. at 558-59; Ricks, 449 U.S. at

258.

Amica claims that the Government

misapprehends Evans. Am. Br. 25 n.8. But that case

contains no indication the plaintiff should have filed

her claim before it became actionable. As the

Government explains, the filing period in Evans

commenced only upon the plaintiffs forced

resignation — that is, her constructive discharge —

“not at any previous point when it had already been

made clear to her that the employer’s longstanding

policy would require her to separate.” U.S. Br. 27

Ricks is no different. There, the filing period for

the plaintiffs termination claim began when that

termination became “inevitable” — which coincided

with the date the plaintiffs tenure denial became

final. See Petr. Br. 24-25; U.S. Br. 25-26 (citing

Ricks, 449 U.S. at 257-58). Ricks is therefore

consistent with the date-of-resignation rule because a

constructive discharge claim does not become

inevitable until an employee resigns. See Petr. Br.

25; U.S. Br. 12, 25-26.

7

Amica responds that Ricks turned not on the

inevitability of the plaintiffs termination but instead

on the date of the challenged employment action.

Am. Br. 23. But Ricks did not distinguish between

those two ideas. It held that the statute of

limitations ran not from the plaintiffs last day of

employment, but instead from the date he received

notification of his tenure denial — which, as noted, is

when his termination claim first became actionable.

See Ricks, 449 U.S. at 258-59.

Amica’s other cases also align with the default

rule. In Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618, 631 n.3 (2007), superseded by statute,

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-

2, 123 Stat. 5, this Court explained that the employee

“could have, and should have, sued” when the

discriminatory action was taken against her, because

at that point she had a “fully formed” cause of action.

Similarly, Chardon v. Fernandez, 454 U.S. 6, 8 (1981)

(per curiam), held that the limitations period began

running when the employer gave the plaintiffs

definitive notice of their terminations, which

coincided with the accrual of their claims.

Likewise, National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002), held that the filing

periods for the claims at issue ran from the time each

claim accrued. With regard to discrete claims, such

as termination, the filing periods run from when each

wrongful act occurred. Id. at 113-14. And for hostile

work environment claims, the filing period may run

from “any act that is part of the hostile work

environment,” id. at 118, that is, from any act that

renders that type of claim actionable.

8

3. Notwithstanding the default rule, Amica

argues that the principle that waivers of sovereign

immunity are strictly construed requires the Court to

construe the text against Mr. Green. Am. Br. 33.

But the strict-construction rule does not apply here.

Congress indisputably has waived the Postal

Service’s sovereign immunity to suit for violations of

Title VII, including for constructive discharge claims.

Once the Government “waives its immunity and does

business with its citizens, it does so much as a party

never cloaked with immunity.” Franconia Assocs. v.

United States, 536 U.S. 129, 141 (2002). Thus,

“limitations principles should generally apply to the

Government ‘in the same way that’ they apply to

private parties.” Jd. at 145 (quoting Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 95 (1990)). Moreover,

29 C.F.R. § 1614.105(a)(1) is not itself a waiver of

sovereign immunity, and so a strict-construction

principle cannot apply to it. See Gomez-Perez v.

Potter, 553 U.S. 474, 490-91 (2008).

C. Resignation Triggers The Filing

Period For A Constructive Discharge

Claim.

Because the default rule applies here, the filing

period for a constructive discharge claim may not

start until the employee resigns.

1. Amica contends that “[iJn a constructive

discharge, an employee suffers injury and has a

complete and present cause of action for

discrimination under Title VII as soon as the

employer commits the predicate unlawful

discriminatory practice; the employee’s later

resignation changes only the damages recoverable for

that violation.” Am. Br. 36-37.

9

a. Amica may mean that resignation is not a

required element of a constructive discharge claim.

But this argument would run headlong into the

holding in Pennsylvania State Police v. Suders, 542

U.S. 129, 148 (2004), that constructive discharge is a

separate cause of action that necessarily includes

precipitating conduct and a resignation. Both

elements are indispensable to the claim, and the

filing period cannot begin until both are present.

Without the “employee’s decision to leave,” there can

be no “constructive discharge assertion.” Jd. This

argument is also at odds with all other relevant

authority.”

b. Amica may instead be arguing that a

constructive discharge claim is not a genuine,

separate cause of action, but simply enhances the

damages available for an employers prior

discriminatory acts. In this regard, she maintains

that a constructive discharge is only “assimilated to a

formal discharge for remedial purposes.” Am. Br. 18

(quoting Suders, 542 U.S. at 141).

But in a _ constructive discharge claim, a

resignation is not merely “damages-enhancing.” Am.

Br. 20 (quoting Suders, 542 U.S. at 148). As noted,

resignation is an essential element of what an

employee must prove to succeed on the merits of the

claim. See Suders, 542 U.S. at 148; Mac’s Shell

2 Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S.

175, 184 (2010); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894

(1984); see also U.S. Br. 19-20 (citing 1 Barbara T. Lindemann

et al., Employment Discrimination Law 21-46 (5th ed. 2012) &

EEOC Compliance Manual (BNA) §$612.%a) at 612:0006

(2008)).

10

Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 184

(2010); Petr. Br. 17-18.

To be sure, discriminatory conduct preceding a

constructive discharge is likely to be “independently

actionable.” Am. Br. 19. But, as with wrongful

terminations, proving a constructive discharge

requires showing the additional, distinct harm of a

forced departure. Suders, 542 U.S. at 148. This

harm entitles the claimant to additional damages —

the same remedies that would accompany a wrongful

termination. Id. at 141. The antecedent conduct to

which Amica refers may trigger “limitations periods

associated with [other] claims arising from such prior

acts.” U.S. Br. 22. This truth, however, has no

bearing on the point at which a _ constructive

discharge claim accrues. As new claims arise, each

“starts a new clock for filing charges.” Nat7

Passenger R.R. Corp. v. Morgan, 536 U.S. 101, 113

(2002).

A constructive discharge claim does carry

potential damages not available while the employee

remains on the job. But, once again, the same is true

of an ordinary termination. For example, an

employee who is first subjected to on-the-job

discrimination and later fired with the same motive

may be entitled to “enhanced” damages associated

with the firing, such as back pay. In that case, no

one disputes that the underlying claim and the firing

claim are each actionable, and that the firing is

subject to a separate limitations period that does not

begin to run until the firing occurs. See Morgan, 536

U.S. at 114. The same is true here.

2. Under Suders, the act that renders a

constructive discharge claim actionable is the

11

employee’s resignation, which is “assimilated to” a

termination. 542 U.S. at 141. This decision to resign

is “legally imputed to the employer.” U.S. Br. 24

(discussing Mac’s Shell, 559 U.S at 185). As a

consequence, even if Amica were _ correct,

countertextually, that the “matter alleged to be

discriminatory” in 29 C.F.R. § 1614.105(a)(1) could be

said to demand a singular focus on an employer’s last

allegedly discriminatory act, the resignation would be

the employer’s “last act” triggering the filing period.

Am. Br. 32. That the employee, rather than the

employer, “formally puts an end to the particular

legal relationship” simply makes the discharge

“constructive.” Mac’s Shell, 559 U.S. at 185.

3. Our opening brief explains (at 21-23) that the

great weight of authority holds that limitations

periods for state-law constructive discharge and

constructive eviction begin when the plaintiff

terminates the legal relationship, and _ not

before. Amica responds that Mr. Green’s reliance on

state-law analogues is misplaced, Am. Br. 34-35, but

this Court has looked to state law for guidance in the

limitations context, see Wilson vy. Garcia, 471 U.S.

261 (1985); see also Petrella v. Metro-Goldwyn-

Mayer, Inc., 134 S. Ct. 1962, 1968 (2014) (describing

the general practice). And, in Mac’s Shell, the Court

relied on state-law constructive eviction principles to

support its holding that a constructive termination

claim under the Petroleum Marketing Practices Act

could not exist until the franchisee had actually

terminated its franchise. 559 U.S. at 184-85.

Amica also notes that, in the _ state-law

constructive discharge context, many courts “did not

consider whether the limitations period could run

12

from the time of the employer's last discriminatory

act,” but rather were choosing only between the

employee's resignation and her last day of work. Am.

Br. 34-35. That observation only underscores that, in

light of the default rule, courts have not thought it

plausible that the filing period could run before the

claim existed.

D. The Date-Of-Resignation Rule

Promotes Title VII’s Goals Of

Conciliation, Fairness, And

Administrability.

1. Conciliation. The date-of-resignation rule

enables employees to make informal, good-faith

efforts to resolve concerns through “internal

channels” _ before initiating more formal

administrative procedures. NAACP Legal Defense &

Education Fund, Inc. et al. (LDF) Br. 11; see Petr. Br.

34-38. Amica is right that formal EEO mediation

sometimes promotes conciliation. Am. Br. 38. But

informal employee-employer discussions that take

place before and outside the EEO counseling process

may be more effective in resolving an employment

dispute.

Even if initiating “pre-complaint counseling does

not entail filing a complaint,” Am. Br. 39, that

decision triggers strict deadlines. These deadlines

push employees into adversarial proceedings even

before the more informal approach they and their

employers might prefer has run its course. See Petr.

Br. 35; LDF Br. 24 (noting that “a rush to adversarial

processes is counter to the spirit of Title VII”).

Avoiding third-party involvement may be

particularly critical for employees who fear

retaliation or the possibility of being labeled a

13

troublemaker. See LDF Br. 14 (emphasizing that

many employees fear that a “formal report of

discrimination functionally terminates the

employment relationship”).

Amica contends that permitting a constructively

discharged employee to seek out an EEO officer after

she has resigned delays conciliation until after “the

point of no return.” Am. Br. 2; see also id. at 39. Not

so. An employee’s constructive discharge is no more

irrevocable than an employee’s termination. In both

circumstances, the EEO process contemplates

successful conciliation, including reinstatement.

2. Fairness. Amica opts not to defend the last-

discriminatory-act rule on fairness grounds. She

contends only that equitable doctrines, such as

tolling, might rescue the lay claimant from the

potentially unfair consequences of the Tenth Circuit's

rule. Am. Br. 45. But the suggestion that some

complainants may be able to extend a missed

deadline cannot save a rule at odds with the

overarching principle of “ensur[ing] that the lay

complainant . . . will not risk forfeiting his rights

inadvertently.” Edelman v. Lynchburg Coll., 535

U.S. 106, 115 (2002); see also Petr. Br. 32-33.

Moreover, as this Court has recognized, “Federal

courts have typically extended equitable relief only

sparingly.” Jrwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 96 (1990) (declining to apply tolling); see

also, e.g., Rivera-Diaz v. Humana Ins. of P.R., Inc.,

748 F.3d 387, 390 (1st Cir. 2014) (equitable tolling is

“reserved for exceptional cases”); Jones v. Res-Care,

Inc., 613 F.3d 665, 670 (7th Cir. 2010) (“The Supreme

Court has instructed that equitable tolling is a

14

doctrine to be applied sparingly in Title VII cases.”

(citation omitted)).

Amica’s misplaced reliance on equitable tolling

underscores that, standing alone, the date-of-

resignation rule is fairer to lay claimants navigating

an admittedly “rigorous” administrative process. Am.

Br. 44-45 (quoting Brown v. Gen. Servs. Admin., 425

U.S. 820, 833 (1976)); see also Petr. Br. 32-34; U.S.

Br. 30-31. Because lower courts disagree over the

working conditions that qualify as intolerable, it is

especially challenging for an employee to assess

whether, absent resignation, the discrimination she

has suffered is sufficient to file a claim. LDF Br. 16-

17, 21. Under the last-discriminatory-act rule, an

employee in that position could even run out of time

before she has an actionable claim for constructive

discharge. This confusion may advantage

sophisticated employers over unwary employees.

Petr. Br. 37-39; LDF Br. 25.

3. Administrability. Because a resignation, like a

termination, is almost always a discrete, readily

identifiable event, the date-of-resignation rule is

easier for agencies and courts to administer. See

Petr. Br. 31. “Discrete acts such as termination,

failure to promote, denial of transfer, or refusal to

hire are easy to identify.” Nat? R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 114 (2002). But, as just

noted, it is frequently difficult to isolate the

discriminatory act that justifies an employee's

decision to resign.

Amica says that evaluating any discrimination

claim inherently requires identifying and classifying

last discriminatory acts. Am. Br. 43. But the last-

discriminatory-act rule draws forward thorny

15

questions of what conduct was discriminatory and

what conduct was benign to the threshold stage of

litigation, largely duplicating a merits inquiry.

Though complexity may be unavoidable at the merits

stage, that is no reason to inject it at the threshold,

particularly when aan_ easily administrable

alternative—the date-of-resignation rule —- is

available. See Petr. Br. 28-32.

This Court has favored simplicity in a related

context. When considering threshold issues of

jurisdiction, the Court has emphasized that “rules

should be clear.” Lapides v. Bd. of Regents of Univ.

Sys. of Ga., 535 U.S. 613, 621 (2002); see also Hertz

Corp. v. Friend, 559 U.S. 77, 80 (2010) (placing

“primary weight upon the need for judicial

administration of a jurisdictional statute to remain

as simple as possible”). Given the difficulties

inherent in the last-discriminatory-act rule, the date-

of-resignation rule aligns with this preference for a

“simple approach” to limitations periods. See Wilson

v. Garcia, 471 U.S. 261, 275 (1985).

Amica also states that the Tenth Circuit’s rule

adds “no unusual complexity” because claimants need

only allege — not prove — when the last discriminatory

act occurred. Am. Br. 43. But, when challenged,

compliance with filing deadlines must be proved.

See, e.g., Smith v. United States, 133 S. Ct. 714, 721

(2013) (“[T]he Government must prove the time of the

conspiracy offense if a statute-of-limitations defense

is raised.”); In re Methyl Tertiary Butyl Ether Prods.

Liab. Litig., 725 F.3d 65, 90-91 (2d Cir. 2013) (noting

that the defendant’s statute-of-limitations argument

went to the jury). That proof would be more complex

16

and more frequently contested under the Tenth

Circuit’s rule.

In addition, Amica nowhere defends the primary

concern that led the Tenth Circuit to reject the more

administrable date-of-resignation rule -—- _ that

claimants are apt to file delayed claims. Pet. App.

20a-21a. Amica thus tacitly acknowledges that the

filing of stale claims is highly unlikely and that

belated resignation jeopardizes success on the merits.

See Petr. Br. 36-37; U.S. Br. 28; LDF Br. 24-25.°

Rather, Amica focuses on trying to bolster the

Tenth Circuit’s rule. But in doing so she introduces

greater complexity into a rule that is already far less

administrable than the date-of-resignation rule.

Claimants, she argues, may simply amend existing

complaints to add a claim for constructive discharge.

Am. Br. 40. “That proposed solution leaves much to

be desired.” U.S. Br. 30. When constructive

discharge claims are brought on a stand-alone basis,

there will be no prior claim to amend, and so, for

those claims, Amica’s prescription is no solution at

all. See Petr. Br. 33 (citing stand-alone constructive

discharge cases). In other cases, as the Government

3 One amicus brief trumpets the Tenth Circuit’s delay

hypothesis, but without authority. Equal Employment Advisory

Council et al. Br. 20-22. Constructive termination and eviction

causes of action have been recognized for many decades, see

Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 184

(2010), and the great weight of authority provides that the

limitations periods for these actions may not run until the

plaintiff severs the relationship, Petr. Br. 21-23. But this

amicus brief does not cite a single case to support its assertion

that the date-of-resignation rule promotes inappropriate delay.

17

explains, Amica’s argument depends on _ the

unfounded assumption that the request to amend will

be granted. U.S. Br. 30; see also Petr. Br. 34. The

date-of-resignation rule poses none of these problems.

II. The Government’s New # Argument

Concerning When Petitioner Resigned Is

Not Before The Court And Is Wrong In

Any Event.

A. The Only Question Before This Court

Is Whether The Filing Period Runs

From The Date Of Resignation.

1. In a nearly verbatim reprise of its brief in

opposition, the Government insists that, under his

agreement with the Postal Service, Mr. Green

resigned on December 16, 2009, and so his claim was

untimely under the date-of-resignation rule. U.S. Br.

32. The Government did not make this argument in

the court of appeals, and “this Court will affirm on

grounds that have not been raised below ... only in

exceptional cases.” 14 Penn Plaza LLC v. Pyett, 556

U.S. 247, 272-73 (2009) (internal quotation marks

omitted) (ellipsis in original). The Government’s

new, fact-bound argument is therefore forfeited. Id.;

see United States v. Jones, 132 S. Ct. 945, 954 (2012).

What is more, the Government contended

precisely the opposite in the Tenth Circuit,

repeatedly maintaining that the agreement did not

constitute Mr. Green’s immediate resignation but

rather gave him an option to resign before March 31,

2010, or, if he chose not to resign, to transfer to

Wyoming. In designating the “issues presented for

review” in its Tenth Circuit brief, the Government

maintained that the “settlement agreement” provided

18

that Mr. Green “would either accept a transfer [to

Wyoming] or resign by March 31, 2010.” U.S. C.A.

Br. 1-2. Similarly, the Government’s brief explained

that, under the settlement agreement, “Mr. Green

[was] to receive full salary, while relinquishing the

Englewood postmaster position and agreeing to

either retire or accept transfer to Wyoming.” Jd. at

36. The Government made similar assertions at least

five more times in its Tenth Circuit brief. Jd. at 19,

24, 44, 47, 50; see Pet. Reply 8-9, 9 n.2 (detailing the

Government’s statements).

In keeping with the Government’s contentions

below, the Tenth Circuit viewed February 9, 2010, as

Mr. Green’s resignation date. That court found that

the settlement agreement permitted Mr. Green to

“choose either to retire or to work in a position that

paid much less and was about 300 miles away.” Pet.

App. 2a (emphasis added); see also id. at 5a.

“Ultimately,” it concluded, Mr. Green “decided to

retire.” Jd. at 2a. If, as the Government now

suggests, Mr. Green resigned on December 16, the

court of appeals would have had no reason to analyze

at length its reasons for choosing the last-act rule

over the date-of-resignation rule. See Pet. App. 15a-

23a.*

* Although the Government is correct that the district

court’s summary-judgment opinion indicated that Mr. Green

retired by signing the agreement, see U.S. Br. 34, the district

court stated at another point (when denying the Government's

motion to dismiss the constructive discharge claim on

inadequate-pleading grounds) that the agreement “mandated

that by March 31, 2010, Plaintiff must either retire or transfer

to a position 400 miles away in Wyoming.” Order at 4 (D. Ct.

19

2. Forfeiture aside, this Court is “a court of final

review and not first view.” dZivotofsky ex rel.

Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012)

(quoting Adarand Constructors, Inc. v. Mineta, 534

U.S. 103, 110 (2001)). This Court, therefore, should

not consider the issue.

In asking the Court to resolve the issue, the

Government relies on cases that involved procedural

circumstances markedly different from those here.

See U.S. Br. 35-36. For instance, Lozman v. City of

Riviera Beach, 133 S. Ct. 735, 740-41 (2013), turned

on the legal definition of a “vessel.” After the Court

announced the applicable rule, there was “nothing to

be gained” by remanding the case because no

relevant facts were disputed. Id. at 745-46.

Similarly, in Already, LLC v. Nike, Inc., 133 S. Ct.

721, 732-33 (2013), the Court refused to remand a

case for further proceedings when the losing party

had already disclaimed any intention of developing a

factual record that might alter the result. And in

Burlington Northern & Santa Fe Railway Co. v.

White, 548 U.S. 53, 70 (2006), the Court did not

remand because it adopted a less stringent legal

standard for the prevailing party than the one the

jury had applied. See also Global-Tech Appliances,

Doc. 19). So the district court’s understanding of the agreement

is unclear.

In any case, the district court’s understanding is irrelevant

in light of the Tenth Circuit’s statements that the settlement

agreement gave Mr. Green the option, until March 31, 2010, to

retire or assume the Wyoming position. Pet. App. 2a, 5a.

20

Inc. v. SEB S.A., 131 S. Ct. 2060, 2071 (2011) Gury’s

finding for the prevailing party on a fully developed

factual record could not be altered on remand by

applying the Court’s new legal test).

Here, in contrast, there has been no trial, and

the case came to the Tenth Circuit on the

Government’s summary-judgment motion. In

addition, as explained immediately below, the record

contains abundant evidence that Mr. Green resigned

on February 9, not on December 16. Therefore, this

Court should simply answer the question presented

and reverse.

B. The Settlement Agreement Gave Mr.

Green A Choice Either To Retire Or

To Accept A Transfer, Making His

EEO Contact Timely.

If the Court decides to wade into the issue of

when Mr. Green retired, February 9, 2010, is the

correct date. On summary judgment, a court views

the facts “in the light most favorable to the opposing

party.” Tolan v. Cotton, 134 S. Ct. 1861, 1867 (2014)

(per curiam) (internal quotation marks omitted).

Following that standard, the Court should interpret

the agreement as providing Mr. Green an option to

retire or take a position in Wyoming, which he

exercised on February 9.

In relevant part, the agreement reads: “Mr.

Green agrees to retire from the Postal Service no

later than March 31, 2010. Mr. Green agrees to take

all necessary steps to effect his retirement on or

before March 31, 2010. If retirement from the Postal

Service does not occur Mr. Green will report for duty

in Wamsutter, Wyoming on April 1, 2010.” JA. 60-

61. Taken as a whole, this language supports Mr.

21

Green’s view -— repeatedly advanced by the

Government below and adopted by the court of

appeals, Pet. App. 2a, 5a — that the agreement

provided Mr. Green with the option to retire or to

report to the position in Wyoming.

The Government suggests that Mr. Green’s

representative, Robert Podio, entered into

negotiations to effect Mr. Green’s immediate,

unconditional resignation. U.S. Br. 4. To the

contrary, Mr. Podio stated that he viewed the

agreement as authorizing Mr. Green to “either retire

from USPS ... or alternatively, if he decided not to

retire . .. to transfer to a lower position” in

Wyoming. J.A. 63.

To be sure, the record includes a statement by

the Postal Service’s negotiator, David Knight, that it

was his “understanding” that, by signing the

agreement, Mr. Green agreed to retire and not report

to Wyoming. J.A. 51; see U.S. Br. 34 n.15. But Mr.

Knight also told the Postal Service’s EEO

investigator probing the constructive discharge

complaint that Mr. Green had an option: “the

agreement stated that if [Mr. Green] did not retire,

he would assume another Postmaster position at a

lower level.” Resp. to Mot. for Summ. J., Ex. 26, at 8

(D. Ct. Doc. 106-26). Furthermore, Charmaine

Ehrenshaft, a Postal Service labor-relations manager

who was kept aware of the negotiations as they were

unfolding, J.A. 53, told the same _ investigator

that “one of the terms of [the] agreement was a

retirement option.” Resp. to Mot. for Summ. J., Ex.

26, at 6 (D. Ct. Doc. 106-26) (emphasis added). And

the agency’s EEO decision based on this investigation

concluded that a “fair reading of the agreement” gave

22

Mr. Green “the choice to retire or report to a new job.”

JA. 23.5

Despite this evidence that the agreement

provided Mr. Green with an option, the Government

asserts in this Court that the agreement’s reference

to the Wyoming position “merely provided for

contingencies in which retirement did not happen by”

the end of March. U.S. Br. 33. That is a puzzling

interpretation. If, under the agreement, Mr. Green

had in fact resigned on December 16, he would have

fully performed on the contract. It would not have

been necessary to plan for “contingencies.”

Although it is not clear, the Government appears

to suggest that, rather than providing Mr. Green

with the option to go to Wyoming, the agreement

provided for something akin to liquidated damages in

the event that Mr. Green did not effectuate his

retirement. This makes no sense. Under the

Government’s interpretation, Mr. Green would have

breached the agreement if he had not effectuated his

retirement. But the apparent damages for this

breach would have gone to Mr. Green, the breaching

party, in the form of continued employment with the

Postal Service in Wyoming. It is odd, to say the least,

that the agreement would provide Mr. Green with

® Even assuming the agreement is ambiguous, that

ambiguity should be construed against the Government under

the “generally accepted principle that any ambiguity . will be

interpreted against the drafter.” 11 Samuel Williston & Richard

A. Lord, A Treatise on the Law of Contracts § 32:12 (4th ed.

1999); accord United States v. Seckinger, 397 U.S. 203, 210

(1970); Restatement (Second) of Contracts § 206 (Am. Law Inst.

1981).

23

continued employment after he breached the contract

that supposedly demanded his immediate departure.

* *

Resolving the question on which this Court

granted review depends not on the Government’s

thirteenth-hour factual claim, but instead on

application of a familiar default rule to the filing

period governing constructive discharge cases.

Holding the Government to its repeated assertions

below that Mr. Green had an option to resign or

assume another position facilitates resolution of that

question: whether the last-act rule or the date-of-

resignation rule controls. For the reasons explained

above, the date-of-resignation rule comports with the

established default rule, this Court’s employment

discrimination precedents, and Title VII's goals.

CONCLUSION

The judgment of the court of appeals should be

reversed.

John Mosby

621 17th Street

Suite 2445

Denver, CO 80293

Elisa Moran

8451 East Oregon Place

Denver, CO 80231

Marilyn Cain Gordon

24

Respectfully submitted,

Brian Wolfman

Counsel of Record

Jeffrey L. Fisher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 498-8229

bwolfman@stanford.edu

7603 Georgia Avenue, NW

Suite 304

Washington, DC 20012

October 28, 2015