26
Fla. L. Weekly Fed. S169aTop of Form

Civil
rights — Employment discrimination — Exhaustion of administrative remedies —
Timeliness of complaint — Before a federal civil servant can sue his employer
for violating Title VII, he must, among other things, “initiate contact with an
Equal Employment Opportunity counselor at his agency “within 45 days of the
date of the matter alleged to be discriminatory” — When an employee resigns in
the face of intolerable discrimination, a “constructive” discharge, the matter
alleged to be discriminatory includes the resignation — Because part of the
“matter alleged to be discriminatory” in a constructive-discharge claim is an
employee’s resignation, the 45-day limitations period begins running only after
the employee resigns — Where regulatory text of Title VII and the regulation
is not unambiguously clear, standard rule for limitations periods, which
provides that a limitations period ordinarily begins to run when the plaintiff
has a complete and present cause of action, applies — Resignation is part of
the “complete and present cause of action” in a constructive-discharge claim,
which comprises two basic elements: discriminatory conduct such that a
reasonable employee would have felt compelled to resign and actual resignation
— An employee does not have a complete and present cause of action for
constructive discharge until he resigns — A constructive-discharge claim
accrues, and the limitations period begins to run, when the employee gives
notice of his resignation, not on effective date thereof

Syllabus

 

After
petitioner Marvin Green complained to his employer, the United States Postal
Service, that he was denied a promotion because he was black, his supervisors
accused him of the crime of intentionally delaying the mail. In an agreement
signed December 16, 2009, the Postal Service agreed not to pursue criminal
charges, and Green agreed either to retire or to accept another position in a
remote location for much less money. Green chose to retire and submitted his
resignation paperwork on February 9, 2010, effective March 31.

On
March 22-41 days after resigning and 96 days after signing the agreement —
Green reported an unlawful constructive discharge to an Equal Employment
Opportunity counselor, an administrative prerequisite to filing a complaint
alleging discrimination or retaliation in violation of Title VII of the Civil
Rights Act of 1964. See 29 CFR §1614.105(a)(1). Green eventually filed suit in
Federal District Court, which dismissed his complaint as untimely because he had
not contacted the counselor within 45 days of the “matter alleged to be
discriminatory,” ibid. The Tenth Circuit affirmed, holding that the
45-day limitations period began to run on December 16, the date Green signed
the agreement.

Held:

1.
Because part of the “matter alleged to be discriminatory” in a
constructive-discharge claim is an employee’s resignation, the 45-day
limitations period for such action begins running only after an employee
resigns. Pp. 4-15.

(a)
Where, as here, the regulatory text itself is not unambiguously clear, the
Court relies on the standard rule for limitations periods, which provides that
a limitations period ordinarily begins to run “ ‘when the plaintiff has a
complete and present cause of action,’ ” Graham County Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409,
418. Applied here, that rule offers three persuasive reasons to include the
employee’s resignation in the limitations period. Pp. 4-10.

(i)
First, resignation is part of the “complete and present cause of action” in a
constructive-discharge claim, which comprises two basic elements:
discriminatory conduct such that a reasonable employee would have felt
compelled to resign and actual resignation, Pennsylvania State Police v.
Suders, 542 U.S. 129, 148. Until he resigns, an employee does not have a
“complete and present cause of action” for constructive discharge. Under the
standard rule, only after the employee has a complete and present cause of
action does that trigger the limitations period. In this respect, a
constructive-discharge claim is no different from an ordinary
wrongful-discharge claim, which accrues only after the employee is fired. Pp.
6-8.

(ii)
Second, although the standard rule may be subject to exception where clearly
indicated by the text creating the limitations period, nothing in Title VII or
the regulation suggests such displacement. To the contrary, it is natural to
read “matter alleged to be discriminatory” as including the allegation forming
the basis of the claim, which confirms the standard rule’s applicability. Pp.
8-9.

(iii)
Third, practical considerations also confirm the merit of applying the standard
rule. Starting the clock ticking before a plaintiff can actually file suit does
little to further the limitations period’s goals and actively negates Title
VII’s remedial structure. A “limitations perio[d] should not commence to run so
soon that it becomes difficult for a layman to invoke the protection of the
civil rights statutes.” Delaware State College v. Ricks, 449 U.S.
250, 262, n. 16. Nothing in the regulation suggests a two-step process in which
an employee would have to file a complaint after an employer’s discriminatory
conduct, only to be forced to amend that complaint to allege constructive
discharge after resigning. Requiring that a complaint be filed before
resignation occurs would also, e.g., ignore that an employee may not be
in a position to leave his job immediately. Pp. 9-10.

(b)
Arguments against applying the standard rule here are rejected. Suders stands
not for the proposition that a constructive discharge is tantamount to a formal
discharge for remedial purposes only, but for the rule that constructive
discharge is a claim distinct from the underlying discriminatory act, 542 U.S.,
at 149. Nor was Green’s resignation the mere inevitable consequence of the
Postal Service’s discriminatory conduct. Ricks, 449 U.S. 250,
distinguished. Finally, the important goal of promoting conciliation through
early, informal contact with a counselor does not warrant treating a
constructive discharge different from an actual discharge for purposes of the
limitations period. Pp. 10-15.

2.
A constructive-discharge claim accrues — and the limitations period begins to
run — when the employee gives notice of his resignation, not on the effective
date thereof. The Tenth Circuit is left to determine, in the first instance,
the date that Green in fact gave notice. P. 16.

760 F. 3d 1135, vacated and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. ALITO,
J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting
opinion.

__________________

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. §2000e et seq., prohibits employers from
discriminating on the basis of race, color, religion, sex, or national origin,
or retaliating against their employees for opposing or seeking relief from such
discrimination. Before a federal civil servant can sue his employer for
violating Title VII, he must, among other things, “initiate contact” with an
Equal Employment Opportunity counselor at his agency “within 45 days of the
date of the matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1)
(2015).

If an employee claims he has been fired for discriminatory
reasons, the “matter alleged to be discriminatory” includes the discharge
itself and the 45-day limitations period begins running only after the employee
is fired.

We address here when the limitations period begins to run
for an employee who was not fired, but resigns in the face of intolerable
discrimination — a “constructive” discharge. We hold that, in such
circumstances, the “matter alleged to be discriminatory” includes the
employee’s resignation, and that the 45-day clock for a constructive discharge
begins running only after the employee resigns.

I

We recite the following facts in the light most favorable to
petitioner Marvin Green, against whom the District Court entered summary
judgment. Green is a black man who worked for the Postal Service for 35 years.
In 2008, he was serving as the postmaster for Englewood, Colorado when he
applied for a promotion to the vacant postmaster position in nearby Boulder. He
was passed over. Shortly thereafter, Green complained he was denied the
promotion because of his race.

Green’s relations with his supervisors crumbled following
his complaint. Tensions peaked on December 11, 2009, when two of Green’s
supervisors accused him of intentionally delaying the mail — a criminal
offense. See 18 U.S.C. §1703. They informed Green that the Postal Service’s
Office of the Inspector General (OIG) was investigating the charge and that OIG
agents had arrived to interview him as part of their investigation. After Green
met with the OIG agents, his supervisors gave him a letter reassigning him to
off-duty status until the matter was resolved. Even though the OIG agents
reported to Green’s supervisors that no further investigation was warranted,
the supervisors continued to represent to Green that “the OIG is all over this”
and that the “criminal” charge “could be a life changer.” App. 53.

On December 16, 2009, Green and the Postal Service signed an
agreement whose meaning remains disputed. Relevant here, the Postal Service
promised not to pursue criminal charges in exchange for Green’s promise to
leave his post in Englewood. The agreement also apparently gave Green a choice:
effective March 31, 2010, he could either retire or report for duty in
Wamsutter, Wyoming — population 451 — at a salary considerably lower than
what he earned in his Denver suburb. Green chose to retire and submitted his
resignation to the Postal Service on February 9, 2010, effective March 31.

On March 22 — 41 days after submitting his resignation
paperwork to the Postal Service on February 9, but 96 days after signing the
settlement agreement on December 16 — Green contacted an Equal Employment
Opportunity (EEO) counselor to report an unlawful constructive discharge. He
contended that his supervisors had threatened criminal charges and negotiated
the resulting agreement in retaliation for his original complaint.1 He alleged that the choice he had
been given effectively forced his resignation in violation of Title VII.

Green eventually filed suit in the Federal District Court
for the District of Colorado, alleging, inter alia, that the Postal
Service constructively discharged him. The Postal Service moved for summary
judgment, arguing that Green had failed to make timely contact with an EEO
counselor within 45 days of the “matter alleged to be discriminatory,” as
required by 29 CFR §1614.105(a)(1). The District Court granted the Postal
Service’s motion for summary judgment.

The Tenth Circuit affirmed, holding that the “matter alleged
to be discriminatory” encompassed only the Postal Service’s discriminatory
actions and not Green’s independent decision to resign on February 9. Green v.
Donahue, 760 F. 3d 1135 (2014). Therefore, the 45-day limitations period
started running when both parties signed the settlement agreement on December
16, 2009. Accordingly, because 96 days passed between the agreement and when
Green contacted an EEO counselor on March 22, 2010, his constructive-discharge
claim was time barred.

Two other Courts of Appeals agree with the Tenth Circuit’s
view that the limitations period begins to run for a constructive-discharge
claim after the employer’s last discriminatory act.2 As the Tenth Circuit recognized,
however, other Courts of Appeals have held that the limitations period for a
constructive-discharge claim does not begin to run until the employee resigns.3

We granted certiorari to resolve this split. 575 U.S. ___
(2015). Because no party here supports the Tenth Circuit’s holding that an
employee’s resignation is not part of the “matter alleged to be
discriminatory,” we appointed Catherine M. A. Carroll to defend that aspect of
the judgment below. 576 U.S. ___ (2015). She has ably discharged her duties and
the Court thanks her for her service.

II

Before a federal civil servant can sue his employer in court
for discriminating against him in violation of Title VII, he must first exhaust
his administrative remedies. 42 U.S.C. §2000e-16(c). To exhaust those remedies,
the Equal Employment Opportunity Commission (EEOC) has promulgated regulations
that require, among other things, that a federal employee consult with an EEO
counselor prior to filing a discrimination lawsuit. Specifically, he “must
initiate contact with a Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of personnel action, within 45
days of the effective date of the action.” 29 CFR §1614.105(a)(1).4 The timeliness of Green’s claim
therefore turns on our interpretation of this EEOC regulation implementing
Title VII.5

Although we begin our interpretation of the regulation with
its text, the text in this case is not particularly helpful. Nowhere does
§1614.105 indicate whether a “matter alleged to be discriminatory” in a
constructive-discharge claim includes the employee’s resignation, as Green
contends, or only the employer’s discriminatory conduct, as amica contends.
The word “matter” simply means “an allegation forming the basis of a claim or
defense,” Black’s Law Dictionary 1126 (10th ed. 2014) — a term that could
readily apply to a discrimination-precipitated resignation. So the “matter
alleged to be discriminatory” could refer to all of the allegations underlying
a claim of discrimination, including the employee’s resignation, or only to
those allegations concerning the employer’s discriminatory conduct. We
therefore must turn to other canons of interpretation.

The most helpful canon in this context is “the ‘standard
rule’ ” for limitations periods. Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S.
409, 418 (2005) [18 Fla. L. Weekly Fed. S409a]. Ordinarily, a “ ‘limitations
period commences when the plaintiff has a complete and present cause of
action.’ ” Ibid. “[A] cause of action does not become ‘complete and
present’ for limitations purposes until the plaintiff can file suit and obtain
relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar
Corp. of Cal., 522 U.S. 192, 201 (1997). Although the standard rule can be
displaced such that the limitations period begins to run before a plaintiff can
file a suit, we “will not infer such an odd result in the absence of any such
indication” in the text of the limitations period. Reiter v. Cooper,
507 U.S. 258, 267 (1993).

Applying this default rule, we are persuaded that the
“matter alleged to be discriminatory” in a constructive-discharge claim necessarily
includes the employee’s resignation for three reasons. First, in the context of
a constructive-discharge claim, a resignation is part of the “complete and
present cause of action” necessary before a limitations period ordinarily
begins to run. Second, nothing in the regulation creating the limitations
period here, §1614.105, clearly indicates an intent to displace this standard
rule. Third, practical considerations confirm the merit of applying the
standard rule here. We therefore interpret the term “matter alleged to be
discriminatory” for a constructive-discharge claim to include the date Green
resigned.

A

The standard rule for limitations periods requires us first
to determine what is a “complete and present cause of action” for a
constructive-discharge claim. We hold that such a claim accrues only after an
employee resigns.

The constructive-discharge doctrine contemplates a situation
in which an employer discriminates against an employee to the point such that
his “working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) [17
Fla. L. Weekly Fed. S391a]. When the employee resigns in the face of such
circumstances, Title VII treats that resignation as tantamount to an actual
discharge. Id., at 142-143.

A claim of constructive discharge therefore has two basic
elements. A plaintiff must prove first that he was discriminated against by his
employer to the point where a reasonable person in his position would have felt
compelled to resign. Id., at 148. But he must also show that he actually
resigned. Ibid. (“A constructive discharge involves both an
employee’s decision to leave and precipitating conduct . . .” (emphasis
added)). In other words, an employee cannot bring a constructive-discharge
claim until he is constructively discharged. Only after both elements
are satisfied can he file suit to obtain relief.

Under the standard rule for limitations periods, the
limitations period should begin to run for a constructive-discharge claim only
after a plaintiff resigns. At that point — and not before — he can file a
suit for constructive discharge. So only at that point — and not before —
does he have a “complete and present” cause of action. And only after he has a
complete and present cause of action does a limitations period ordinarily begin
to run. Cf. Mac’s Shell Service, Inc. v. Shell Oil Products Co., 559 U.S. 175,
189-190 (2010) [22 Fla. L. Weekly Fed. S147a] (the limitations period for a
constructive termination of a franchise agreement starts running when the
agreement is constructively terminated).

In this respect, a claim that an employer constructively
discharged an employee is no different from a claim that an employer actually
discharged an employee. An ordinary wrongful discharge claim also has two basic
elements: discrimination and discharge. See St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 506 (1993); 1 B. Lindemann, P. Grossman, & C. Weirich,
Employment Discrimination Law 21-33 (5th ed. 2012) (Lindemann) (“The sine qua
non of a discharge case is, of course, a discharge”). The claim accrues when
the employee is fired. At that point — and not before — he has a “complete
and present cause of action.” So at that point — and not before — the
limitations period begins to run.

With claims of either constructive discharge or actual
discharge, the standard rule thus yields the same result: a limitations period
should not begin to run until after the discharge itself. In light of this
rule, we interpret the term “matter alleged to be discriminatory” in §1614.105
to refer to all of the elements that make up a constructive-discharge claim —
including an employee’s resignation.

B

Although the standard rule dictates that a limitations
period should commence only after a claim accrues, there is an exception to
that rule when the text creating the limitations period clearly indicates
otherwise. See, e.g., Dodd v. United States, 545 U.S. 353, 360 (2005)
[18 Fla. L. Weekly Fed. S414a]. Nothing in the text of Title VII or the
regulation, however, suggests that the standard rule should be displaced here.
To the contrary, the language of the regulation confirms our application of the
default rule.

As noted previously, the word “matter” generally refers to
“an allegation forming the basis of a claim or defense.” Black’s Law Dictionary
1126. The natural reading of “matter alleged to be discriminatory” thus refers
to the allegation forming the basis of the discrimination claim — here, a
claim of constructive discharge. And as discussed above, a constructive
discharge claim requires two basic allegations: discriminatory conduct by the
employer that leads to resignation of the employee. So long as those acts are
part of the same, single claim under consideration, they are part of the
“matter alleged to be discriminatory,” whatever the role of discrimination in
each individual element of the claim. Cf. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115-121 (2002)
[15 Fla. L. Weekly Fed. S347a] (holding that a hostile-work-environment claim
is a single “unlawful employment practice” that includes every act composing
that claim, whether those acts are independently actionable or not).

C

Finally, we are also persuaded that applying the standard
rule for limitations periods to constructive discharge makes a good deal of
practical sense. Starting the limitations clock ticking before a
plaintiff can actually sue for constructive discharge serves little purpose in
furthering the goals of a limitations period — and it actively negates Title
VII’s remedial structure. Cf. Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 398 (1982) (holding that the Title VII limitations period should
be construed to “honor the remedial purpose of the legislation as a whole
without negating the particular purpose of the filing requirement”).

This Court has recognized “that the limitations perio[d]
should not commence to run so soon that it becomes difficult for a layman to
invoke the protection of the civil rights statutes.” Delaware State College v.
Ricks, 449 U.S. 250, 262, n. 16 (1980). If the limitations period begins
to run following the employer’s precipitating discriminatory conduct, but
before the employee’s resignation, the employee will be forced to file a discrimination
complaint after the employer’s conduct and later amend the complaint to allege
constructive discharge after he resigns. Nothing in the regulation suggests it
intended to require a layperson, while making this difficult decision, to
follow such a two-step process in order to preserve any remedy if he is
constructively discharged.

Moreover, forcing an employee to lodge a complaint before he
can bring a claim for constructive discharge places that employee in a
difficult situation. An employee who suffered discrimination severe enough that
a reason-able person in his shoes would resign might nevertheless force himself
to tolerate that discrimination for a period of time. He might delay his
resignation until he can afford to leave. Or he might delay in light of other
circumstances, as in the case of a teacher waiting until the end of the school
year to resign. Tr. 17. And, if he feels he must stay for a period of time, he
may be reluctant to complain about discrimination while still employed. A complaint
could risk termination — an additional adverse consequence that he may have to
disclose in future job applications.

III

Amica and the dissent read “matter alleged
to be discriminatory” as having a clear enough meaning to displace our reliance
on the standard rule for limitations periods. They argue that “matter” is not
equivalent to “claim” or “cause of action,” and that the use of the phrase
“matter alleged to be discriminatory” is a sufficiently clear statement that
the standard claim accrual rule should not apply. According to amica and
the dissent, “matter” refers only to the discriminatory acts of the Postal
Service, not Green’s resignation.

We disagree. There is nothing inherent in the phrase “matter
alleged to be discriminatory” that clearly limits it to employer conduct.
Rather, as discussed above, the term can reasonably be interpreted to include
the factual basis for a claim. Green is not alleging just that the Postal
Service discriminated against him. He claims that the discrimination left him
no choice but to resign.

Amica and the dissent dispute that a
constructive discharge is a separate claim. According to amica and the
dissent, the constructive-discharge doctrine merely allows a plaintiff to
expand any underlying discrimination claim to include the damages from leaving
his job, thereby increasing his available remedies. See 1 Lindemann 21-49
(constructive discharge allows plaintiff to seek backpay, front pay, or
reinstatement). In support of this argument, amica and the dissent
emphasize this Court’s statement in Suders that “[u]nder the
constructive discharge doctrine, an employee’s reasonable decision to resign
because of unendurable working conditions is assimilated to a formal discharge for
remedial purposes.” 542 U.S., at 141 (emphasis added); see also id.,
at 148 (“[A] constructive discharge is functionally the same as an actual
termination in damages-enhancing respects”).

But the Court did not hold in Suders that a
constructive discharge is tantamount to a formal discharge for remedial
purposes exclusively. To the contrary, it expressly held that constructive
discharge is a claim distinct from the underlying discriminatory act. Id., at
149 (holding that a hostile-work-environment claim is a “lesser included
component” of the “graver claim of hostile-environment constructive
discharge”). This holding was no mere dictum. See id., at 142 (“[A]
claim for constructive discharge lies under Title VII”). We see no reason to
excise an employee’s resignation from his constructive-discharge claim for
purposes of the limitations period.

The concurrence sets out a theory that there are two kinds
of constructive discharge for purposes of the limitations period: constructive
discharge “claims” where the employer “makes conditions intolerable with the
specific discriminatory intent of forcing the employee to resign,” and
constructive discharge “damages” where the employer does not intend to force
the employee to quit, but the discriminatory conditions of employment are so
intolerable that the employee quits anyway. Post, at 6-11 (ALITO, J.,
concurring in judgment). According to the concurrence, the limitations period
does not begin to run until an employee resigns under the “claim” theory of
constructive discharge, but begins at the last discriminatory act before
resignation under the “damages” theory.

This sometimes-a-claim-sometimes-not theory of constructive
discharge is novel and contrary to the constructive discharge doctrine. The
whole point of allowing an employee to claim “constructive” discharge is that
in circumstances of discrimination so intolerable that a reasonable person
would resign, we treat the employee’s resignation as though the employer
actually fired him. Suders, 542 U.S., at 141-143.6 We do not also require an employee to
come forward with proof — proof that would often be difficult to allege
plausibly — that not only was the discrimination so bad that he had to quit,
but also that his quitting was his employer’s plan all along.

Amica and the dissent also argue that
their interpretation is more consistent with this Court’s prior precedent on
when the limitations period begins to run for discrimination claims. Under
their interpretation, Green’s resignation was not part of the discriminatory
“matter,” but was instead the mere inevitable consequence of the Postal
Service’s discriminatory conduct, and therefore cannot be used to extend the
limitations period. See Brief for Court-Appointed Amica Curiae in
Support of Judgment Below 21-27 (Brief for Amica Curiae) (citing Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007) [20 Fla. L. Weekly Fed. S295a], overruled by statute, Lilly
Ledbetter Fair Pay Act of 2009, 123 Stat. 5; Delaware State College v. Ricks,
449 U.S. 250; United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977)); post, at 3-7 (THOMAS, J., dissenting) (citing Ricks, 449
U.S. 250, and Chardon v. Fernandez, 454 U.S. 6 (1981) (per
curiam)). Similarly, the concurrence argues these cases require that an act
done with discriminatory intent must occur within the limitations period. Post,
at 4 (opinion of ALITO, J.).

But these cases are consistent with the standard rule that a
limitations period begins to run after a claim accrues, not after an inevitable
consequence of that claim. In Ricks, for example, the Court considered
the discrimination claim of a college faculty member who was denied tenure and
given a 1-year “ ‘terminal’ ” contract for his last year teaching. 449 U.S., at
258. The plaintiff’s claim accrued — and he could have sued — when the
college informed him he would be denied tenure and gave him “explicit notice
that his employment would end” when his 1-year contract expired. Ibid.
The Court held that the limitations period began to run on that date, and not
after his 1-year contract expired. That final year of teaching was merely an
inevitable consequence of the tenure denial the plaintiff claimed was
discriminatory.

Green’s resignation, by contrast, is not merely an
inevitable consequence of the discrimination he suffered; it is an essential
part of his constructive-discharge claim. That is, Green could not sue for
constructive discharge until he actually resigned. Of course, Green could not resign
and then wait until the consequences of that resignation became most painful to
complain. For example, he could not use the date of the expiration of his
health insurance after his resignation to extend the limitations period. But
the “inevitable consequence” principle of Ricks, Ledbetter, and Evans
does not change the focus of the limitations period, which remains on the
claim of discrimination itself. See Lewis v. Chicago, 560 U.S. 205, 214 (2010) [22
Fla. L. Weekly Fed. S358a] (holding Evans and its progeny “establish
only that a Title VII plaintiff must show a present violation within the
limitations period” (internal quotation marks omitted)); National Railroad
Passenger Corporation v. Morgan, 536 U.S., at 115-121 (holding
limitations period for hostile-work-environment claim runs from the last act
composing the claim).7 For a constructive discharge, the
claim does not exist until the employee resigns.

Finally, amica contends that her interpretation of
the regulation better advances the EEOC’s goal of promoting conciliation for
federal employees through early, informal contact with an EEO counselor. See
Exec. Order No. 11478, §4, 34 Fed. Reg. 12986 (1969) (counseling for federal
employees “shall encourage the resolution of employee problems on an informal
basis”). The dissent suggests that our holding will make a discrimination
victim the master of his complaint, permitting him to “ ‘exten[d] the
limitation[s period] indefinitely’ ” by waiting to resign. Post, at 7
(opinion of THOMAS, J.). The concurrence claims that an employee who relies on
the limitations period in waiting to resign is “doubly out of luck” if his
otherwise-meritorious discrimination claim is time barred and he cannot show
the discrimination was so intolerable that it amounted to a constructive
discharge. Post, at 13 (opinion of ALITO, J.).

These concerns are overblown. Amica may be right that
it is more difficult to achieve conciliation after an employee resigns. But the
same is true for a federal civil servant who is fired by his agency for what
the employee believes to be a discriminatory purpose. And neither decision is
necessarily permanent — a resignation or a termination may be undone after an
employee contacts a counselor. Conciliation, while important, does not warrant
treating a constructive discharge different from an actual discharge for
purposes of the limitations period.

As for the dissent’s fear, we doubt that a victim of
employment discrimination will continue to work in an intolerable environment
merely because he can thereby extend the limitations period for a claim of
constructive discharge. If anything, a plaintiff who wishes to prevail on the
merits of his constructive discharge claim has the opposite incentive. A claim
of constructive discharge requires proof of a causal link between the allegedly
intolerable conditions and the resignation. See 1 Lindemann 21-45, and n. 106.

And as for the concurrence’s double-loser concern, no
plaintiff would be well advised to delay pursuing what he believes to be a
meritorious non-constructive-discharge-discrimination claim on the ground that
a timely filed constructive discharge claim could resuscitate other time-lapsed
claims. The 45-day limitations period begins running on any separate underlying
claim of discrimination when that claim accrues, regardless of whether the
plaintiff eventually claims constructive discharge. The limitations-period
analysis is always conducted claim by claim.

IV

Our decision that a resignation triggers the limitations
period for a constructive-discharge claim raises the question of when precisely
an employee resigns. Here, Green and the Government agree that an employee
resigns when he gives his employer definite notice of his intent to resign. If
an employee gives “two weeks’ notice” — telling his employer he intends to
leave after two more weeks of employment — the limitations period begins to
run on the day he tells his employer, not his last day at work. (This issue was
not addressed by the Tenth Circuit and, accordingly, amica takes no
position on it. See Brief for Amica Curiae 42.)

We agree. A notice rule flows directly from this Court’s
precedent. In Ricks, 449 U.S., at 250, and Chardon v. Fernandez,
454 U.S. 6, the Court explained that an ordinary wrongful-discharge claim
accrues — and the limitations period begins to run — when the employer
notifies the employee he is fired, not on the last day of his employment. Ricks,
449 U.S., at 258-259; Chardon, 454 U.S., at 8. Likewise, here, we hold
that a constructive-discharge claim accrues — and the limitations period
begins to run — when the employee gives notice of his resignation, not on the
effective date of that resignation.

One factual issue remains: when exactly Green gave the
Postal Service notice of his resignation. The Government argues that Green
resigned on December 16, 2009 — when he signed the settlement agreement — and
that his claim is therefore still time barred. Green argues that he did not
resign until February 9, 2010 — when he submitted his retirement paperwork —
and that his claim is therefore timely. We need not resolve this issue. Having
concluded that the limitations period for Green’s constructive-discharge claim
runs from the date he gave notice of his resignation, we leave it to the Tenth
Circuit to determine when this in fact occurred.

* *
*

For these reasons, we vacate the judgment of the Tenth
Circuit and remand the case for further proceedings consistent with this
opinion.

So ordered.

__________________

1We assume without deciding that it
is unlawful for a federal agency to retaliate against a civil servant for
complaining of discrimination. See Gómez-Pérez v. Potter, 553 U.S. 474, 488, n. 4 (2008)
[21 Fla. L. Weekly Fed. S259a]; Brief for Respondent 2.

2Mayers v. Laborers’
Health and Safety Fund of North America, 478 F. 3d 364, 370 (CADC 2007) (per
curiam); Davidson v. Indiana-American Water Works, 953 F. 2d
1058, 1059 (CA7 1992).

3Flaherty v. Metromail
Corp., 235 F. 3d 133, 138 (CA2 2000); Draper v. Coeur Rochester,
Inc., 147 F. 3d 1104, 1111 (CA9 1998); Hukkanen v. Operating
Engineers, 3 F. 3d 281, 285 (CA8 1993); Young v. National Center
for Health Servs. Research, 828 F. 2d 235, 238 (CA4 1987).

4This regulation, applicable to
federal employees only, has a statutory analog for private-sector Title VII
plaintiffs, who are required to file a charge with the EEOC within 180 or 300
days “after the alleged unlawful employment practice occurred.” 42 U.S.C.
§2000e-5(e)(1). Although the language is different, the EEOC treats the federal
and private-sector employee limitations periods as identical in operation. See
EEOC Compliance Manual: Threshold Issues §2-IV(C)(1), n. 179.

5Green does not contend that his
alleged constructive discharge is a “personnel action.” See Brief for
Petitioner 17-18; Green v. Donahoe, 760 F. 3d 1135, 1144, n. 3
(CA10 2014). We therefore address the “matter alleged to be discriminatory”
clause only.

6The concurrence suggests that its
theory is consistent with statements in the Suders opinion that
constructive discharge is akin to an actual discharge “ ‘for remedial purposes’
” and in “ ‘damages-enhancing respects.’ ” Post, at 10 (opinion of
ALITO, J.) (quoting Suders, 542 U.S., at 141, 148). This ignores the
more obvious explanation for this qualification: The Court was distinguishing
between the merits of a claim of constructive discharge generally, where
resignation is imputed as a discriminatory act of the employer, and the affirmative
defense available to an employer in a hostile work environment claim
specifically, which allows an employer to defend against a hostile work
environment claim in certain circumstances if it took no “ ‘official act’ ”
against the employee. Id., at 143-146. The Court in Suders recognized
that it would be bizarre to always impute resignation as an “official act” of
the employer in a constructive discharge hostile work environment case and
prohibit the employer from relying on the no-“official-act” defense, because it
would make it easier to prove the “graver” claim of a constructive discharge
hostile work environment than to prove a hostile work environment claim. Id.,
at 148-149. Thus, the Court declined to hold that resignation in a
constructive discharge case was categorically an “official act” in all
instances. Ibid. In other words, the Court sought a measure of parity
between constructive discharge and ordinary discrimination — parity that we
extend to the limitations period here.

7The dissent relies on Morgan‘s
other holding that, unlike a hostile-work-environment claim that may comprise
many discriminatory acts, discrete claims of discrimination based on
independent discriminatory acts cannot be aggregated to extend the limitations
period. See post, at 3 (opinion of THOMAS, J.) (citing 536 U.S., at
109-113). But this just proves the point: The analysis for the limitations
period turns on the nature of the specific legal claim at issue. In Morgan,
the Court noted that even if a claim of discrimination based on a single
discriminatory act is time barred, that same act could still be used as part of
the basis for a hostile-work-environment claim, so long as one other act that
was part of that same hostile-work-environment claim occurred within the limitations
period. Id., at 117 (“It is precisely because the entire hostile work
environment encompasses a single unlawful employment practice that we do not
hold, as have some of the Circuits, that the plaintiff may not base a suit on
individual acts that occurred outside the statute of limitations . . .”).

__________________

JUSTICE
ALITO, concurring in the judgment.

In its pursuit of a bright-line limitations rule for
constructive discharge claims, the Court loses sight of a bedrock principle of
our Title VII cases: An act done with discriminatory intent must have occurred
within the limitations period. We have repeatedly held that the time to pursue
an employment discrimination claim starts running when a discriminatory act
occurs, and that a fresh limitations period does not start upon the occurrence
of a later nondiscriminatory act — even if that later act carries forward the
effects of the earlier discrimination. See, e.g., United Air Lines, Inc. v.
Evans, 431 U.S. 553, 558 (1977); Delaware State College v. Ricks,
449 U.S. 250, 257-258 (1980); Chardon v. Fernandez, 454 U.S. 6, 8
(1981) (per curiam); Lorance v. AT&T Technologies, Inc.,
490 U.S. 900, 907-908, 911 (1989); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113 (2002) [15
Fla. L. Weekly Fed. S347a]; Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618, 628 (2007) [20 Fla. L. Weekly Fed. S295a]. Without mentioning this
consistent line of precedent, the Court categorically declares that the
limitations period for constructive discharge cases starts upon the employee’s
resignation, no matter when the last discriminatory act occurred. This
effectively disposes of the discriminatory-intent requirement.

Rather than jettison our precedent, I would hold that the
limitations period for constructive discharge claims — like all other
employment discrimination claims — starts running upon a discriminatory act of
the employer. But I would also hold that an employee’s resignation can, in many
cases, be considered a discriminatory act of the employer. This is so where an
employer subjects an employee to intolerable working conditions with the
discriminatory intent to force the employee to resign. In these
circumstances, the employee’s consequent resignation is tantamount to an
intentional termination by the employer, and so gives rise to a fresh
limitations period just as a conventional termination would. Absent such
intent, however, the resignation is not an independent discriminatory act but
merely a delayed consequence of earlier discrimination. The resignation may be
a basis for enhancing damages in a claim brought on the underlying
discrimination, but it cannot restart the limitations clock.

In this case, Green presented sufficient evidence that the
Postal Service intended to force him to resign when it presented him with a
settlement agreement requiring that he either retire or transfer to a distant
post office for much less pay. Accordingly, the 45-day window for him to
initiate counseling opened when he gave the Postal Service notice of his
resignation.

I

A

The regulation at issue here requires a federal employee who
complains of unlawful discrimination to initiate contact with an Equal
Employment Opportunity (EEO) counselor “within 45 days of the date of the
matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1) (2015). The Court
observes that this language “is not particularly helpful” in resolving the
question presented, and so it quickly moves on to other considerations. Ante,
at 5. I think that more can be discerned from the regulation’s text. The
Court observes that a “matter” in this context is “an allegation forming the
basis of a claim or defense.” Black’s Law Dictionary 1126 (10th ed. 2014); ante,
at 5. But the Court fails to plug in the regulation’s critical qualifier:
The matter must be (alleged to be) discriminatory. The phrase “matter
alleged to be discriminatory” is thus most fairly read to refer to the
allegation of discrimination that underlies an employee’s claim, not
just any fact that supports the claim.

Even if the regulation’s text were unclear on this point,
the next place I would look is not to a “standard rule” governing limitations
periods, as the majority does, ibid., but to the specific limitations
rules we apply in other Title VII cases. Private-sector Title VII plaintiffs
are required to file a charge with the Equal Employment Opportunity Commission
(EEOC) within 180 or 300 days “after the alleged unlawful employment practice
occurred.” 42 U.S.C. §2000e-5(e)(1); see Morgan, supra (construing
this statutory provision).1 Although this language is not
identical to the regulation at issue here, nothing in either text requires that
they be read as setting different rules. Indeed, the EEOC’s Compliance Manual
treats them the same — it describes the regulation as requiring federal
employees to contact a counselor within 45 days of “the alleged discriminatory
employment practice,” and it cites Morgan as providing the
governing standard.2 We also granted review in this case
on the premise that the same rule would apply to both federal-sector and
private-sector Title VII cases: Green’s petition and merits brief ask us to
decide when the filing period for constructive discharge claims begins as a
matter of “federal employment discrimination law” generally, Pet. for Cert. i;
Brief for Petitioner i, and the Circuit split he alleges consists primarily of
cases in which the limitations period ran from the date of an unlawful
employment “practice,” see Pet. for Cert. 11-16. The majority, for its part,
seems to agree that the same rules should apply in the federal and private
sectors, and it too relies on private-sector cases in describing the Circuit
split that today’s decision is meant to “resolve.” Ante, at 4-5, and nn.
2-4. The majority’s relegation of our Title VII timeliness cases to its
rebuttal argument, see ante, at 12-14, is thus surprising.

B

Our Title VII precedents set somewhat different limitations
rules for claims based on a discrete act of discrimination (such as
termination, failure to hire, or demotion) and claims based on a hostile work
environment. I will focus on the former set of rules because Green’s
resignation was a discrete act that was precipitated by another discrete act —
namely, the settlement agreement that required him to retire or transfer to a
far-off, lower paying position. For private-sector claims based on discrete
acts, the limitations period starts to run on the day the discriminatory act
occurred and expires 180 or 300 days later. Morgan, 536 U.S., at 110.
This means that an act done with discriminatory intent — not merely
some act bearing on the claim — must have occurred within the limitations
period. We therefore held in Morgan that “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in
timely filed charges,” and that “a time-barred act [cannot] justify filing a
charge concerning a termination that was not independently discriminatory.”
Id., at 113 (emphasis added).

We spoke even more directly to the point in Ledbetter.
There we described “discriminatory intent” as the “defining element” of a Title
VII disparate-treatment claim, 550 U.S., at 624, and held that the
plaintiff’s claim of pay discrimination was untimely because she did not allege
that any “intentionally discriminatory conduct occurred during the
[limitations] period,” id., at 628. Although the plaintiff had suffered
lower pay within the limitations period because of earlier alleged
discrimination, we explained that under our precedents a new limitations period
“does not commenc[e] upon the occurrence of subsequent nondiscriminatory acts
that entail adverse effects resulting from the past discrimination.” Ibid. (discussing
Evans, 431 U.S. 553, Ricks, 449 U.S. 250, Lorance, 490
U.S. 900, and Morgan, supra). Relying on nondiscriminatory acts
to establish a timely claim, we reasoned, would impermissibly “shift intent
from one act (the act that consummates the discriminatory employment practice)
to a later act that was not performed with bias or discriminatory motive. The
effect of this shift would be to impose liability in the absence of the
requisite intent.” 550 U.S., at 629. At the same time, we recognized that when
multiple acts that are each “intentionally discriminatory” occur, “a fresh
violation takes place” — and thus a new limitations period starts running —
“when each act is committed.” Id., at 628.3

C

These principles lead to the following rule for constructive
discharge cases: An employee’s resignation triggers a fresh limitations period
if the resignation itself constitutes an “intentionally discriminatory” act of
the employer. In my view, an employee’s resignation in the face of intolerable
working conditions can be considered a discriminatory act of the employer when
the employer makes conditions intolerable with the specific discriminatory
intent of forcing the employee to resign. If the employer lacks that
intent, however, the limitations period runs from the discriminatory act that
precipitated the resignation.

This approach reflects the fact that there are two kinds of
constructive discharge. Much of the disagreement between the majority and
dissent stems from their differing views of the nature of constructive
discharge. To the majority, constructive discharge is always a standalone
“claim distinct from the underlying discriminatory act.” Ante, at 11. To
JUSTICE THOMAS and the friend of the Court we appointed to defend the judgment below,
constructive discharge is never a separate claim, but merely “a counterdefense
to an employer’s contention that a resignation was voluntary” that allows the
resigning employee to recover backpay and other relief unavailable to employees
who quit voluntarily. Post, at 9. As I see it, each side is partly
right. The label “constructive discharge” is best understood to refer to two
different (though related) concepts, one a distinct claim and one not. This
case requires us to distinguish between the two and to “identify with care the
specific employment practice that is at issue.” Ledbetter, supra,
at 624 (citing Morgan, supra, at 110-111).

1

The first kind of constructive discharge occurs when an
employer subjects an employee to intolerable conditions with the specific
discriminatory intent of forcing the employee to quit. In this
situation, the employer has deliberately terminated the employee — a discrete
employment action. The discharge is termed “constructive,” however, because it
is formally effected by the employee’s resignation rather than the employer’s
pink slip. The termination can nevertheless be considered a discriminatory act
of the employer because the employer intends to terminate the employee and —
through the imposition of intolerable conditions — forces the employee to
“rubberstamp” that decision by resigning. Cf. Staub v. Proctor Hospital, 562 U.S. 411, 425
(2011) [22 Fla. L. Weekly Fed. S828a] (ALITO, J., concurring in judgment); id.,
at 419 (majority opinion) (“Animus and responsibility for [an] adverse
action can both be attributed to [an] earlier agent . . . if the adverse action
is the intended consequence of that agent’s discriminatory conduct”). Because
the resignation is the “act that consummates the discriminatory employment
practice” of terminating the employee, Ledbetter, supra, at 629,
it triggers a fresh limitations period. In such cases, the constructive
discharge should, like a formal discharge, be treated as a distinct cause of
action — what we might call a proper “constructive discharge claim.”

The employer’s discriminatory intent sometimes will manifest
itself only outside the limitations period. Consider, for example, an employer
that demotes an employee (say, from executive to office assistant) for
discriminatory reasons and with the intent that the loss of prestige will force
the employee to quit. By the time the employee finally cracks and resigns, the
discriminatory demotion may be outside the limitations window and not
independently actionable. But the employer’s discriminatory intent to terminate
the employee can carry forward to the eventual resignation. We recognized
this possibility in Ledbetter. We explained that a plaintiff generally
cannot create a timely Title VII claim by “attach[ing]” the discriminatory
intent accompanying an act outside the limitations period to another act that
occurred within the limitations period. 550 U.S., at 625, 629. At the same
time, we acknowledged that “there may be instances where the elements forming a
cause of action” — discriminatory intent and an employment action — “span
more than 180 days” (that is, the applicable limitations period). Id.,
at 631, n. 3. In such a case, we said, the limitations period would start
to run when “the employment practice was executed,” because that is when “[t]he
act and intent had . . . been joined.” Ibid. Under my example, then, the
employer “forms an illegal discriminatory intent” to terminate the employee at
the time of the demotion, but the termination is not “executed” or
“consummated” until the employee resigns some time later. Ibid.; id.,
at 629. Only at that point have the discriminatory intent to terminate and
the act of termination been “joined,” and therefore only at that point does the
limitations period for the wrongful discharge start to run.

2

The second kind of constructive discharge occurs when an
employer imposes intolerable conditions for discriminatory reasons but does not
intend to force an employee to resign. This is quite different from an
ordinary discharge because the critical element of intent is missing. The
resignation cannot be considered an intentionally discriminatory act of the
employer because it is not something the employer deliberately brought about;
it is simply a later-arising consequence of the earlier discrimination. The
resignation thus does not trigger a fresh limitations period or give rise to a
separate cause of action. See Evans, 431 U.S., at 558 (A
nondiscriminatory act that “gives present effect to a past act of
discrimination” is not actionable); Ricks, 449 U.S., at 258 (“[T]he
proper focus is upon the time of the discriminatory acts, not upon the
time at which the consequences of the acts became most painful”
(internal quotation marks and brackets omitted)); Ledbetter, supra,
at 628 (“A new violation does not occur, and a new [limitations] period does
not commence, upon the occurrence of subsequent nondiscriminatory acts that
entail adverse effects resulting from the past discrimination”).

This does not let the employer off the hook. It is still
liable for the acts of discrimination that precipitated the resignation,
provided that the employee properly and timely challenges them. And in a suit
brought on those underlying acts, the resignation — if reasonable — “is
assimilated to a formal discharge for remedial purposes.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) [17
Fla. L. Weekly Fed. S391a] (emphasis added). The resigning employee can
recover, as damages for the underlying discrimination, “all damages [that would
be] available for formal discharge” but which are normally unavailable to
employees who voluntarily quit. Id., at 147, n. 8; see post, at
8-9 (THOMAS, J., dissenting). A resignation that is the reasonable but
unintended result of the employer’s discriminatory acts thus does not lead to a
standalone “constructive discharge claim.” Instead, it is a basis for
increasing damages on the underlying discrimination claim — what we might call
a “constructive discharge damages enhancement.” See Suders, supra, at
148 (analogizing constructive discharge to “an actual termination in
damages-enhancing respects”).4

The majority asserts that in Suders the Court “expressly
held” that constructive discharge is always its own distinct claim. Ante, at
11. I do not think that the Suders Court would have taken such pains to
qualify its statements that a constructive discharge is akin to an actual
termination “for remedial purposes” and “in damages-enhancing respects,” 542
U.S., at 141, 148, had that been its intention. Nor was it necessary for the
Court to resolve whether constructive discharge is a separate cause of action
or merely a basis for enhancing damages. The majority observes that Suders referred
to a “claim” for constructive discharge. See ante, at 11. But the use of
that term does not indicate that constructive discharge is (always) an
independent cause of action any more than stray references to a “claim for
punitive damages,” e.g., BMW of North America, Inc. v. Gore, 517
U.S. 559, 564 (1996); Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 58 (1995), mean that punitive damages are actionable independent
of an underlying tort claim.

The majority also asserts that intent to cause a resignation
is unnecessary for a constructive discharge cause of action because the “whole
point” of constructive discharge is to treat the resignation like a firing. Ante,
at 11. I had thought that the “whole point” of a Title VII
disparate-treatment claim was to combat intentional discrimination. See,
e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
1002 (1988) (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in
part and concurring in judgment) (“[A] disparate-treatment challenge focuses
exclusively on the intent of the employer”). A resignation cannot be deemed the
equivalent of an actionable intentional termination if the employer lacks
intent to terminate. See Staub, 562 U.S., at 417-418 (holding that a
person who “did not intend to cause [a] dismissal” cannot be deemed
“responsible” for the dismissal, even if the dismissal was the “result” or
“foreseeable consequence” of the person’s actions); see also id., at 417
(“Intentional torts such as this . . . generally require that the actor intend
the consequences of an act, not simply the act itself” (internal
quotation marks omitted)). But as I have explained, a resignation in those
circumstances may still be treated like a firing for damages purposes. Our
cases demand nothing more.

II

A

The framework I propose respects the fundamental rule that
an act done with discriminatory intent must have occurred within the
limitations period. It also comports with the default rule that limitations
periods start to run when a cause of action accrues. When an employer intends
to force an employee to resign, the resignation gives rise to a new cause of
action for constructive discharge, with a limitations period that runs from the
date of the resignation. But when an employer does not intend to force the
employee to resign, the employee’s only cause of action is based on the
underlying discriminatory acts, and the limitations period runs from the time that
claim accrued.5 It is thus entirely unnecessary for
the majority to abandon the discriminatory-intent requirement in service of the
“standard” limitations rule. These two rules fit together perfectly once one
appreciates the dual nature of constructive discharge.

It is abundantly clear that the majority has abandoned the
discriminatory-intent requirement and would deem a constructive discharge claim
timely even if no discriminatory act occurred within the limitations period.
The majority admits as much. It declares that the employer’s discriminatory
conduct and the employee’s resignation are both “part of the ‘matter alleged to
be discriminatory,’ ” and therefore (in its view) the resignation may trigger
the limitations period “whatever the role of discrimination in [the
resignation] element.” Ante, at 8 (emphasis added). To support this
dubious proposition, the majority cites Morgan‘s holding that an
individual act contributing to a hostile work environment need not be
independently actionable for the act to start a fresh limitations period. Ante,
at 8-9. This analogy is particularly inapt because Green’s constructive
discharge claim is based on a discrete act, not a hostile work environment. See
supra, at 4. Even setting that aside, Morgan held only that an
act contributing to a hostile work environment need not be independently
actionable by dint of its severity. That is because a hostile work
environment claim is based on the “cumulative effect of individual acts”
that may not “ ‘sufficiently affect the conditions of employment to implicate
Title VII’ ” unless considered in the aggregate. 536 U.S., at 115 (emphasis
added). Nothing in Morgan suggests that the limitations period for a
hostile work environment claim can run from an act that is not
discriminatory. To the contrary, the Court referred to individual “act[s]
of harassment” — such as “racial jokes, . . . racially derogatory acts,
. . . negative comments regarding the capacity of blacks to be supervisors, and
. . . various racial epithets” — as triggering the limitations period. Id.,
at 115, 120 (emphasis added).

B

The majority opines that its rule is better for employees
because it prevents the limitations period from expiring before an employee
resigns. Ante, at 9. Things are not that simple. The majority’s rule
benefits only those employees who can meet the demanding standard for
constructive discharge, while setting a springe for those who cannot.
Constructive discharge is an “aggravated” form of discrimination involving
truly “intolerable” working conditions that leave an employee no choice but to
resign. Suders, 542 U.S., at 146-147. This is an objective standard, id.,
at 141, and what is subjectively intolerable to a particular employee may
strike a court or jury as merely unpleasant.

So imagine an employee who is subjected to sexual harassment
at her federal workplace but — relying on the majority’s rule — does not
pursue EEO counseling until 45 days after the harassment leads her to resign.
Suppose too that the last act of harassment occurred the day before she
resigned. If a court ultimately concludes that the harassment was objectively
intolerable and the employee was justified in resigning, she can recover for
the constructive discharge. But if it turns out that she has proved only
“ordinary discrimination” without the “something more” needed to establish
constructive discharge, id., at 147 (internal quotation marks omitted),
the employee is doubly out of luck: Not only does her constructive discharge
fail on the merits, but any “lesser included” hostile work environment claim
that she might have brought (and prevailed on), id., at 149, is time
barred. Encouraging employees to wait until after resigning to pursue
discrimination claims thus may needlessly deprive unwary discrimination victims
of relief.

The better approach is to encourage employees to seek EEO
counseling (or, in the private sector, file an EEOC charge) at the earliest
opportunity, based on the underlying discriminatory acts.6 Every allegation of constructive
discharge must be based on an actionable discriminatory practice, see ibid.;
1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law
21-49 (5th ed. 2012), for which the employee can immediately seek counseling
and pursue a discrimination claim. If the employee later resigns, he or she can
seek damages from the resignation as part of that timely claim. See supra,
at 9, and n. 4. Under the framework I have set forth, an employee who fails to
pursue the underlying discrimination claim can still pursue a standalone
constructive discharge claim so long as there is sufficient evidence that the
employer acted with intent to force the employee to resign. This will often be
the case when working conditions are so intolerable that a reasonable employee
would be compelled to quit. The employer will usually be aware that conditions
are terrible, and “[p]roof that a defendant acted knowingly very often gives
rise to a reasonable inference that the defendant also acted purposely.” Loughrin v. United States, 573 U.S. ___, ___ (2014)
[24 Fla. L. Weekly Fed. S892a] (ALITO, J., concurring in part and concurring in
judgment) (slip op., at 3).7 But the possibility of recovering
damages for only the constructive discharge, and not for discrimination
suffered before the resignation, will be an unsatisfactory alternative for many
employees who have suffered through unendurable working conditions.

III

It remains to apply the foregoing principles to this case.
The Tenth Circuit held that the Postal Service was entitled to summary judgment
on its limitations defense. The question therefore is whether Green adduced
sufficient evidence from which a jury could reasonably conclude that the Postal
Service intended to force his resignation when it presented him with the
settlement agreement. If so, then the limitations period ran from the date of
Green’s resignation.

I have little trouble concluding that Green has carried his
burden. Indeed, the Postal Service virtually concedes the point. It observes
that the agreement expressly stated that Green would retire, and
provided for his reporting to duty in Wamsutter, Wyoming, only in the event
that the retirement fell through. App. 60-61; Brief for Respondent 33. A jury
could reasonably conclude that the Postal Service, by offering Green a choice
between retiring and taking a lower paying job hundreds of miles away, intended
to make him choose retirement. Accordingly, for summary judgment purposes, the
45-day window for contacting an EEO counselor ran from the date on which Green
resigned — or, more precisely, the date on which he gave the Postal Service
notice of his retirement, see ante, at 16.

I am inclined to agree with Green that — viewing the
evidence in the light most favorable to him — he did not give notice of his
retirement until he submitted his retirement papers, making his claim timely.
Although the settlement agreement provided that he would retire, it
alternatively allowed him to transfer to Wyoming. Unless Green would have been
turned away from the Wamsutter Post Office despite that language had he chosen
to go there, it was not until Green submitted his retirement papers that one
could say with certainty that his position would be terminated rather than
transferred. That said, like the majority I am content to leave this question
for the Tenth Circuit to tackle on remand. I accordingly concur in the
judgment.

__________________

1This 180- or 300-day period is often
referred to as the “charging” or “filing” period. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618, 624 (2007) [20 Fla. L. Weekly Fed. S295a]; National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002) [15
Fla. L. Weekly Fed. S347a]. Because the 45-day period at issue in this case
involves initiating counseling rather than filing a charge, for simplicity I
refer to all of these periods as “limitations” periods.

2EEOC Compliance Manual: Threshold
Issues §2-IV(C)(1), and n. 179 (emphasis added), online at
http://www.eeoc.gov/policy/docs/threshold.html (as last visited May 20, 2016).

3Congress has since abrogated Ledbetter‘s
precise holding in the context of “discrimination in compensation,” Lilly
Ledbetter Fair Pay Act of 2009, §3, 123 Stat. 5, codified at 42 U.S.C.
§2000e-5(e)(3)(A), but it did not disturb the reasoning of the precedents on
which Ledbetter was based. Cf. Ledbetter, supra, at 627,
n. 2 (discussing similar amendment abrogating the precise holding of Lorance
v. AT&T Technologies, Inc., 490 U.S. 900 (1989)).

4These enhanced damages would also be
available in a suit based on the underlying discrimination where the employer
intended to make the employee resign. Intent to force the resignation is
necessary to pursue constructive discharge as a separate claim from the
underlying discrimination, but it certainly does not prevent an employee from
pursuing greater damages for the underlying discrimination on a constructive
discharge theory.

5For example, if an unintended
resignation was prompted by a discrete act like a humiliating demotion or
transfer, the limitations period would run from the date of demotion or
transfer. See Morgan, 536 U.S., at 110-113. If the resignation was
prompted by an intolerable hostile work environment, the limitations period
would run from any act that contributed to the hostile work environment. See id.,
at 117-118.

6The majority seems to agree that
employees should promptly challenge the underlying discrimination, see ante,
at 15, so why it disparages the idea elsewhere in its opinion, see ante, at
9, is beyond me.

7Given this inference, it is hard to
see why the majority thinks that it “would often be difficult to allege
plausibly” that such an employer intended to force the employee to resign. Ante,
at 12. It is not inherently more difficult (and it will often be easier) to
allege and prove that an employer intended the foreseeable consequences of its
actions than it is to allege and prove that an employer acted because of
discriminatory animus against an employee’s race, sex, religion, or other
protected characteristic — a burden every Title VII plaintiff must carry.

__________________

JUSTICE
THOMAS, dissenting.

Today, the majority holds that a “matter alleged to be
discriminatory” includes a matter that is not “discriminatory” at all: a
federal employee’s decision to quit his job. Ante, at 5-6. The majority
reaches this conclusion by adopting an atextual reading of the regulation that
expands the constructive-discharge doctrine. Consistent with the text of the
regulation and history of the constructive-discharge doctrine, I would hold
that only an employer’s actions may constitute a “matter alleged to be
discriminatory.” Because the only employer action alleged to be discriminatory
here took place more than 45 days before petitioner Marvin Green contacted
EEOC, his claims are untimely. I therefore respectfully dissent.

I

The meaning of a “matter alleged to be discriminatory”
refers to actions taken by the employer, not the employee. This follows from
the ordinary meaning of “matter” and “discriminatory,” as well as this Court’s
precedents.

A

I begin with “ ‘the language [of the regulation] itself and
the specific context in which that language is used.’ ” McNeill v. United States, 563 U.S. 816, 819 (2011)
[22 Fla. L. Weekly Fed. S1081a] (brackets omitted). When a word or phrase is
left undefined — as “matter alleged to be discriminatory” is — we consider
its “ordinary meaning.” Asgrow Seed Co. v. Winterboer, 513 U.S.
179, 187 (1995). A “matter” is “a subject under consideration, esp. involving a
dispute or litigation” or “[s]omething that is to be tried or proved; an
allegation forming the basis of a claim or defense.” Black’s Law Dictionary 992
(7th ed. 1999); The Oxford English Dictionary 481 (2d ed. 1989) (“matter” means
“[a]n event, circumstance, fact, question, state or course of things, etc.,
which is or may be an object of consideration or practical concern; a subject,
an affair, a business”); see ante, at 5 (embracing this view). The term
“discriminatory” means characterized by differential treatment that lacks a
sound justification. See The Random House Dictionary of the English Language
564 (2d ed. 1987) (“discriminatory” means “characterized by or showing
prejudicial treatment esp. as an indication of racial, religious, or sexual
bias”); B. Garner, A Dictionary of Modern Legal Usage 191 (1987)
(“discriminatory” means “applying discrimination in treatment, esp. on ethnic
grounds”); Black’s Law Dictionary 479 (“discrimination” means characterized by
“[d]ifferential treatment; esp., a failure to treat all persons equally when no
reasonable distinction can be found between those favored and those not
favored”). Thus, a “matter alleged to be discriminatory” means an employee’s allegation
that he was treated in an unjustifiably differential manner.

In the context of employment discrimination, only an
employer can discriminate against — or apply unjustifiable differential
treatment to — an employee.1 An employee cannot plausibly be said
to discriminate against himself. It therefore makes no sense to say that an
employee’s act of quitting constitutes an action in which he was treated in a
differential manner that lacked a sound justification.

And, it does not make any more sense to say that an
employee’s decision to quit is itself “discriminatory” simply because it may
result from antecedent discriminatory conduct. As two of our precedents — National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002) [15 Fla. L.
Weekly Fed. S347a], and Delaware State College v. Ricks, 449 U.S.
250 (1980) — illustrate, the “matter alleged to be discriminatory” is the reason
the employee quit, and not the quitting itself.

In Morgan, we rejected the argument that a phrase
similar to “matter alleged to be discriminatory” — namely, an “alleged
unlawful employment practice” — “connotes an ongoing violation that can endure
or recur over a period of time.” 536 U.S., at 109-111. We held that discrete
discriminatory acts of the employer occurring outside a filing period were not
actionable, even if connected to other acts within the period. Id., at
113. The word “practice,” we explained, did not “conver[t] related discrete
acts into a single unlawful practice for the purposes of timely filing.” Id.,
at 111. The same is true of the word “matter.” See, e.g., EEOC
Compliance Manual: Threshold Issues §2-IV(C)(1), n. 179 (equating “matter
alleged to be discriminatory” with “the alleged discriminatory employment
practice”), online at http://www.eeoc.gov/policy/docs/threshold.html (as last
visited Mar. 29, 2016) (equating “matter alleged to be discriminatory” with
“the alleged discriminatory employment practice”).

Ricks complements Morgan by holding
that discrimination occurs when an employer takes some adverse action against
the employee, and not when the employee feels the consequences of that action.
449 U.S., at 257-258. In Ricks, we considered the timeliness of an EEOC
complaint that a professor filed after he was allegedly denied tenure on
account of his national origin. Id., at 252-254. The employer offered
him a contract to teach one more year after it denied tenure. Id., at 255.
The professor contended that his claim did not accrue until his 1-year contract
expired, because the offer of the contract constituted a “ ‘continuing
violation.’ ” Id., at 257. We rejected that argument and explained that
“[m]ere continuity of employment, without more, is insufficient to prolong the
life of a cause of action for employment discrimination.” Ibid.; see
also Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam)
(holding that claims of administrators of the Puerto Rican Department of Education
were untimely because their claims accrued when they received notice that they
would be fired and not on the effective date of their terminations).

The alleged employer conduct that most immediately prompted
Green’s decision to quit was the Postal Service’s request on or about December
15, 2009, that he sign a settlement agreement. See App. 17, ¶72; App. 19, ¶83.
It is irrelevant whether Green’s decision to quit “g[a]v[e] present effect to
the past illegal act[s] and therefore perpetuate[d] the consequences of
forbidden discrimination.” Ricks, supra, at 258 (internal
quotation marks omitted). Because the Postal Service’s December 15 request is
the “matter alleged to be discriminatory,” Green had 45 days from December 15
to initiate contact with EEOC.2 Because he was 52 days late in doing
so, his claim was untimely.

B

The majority reaches the opposite conclusion for three
reasons. None withstands scrutiny.

First, the majority observes that the text of the regulation
is “not particularly helpful” because the word “matter” simply means “ ‘an
allegation forming the basis of a claim or defense,’ ” which “could readily
apply to a discrimination-precipitated resignation.” Ante, at 5. Thus,
the majority contends, “matter” could “reasonably be interpreted to include the
factual basis for a claim,” which, in its view, includes Green’s decision to
resign. Ante, at 10. But, as explained, that interpretation does not
grapple with the entire phrase, “matter alleged to be discriminatory,”
which does not encompass the subsequent nondiscriminatory actions that the
employee takes.

Second, the majority contends that the “standard rule for limitations
periods” informs its understanding of 29 CFR §1614.105. Ante, at 6
(internal quotation marks omitted). Under this rule, the majority contends, a
limitations period does not begin to run until there is a “complete and present
cause of action.” Ante, at 6 (internal quotation marks omitted). The
majority concludes that there is no “complete and present cause of action” for
constructive discharge until “an employee resigns.” Ibid. (internal
quotation marks omitted).

Even assuming that an employee’s resignation was an
essential part of a constructive discharge “claim” (but see Part II, infra)
the “standard rule” is merely a “default” rule. Graham County Soil &
Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409,
418 (2005) [18 Fla. L. Weekly Fed. S409a]. That “default rule” does not apply,
however, where — as here — the text confirms that the limitations period
begins to run before the cause of action accrues.

Pillsbury v. United Engineering Co.,
342 U.S. 197 (1952), confirms this point. In that case, the Court considered a
statute that provided that “ ‘[t]he right to compensation for disability . . .
shall be barred unless a claim therefor is filed within one year after the
injury.’ ” Id., at 197 (quoting 33 U.S.C. §913(a) (1952)). The Court
held that the 1-year period began at the time of injury, not when the employee
later became disabled as a result of the injury and concluded that “Congress
meant what it said when it limited recovery to one year from date of injury,
and ‘injury’ does not mean ‘disability.’ ” 342 U.S., at 199-200. Although that
reading meant that “an employee [could] be barred from filing his claim before
his right to file it arises,” the Court refused to “rewrite the statute of
limitations” to avoid that result. Ibid.; see also, e.g., Dodd v. United States, 545 U.S. 353, 357-360
(2005) [18 Fla. L. Weekly Fed. S414a] (giving effect to the clear text of a
limitations provision even though that reading “ma[de] it difficult” for
certain movants “to obtain relief” and could lead to “harsh results”).

Like the limitations provision in Pillsbury, 29 CFR
§1614.105 makes clear that the limitations period could begin before any
constructive-discharge claim accrues, lest “what was intended to be a
limitation [be] no limitation at all.” 342 U.S., at 200. The regulation
instructs that the limitations period begins to run when the “matter alleged to
be discriminatory” occurs — i.e., the discriminatory conduct of the
employer. To say that this includes Green’s resignation could “have the effect
of extending the limitation indefinitely.” Ibid.; see Part I-A, supra.

Finally, the majority downplays Morgan and Ricks by
claiming that Green’s resignation was “not merely an inevitable consequence of
the discrimination he suffered; it is an essential part of his
constructive-discharge claim.” Ante, at 13. “[A] claim that an employer
constructively discharged an employee,” the majority contends, “is no different
from a claim that an employer actually discharged an employee.” Ante, at
7. This reasoning cannot be reconciled with the regulatory text and fails to
grapple with our precedents. By isolating Green’s late response to the
settlement agreement rather than his employer’s alleged coercion of Green to
sign that agreement, the majority ignores the discriminatory act and bestows on
Green an advantage that other employees subject to wrongful discrimination do
not have. Had Green signed termination papers rather than settlement papers,
there would be no question about the untimeliness of his claims. As in Ricks,
the time for Green’s claim would have begun to run when his employer
discriminated against him, even if the termination was not effective until
months later. 449 U.S., at 257; see also Chardon, 454 U.S., at 8 (same).
But today, the majority decides that Green’s claim is different. In doing so,
the majority elevates constructive discharge to the status of a super
termination capable of extending a limitations period far beyond the time the
employer acted discriminatorily.

II

The majority’s error is not merely one of regulatory
misinterpretation. By misreading the regulation, the majority expands the
constructive-discharge doctrine beyond its original bounds. In particular, the
majority cements the (mistaken) notion that constructive discharge is an
independent cause of action — and not a mere counterdefense — by
unjustifiably focusing on an employee’s response to an employer’s conduct. See,
e.g., ante, at 6-14. In doing so, the majority exacerbates the problems
that Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) [17 Fla. L.
Weekly Fed. S391a], first created in adopting a capacious definition of
“constructive discharge.”

A

In holding that a discrimination claim based on constructive
discharge accrues when an employee resigns, the majority wrongly assumes that
constructive discharge is a separate claim equivalent to an actual discharge
under Title VII. Ante, at 10-11. But the constructive-discharge doctrine
is best understood as “a counter-defense to the employer[‘]s defense that the
worker [voluntarily] quit,” and not a separate claim. EEOC v. R. J.
Gallagher Co., 959 F. Supp. 405, 408 (SD Tex. 1997), vacated in part on
other grounds, 181 F. 3d 645 (CA5 1999).

The National Labor Relations Board (NLRB) developed the
constructive-discharge doctrine in the 1930’s “to address situations in which
employers coerced employees to resign, often by creating intolerable working
conditions, in retaliation for employees’ engagement in collective activities.”
Suders, supra, at 141; see also Shuck, Comment, That’s It, I
Quit: Returning to First Principles in Constructive Discharge Doctrine, 23
Berkeley J. Empl. & Lab. L. 401, 406-407 (2002). An employee who
voluntarily quit usually lost the right to backpay and other remedies, whereas
an employee who was fired for discriminatory reasons did not. See id.,
at 403. The constructive-discharge doctrine enabled courts to provide a
remedy to those employees who voluntarily quit based on the fiction that their
decision to quit was not actually voluntary. See ibid.; Suders, supra,
at 147, n. 8. Thus, as it was originally conceived, constructive discharge was
not an independent cause of action but instead a counterdefense to an
employer’s contention that a resignation was voluntary, and thus, should
“factor into the damages.” Knabe v. Boury Corp., 114 F. 3d 407,
408, n. 1 (CA3 1997); see also Russ v. Van Scoyoc Assoc., Inc.,
122 F. Supp. 2d 29, 35-36 (DC 2000) (collecting cases). So understood, an
employee’s resignation does not complete any cause of action, and thus does not
trigger the limitations period.

The majority contends that Suders marked a departure
from this original conception of constructive discharge by “expressly
h[o]ld[ing] that constructive discharge is a claim distinct from the underlying
discriminatory act.” Ante, at 11. But, that case does not resolve the
issue one way or the other. To be sure, Suders contains a few statements
suggesting that constructive discharge is a claim. As the majority points out,
for example, Suders states that a hostile work environment claim is less
“grav[e]” than a “claim of hostile-environment constructive discharge,”
and “a claim for constructive discharge lies under Title VII.” Ante, at
11 (citing Suders, 542 U.S., at 142, 149; emphasis added); see also id.,
at 133 (referring to “sexual harassment/constructive discharge claim”); id.,
at 143 (referring to “constructive discharge claims”). At the same time, however,
the question at issue in Suders was the availability of affirmative
defenses. In that vein, Suders held only that employers could avail
themselves of those defenses if an “official act” of the company “d[id] not
underlie the constructive discharge.” Id., at 148. There are also
statements throughout the Suders opinion that are flatly inconsistent
with the reading that the majority suggests. For example, it points out that an
employee’s resignation is “assimilated to a formal discharge” for “remedial
purposes,” without mentioning liability. Id., at 141
(emphasis added); see also id., at 147, n. 8 (noting that “a prevailing
constructive discharge plaintiff is entitled to all damages available for
formal discharge,” including “backpay” and sometimes “frontpay”); id., at
148 (“a constructive discharge is functionally the same as an actual
termination in damages-enhancing respects” (emphasis added)). In short, Suders
does not resolve whether constructive discharge depends on the underlying
discriminatory act. And, it does not hold that constructive discharge is a
cause of action that is distinct from the underlying discrimination claim.

B

The majority today not only exploits Suders‘
imprecision about whether constructive discharge is an independent claim, but
also takes advantage of that opinion’s ambiguity as to what an employee must
establish to invoke the doctrine. In Suders, I objected to the
Court’s statement that the constructive-discharge doctrine encompasses those
situations in which “working conditions become so intolerable that a reasonable
person in the employee’s position would have felt compelled to resign.” Id.,
at 141. That description does “not in the least resemble actual discharge”
because it permits an employee “to allege a constructive discharge absent any
adverse employment action” and absent any employer intent to cause a
resignation. Id., at 153-154 (THOMAS, J., dissenting).

Despite the Suders Court’s overly broad description
of the doctrine, the Court at least retained some focus on an employer’s
conduct. The Court in Suders explained that whether to “assimilat[e]” a
constructive discharge “to a formal discharge for remedial purposes” entailed
an “objective” inquiry that focused on the “working conditions” themselves. Id.,
at 141. And, it held that an employer could raise certain affirmative
defenses to stave off liability when no official action forced an employee to
resign. Id., at 147.

Today, the majority goes even further than Suders in
eviscerating the limitations on the constructive-discharge doctrine. The
majority’s rule transforms constructive discharge into a claim focused on the
employee’s conduct, instead of the employer’s. Green does not allege that,
after he signed the settlement agreement, any other act — by a supervisor or even
a co-worker — occurred or otherwise immediately precipitated his decision to
quit. See App. 19, ¶¶83-85. The majority’s holding — that Green’s claim
accrued when he resigned — must rest then on Green’s own subjective feelings
about the forced settlement. By ignoring the date on which an employer’s
discriminatory act occurred and instead focusing only on an employee’s
subjective response to that discriminatory act (see ante, at 12-14), the
majority dispenses with the function of an employer’s conduct. The effect of
the majority’s analysis, then, is that constructive discharge no longer
involves any sort of objective inquiry.

I cannot agree. The concept of constructive discharge is
already on tenuous footing. It is not based on the text of Title VII but instead
on the fiction that an employee’s resignation can be attributed to his employer
in limited circumstances. As initially conceived by the NLRB, this fictitious
attribution could be justified if an employer’s unlawful employment practice “standing
alone, render[ed] an employee’s resignation reasonable and [thus]
entitle[d] the employee to backpay.” Shuck, 23 Berkeley J. Empl. & Lab. L.,
at 409 (emphasis added); see, e.g., In re Waples-Platter Co., 49 N. L.
R. B. 1156, 1174-1175 (1943) (concluding that it was reasonable per se for
the employees to quit in light of the nature of the employer’s intentional,
discriminatory transfers). Such attribution cannot be justified, however, where
— as here — the constructive discharge accrues based solely on an employee’s
subjective response to alleged discrimination.

* *
*

Because Green has not proffered any evidence that
discrimination continued to occur after he signed the settlement agreement, his
contact with EEOC was untimely under 29 CFR §1614.105. Accordingly, I would
affirm the judgment of the Court of the Appeals.

__________________

1Title VII defines the term
“employer” to include “agent[s]” of the employer. 42 U.S.C. §2000e(b).

2Title VII does not provide federal
employees with a cause of action for retaliation. Ante, at 3, n. 1.
Title VII’s federal-sector provision incorporates certain private-sector
provisions related to discrimination but does not incorporate the provision
prohibiting retaliation in the private sector. See 42 U.S.C. §2000e-16(d)
(incorporating §§2000e-5(f) to (k) but not §2000e-3(a), which forbids
private-sector retaliation). In light of this text, I have grave doubts that
Green — as a federal employee — has a claim for retaliation. But because the
parties do not raise this issue, and the majority leaves it open, I need not
resolve it.

* *
*