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

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No. 14-613

IN THE

Supreme Court of the United States

MARVIN GREEN,

Petitioner,

MEGAN J. BRENNAN, POSTMASTER GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR COURT-APPOINTED AMICA CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

ALAN E. SCHOENFELD CATHERINE M.A. CARROLL

WILMER CUTLER PICKERING Counsel of Record

HALE AND DORR LLP ALBINASJ. PRIZGINTAS

7 World Trade Center JOSHUA M. KOPPEL

250 Greenwich Street WILMER CUTLER PICKERING

New York, NY 10007 HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

catherine.carroll|@wilmerhale.com

QUESTION PRESENTED

Whether the period in 29 C.F.R. § 1614.105(a)(1) for

a federal employee to initiate pre-complaint counseling

on a constructive-discharge claim under Title VII be-

gins to run when the employee resigns or at the time of

the employer’s last discriminatory act giving rise to the

resignation.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....00......-scccsesscoveessoecconeecesnseesen i

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Is a bal

ee I crrerccsinrenessctennicninncsnecomnmninien 12

SUMMARY OF ARGUMENT. ...........ccccccccccccccesseeeesceees 14

I ala cite tal ii 17

I. THE LIMITATIONS PERIOD FOR INITIATING

PRE-COMPLAINT COUNSELING ON A CON-

STRUCTIVE-DISCHARGE CLAIM BEGINS AT

THE TIME OF THE EMPLOYER’S LAST DIS-

i tis 17

A. In A Constructive-Discharge Claim,

The “Matter Alleged To Be Discrimi-

natory” Is The Discriminatory Conduct

Of The Employer Giving Rise To The

ee 17

B. The Last-Discriminatory-Act Rule Ac-

cords With This Court’s Precedent.................. 21

Il. THE LAST-DISCRIMINATORY-ACT RULE IS

CONSISTENT WITH STATUTE-OF-LIMITA-

EE SEE NR ens ae 29

IIL. TITLE VII POLICIES OF CONCILIATION,

ADMINISTRABILITY, AND FAIRNESS FAVOR

THE LAST-DISCRIMINATORY-ACT RULE................ 37

(iii)

TABLE OF CONTENTS—Continued

Page

A. The Last-Discriminatory-Act Rule

Promotes The Purpose Of Pre-

Complaint Counseling ........................sses0-s+-00 38

B. Green’s Concerns For Administrability

And Fairness Lack Merit...................-s-0s-0+e+-0++: 42

ITT cirinneniccinicininicaniehituiinbaniiatininssisenioneaniiiasinintis 47

TABLE OF AUTHORITIES

CASES

Page(s)

Albemarle Paper Co. v. Moody, 422 U.S.

ee 17

Bailey v. United Airlines, Inc., 279 F 3d

III entscersitivnnsaprentecnenicnmntitepeemmnmnmnisite 26

Bannon v. University of Chicago, 503 F.3d

0 EE a ae 19

Barone v. United Airlines, Inc., 355 F .

Te eS ene 42

Bass v. Joliet Public School District No.

86, 746 F.3d 835 (7th Cir. 2014) 00.0... eeecceeseeseeee 44

Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of

California, Inc., 522 U.S. 192 (1997) ............00+6 30, 33

Bourque v. Powell Electrical Manufactur-

ing Co., 617 F.2d 61 (5th Cir. 1980) .....0.........eeeeeeee 39

Brown v. GSA, 425 U.S. 820 (1976).............c.0-000+ 4, 33, 45

Central Virginia Community College v.

8 25

Chardon v. Fernandez, 454 U.S. 6 (1981)................ 23, 24

Clark v. Iowa City, 87 U.S. (20 Wall.) 583

Saisie criusetesitpienigntatueniidteidintindinabtiinialindaiininseianeninccnniniin, 30

CTS Corp. v. Waldburger, 134 S. Ct. 2175

IE sccnceenincsinisshaiieastanteicanpuiiemmmsnaimsnnianiemnesnatcccsmmmntett 36

Delaware State College v. Ricks

I Seiiiinernitasienncintecenintenmncesnenennen passim

TABLE OF AUTHORITIES—Continued

Page(s)

Dodd v. United States, 545 U.S. 353

TI isesienseiarieetnientesiasstpubncanteanienastapintiateannneterd 30, 31, 33, 36

Douchette v. Bethel School District

No. 408, 818 P.2d 1362 (Wash. 1991).................0cc00 35

Duncan v. General Motors Corp., 300 F.3d

ee eh ace nenrienenvntecenmnmnienionseniinenecieanesseses 39

EEOC v. L.B. Foster Co., 123 F.3d 746

SE sn UTI Tieshidieihicenatintandstinstinnnenbinemenmectecnemmecntis 39

Farris v. Shinseki, 660 F.3d 557 (1st Cir.

EE cxntecssinnevoverenamniniinaeininseimbinainttinitiepneensenerenamnnsea 33

Gabelli v. SEC, 133 S. Ct. 1216 (2013)............ecsecsceseeseeee 33

Graham County Soil & Water

Conservation District v. United

States ex rel. Wilson, 545 U.S. 409

a sestlictecinncenesdininesmnsieneevieeaidantiatnnenennte 29, 30, 32, 33

Hancock v. Bureau of National Affairs,

Inc., 645 A.2d 588 (D.C. 1994).............ccccsccececsersoseses 35

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

Sa hsriniscinsiesiticenesitinineninensnespemepinttemetninnmeneccmeneeetes 35

Hebert v. Mohawk Rubber Co., 872 F.2d

ee Gi itrictcrrereniitnsnncciinennnenninoncemenses 41, 42

Heimeshoff v. Hartford Life & Accident

Insurance Co., 134 8. Ct. 604

i creediccnteneneninpstennainmnmsens 15, 29, 30, 31, 36, 45

Hernandez-Torres v. Intercontinental

Trading, Inc., 158 F.3d 43 (1st Cir.

SERRE SER er Ee Ce 19

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Irwin v. Department of Veterans Affairs,

SF ls EP CD cecssrenatinennnsiteiibicnniimenel 4, 33, 45

Jeffery v. City of Nashua, 48 A.3d 931

EAs SUTIN cicsrcncsrisiciiesenciiendiettaninltaninaianiaisiiaiiaiiidaiiabias 35

Joliet v. Pitoniak, 715 N.W.2d 60 (Mich.

STII viniresincantcicreercaneticacccnhdinnateiniaiiaiaptdiiaisiildinsiniicssinenlateaaiiia 35

Jurgens v. EEOC, 903 F 2d 386 (5th Cir.

FD ceseccscsiensnsiedieeaehavtieiiiataindnsinaiemiiainiinnsuieieniahed 17, 18

Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618 (2007), swperseded by

statute on other grounds, Lilly Ledbet-

ter Fair Pay Act of 2009, Pub. L. No.

Ba Se Wiiniisiicseiseiecstsietienieinlensistsiiniieninbctiianenbialtabaaaa 25

Mac’s Shell Service Inc. v. Shell Oil

Products Co., 559 U.S. 175 (2010) 000... eeeeeseeeeeeee 34

Mach Mining, LLC v. EEOC, 135 S. Ct.

Fe a ncicessiiseccccecsiinsiinitiienianaiiciaatiiiniaiaiiaitneniiiaditieina 38

Major v. Rosenberg, 877 F.2d 694 (8th Cir.

SEITE cieinnicocceensasersencstasienndanasnieginaiiatiaiadaanidiilaniidndiiiiaiaiiinis 18

McFarland v. Henderson, 307 F.3d 402

Se ae SE creniicaricenensantecenincincenimenmenieepnnienn 4, 33

McMahon v. United States, 342 U.S.

8 ET aR 31, 33, 36, 46

Mullins v. Rockwell International Corp.,

936 P.2d 1246 (Call. 19977) ............ccecserersessrsecesseeee 35, 36

National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002).................... 27, 28, 32, 46

TABLE OF AUTHORITIES—Continued

Page(s)

National Railroad Passenger Corp. v.

Notter, 677 F. Supp. 1 (D.D.C. 1987) .............cc0000000 36

O’Brien v. USDA, 532 F.3d 805 (8th Cir.

EE eT 19

Patterson v. State Department of Health &

Welfare, 256 P.3d 718 (Idaho 2011) .................0.c0000 35

Pauling v. Secretary, Department of Inte-

rior, 160 F.3d 133 (2d Cir. 1998) ................ceccccsceseeee 45

Pennsylvania State Police v. Suders,

542 U.S. 129 (2004) ..............cecceceecees 2, 15, 18, 19, 20, 23

Pillsbury v. United Engineering Co.,

I cnrtnstcnarecncnnenentenssennmneeneceans 31, 36, 46

Pollard v. EJ. du Pont de Nemours &

Ee 17

Ramirez v. Secretary, United States

Department of Transportation, 686

ee 6

Rawlings v. Ray, 312 U.S. 96 (1941).............ccccceceeseeees 30

Skidmore v. Swift & Co., 323 U.S. 134

EE 26

Stupek v. Wyle Laboratories Corp., 963

a ircneiistneenmenennscmnennmenmencemnancensee 35

Sturdivant v. City of Atlanta, 596 F. App’x

Se ierctnerieenttermennesnnesemmesccessemmsesmmass 43

Taylor v. Solis, 571 F.3d 1313 (D.C. Cir.

ee 3

TABLE OF AUTHORITIF.S—Continued

Page(s)

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

ST cnt cconenstencnesititiitieinsinnietinninediinnesnemenees 24, 25, 27

United States v. Kubrick, 444 U.S. 111

ES ee eee eee 33

W.R. Grace & Co. v. Local Union 759,

gs 38

Wallace v. Kato, 549 U.S. 384 (2007) .0..........cccccceeeceseeees 37

Wells v. Shalala, 228 F.3d 1137 (10th Cir.

ERE nln So 19

Whye v. City Council for City of Topeka,

ee 35

Wilks v. Elizabeth Arden, Inc., 507 F.

Supp. 2d 179 (D. Comm. 2007) ..............ccecccceceeeeseeeenes 44

Young v. National Center for Health

Services Research, F.2d 235

SU TI innedhicdateteriacesdghinthinnaneceripeannen 41, 42, 43

Zipes v. Trans World Airlines, Inc.,

I rcertinnrctnitnnnieniiainiennienenniaiitneuniniinis 6

DOCKETED CASES

Bailey v. United Airlines, Inc., No. 00-2537

See ee 26

ADMINISTRIATIVE MATERIALS

Braxton v. Potter, 2010 WL 4388483 (Office

OE FOR. Cape, Gat, BD, BP ccccecnesesnssssnccssessenccnsssssessessece 7

Cabello v. Casellas, 1996 WL 159158

(Office of Fed. Ops. Mar. 28, 1996) ..................ec-s-e+- 29

TABLE OF AUTHORITIES—Continued

Page(s)

Cochran v. Reno, 1996 WL 705504 (Office

GEOR, Gap. FED U. BG, Be iccccrecssscscssmesscscssesesscssmeses 45

Complainant v. McHugh, 2014 WL

6853728 (Office of Fed. Ops. Nov. 25,

NE 7

Gorski v. Henderson, 2000 WL 1687230

(Office of Fed. Ops. Oct. 31, 2000) ..0............c.ccesecceseees 7

Wallace v. Donley, 2010 WL 3314272

(Office of Fed. Ops. Aug. 12, 2010)..............ccsesseeees 42

Zayas v. Shinseki, 2012 WL 258370 (Office

of Fed. Ops. Jan. 20, 2012).............c-ssecsssssersecsssscereess 29

34 Fed. Reg. 5,367 (Mar. 19, 1969) ...............ccccecseseeseeees 4,5

ST Ped. Thaw, SR TET Gbat. Bh, WCEP cccecesccsccscsscsssscscssesssssees 5

54 Fed. Reg. 45,747 (Oct. 31, 1989)..............cscccsesesseeseeesees 5

57 Fed. Reg. 12,634

4) 4, 5, 26, 28, 37, 38, 45

80 Fed. Reg. 6,669 (Feb. 6, 2015) .............--ecccceeeseees 3, 4,8

Exec. Order No. 11478, 34 Fed. Reg.

CL EE 4

EEOC, Annual Report on the Federal

Work Force Part I: Fiscal Year 2012,

available at http://www.eeoc.gov/

federal/reports/fsp2012/upload/F Y -

2012-Annual-Report-Part-I-

Complete.pdf (last visited Sept. 28,

IE ccccrnseestnterensimcitemnnnsinemeaetapeieemeamanmenenenenne 40

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC, After You Have Filed a Charge,

available at http://www.eeoc.gov/

employees/afterfiling.cfm (last visited

ST cccttneincenencireemgnenbepusinssititinmnaneemenass 41

EEOC, Compliance Manual: Threshold

Issues, available at http://www.eeoc.

gov/policy/does/threshold.html (last

S| _) rrr 26, 28

EEOC, Equal Employment Opportunity

Management Directive for 29 C.F _R.

Part 1614 (rev. Nov. 9, 1999) .......... a 7,41

EEOC, Equal Employment

Opportunity Management

Directive for 29 C.F .R. Part

1614 (rev. Aug. 5, 2015)............-..0++. 3, 4, 7, 8, 38, 40, 41

Regulations.gov, Federal Sector Equal

Employment Opportunity, available at

http//www.regulations.gov/#!docket

Detail; D=E EOC-2015-0005 (last

Ce 8

STATUTES AND REGULATIONS

nA A 34

xii

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C.

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§ CIPI. wt. FEB cscscessssserseeerceccererssccscsneccccssessnscnsssssssssssasnensess

29 C.F.R.

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OD BEI IID cecsoscssszesssegsnnsesessseeniesnocenoeennesesesnresssaestSsthis 4

| LATE Eaeearereme passim

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ID 055i55sshisshtssiasbariastehsta ies ceensecssscnmeeennes 4

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| EEE ESTRISTTEREE Erneta REET 7

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By IIIT 5 scoinsinthiesidicthladnaniaanntnnablaindtiepenniaiennients 7

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| TTT ene ee ee eT »

pI itenasinssssassnndibenbisenenbntebnirensnnenbbinnsbentmantesseteenenis s

Ey TT orencncoimninsepeceannnasepanasnbannibdinnsiiitesbiasibabinmesiiiiiil 8

recreate tiiaadianehiimseninminatiil 6, 45

Seer 36

Towa Code § 2740.4 (1872) ..........s-cssssessesersesesereecenenenesenes 30

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Corman, Calvin W., Limitations of Actions

rea inicciesiriehtnsnensinintarihavetineniaes hahdtccipueninaaanentrinedaniamtnts 30, 37

Friedman, Andrew H., Litigating

Employment Discrimination Cases

i Fe ee icecienerentecnmtaninenntiernittnticcencmmsesemnncsmseetnnn 3

Larson, Lex K., Labor & Employment Law

SITE cubeennienineaedenandepniniannneeenseteaianninnnaneenenesenemnanetes 18

Lindemann, Barbara T., et al.,

Employment Discrimination Law

SEITE IIIT icepsceesiendenenagnteraseancnsnamintinnemennemeenseness 18, 19

Shuck, Cathy, That’s It, I Quit: Returning

to First Principles in Constructive

Discharge Doctrine, 23 Berkeley J.

Emp. & Lab. Law 401 (2002) ....0..0..........cccesceeees 19, 42

IN THE

Supreme Court of the Rnited States

No. 14-613

MARVIN GREEN,

Petitioner,

MEGAN J. BRENNAN, POSTMASTER GENERAL,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR COURT-APPOINTED AMICA CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

INTRODUCTION

To exhaust a claim of employment discrimination

under Title VII, a federal employee must first consult

an equal employment opportunity counselor in his or

her agency. This requirement aims to promote early,

informal resolution of disputes before the parties’ posi-

tions have hardened. To that end, employees must sat-

isfy strict time limits for initiating informal counseling.

As relevant here, a federal employee must contact a

counselor “within 45 days of the date of the matter al-

leged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).

Marvin Green, a former employee of the U.S. Post-

al Service, filed suit alleging that he was forced to re-

tire in retaliation for having pursued charges of dis-

crimination. The question presented is whether Green

had to initiate informal counseling on that claim within

45 days of his resignation or 45 days of the last discrim-

inatory act of his employer that led to his resignation.

Green and the government would answer that

question by applying a general rule that limitations pe-

riods often commence when the cause of action accrues.

But the principal lesson of this Court’s statute-of-

limitations cases is simply that the clock starts ticking

when the limitations provision says it does. And in a

constructive-discharge case, the “matter alleged to be

discriminatory” is the underlying discriminatory act of

the employer—not the employee’s resignation.

The constructive-discharge doctrine protects an

employee’s access to the full range of remedies for un-

lawful discrimination when intolerable conditions force

him or her to resign; it does not alter the usual struc-

ture of a Title VII claim as challenging the discrimina-

tory conduct of the employer. A resignation is “func-

tionally the same as an actual termination in damages-

enhancing respects,” Pennsylvania State Police v.

Suders, 542 U.S. 129, 148 (2004) (emphasis added), but

nothing in this Court’s precedent or the limitations

provision supports “the legal fiction that the employee’s

resignation, or notice of resignation, is a ‘discriminatory

act’ of the employer” for statute-of-limitations purpos-

es, Pet. App. 20a. Moreover, tying the limitations peri-

od to the date of resignation, as Green and the govern-

ment advocate, would frustrate the purpose of the

counseling requirement by delaying informal counsel-

ing until after the employee’s commitment to resign has

passed the point of no return.

STATEMENT

A. Legal Background

As amended in 1972, Title VII of the Civil Rights

Act of 1964 requires that “[aJll personnel actions affect-

ing employees or applicants for employment” within

certain entities of the federal government “shall be

made free from any discrimination based on race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-

16(a). Although Title VII includes no express anti-

retaliation provision applicable to federal employers,

courts have construed Title VII’s anti-discrimination

rule to prohibit retaliation by federal employers against

employees or job applicants who oppose practices that

Title VII forbids or who pursue charges of discrimina-

tion. See, e.g., Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.

Cir. 2009); see also 29 C.F.R. § 1614.101(b) (“[nJo person

shall be subject to retaliation”); 42 U.S.C. § 2000e-3(a)

(private-sector anti-retaliation provision).'

Before suing to challenge alleged discrimination,

federal employees must first exhaust administrative

remedies as provided in 29 C.F.R. part 1614. See 42

U.S.C. § 2000e-16(c). Exhaustion procedures in the

federal sector are “significantly more onerous” than in

the private sector. 1 Friedman, Litigating Employ-

ment Discrimination Cases § 1:57.8 (rev. Aug. 2012).

Whereas private-sector employees exhaust claims by

filing a formal charge of discrimination with the Equal

' Before Congress extended Title VII to the federal sector in

1972, discrimination in federal employment was addressed by a

series of executive orders going back to the 1940s and, beginning

in 1966, administrative regulations then codified at 5 C.F.R. part

713. See 80 Fed. Reg. 6,669, 6,669-6,670 (Feb. 6, 2015); EEOC,

Equal Employment Opportunity Management Directive for 29

C.F.R. Part 1614, at P-i to P-iv (rev. Aug. 5, 2015).

Employment Opportunity Commission (“EEOC”), 42

U.S.C. §§ 2000e-5(e), 2000e-16c(b)(1), federal employees

must first initiate informal counseling with an equal

employment opportunity (“EEO”) counselor at the

agency accused of discrimination, 29 C.F.R.

§ 1614.105(a), and then file a formal administrative

complaint with the agency before an optional appeal to

the EEOC from the agency’s final decision. 80 Fed.

Reg. 6,669, 6,670 (Feb. 6, 2015). Satisfaction of these

““rigorous administrative exhaustion requirements and

[corresponding] time limits” is a “condition[] [of] the

government’s waiver of sovereign immunity” in em-

ployment-discrimination cases. McFarland v. Hender-

son, 307 F.3d 402, 406 (6th Cir. 2002) (quoting Brown v.

GSA, 425 U.S. 820, 833 (1976)); see also Irwin v. De-

partment of Veterans Affairs, 498 U.S. 89, 94 (1990)

(“§ 2000e-16(c) is a condition to the waiver of sovereign

immunity and thus must be strictly construed”).

The federal-sector threshold requirement of pre-

complaint counseling has no analogue in the private

sector. See 57 Fed. Reg. 12,634, 12,634-12,635 (Apr. 10,

1992). Pre-complaint counseling “encouragies] the

resolution of employee problems on an informal basis.”

Exec. Order No. 11478 § 4, 34 Fed. Reg. 12,985, 12,986

(Aug. 12, 1969). The agency’s EEO counselor advises

the employee of his or her rights and responsibilities,

29 C.F.R. § 1614.105(b)(1), gathers basic information,

and “attempts to informally resolve the matter(s),”

EEOC, Equal Employment Opportunity Management

: Pre-complaint counseling in the federal sector was first re-

quired by regulation in 1969, before Title VII was extended to fed-

eral employment. 80 Fed. Reg. at 6,670; see 34 Fed. Reg. 5,367,

5,369 (Mar. 19, 1969).

Directive for 29 C.F.R. Part 1614, at 2-1 (rev. Aug. 5,

2015) (““EEO-MD-110”).

Recognizing that “the earliest possible contact with

a counselor aids resolution of disputes because positions

on both sides have not yet hardened,” 57 Fed. Reg. at

12,634-12,635, the EEOC has established strict time

limits for federal employees to initiate pre-complaint

counseling. The time limit was originally set at 15 days,

see 34 Fed. Reg. 5,367, 5,369 (Mar. 19, 2969), and soon

extended to 30, see 37 Fed. Reg. 22,717, 22,719 (Oct. 21,

1972). In 1989, the EEOC invited comment on whether

the time period should be lengthened. 54 Fed. Reg.

45,747, 45,749 (Oct. 31, 1989). Some commenters advo-

cated for a “symmetry between” the federal-sector

deadline for contacting a counselor and the private-

sector deadline for filing a charge with the EEOC—

either 180 or 300 days from the time of the unlawful

employment practice, depending on whether the em-

ployee initially institutes qualified state proceedings, 42

U.S.C. § 2000e-5(e)(1). See 57 Fed. Reg. at 12,634. Ac-

cording to those commenters, “30 days was insufficient

to reflect, secure advice or realize the impact of a dis-

criminatory action,” and “the relatively short period

was screening out many meritorious complaints.” /d.

The EEOC rejected that proposal, concluding that

“the analogy between the private sector filing period

and the federal sector counseling time limit” was not

“apt” in light of the unique role of pre-complaint coun-

seling in the federal employment context. 57 Fed. Reg.

at 12,634. The EEOC therefore set the time limit at 45

days, where it has remained. /d. at 12,635. A federal

employee alleging employment discrimination must ac-

cordingly

initiate contact with a[n EEO] Counselor with-

in 45 days of the date of the matter alleged to

be discriminatory or, in the case of personnel

action, within 45 days of the effective date of

the action.

29 C.F.R. § 1614.105(a)(1).

Courts have construed this provision to “function[]

like a statute of limitations,” under which an employee’s

failure to contact an EEO counselor within 45 days bars

any later suit. Ramirez v. Secretary, Dep’t of Transp.,

686 F.3d 1239, 1243 (11th Cir. 2012); see Pet. Br. 4-5;

U.S. Br. 16-17; cf. Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 392-395 (1982) (construing private-sector

time limit for filing EEOC charge). The employee’s

agency or the EEOC “shall” extend this time limit,

however, when the employee shows

that he or she was not notified of the time lim-

its and was not otherwise aware of them, that

he or she did not know and reasonably should

not have been [sic] known that the discrimina-

tory matter or personnel action occurred, that

despite due diligence he or she was prevented

by circumstances beyond his or her control

from contacting the counselor within the time

limits, or for other reasons considered suffi-

cient by the agency or the [EEOC].

29 C.F.R. § 1614.105(a)(2). And this deadline is “sub-

ject to waiver, estoppel and equitable tolling.” /d.

§ 1614.604(c).

Unless the employee agrees to a longer time, the

EEO counselor must complete a final interview within

30 days after the employee initiates pre-complaint

counseling. 29 C.F.R. § 1614.105(d). If counseling does

not resolve the matter, the employee may file a formal

administrative complaint with the agency accused of

discrimination within “15 days of receipt” from the

EEO counselor of a written notice of the right to pro-

ceed. Jd. § 1614.106(b). The filing of the administrative

complaint triggers the agency’s obligation to “conduct

an impartial and appropriate investigation ... within

180 days of the filing,” unless the parties agree to ex-

tend that time. Jd. § 1614.106(e)(2). Upon completion

of the agency’s investigation, the employee may “re-

quest a hearing and decision from an administrative

judge or may request an immediate final decision ...

from the agency.” Jd. § 1614.108(f).

At any time while an administrative complaint is

pending, the employee may amend it to include “like or

related” “issues or claims.” 29 C.F.R. § 1614.106(d).’

The employee need not seek counseling separately on

such claims. See 29 C.F.R. § 1614.107(a)(2); EEO-MD-

110, at 5-10 (citing Braxton v. Potter, 2010 WL 4388483,

at *2 (Office of Fed. Ops. Oct. 29, 2010)); Gorski v. Hen-

derson, 2000 WL 1687230, at *2 (Office of Fed. Ops. Oct.

31, 2000); EEOC, Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614, at 5-9

(rev. Nov. 9, 1999).

If the agency’s final decision is adverse to the em-

ployee, the employee may file an optional appeal with

the EEOC within 30 days after receipt of the agency’s

> “A later claim ... is ‘like or related’ to the original complaint

if the later claim ... adds to or clarifies the original complaint

and/or could have reasonably been expected to grow out of the

original complaint during the investigation.” Complainant v.

McHugh, 2014 WL 6853728, at *2 (Office of Fed. Ops. Nov. 25,

2014); see also EEO-MD-110, at 5-12 (discussing amendment of

complaint to add constructive-discharge claim).

decision. 29 C.F.R. §§ 1614.401(a), 1614.402. Alterna-

tively, the employee may file a civil action within 90

days of receipt of the agency’s final decision. 42 U.S.C.

§ 2000e-16(c); 29 C.F.R. § 1614.407."

On February 6, 2015, the EEOC issued an advance

notice of proposed rulemaking “to consider how the

Commission’s federal sector complaint process current-

ly works and whether wholesale revisions to the pro-

cess are needed.” EEO-MD-110, at P-vii to P-viii; see

80 Fed. Reg. at 6,669-6,671. Among other things, the

EEOC sought comments on “{hlow many days ... a

complainant [should] have to contact a counselor from

the date of the alleged discriminatory matter.” 80 Fed.

Reg. at 6,671. The comment period ended in April 2015.

The EEOC has said it “intends to issue a [notice of pro-

posed rulemaking] to amend the [part] 1614 regula-

tions,” EEO-MD-110, at P-viii, but has not yet done so.

See Regulations.gov, Federal Sector Equal Employ-

ment Opportunity (last visited Sept. 28, 2015).

B. Green’s Claim

Petitioner Marvin Green, an African-American

man, was a long-time employee of the U.S. Postal Ser-

vice. In 2008, while serving as postmaster in Eng-

lewood, Colorado, Green applied for a promotion to a

higher-level postmaster position in Boulder, Colorado.

Pet. App. 3a, 29a. His supervisor, Gregory Christ, se-

* The employee may file suit 180 days after the filing of the

administrative complaint if the agency has failed to take final ac-

tion. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. If the employ-

ee appeals to the EEOC, any subsequent lawsuit must be filed

within 90 days after receipt of the EEOC’s decision, but may be

filed 180 days after the filing of the appeal if the EEOC fails to is-

sue a decision. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407.

lected someone else for the job. Pet. App. 3a. Believ-

ing that he had been denied promotion because of his

race, Green contacted a Postal Service EEO counselor

in July 2008 and later filed a formal administrative

complaint. /d.

According to Green, Christ and Charmaine Eh-

renshaft, a Postal Service manager of labor relations,

began bullying and harassing him while he pursued his

administrative complaint. Pet. App. 3a; JA12-14.

Green initially sought to address the situation with the

help of a representative from the National League of

Postmasters. JA12-14. When that did not resolve the

matter to Green’s satisfaction, Green initiated a second

EEO proceeding by contacting the Postal Service EEO

counselor in May 2009, alleging that the threats and

harassment constituted unlawful retaliation for his 2008

EEO activity. Pet. App. 3a; JA14. Green did not pro-

ceed with an administrative complaint at that time.

While Green’s second EEO proceeding was pend-

ing, Ehrenshaft and her supervisor, David Knight, re-

ceived a congressional inquiry related to Green’s con-

duct as Englewood postmaster. Pet. App. 30a-3la. The

inquiry concerned complaints by the National Letter

Carriers’ Union that Green had failed to comply with

employee grievance procedures and had intentionally

delayed mail relating to those grievances. /d. Eh-

renshaft instructed Green to appear for an investiga-

tive interview about the allegations. Pet. App. 30a.

On December 11, 2009, Ehrenshaft and Knight

conducted the investigative interview. Pet. App. 4a.

Green was represented at the interview by Robert

Podio of the National Association of Postmasters. /d.°

Knight and Ehrenshaft interviewed Green about the

alleged mishandling of employee grievances and delay

of the mail. /d. Knight also asked Green about certain

allegations another Postal Service employee had raised

concerning Green’s conduct. Pet. App. 3la. When that

interview ended, two agents from the Postal Service

Office of the Inspector General (“OIG”) questioned

Green further about the allegation that he had inten-

tionally delayed the mail—a potential felony. /d.; Pet.

App. 4a-5a; JA16-17. After the OIG interview, Knight

and Ehrenshaft informed Green that he had been

placed on immediate off-duty status under the Postal

Service’s emergency-placement policy. Pet. App. 5a;

C.A. App. 600.

The next day, Podio reached out to Knight to seek

a resolution. Pet. App. 5a. Podio proposed that he

would try to “get [Green] to retire” if Knight would

forgo any charges against him. JA54. Knight agreed,

id., and the negotiations proceeded, Pet. App. 32a. On

December 15, 2009, Podio forwarded to Green a pro-

posed settlement agreement. /d.

The settlement agreement provided that Green

would “immediately relinquish” his Englewood post-

master position and would “be assigned and accept

placement to” a lower-level position in Wamsutter,

Wyoming. JA60; see also Pet. App. 5a. Green would

continue receiving the salary associated with his Eng-

lewood position until March 30, 2010, and would be al-

lowed to take various forms of leave through March 31,

2010. JA60. The agreement further provided that

* Green had also retained an attorney, who did not attend the

interview. See C.A. App. 383, 783.

Green “agree[d} to retire from the Postal Service no

later than March 31, 2010.” Jd. If Green’s “retirement

from the Postal Service d{id] not occur,” Green would

“report for duty” in the Wamsutter position on April 1,

2010, and would be paid at the lower salary associated

with the new position. JA61. In exchange, the Postal

Service “agree[d] that no charges wiould] be pursued

based on the items reviewed during” the December 11

investigative interview. JA60.

On December 16, 2009, Green, Podio, and Knight

signed the agreement. JA61. Green submitted retire-

ment papers on February 9, 2010, and his retirement

became effective on March 31, 2010. Pet. App. 6a, 32a.

On March 22, 2010, Green—who continued to be

represented by counsel, JA66—contacted the Postal

Service’s EEO office concerning a claim of constructive

discharge. Pe’. App. 6a.° Green alleged that he had

been “forced [to] retire[]” in retaliation “for engaging in

Title VII protected activity.” JA64 (capitalization al-

tered); see also JA67. On April 23, 2010, Green filed a

formal administrative complaint addressing that issue,

alleging that the Postal Service had “forced [him] out of

[his] job” in retaliation for filing charges of discrimina-

° Green had separately sought EEO counseling on January 7,

2010, concerning events on or before December 11, 2009, including

his removal from the Englewood postmaster position and emer-

gency placement on off-duty status. Pet. App. 6a. That proceed-

ing did not address the December 16, 2009 settlement or Green’s

forced retirement. Once the EEO counselor had processed that

informal complaint, Green filed a formal administrative complaint

in February 2010 challenging his removal from the Englewood

position, the emergency placement, and four retaliatory actions

that allegedly took place in 2009. Jd. The Postal Service dismissed

Green’s complaint, and the EEOC affirmed. /d.

tion. Ex. A, Att. 20 to Def.’s Mot. for Summ. J., Dkt.

No. 90-21 (D. Colo. Nov. 12, 2012).’

On August 5, 2010, the Postal Service issued a final

decision dismissing Green’s complaint. JA2246. The

Postal Service concluded that Green failed to state a

claim because he voluntarily accepted the benefits of

the December 16, 2009 settlement and chose to retire.

JA23-24. In the alternative, the Postal Service found

that no discrimination had occurred. Green failed to

make a prima facie case of retaliation because “[hjis re-

tirement was ... his own choice and decision,” JA35, and

there was insufficient temporal proximity between

Green’s EEO activity and the settlement to raise any

inference of retaliation, JA36. Although Green had al-

leged that he was bullied, harassed, and insulted, he

“provided no evidence or testimony to support [those]

allegations, no witnesses, and no copies of the emails

with which he was allegedly ‘bombarded.” JA38. The

Postal Service also found legitimate, nondiscriminatory

explanations for Knight and Ehrenshaft’s actions, not-

ing that the investigative interview was precipitated by

a congressional inquiry and other complaints about

Green’s conduct and that there was no evidence of pre-

text. JA40-44. Green did not appeal to the EEOC.

C. Proceedings Below

On September 8, 2010, Green filed this lawsuit. As

relevant here, Green’s amended complaint alleged that

the Postal Service “forc[ed] him to retire” in retaliation

for his protected Title VII activity. JA20. Green sup-

ported that claim with allegations of “harassment, bul-

’ Although Green’s complaint made other allegations, Green’s

counsel clarified that “the only issue” presented was “the con-

structive discharge claim.” Pet. App. 6a.

lying, insults, humiliation, and unjustified disciplinary

actions” occurring between August 2008 and December

16, 2009. JA12-20. The amended complaint alleged no

facts post-dating the December 16, 2009 settlement, ex-

cept for the signing and effective date of Green’s re-

tirement papers and the filing of Green’s administrative

complaint. JA8-21.

The Postal Service moved for summary judgment

on the constructive-discharge claim, arguing among

other things that Green had not properly exhausted the

claim because he failed to make timely contact with the

EEO counselor under 29 C.F.R. § 1614.105(a)(1). C.A.

App. 401-404. The Postal Service argued that the 45-

day deadline began to run when “the employee ha{d]

notice of the discriminatory acts, not the time at which

the consequences of the acts became most painful.”

C.A. App. 402 (internal quotation marks omitted). Be-

cause “[ejach of the retaliatory acts [Green] allege[d)

occurred on or before December 16, 2009, when he

signed the settlement agreement in which he agreed to

retire,” the Postal Service argued that Green’s con-

structive-discharge claim “accrued on December 16,

2009, more than 45 days before he contacted the EEO

counselor on March 22, 2010.” C.A. App. 403-404.

The district court granted the Postal Service’s mo-

tion and dismissed the constructive-discharge claim.

Pet. App. 28a. The court agreed with the Postal Ser-

vice that the 45-day time limit on a constructive-

discharge claim began to run at the time of the employ-

er’s discriminatory act, just as in other discrimination

claims. Pet. App. 36a-37a. Because “[tJhere [wa]s no

dispute” that all of the allegedly retaliatory acts in this

case “occurred on or before December 16, 2009”—and

because Green “d[id] not argue waiver, estoppel, or eq-

uitable tolling” or contend that he lacked notice of the

alleged discriminatory acts—Green’s EEO contact on

March 22, 2010 was too late. Pet. App. 37a-38a.

The U.S. Court of Appeals for the Tenth Circuit af-

firmed in relevant part. Pet. App. 15a-23a. The court

held that “the start of the limitations period for con-

structive-discharge claims is the same as for other

claims of discrimination,” running from the last alleged

discriminatory act of the employer. Pet. App. 16a. The

court explained that the chief function of the construc-

tive-discharge doctrine is to expand the remedies avail-

able to an employee who reasonably resigns because of

intolerable working conditions. Pet. App. 16a-17a, 21a.

While “a constructive discharge is functionally the

same as an actual termination in damages-enhancing

respects,” the court reasoned, “[i]t does not follow ...

that it should be treated as the functional equivalent for

purposes of the limitations period.” Pet. App. 2la. The

court “c[ould] not endorse the legal fiction that the em-

ployee’s resignation, or notice of resignation, is a ‘dis-

criminatory act’ of the employer,” particularly where

doing so would “allow[] the employee to extend the

date of accrual indefinitely.” Pet. App. 20a, 21a.

SUMMARY OF ARGUMENT

A federal employee must initiate pre-complaint

counseling on a constructive-discharge claim within 45

days after the employer’s last discriminatory act giving

rise to the employee’s resignation. Green’s EEO con-

tact, some three months after the last alleged act of dis-

crimination, was too late.

I. A constructive-discharge claim entails both

predicate discrimination by the employer that is inde-

pendently actionable and working conditions “so intol-

erable that a reasonable person would have felt com-

pelled to resign.” Pennsylvania State Police v. Suders,

542 U.S. 129, 147 (2004). The intolerable conditions

make the employee’s decision to resign reasonable,

thereby preserving remedies that otherwise would be

unavailable to an employee who quits his job. See id. at

148 (resignation is “functionally the same as an actual

termination in damages-enhancing respects”). But it is

the employer’s predicate discrimination that is the tar-

get of the employee’s claim—the “matter alleged to be

discriminatory”—without which the claim fai's. The

regulation’s requirement that the employee initiate

pre-complaint counseling within 45 days of the “matter

alleged to be discriminatory” is thus tethered to the

employer’s discriminatory conduct—not the employee’s

decision to resign.

The last-discriminatory-act rule accords with this

Court’s precedent applying limitations periods in other

discrimination cases. The “proper focus” in such cases

“Ss upon the time of the discriminatory acts, not upon

the time at which the consequences of the acts became

most painful.” E.g., Delaware State Coll. v. Ricks, 449

U.S. 250, 258 (1980). In a constructive-discharge case,

the employee’s resignation is a consequence of the em-

ployer’s discriminatory conduct, and the proper focus is

therefore on the underlying discriminatory acts.

II. Green and the government contend that this

straightforward approach clashes with a “general rule”

that limitations periods start running when a claim ac-

crues. “(Statutes of limitations,” however, “do not in-

exorably commence upon accrual.” Heimeshoff v. Hart-

ford Life & Accident Ins. Co., 134 S. Ct. 604, 610 (2013).

When they do not, courts apply them according to their

text—even when that means the limitations period

starts before the cause of action accrues. To determine

when the limitations period in 29 C.F.R.

§ 1614.105(a)(1) begins to run in this case, the Court

must therefore identify the “matter” that Green “al-

lege[s] to be discriminatory”—not the moment when he

had a complete and present cause of action.

III. The last-discriminatory-act rule promotes in-

formal conciliation—a paramount objective of Title VII

and the very purpose of the regulation at issue here—

by requiring that an employee initiate counseling

promptly, when informal resolution may still be possi-

ble. Far from “straining” workplace relationships, as

Green predicts, the last-discriminatory-act rule encour-

ages resolution of claims before those relationships

have been severed. Delaying counseling until after an

employee has resigned, as Green and the government

advocate, would frustrate that goal.

Although Green contends that the date-of-

resignation rule is easier to apply, his dispute with the

government over how to apply that rule in this case

suggests otherwise. In any event, applying the last-

discriminatory-act rule in a constructive-discharge case

requires courts to make precisely the same determina-

tions they routinely make in assessing the timeliness of

other kinds of discrimination claims. Green offers no

reason to think that those inquiries will be more bur-

densome in this context.

Nor does the last-discriminatory-act rule work any

unfairness to diligent claimants. Safety valves in the

regulation require extension of the deadline or applica-

tion of equitable doctrines in cases where the employee

lacked notice of the deadlines, where the employer

lulled the employee into delaying too long, or where

other circumstances warrant relief from the limitations

provision. Outside of those circumstances, however,

the regulation intentionally demands compliance with

rigorous time limitations to maximize the chance of ear-

ly, informal resolution. Green failed to comply with

those requirements.

ARGUMENT

lL THE LIMITATIONS PERIOD FoR INITIATING PRE-

COMPLAINT COUNSELING ON A _ CONSTRUCTIVE-

DISCHARGE CLAIM BEGINS AT THE TIME OF THE Em-

PLOYER’S LAST DISCRIMINATORY ACT

A. In A Constructive-Discharge Claim, The

“Matter Alleged To Be Discriminatory” Is The

Discriminatory Conduct Of The Employer

Giving Rise To The Resignation

Under 29 C.F.R. § 1614.105(a)(1), as relevant here,

the 45-day deadline for a federal employee to initiate

pre-complaint counseling on a charge of discrimination

begins to run on “the date of the matter alleged to be

discriminatory.” The court of appeals correctly held

that the “matter alleged to be discriminatory” in a con-

structive-discharge claim is not the employee’s decision

to resign, but the underlying discriminatory act of the

employer that led to the resignation.

As the court of appeals explained, the constructive-

discharge doctrine serves to “expand the remedies

available to an employee subjected to improper em-

ployer conduct.” Pet. App. 16a. Under Title VII,

courts that find unlawful discrimination may award

damages and equitable remedies. 42 U.S.C. § 2000e-

5(g)(1); see Pollard v. E.J. du Pont de Nemours & Co.,

532 U.S. 843, 848-853 (2001); Albemarle Paper Co. v.

Moody, 422 U.S. 405, 421 (1975). Certain remedies,

however—including back pay, front pay, and rein-

statement—are generally available only if the employ-

ee was discharged. See, e.g., Jurgens v. EEOC, 903

F.2d 386, 389 (5th Cir. 1990); Mayor v. Rosenberg, 877

F.2d 694, 695 (8th Cir. 1989); Pet. App. 16a; see also

3 Larson, Labor & Employment Law § 59.05[8] (2015)

(“whether a plaintiff quit voluntarily or was construc-

tively discharged will determine whether he or she will

be entitled to back pay and perhaps other remedies”

(footnote omitted)). Employees have a duty to mitigate

damages, and “remaining on the job” is usually encom-

passed within that duty. Jurgens, 903 F.2d at 389.

“[AJn employee who quits a job after employer miscon-

duct” is therefore ordinarily “treated as having volun-

tarily left the employment” and forfeits his right to

those remedies, Pet. App. 16a.

The constructive-discharge doctrine recognizes

that, in some cases,” “unendurable working conditions”

might make it senaiiahie for an employee to resign,

and that employers should not be able to evade liability

for otherwise available remedies for unlawful discrimi-

nation by forcing such a resignation. Pennsylvania

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

that occurs, the employee’s reasonable decision to re-

sign is “assimilated to a formal discharge for remedial

purposes.” Id. (emphasis added). As a result, the em-

ployee may resign without forfeiting the opportunity to

seek back pay and front pay or reinstatement. /d. at

147 n.8; see Pet. App. 16a-17a, 21a; 1 Lindemann et al.,

Employment Discrimination Law 21-49 (5th ed. 2012)

(“An employee confronted with an unsatisfactory or

even discriminatory job environment is not precluded

from quitting and suing for whatever legal violation

may have occurred. Unless the constructive discharge

test is met, however, a court cannot hold the employer

responsible for the economic losses that the employee

brought about by quitting.”).

Although the constructive-discharge doctrine pro-

tects an employee’s access to the full range of remedies

when intolerable conditions force him or her to resign,

it does not alter the usual anatomy of a Title VII claim

as a challenge to the discriminatory conduct of the em-

ployer. To prevail on a constructive-discharge claim,

the employee must show both predicate discrimination

that is independently actionable and working conditions

“so intolerable that a reasonable person would have felt

compelled to resign.” Suders, 542 U.S. at 147-148. The

latter factor makes the employee’s decision to resign

reasonable, thereby preserving the full range of reme-

dial options. Jd. at 141. But it is the former factor—

predicate discrimination by the employer—that is the

target of the claim. The underlying discriminatory

practice can be a discrete act (e.g., a demotion or trans-

fer) or a hostile work environment. /d. at 148. But “if

the underlying discrimination claim fails, the construc-

tive discharge claim necessarily fails as well.” 1 Lin-

demann et al., Employment Discrimination Law 21-49;

see also, e.g., O’Brien v. USDA, 532 F.3d 805, 811 (8th

Cir. 2008); Bannon v. University of Chi., 503 F.3d 623,

629-630 (7th Cir. 2007); Wells v. Shalala, 228 F.3d 1137,

1146 (10th Cir. 2000); Hernandez-Torres v. Interconti-

nental Trading, Inc., 158 F.3d 48, 47-48 (1st Cir. 1998);

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

in Constructive Discharge Doctrine, 23 Berkeley J.

Emp. & Lab. Law 401, 416 (2002) (“constructive dis-

charge claim cannot exist independently of a discrimi-

nation claim”).

Contrary to the government’s suggestion (at 24),

this Court recognized in Suders that an employee’s res-

ignation in a constructive-discharge case is not imputed

to the employer for all purposes:

Unlike an actual termination, which is always

effected through an official act of the company,

a constructive discharge need not be. A con-

structive discharge involves both an employ-

ee’s decision to leave and precipitating conduct:

The former involves no official action; the lat-

ter, like a harassment claim without any con-

structive discharge assertion, may or may not

involve official action.

542 U.S. at 148 (second emphasis added). The Court

treated resignation as “functionally the same as an ac-

tual termination” only “in damages-enhancing re-

specis.” Id. The Tenth Circuit therefore correctly re-

fused to “endorse the legal fiction that the employee’s

resignation, or notice of resignation, is a ‘discriminatory

act’ of the employer” for statute-of-limitations purpos-

es. Pet. App. 20a.

In some cases, of course, the time of the employee’s

reasonable resignation might coincide with the time of

the employer’s discriminatory conduct. That might oc-

cur when the intolerable conditions precipitating an

employee’s decision to resign are themselves alleged

discriminatory acts of the employer. In Suders, for ex-

ample, the plaintiff was subjected to “a continuous bar-

rage of sexual harassment that ceased only when she

resigned” on the heels of a final act of harassment. 542

U.S. at 135, 136. But where an employee is subject to

an allegedly discriminatory act, such as a transfer or

demotion, and resigns later due to consequent intolera-

ble circumstances that are not themselves alleged to be

discriminatory—¢.g., if the employee’s new position is

in a bad location, entails longer hours, or requires me-

nial work beneath the employee’s skill set—there is a

clear distinction between the employee’s resignation

and the underlying unlawful act of discrimination. Only

the latter “involves ... official action,” id. at 148, and

only the latter constitutes the “matter alleged to be

discriminatory,” 29 C.F.R. § 1614.105(a)(1). This is such

a case. Green’s amended complaint alleged no discrimi-

natory conduct or events after he received and signed

the settlement agreement. Swpra pp. 12-13. Yet he

waited more than three months to approach an EEO

counselor about the actions Knight and Ehrenshaft

took in forcing him to retire.

B. The Last-Discriminatory-Act Rule Accords

With This Court’s Precedent

The last-discriminatory-act rule and its application

in this case conform to the approach this Court has tak-

en in applying limitations periods in other discrimina-

tion cases. That precedent establishes that “(t]he

proper focus is upon the time of the discriminatory

acts, not upon the time at which the consequences of

the acts became most painful.” Delaware State Coll. v.

Ricks, 449 U.S. 250, 258 (1980). Consistent with that

approach, applying the limitations period in 29 C.F.R.

§ 1614.105(a)(1) should focus on the employer’s discrim-

inatory acts, not on the employee’s decision to resign as

a consequence of those acts.

In Ricks, the plaintiff, a college professor, was de-

nied tenure. In line with the college’s standard proce-

dure, Ricks was offered a one-year terminal contract,

which he accepted. 449 U.S. at 252-254. More than 180

days later, Ricks filed a charge of discrimination with

the EEOC claiming that he was denjed tenure based on

his national origin, and he later filed suit. /d. at 254.

The court of appeals held that Ricks’s EEOC complaint

was timely under the private-sector limitations provi-

sion, 42 U.S.C. § 2000e-5(e), because the limitations pe-

riod did not begin to run until his terminal contract ex-

pired. Id. at 255.

This Court reversed. Under the limitations provi-

sion, Ricks was required to file a charge with the

EEOC “within [180] days after the alleged unlawful

employment practice occurred.” Ricks, 449 U.S. at 256

(quoting 42 U.S.C. § 2000e-5(e)). Applying that provi-

sion “require({d] [the Court] to identify precisely the

‘unlawful employment practice’ of which [Ricks] com-

plain(ed].” Jd. at 257. Based on the allegations of the

complaint, the Court concluded that “the only alleg d

discrimination occurred—and the filing limitations pe-

riod{] therefore commenced—at the time the tenure

decision was made and communicated to Ricks.” J/d. at

258. That was so “even though one of the effects of the

denial of tenure—the eventual loss of a teaching posi-

tion—did not occur until later.” Jd. The Court rejected

Ricks’s argument that the limitations period ran from

his last date of employment, concluding: “If Ricks in-

tended to complain of a discriminatory discharge, he

should have identified the alleged discriminatory acts

that continued until, or occurred at the time of, the ac-

tual termination of his employment. But the complaint

alleges no such facts.” Jd. at 257.

Similarly, in this case, the only discrimination al-

leged in Green’s amended complaint occurred when (or

before) he received and signed the settlement agree-

ment. Supra pp. 12-13. Green alleged no “discrimina-

tory acts that continued until, or occurred at the time

of, the actual termination of his employment.” Ricks,

449 U.S. at 257. His eventual resignation was an effect

of the December 16, 2009 settlement, but the fact that

it occurred later does not change when the alleged dis-

criminatory event occurred.

The government claims that an employee’s resigna-

tion in the constructive-discharge context “is not ‘a de-

layed, but inevitable, consequence’ of the challenged

conduct, ... but rather a new, intervening act which is

imputed to the employer.” U.S. Br. 12 (quoting Ricks,

449 U.S. at 257-258); see also U.S. Br. 25-26. Given the

government’s own argument (at 32-34) that Green

agreed to retire at the time of settlement, leaving no

further decision to make, this contention provides no

basis to distinguish Ricks from the facts of this case. In

any event, as discussed, swpra pp. 17-21, the employee’s

decision to resign in a constructive-discharge case “in-

volves no official action,” Suders, 542 U.S. at 148, and is

“assimilated to a formal discharge” by the employer

“for remedial purposes,” id. at 141. And, contrary to

the government’s and Green’s suggestion, see U.S. Br.

25-26; Pet. Br. 25, the Court’s holding in Ricks did not

hinge on the “inevitab[ility]” of the plaintiff's eventual

termination, but on the fact that the “only challenged

employment practice” was the employer’s tenure deci-

sion, which “occur{red) before the termination date,”

449 U.S. at 259. As the Court confirmed, “i]t [wal]s

simply insufficient for Ricks to allege that his termina-

tion ‘gi[ave] present effect to the past illegal act”’; the

“emphasis is not upon the effects of earlier employment

decisions”—whether inevitable or not—but on “‘wheth-

er any present violation exists.” /d. at 258.

That reading of Ricks is confirmed by the Court’s

decision one year later in Chardon v. Fernandez, 454

U.S. 6 (1981) (per curiam). Chardon addressed the

claims of school administrators who challenged their

terminations on First Amendment grounds. The plain-

tiffs received notices on certain dates of their future

terminations and brought suit more than one year after

receiving the notices. 454 U.S. at 6-7. The Court held

their claims barred by the one-year statute of limita-

tions applicable to 42 U.S.C. § 1983, concluding that the

limitations period commenced at the time of the chal-

lenged decision of the employer, not the effective date

of the terminations. /d. at 8. As in Ricks, the plaintiffs

“allege([d] that the decision to terminate was made” for

unlawful reasons. /d. And, as in Ricks, “[tJhere were

no other allegations ... of illegal acts subsequent to the

date on which the decision[] to terminate w[as] made.”

Id. The “({mlJere continuity” of the plaintiffs’ employ-

ment was “insufficient to prolong the life of a cause of

action for employment discrimination.” Jd. (quoting

Ricks, 449 U.S. at 257).

Ricks in turn relied on United Air Lines, Inc. v.

Evans, 431 U.S. 553, 557-558 (1977), which similarly fo-

cused on the alleged unlawful conduct of the employer.

The plaintiff in Evans was a flight attendant who had

been forced to resign under a discriminatory policy that

the airline subsequently abandoned. Jd. at 554-555.

The plaintiff did not challenge that policy at the time,

and was later rehired. Under the airline’s seniority

system, she received no credit for her prior service. Jd.

at 555. The plaintiff sued for backpay and retroactive

seniority, but the Court held that her claim was proper-

ly dismissed. Jd. at 556-557. Although “the seniority

system g{ave] present effect to a past act of discrimina-

tion,” the “critical question” was whether “any present

violation exist({ed],” and the plaintiff “ha[d] not alleged”

any discrimination by the airline in administering the

seniority system. /d. at 558. As the Court later ex-

plained in applying the private-sector EEOC deadline,

“{t}he instruction provided by [this precedent] is clear”:

the period for filing a charge of discrimination begins

when the alleged “unlawful practice takes place,” not

upon “the occurrence of subsequent nondiscriminatory

acts that entail adverse effects resulting from the past

discrimination.” Ledbetter v. Goodyear Tire & Rubber

Co., 550 U.S. 618, 628 (2007), superseded by statute on

other grounds, Lilly Ledbetter Fair Pay Act of 2009,

Pub. L. No. 111-2, 123 Stat. 5; see also id. at 621 (“the

time for filing a charge of employment discrimination

. begins when the discriminatory act occurs”). The

claims in Evans and Ricks were barred because “{i}n

each case, the employee filed charges well after the dis-

crete discriminatory act occurred”; “[njo repetitive,

cumulative discriminatory employment practice was at

issue in either case.” Ledbetter, 550 U.S. at 651-652

(Ginsburg, J., dissenting).*

These decisions confirm that in a constructive-

discharge case, the “proper focus” in applying the limi-

tations period in 29 C.F.R. § 1614.105(a)(1) should simi-

larly be “upon the time of the discriminatory acts,”

not upon the time when the employee feels the conse-

, Ignoring the Court’s actual holding in Evans, the govern-

ment reads that decision to imply that if the plaintiff there had

challenged her initial separation, the time limit for such a challenge

would have run from the effective date of the separation. U.S. Br.

26-27. That issue was not before the Court. Cf. Central Va. Cmty.

Coll. v. Katz, 546 U.S. 356, 363 (2006) (disregarding dicta in prior

case “in which the point now at issue was not fully debated”). In

any event, in Evans, the time of the plaintiffs original resignation

coincided with the time of the unlawful employment practice,

which was the application to the plaintiff of a discriminatory policy

requiring her to resign immediately upon her marriage. See 431

U.S. at 554-555. The Court’s observation that any charge would

have had to be filed with the EEOC “within 90 days of her separa-

tion” would therefore have been true regardless of whether the

limitations period ran from the time of the employee’s resignation

or from the time of the employer’s discriminatory conduct.

quences of those acts, Ricks, 449 U.S. at 258.” Suppose,

for example, an employee were transferred to a less de-

sirable position because of her gender. If she later

found her new position intolerable and resigned—but

did not allege that any discriminatory acts occurred af-

ter her transfer and did not allege that the intolerable

conditions were themselves discriminatory—then her

resignation would simply “give[] present effect to [the]

* The EEOC has equated the operation of the federal-sector

provision with the operation of the private-sector provision at is-

sue in Ricks and similar cases. EEOC, Compliance Manual:

Threshold Issues § 2-IV(CX1), available at http//www.eeoc.gov

/policy/does/threshold.html (last visited Sept. 28, 2015).

In Bailey v. United Airlines, Inc., 279 F.3d 194 (3d Cir. 2002),

the EEOC argued in an amicus brief that the 180-day private-

sector filing period began to run in that case on the date the em-

ployee rejected an option to resign and was consequently termi-

nated, not on the earlier date when the employer presented that

option. EEOC Amicus Br., Bailey, 2001 WL 341062465, at *6-15 (3d

Cir. Mar. 26, 2001). In support of that argument, the EEOC analo-

gized to the constructive-discharge context, citing cases holding

that “the limitations period on a claim of constructive discharge

begins to run when the employee ‘effectively communicate[s} her

intention to resign.” Jd. at *9. Green—but not the government—

asserts (at 25-26) that the EEOC’s statement in the Bailey brief is

entitled to respect under Skidmore v. Swift & Co., 323 U.S. 134

(1944). Cf. U.S. Br. 31. But Bailey involved a termination, not a

constructive discharge, and did not present any question concern-

ing the last-discriminatory-act rule. The statement in the Bailey

brief addressing constructive discharge cannot be treated as re-

flecting the EEOC’s considered views on the question presented

here—particularly given the conflict between the EEOC’s state-

ment there and its other repeated statements that the federal- and

private-sector filing periods begin to run at the time of the unlaw-

ful event or practice, see, eg., EEOC, Compliance Manual:

Threshold Issues § 2-IV(CX1); 57 Fed. Reg. 12,634, 12,634-12,635

(Apr. 10, 1992). See Skidmore, 323 U.S. at 140 (weight accorded

agency position “depend[s] upon ... its consistency with earlier and

later pronouncements”).

past act of discrimination.” Evans, 431 U.S. at 558. In

such circumstances, where “the only challenged em-

ployment practice occur{red] before” the resignation

date, the limitations period on any constructive-

discharge claim would “necessarily commence to run

before that date.” Ricks, 449 U.S. at 259. Similarly, in

Green’s constructive-discharge claim, the discriminato-

ry acts are those of the Postal Service precipitating his

resignation, which occurred long before Green sought

EEO counseling. Green’s act of resignation itself was

only a consequence of those illegal acts. Pet. App. 20a.

Relying on National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002), Green contends (at 26)

that where a claim is “composed of a series of separate

acts,” the “most recent event ‘contributing to the claim’

triggers the filing period.” But Morgan, too, focused on

the unlawful conduct of the employer. In Morgan, the

Court applied Title VII’s limitations period for private-

sector claims, which runs from the time the “unlawful

employment practice occurred.” 536 U.S. at 109 (quot-

ing 42 U.S.C. § 2000e-5(e)(1); emphasis omitted). “The

critical questions” were “[wJhat constitutes an ‘unlaw-

ful employment practice’ and when has that practice

‘occurred’?” Jd. at 110. The Court held that where a

claim challenges a discrete discriminatory act, the limi-

tations period runs from the date of that challenged act

of the employer. Jd. at 110-115. And where a claim

challenges a discriminatory hostile work environment,

at least one discriminatory act of the employer must

occur within the filing period. /d. at 115-121. The

Court did not hold that the employee’s own act, or the

later consequences of the employer’s discriminatory

act, could trigger the filing period. Jd. at 105.'°

Here, the last alleged discriminatory act giving rise

to Green’s resignation was the December 16, 2009 set-

tlement. Green did not initiate pre-complaint counsel-

ing on a constructive-discharge claim until March 22,

2010—more than three months later. Pet. App. 23a,

37a-38a. Green has not claimed that waiver, estoppel,

or equitable tolling apply. Pet. App. 38a. Nor has he

asserted that he lacked notice of the Postal Service’s

alleged discriminatory conduct or that he was other-

wise entitled to an extension of the deadline. /d.; see 29

C.F.R. § 1614.105(a)(2).'’ Green’s claim is barred.

” Morgan also disposes of Green’s contention that the words

“matter alleged” in 29 C.F .R. § 1614.105({aX1) somehow expand the

trigger of the limitations period to include anything relating to the

““subject under consideration,” Pet. Br. 17-18. Like Green’s read-

ing of “matter,” the plaintiff in Morgan argued that the word

“practice” in the private-sector limitations provision “connote([d]

an ongoing violation that can endure or recur over a period of

time.” 536 U.S. at 110. But the Court held that discrete discrimi-

natory acts of the employer occurring outside the filing period

were not actionable, even if connected to other acts within the pe-

riod. Jd. at 110-113. The word “practice” did not “convert[] relat-

ed discrete acts into a single unlawful practice for the purposes of

timely filing.” Jd. at 111. The same is true with respect to the

word “matter.” See, e.g., EEOC, Compliance Manual: Threshold

Issues § 2-IV(CX1) n.179 (EEOC equating “matter alleged to be

i with “the alleged discriminatory employment

practice”); 57 Fed. Reg. at 12,635 (interpreting § 1614.105(a)(1) to

refer to “the discriminatory event”).

''Green also has not relied on the second prong of

§ 1614.10&(a)(1), under which the 45-day period for initiating pre-

complaint counseling “in the case of personnel action” runs from

“the effective date of the action.” The EEOC has taken incon-

sistent positions regarding the role of that provision in a construc-

tive-discharge claim. Compare, e.g., U.S. Br. 38 n.19 (citing EEOC

Il. THE LAST-DISCRIMINATORY-ACT RULE IS CONSISTENT

WITH STATUTE-OF-LIMITATIONS PRINCIPLES

Lacking support in constructive-discharge doctrine

or this Court’s Title VII precedent, Green and the gov-

ernment rely primarily on a “general rule” that limita-

tions periods begin to run when a plaintiff has a “com-

plete and present cause of action.” Pet. Br. 14-16

(quoting Graham County Soil & Water Conservation

Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418

(2005)); U.S. Br. 15-18. In fact, this Court’s statute-of-

limitations cases make clear that limitations periods

commence at the time stated in the relevant textual

provision—here, the date of the “matter alleged to be

discriminatory,” 29 C.F.R. § 1614.105(a)(1). No case

supports substituting any default rule in place of the

time referenced in the text.

In some statutes of limitations, the relevant text

provides that the time period “begin[s] when the[] as-

sociated causes of action accrue.” Heimeshoff v. Hart-

ford Life & Accident Ins. Co., 134 S. Ct. 604, 610 (2013).

When applying limitations periods of that form, this

Court “ordinarily” construes the reference to “accrual”

decisions analyzing constructive-discharge claims as “personnel

actions”), with, e.g., Zayas v. Shinseki, 2012 WL 258370, at *1-2

(Office of Fed. Ops. Jan. 20, 2012) (examining “constructive dis-

charge” under “matter alleged to be discriminatory” prong), and

Cabello v. Casellas, 1996 WL 159158, at *3 (Office of Fed. Ops.

Mar. 28, 1996) (same). As the court of appeals explained, however,

that prong “must refer to the acts of the employer, not the em-

ployee.” Pet. App. 20a n.3. Here, for example, even if a “personnel

action” occurred in February or March 2010 upon the signing or

effective date of Green’s resignation, those events are not the sub-

ject of Green’s claim. Green challenges acts of the Postal Ser-

vice—whether “personnel actions” or not—that occurred on and

before December 16, 2009. See Pet. App. 23a, 37a-38a; JA8-20.

to mean the time when the plaintiff has a complete and

present cause of action on which he can file suit and ob-

tain relief. Bay Area Laundry & Dry Cleaning Pen-

sion Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S.

192, 195, 201 (1997); see also Heimeshoff, 134 S. Ct. at

610; Rawlings v. Ray, 312 U.S. 96, 98 (1941) (“The

words ‘after the cause of action shall accrue’ ... refer to

‘a complete and present cause of action.”’”); TRW Inc. v.

Andrews, 534 U.S. 19, 36-37 (2001) (Scalia, J., concur-

ring in the judgment) (statute running from date the

“cause of action arose” should be read in light of back-

ground rule that limitations periods “begin[{] to run at

the time the plaintiff ‘has the right to apply to the court

for relief”); Clark v. Iowa City, 87 U.S. (20 Wall.) 583,

589 (1875) (applying general rule to interpret statute

requiring suit within ten years “after the[] cause[] ac-

crue[d]” (applying Iowa Code § 2740.4 (1872)); 1 Cor-

man, Limitations of Actions § 6.1 (1991) (“Frequently,

legislation stating that commencement occurs when the

plaintiffs cause of action accrues is interpreted by

courts to mean that moment when the plaintiff has a

complete and present cause of action.”).

That general rule, however, is only a “default.”

Graham County, 545 U.S. at 418. “[S}tatutes of limita-

tions do not inexorably commence upon accrual,”

Heimeshoff, 134 S. Ct. at 610, and when they do not,

courts apply them according to their text—even when

the textually prescribed limitations period begins to

run before the cause of action accrues. In Dodd v.

United States, 545 U.S. 353 (2005), for example, the

Court gave effect to the one-year limitations provision

in the federal habeas statute, which ties the start of the

filing period not to the accrual of a cause of action, but

to specified points in time including the date a new rule

of constitutional law is recognized. Id. at 357-360. Alt-

hough applying the provision according to its terms

would bar many prisoners from challenging their sen-

tences based on a new rule of constitutional law, id. at

359-360, the Court concluded that it was “not free to

rewrite the statute that Congress ha[d] enacted,” id. at

359; see also id. (“{WJhen the statute’s language is

plain, the sole function of the courts—at least where

the disposition required by the text is not absurd—is to

enforce it according to its terms.””).

Similarly, in Pillsbury v. United Engineering Co.,

342 U.S. 197 (1952), this Court considered the Long-

shoremen’s and Harbor Workers’ Compensation Act,

which provided that “(t]he right to compensation for

disability ... shall be barred unless a claim therefor is

filed within one year after the injury.”” Jd. at 197. The

Court held that the one-year period began at the time

of injury, not when the employee later became disabled

as a result of the injury, concluding that “Congress

meant what it said when it limited recovery to one year

from date of injury, and ‘injury’ does not mean ‘disabil-

ity.” Id. at 198-200. Although this interpretation

meant that “an employee [could] be barred from filing

his claim before his right to file it arises,” the Court re-

fused to “rewrite the statute of limitations” to avoid

that result. Jd. at 199-200. And in McMahon v. United

States, 342 U.S. 25 (1951), the Court held that a two-

year statute of limitations governing claims by seamen

employed by the United States began to run on “the

date of injury,” even though a plaintiff could not sue un-

til after his claim was administratively disallowed—a

process that could take more than a year to complete.

Id. at 26-27; see also Heimeshoff, 134 S. Ct. at 610-611

(enforcing contractual limitations provision that began

to run at the time proof of loss was due, rather than at

the later time the cause of action accrued).

This Court’s Title VII cases follow the same ap-

proach. In Ricks, the relevant inquiry in applying Title

VIl’s private-sector filing deadline was the one speci-

fied by the statute: the Court focused on identifying

the “unlawful employment practice’ of which [the

plaintiff] complains,” not the time when the plaintiff

had a comp'ete and present cause of action. 449 US. at

257-258 (quoting 42 U.S.C. § 2000e-5(e)); swpra pp. 21-

23. Similarly, in Morgan, the “critical questions” were

“(what constitutes an ‘unlawful employment practice’

and when has that practice ‘occurred?” 536 U.S. at 110.

The Court did not ask when the plaintiff had a complete

and present cause of action.

To determine when the limitations period in 29

C.F.R. § 1614.105(a)(1) begins to run in this case, the

Court must similarly identify the “matter” that Green

“allege[s] to be discriminatory”—not the moment when

he had a complete and present cause of action. And as

discussed, swpra pp. 17-21, in a constructive-discharge

case, as in other Title VII contexts, the “matter alleged

to be discriminatory” is the discriminatory conduct of

the employer, not the employee’s resignation.

Green notes that when “the text creating a filing

period is unclear,” the Court “defer[s] to the general

rule” that statutes of limitations ordinarily begin to run

upon accrual of the cause of action. Pet. Br. 16; see also

U.S. Br. 20. But courts apply that default rule “to re-

solve ... ambiguity, not to create it in the first in-

stance.” Graham County, 545 U.S. at 419 n.2; see, e.g.,

id. at 417-418 (construing limitations provision in light

of default rule where provision’s “literal text ... [wa]s

ambiguous” and other textual clues supported that

reading). Where, as here, the text of the limitations

provision dictates that the filing period begins to run at

a time other than the “accrual” of a cause of action, the

“default” rule does not override that text. Jd. at 418;

see also Dodd, 545 U.S. at 360 (refusing to apply default

rule where “there is no such ambiguity” in the statute);

Gabelli v. SEC, 133 S. Ct. 1216, 1224 (2013) (default ac-

crual rule does not apply where text reflects a contrary

mandate); Bay Area Laundry, 522 U.S. at 201 (default

accrual rule does not apply where “Congress has told us

otherwise in the legislation at issue”).

Moreover, even if the meaning of 29 C.F.R.

§ 1614.105(a)(1) were unclear in the context of the con-

structive-discharge doctrine and this Court’s prece-

dent—which, as discussed, it is not—any ambiguity

must be resolved in favor of a more stringent limita-

tions period, not in favor of the employee. In the con-

text of Title VII litigation by federal employees, “ad-

ministrative exhaustion ‘is a condition to the waiver of

sovereign immunity,” and therefore “must be strictly

construed.” Farris v. Shinseki, 660 F.3d 557, 563 (1st

Cir. 2011) (quoting Jrwin v. Department of Veterans

Affairs, 498 U.S. 89, 94 (1990)); see McFarland v. Hen-

derson, 307 F.3d 402, 406 (6th Cir. 2002) (in Title VII,

“Congress conditioned the government’s waiver of sov-

ereign immunity upon a plaintiff's satisfaction of ‘rigor-

ous administrative exhaustion requirements and time

limitations” (quoting Brown v. GSA, 425 U.S. 820, 833

(1976))). “(S}tatutes which waive immunity of the

United States from suit are to be construed strictly in

favor of the sovereign.” McMahon, 342 U.S. at 27. In

McMahon, the Court applied that principle to reject

the default accrual rule because the Court “clould) not

construe the Act as giving claimants an option as to

when they will choose to start the period of limitation

of an action against the United States.” /d.; cf. United

States v. Kubrick, 444 U.S. 111, 117-118 (1979). As the

court of appeals recognized in this case, “[i]t is not [the]

office” of the courts “to expand the time limits beyond

what the EEOC has set.” Pet. App. 22a.

Green’s reliance on Mac’s Shell Service Inc. v. Shell

Oil Products Co., 559 U.S. 175 (2010), is misplaced. To

the extent that decision bears any relevance, it only

confirms that courts apply statutes of limitations ac-

cording to their text. The issue before the Court in

Mac’s Shell was not one of timeliness, but whether a

franchisee that had not abandoned its franchise could

recover for constructive termination under the Petro-

leum Marketing Practices Act (“PMPA”). /d. at 177-

178. Green emphasizes (at 21-23) the Court’s discussion

of the PMPA’s statute of limitations, which ran from

“the later of” “the date of termination of the franchise”

or “the date the franchisor fails to comply” with

PMPA requirements. Mac’s Shell, 559 U.S. at 189

(quoting 15 U.S.C. § 2805(a)). But the Court cited that

language only to support its holding that no cause of

action for constructive discharge could lie under the

PMPA unless the franchise relationship had terminat-

ed. Id. at 189-190. And the fact that the PMPA’s limi-

tations period ran in some cases from the time of ter-

mination, as Green underscores, simply reflected Con-

gress’s choice to tie the statute of limitations to “the

later of’ “the date of termination” or the date of the

violation. The EEOC chose different language here.

Green also cites (at 31-32) state-law constructive-

discharge cases, but there is no indication in 29 C.F.R.

§ 1614.105(a)(1) or Title VII that Congress or the

EEOC meant to import any common-law regime into

the particularized administrative exhaustion process

for federal employees. In any event, in the majority of

the cases Green cites, the state courts did not consider

whether the limitations period could run from the time

of the employer’s last discriminatory act. In each of

those cases, the claim would have been untimely even if

the period did not begin to run until the employee gave

notice of resignation. The courts considered only

whether the limitations period could run from the later

effective date of resignation. See U.S. Br. 20-23 &

n.10.'* Of the cases Green cites that did consider the

issue presented here, two agreed that “in the context of

a constructive discharge it is the employer’s wrongful

act that starts the period of limitations”—“not the em-

ployee’s response.” Joliet v. Pitoniak, 715 N.W.2d 60,

68 (Mich. 2006); see also Harmon v. Higgins, 426 S.E.2d

344, 347 (W. Va. 1992) (statute of limitations “begins to

run on the date of the last offensive contact, or threat of

offensive contact, which precipitated the termination of

employment”). A third case considered and rejected a

last-discriminatory-act rule, but only because the cause

of action at issue called for a different rule. See Mul-

lins v. Rockwell Int'l Corp., 936 P.2d 1246, 1252 (Cal.

1997). Addressing a breach-of-contract claim, the court

there explained that discriminatory acts predating the

employee’s resignation constituted only an anticipatory

"2 See Jeffery v. City of Nashua, 48 A.3d 931, 934 (N.H. 2012)

(plaintiff argued for effective-date-of-resignation rule rather than

date-of-notice rule); Patterson v. State Dep't of Health & Welfare,

266 P.3d 718, 725 (Idaho 2011) (“[T]his Court must determine

whether [plaintiff's] claim for constructive discharge arose with

her resignation notice on March 16, or with the effective date of

her termination on March 30.”); Whye v. City Council for City of

Topeka, 102 P.3d 384, 385 (Kan. 2004) (considering as possible ac-

crual dates “(1) the date the employee notifies the employer of his

or her intention to retire; (2) the date the employer accepts the

employee's offer to retire; and (3) the effective date of the retire-

ment”); Stupek v. Wyle Labs. Corp., 963 P.2d 678, 680-681 (Or.

1998) (considering effective date of resignation and date employee

gave notice of resignation); Hancock v. Bureau of Nat'l Affairs,

Inc., 645 A.2d 588, 590 (D.C. 1994) (similar); Douwchette v. Bethel

Sch. Dist. No. 408, 818 P.2d 1362, 1367 (Wash. 1991) (similar).

breach; the employee could elect to wait until an actual

breach occurred to bring suit, and “the statute of limi-

tations did not begin to run until he made that election

by resigning.” /d. at 1250. The court distinguished the

federal antidiscrimination context, explaining that it

“involve[d] a statutory scheme defining the act of dis-

crimination as a wrong” that triggered the limitations

period. /d. at 1252."

Finally, contrary to Green’s assertion (at 18-20),

the traditional distinction between statutes of limita-

tions and statutes of repose does not affect the analysis

in this case. As explained above, this Court has repeat-

edly recognized that a statute of limitations can com-

mence at a time other than accrual without losing its

character as a limitations period. See supra pp. 30-33;

Heimeshoff, 134 S. Ct. at 615 (contractual provision es-

tablished a period of “limitations” subject to waiver,

estoppel, and equitable tolling that began to run before

cause of action accrued); Dodd, 545 U.S. at 359 (constru-

ing a “statute of limitations”); Pillsbury, 342 U.S. at 200

(same); McMahon, 342 U.S. at 27 (same). As in those

cases, faithfully applying the text of 29 C.F.R.

§ 1614.105(a)(1) does not convert the limitations period

into one of repose. Moreover, whereas a statute of re-

pose can begin to run even before any injury has oc-

curred, CTS Corp. v. Waldburger, 134 8S. Ct. 2175, 2182-

2183 (2014), tying the filing period in 29 C.F.R.

§ 1614.105(a)(1) to the date of the employer’s last dis-

criminatory act does not produce that result. In a con-

'> The constructive-eviction doctrine similarly sheds no light

on the distinct federal limitations provision at issue here, and the

sole case Green cites (at 23) considered only a D.C. statute of limi-

tations running from the “accru(al)” of the cause of action. Na-

tional Railroad Passenger Corp. v. Notter, 677 F. Supp. 1, 4

(D.D.C. 1987) (applying D.C. Code § 12-301).

structive discharge, an employee suffers injury and has

a complete and present cause of action for discrimina-

tion under Title VII as soon as the employer commits

the predicate unlawful discriminatory practice; the em-

ployee’s later resignation changes only the damages re-

coverable for that violation. Supra pp. 17-21. Applying

the last-discriminatory-act rule accords with the prin-

ciple that limitations periods can begin to run when the

wrongful act first results in damages, “‘even though the

full extent of the injury is not then known or predicta-

ble.” Wallace v. Kato, 549 U.S. 384, 391 (2007) (quoting

1 Corman, Limitation of Actions § 7.4.1).

Il. Trrue VII Pouicres Or CONCILIATION, ADMINISTRA-

BILITY, AND FAIRNESS Favor THE LAST-

DISCRIMINATORY-ACT RULE

Green contends that a date-of-resignation rule

would “further{) Title VII’s goals of administrability,

fairness, and conciliation.” Pet. Br. 27 (capitalization

altered). In fact, the regulatory scheme’s goal of facili-

tating early, informal resolution of employment dis-

putes in the federal sector before “positions on both

sides have ... hardened,” 57 Fed. Reg. 12,634, 12,635

(Apr. 10, 1992), is met only by the last-discriminatory-

act rule, which requires prompt initiation of the pre-

complaint counseling process. And Green’s arguments

about fairness and administrability are both misplaced

and uverstated. These concerns—which were also ad-

vanced and rejected by this Court in Ricks—cannot

trump the regulatory scheme. Nor are they necessarily

addressed by Green’s rule, as this case demonstrates.

A. The Last-Discriminatory-Act Rule Promotes

The Purpose Of Pre-Complaint Counseling

“Voluntary compliance with Title VII,” through

“cooperation and conciliation,” “is an important public

policy.” W.R. Grace & Co. v. Local Union 759, 461 U.S.

757, 770 (1983); see Mach Mining, LLC v. EEOC, 135 S.

Ct. 1645, 1651 (2015). To that end, 29 C.F.R.

§ 1614.105(a)(1) requires prompt initiation of counseling

to encourage “informal resolution ... , freely arrived at

by all parties involved”—the recognized “best out-

come” for the federal antidiscrimination regime.

EEOC, Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614, at 2-14 (rev. Aug. 5,

2015) (“EEO-MD-110”). The short 45-day deadline re-

flects the EEOC’s considered judgment that, in the

federal sector, “the earliest possible contact with a

counselor aids resolution of disputes because positions

on both sides have not yet hardened.” 57 Fed. Reg. at

12,635; supra pp. 4-5.

The last-discriminatory-act rule promotes that ob-

jective by requiring that an employee consult a counse-

lor about the underlying discrimination—.e., the dis-

crimination that, if left unaddressed, might precipitate

the employee’s resignation—at a time when informal

resolution may still be possible. If counseling is suc-

cessful, then no administrative complaint will be filed,

the employee will remain employed, and no construc-

tive-discharge issue arises. That is precisely the goal of

pre-complaint counseling for federal-sector employees.

Green and the government would defer the em-

ployee’s deadline for initiating counseling until the em-

ployee has resigned—a resignation that in many cases

might have been avoided had counseling been sought

earlier. That approach contravenes the goals of the

regulatory regime. As courts have recognized, “society

and the policies underlying Title VII will be best

served if, wherever possible, unlawful discrimination is

attacked within the context of existing employment re-

lationships.” Bourque v. Powell Elec. Mfg. Co., 617

F.2d 61, 66 (5th Cir. 1980); see also Duncan v. General

Motors Corp., 300 F.3d 928, 936 (8th Cir. 2002) (same);

EEOC v. L.B. Foster Co., 123 F.3d 746, 755 (3d Cir.

1997) (same); Pet. App. 2la. By the time the employee

has resigned, the positions of the now-former employee

and agency accused of discrimination will have hard-

ened; pre-complaint counseling is at that point much

less likely to resolve the conflict.

Green’s amici make that point plain. See NAACP

Br. 13-14. Amici contend that a date-of-resignation rule

gives employees time to weigh the “enormous” “stakes

involved in a decision to resign ... for the personal life,

economic livelihood, and professional trajectory of the

employee.” Jd. But delaying informal counseling until

the employee has already weighed those considerations

and committed to resign would make conciliation all but

impossible.

Conflating the private-sector requirement to file a

EEOC charge with the federal-sector requirement to

initiate pre-complaint counseling—and invoking an ar-

gument this Court rejected in Ricks, 449 U.S. at 259

n.11—Green asserts (at 35-36) that “filing a complaint

while on the job may strain relationships with an em-

ployer” and undermine efforts to “work things out.”

But pre-complaint counseling does not entail filing a

complaint. Its aim is to forestall the filing of a com-

plaint by attempting to “work things out” in the man-

ner the EEOC has deemed most conducive to that end.

And EEOC data confirm that, far from producing any

“strain” on employment relationships, pre-complaint

counseling is often effective on that front."

Green also says (at 35) that the last-discriminatory-

act rule would “encourage employees to quit soon after

perceived discriminatory acts to avoid a time bar.” But

the last-discriminatory-act rule does not require quit-

ting; it requires that an employee consult a counselor.

See supra pp. 4-5, 39. If counseling fails to yield a reso-

lution, the employee need not immediately quit and

bring a constructive-discharge claim. Rather, the em-

ployee can file an administrative complaint based on

the underlying discrimination and, should he later re-

sign, amend his complaint to include a related construc-

tive-discharge claim. See EEO-MD-110, at 5-10 to 5-13;

supra p. 7.

Green and the government question whether an

amendment could “solve the problem,” Pet. Br. 34; see

also U.S. Br. 30, but the EEOC has long endorsed this

procedure in the precise context of constructive dis-

charge. An example from the EEOC management di-

rective illustrates the point:

An agency employee files a complaint of dis-

crimination when his request for a hardship

transfer is denied. During the investigation in-

to his complaint, the complainant sends a letter

'* In 2012, “[plre-complaint EEO counseling ... addressed

many employee concerns before they resulted in formal EEO com-

plaints. Of the 34,521 instances of counseling ... , 54.2% did not

result in a formal complaint, due either to settlement by the par-

ties or withdrawal from the EEO process.” EEOC, Annual Re-

port on the Federal Work Force Part I: Fiscal Year 2012, at iii,

available at http//www.eeoc.gov/federal/reports/fsp2012/upload/

F Y-2012-Annual-Report-Part-I-Complete.pdf (last visited Sept.

28, 2015).

to the EEO office stating that he has decided to

resign from the agency because of the agency’s

failure to transfer him and the resulting stress.

He further states that he is no longer seeking

the transfer as a remedy to his complaint, but

asserts he is entitled to a compensatory dam-

ages award instead. The EEO office should

amend the original complaint to include the

complainant’s new like or related claim of con-

structive discharge.

EEO-MD-110, at 5-13; accord EEOC, Equal Employ-

ment Opportunity Management Directive for 29 C.F .R.

Part 1614, at 5-12 (as revised, Nov. 9, 1999). Green

and the government also note a comment by the EEOC

that “[tJhe fact that you filed an earlier charge may not

extend the deadline.” EEOC, After You Have Filed a

Charge, available at http://www.eeoc.gov/employees/

afterfiling.cfm (last visited Sept. 28, 2015). That gen-

eral statement is surely true, since an amendment must

relate to the issue previously raised. See 29 C.F.R.

§§ 1601.12(b), 1614.106(d). In a constructive-discharge

case, however, the underlying discrimination will nec-

essarily be “like or related to” the resignation for pur-

poses of the amendment procedure. See, e.g., Pet. Br. i

(addressing “discriminatory act giving rise to the res-

ignation”); see also EEO-MD-110, at 5-13; supra n.3.*

'S ‘This procedure thus does not invite any “multipl{ying)” of

claims, as employees need only amend the original complaint. Cf.

US. Br. 30.

Cir. 1989), and Young v. National Center for Health Services Re-

search, 828 F.2d 235 (4th Cir. 1987), Green says (at 33-34) that con-

structive discharge “does not require” an independently actionable

underlying act of discrimination, and that “some constructively

B. Green’s Concerns For Administrability And

Fairness Lack Merit

Green contends that the “date-of-resignation rule

is the ‘simple approach,’ which is easy to understand

and apply.” Pet. Br. 28 (citation omitted); see also

NAACP Br. 17. Green’s dispute with the government

over how to apply that rule to the facts of this case be-

lies that assertion. Compare U.S. Br. 32-34 (Green re-

signed when he signed the settlement agreement), with

Pet. Br. 7-8 (Green resigned when he signed his resig-

nation papers). As their disagreement shows, adjudica-

tors must review “disputed timelines” to determine

“whether, and exactly when, particular acts took place”

under the date-of-resignation rule no differently than

under the last-discriminatory-act rule. Pet. Br. 28. In-

deed, such determinations are the bread and butter of

all statute-of-limitations cases. E'.g., Wallace v. Donley,

2010 WL 3314272, at *4 (Office of Fed. Ops. Aug. 12,

2010) (rejecting employee’s “dispute[]” regarding

“dates” and finding hostile-work-environment claim

barred where the record revealed that the employee

failed to timely initiate counseling).'’

discharged employees” will therefore “have no earlier complaints

to amend.” Green’s premise is incorrect. A “constructive dis-

charge claim cannot exist independently of a discrimination claim.”

Shuck, 23 Berkeley J. Emp. & Lab. Law at 416; supra p. 19. And

in both Hebert and Young, the plaintiffs could have filed earlier

complaints on underlying acts of discrimination. See Hebert, 872

F.2d at 1113 (underlying discrimination was choice between early

retirement or discharge); Young, 828 F.2d at 237-238 (underlying

discrimination was “[cjontinual harassment”).

'7 Green cites (at 28) Barone v. United Airlines, Inc., 355 F.

App’x 169 (10th Cir. 2009), but Barone had nothing to do with

timeliness, and no relevant dates were in question.

The constructive-discharge context adds no unusu-

al complexity to the application of the last-

discriminatory-act rule. Green contends (at 12, 29-31)

that courts would struggle under that rule with “issues

of substantive antidiscrimination law” to decide wheth-

er an employer’s alleged conduct was “sufficiently ‘dis-

criminatory’ to trigger the limitations period.” That

misapprehends the inquiry under the limitations provi-

sion. A court assessing timeliness need not decide on

the merits whether the employer’s alleged conduct was

unlawful; it need only determine when the employee

says the “matter alleged to be discriminatory” occurred.

29 C.F.R. § 1614.105(a)(1) (emphasis added).

That inquiry in turn is precisely the same inquiry

that courts make to determine the timeliness of a fed-

eral employee’s EEO contact in any other kind of dis-

crimination case. As the cases Green cites (at 31)

acknowledge, it is “settled that the applicable adminis-

trative deadlines run from the time of the discriminato-

ry act.” Young v. National Ctr. for Health Servs. Re-

search, 828 F.2d 235, 237 (4th Cir. 1987). For example,

Green highlights constructive-discharge claims

“emerg(ing] from an allegedly hostile work environ-

ment,” emphasizing the complications of assessing

“when a hostile work environment existed,” and

whether certain conduct constitutes a “last act.” Pet.

Br. 29, 30; see also NAACP Br. 21. But those are the

same determinations courts must make to assess the

timeliness of a hostile-work-environment claim that

does not involve a constructive discharge. See, ¢.g.,

Sturdivant v. City of Atl., 596 F. App’x 825, 828 (11th

Cir. 2015) (per curiam) (because “the last acts that

could arguably be said to have contributed to the al-

leged hostile work environment,” i.e., “laughing and

smirking,” occurred more than 180 days from the filing

of administrative complaint, claim was time-barred).

The same is true for retaliation claims. See, e.g., Wilks

v. Elizabeth Arden, Inc., 507 F. Supp. 2d 179, 192 (D.

Conn. 2007) (plaintiff barred from asserting any “acts of

... retaliation under Title VII” occurring outside the

limitations period); see also, e.g., Bass v. Joliet Pub.

Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014)

(claim of sex discrimination untimely where “discrimi-

natory actions” took place “outside the 300-day win-

dow”); cf. Pet. Br. 30.

Green’s predictions that the last-discriminatory-act

rule will unfairly trap unwary lay litigants—an argu-

ment the Court rejected in Ricks, 449 U.S. at 259-260—

are equally overblown. As an initial matter, Green

overstates (at 27) the volume of cases the last-

discriminatory-act rule will affect. As the government

notes (at 31 n.12), constructive-discharge claims “ac-

counted for only a small fraction” of Title VII charges

before the EEOC in 2014. And, as discussed, in many

constructive-discharge cases, the time of the employ-

ee’s resignation will coincide with or follow closely be-

hind the time of the employer’s last discriminatory act,

supra pp. 20-21, making the choice of rule inconsequen-

tial. Where that is not so, however, a diligent claimant

can and should pursue EEO counseling on the underly-

ing act of discrimination and, if necessary, amend the

administrative complaint later if the alleged discrimina-

tion leads to resignation. Swpra pp. 40-41.

Green—who was represented by counsel when he

pursued his constructive-discharge claim in the EEO

process, supra p. 11—posits (at 33) that an unrepre-

sented lay employee might not know about the applica-

ble time limits or how they work. But § 1614.105(a)(2)

contains a “feature uncommon to statutes of limita-

tions” that “absolve[s]” an employee “from complying

with the filing period” where the employee was not

“aware” of the time limits, where the employee did not

know and reasonably should not have known that the

discriminatory matter occurred, or for any other reason

considered sufficient by the agency or EEOC. Pawling

v. Secretary, Dep’t of Interior, 160 F.3d 133, 136 (2d Cir.

1998); see supra p. 6. Green also speculates (at 37) that

the last-discriminatory-act rule would allow an employ-

er to “insulatie] itself from a constructive discharge

claim” by “lull[ing] unwary employees into letting their

claims lapse.” This argument again ignores the text of

the regulation, which recognizes the applicability of eq-

uitable rules designed to protect claimants from pre-

cisely such mischief. 29 C.F.R. § 1614.604(c) (45-day

deadline is “subject to waiver, estoppel and equitable

tolling”); see also, e.g., Heimeshoff, 134 S. Ct. at 615

(“courts are well equipped to apply traditional doc-

trines,” including equitable tolling, waiver, or estoppel,

when defendant’s conduct or other circumstances pre-

vent the plaintiff from filing claim); Jrwin, 498 U.S. at

96 (equitable tolling available where “the complainant

has been induced or tricked by his adversary’s miscon-

duct into allowing the filing deadline to pass”); Cochran

v. Reno, 1996 WL 705504, at *2 (Office of Fed. Ops.

Nov. 27, 1996) (allowing claim to proceed despite two-

year delay to determine “whether appellant was mis-

led”). Green thus cites no evidence of “unwary” claim-

ants who have been trapped unfairly by the limitations

provision in those circuits that have adopted the last-

discriminatory-act rule.

It is true that the federal-sector exhaustion re-

quirements and time limitations are “rigorous.” Brown,

425 U.S. at 833. That is by design. The EEOC sought

to promote “the earliest possible contact with a counse-

lor” to “aid{] resolution of disputes.” 57 Fed. Reg. at

12,635; cf. Morgan, 536 U.S. at 109 (“[Bly choosing

what are obviously quite short deadlines, Congress

clearly intended to encourage the prompt processing of

all charges of employment discrimination.”). Those

short time limits “also protect employers from the bur-

den of defending claims arising from employment deci-

sions that are long past.” Ricks, 449 U.S. at 256-257.

As the court of appeals explained below, the date-of-

resignation rule contravenes that “essential feature of

limitations periods by allowing the employee to extend

the date of accrual.” Pet. App. 20a-2la. This Court

should similarly reject a construction of 29 C.F.R.

§ 1614.105(a)(1) that would “givie] claimants an op-

tion”—as the date-of-resignation rule does—‘“as to

when they will choose to start the period of limitation.”

McMahon, 342 U.S. at 27; see also Pillsbury, 342 U.S.

at 200. Rather, “strict adherence to the procedural re-

quirements specified” by regulation “is the best guar-

antee of evenhanded administration of the law.” Mor-

gan, 536 U.S. at 108.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

ALAN E. SCHOENFELD CATHERINE M.A. CARROLL

WILMER CUTLER PICKERING Counsel of Record

HALE AND DORR LLP ALBINAS J. PRIZGINTAS

7 World Trade Center JOSHUA M. KOPPEL

250 Greenwich Street WILMER CUTLER PICKERING

New York, NY 10007 HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

catherine.carrolk@wilmerhale.com

SEPTEMBER 2015

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