Recent Tenth Circuit Decision Could Have Ramifications in Workers Compensation Retaliatory Discharge Cases
The Tenth Circuit Court of Appeals recently released its decision in the case of Green v. Donahoe, No. 13-1096, 2014 U.S. App. LEXIS 14290, 2014 WL 370823 (10th Cir. July 28, 2014). In this employment discrimination case, the Court held that the limitations period for a claim for constructive discharge begins running on the date of the employer's last misconduct and not at the time the employee actually resigns. Marvin Green, a Postmaster, sued the Postmaster General, Patrick Donahoe, claiming that the United States Postal Service (USPS) retaliated against him for making employment discrimination claims. Green, who described himself as a "black American", had been a Postmaster for fourteen years. In early 2008, Green was passed over for a promotion and the job was given to a Hispanic person. Green filed a complaint with the EEOC in August 2008, alleging racial discrimination. In May 2009, Green filed another EEO charge, alleging that his supervisor had threatened, demeaned, and harassed him in retaliation for filing the August 2008 EEO charge. In November 2009, an internal investigation revealed that Green was guilty of misconduct in the performance of his job, and he was placed in "off-duty status immediately". On December 16, 2009, Green reached a settlement agreement with the USPS whereby he would give up his position as Postmaster, receive accrued sick pay until March 31, 2010, and then retire. On April 23, 2010, Green filed another EEO charge alleging constructive termination for his forced retirement, but the EEOC dismissed it because Green failed to file it within 45 days of the December 16, 2009 settlement agreement. Green then filed his lawsuit in district court, arguing that he had 45 days from his resignation date to file the EEO charge. However, the trial court dismissed the case, holding that the 45 day limitations period started on December 16, 2009 when Green and USPS reached their settlement agreement. So what does this have to do with workers' compensation retaliatory discharge cases? The Green v. Donahoe decision should serve as guidance for state courts in workers' compensation retaliatory discharge cases in regard to the statue of limitations. Many states have enacted statutes which explicitly prohibit an employer from terminating an employee for making a claim for workers' compensation benefits. While there are a few states that do not recognize a claim for retaliatory discharge in the workers' compensation context, most states recognize such a claim under common law. Generally, the employee must prove that the employer actually terminated his or her employment because the employee sought workers' compensation benefits. However, many states' courts, in reliance on Jurgens v. EEOC, 903 F.2d 386 (5th Cir. 1990), have held that a claim for retaliatory discharge will lie when the employer deliberately makes the employee's working conditions so intolerable that the employee is forced into an involuntary resignation. The holding in Green v. Donahoe suggests that the statute of limitations in constructive retaliatory discharge cases should be calculated from the date of the employer's last misconduct, which in many cases is well before the actual date of the employee's "involuntary resignation". Should states decide to follow this holding and apply this reasoning in workers' compensation retaliatory discharge cases, many claims may be barred by the statute of limitations. This is particularly significant in the workers' compensation arena, since an employee's "constructive discharge" often follows a period of several months or even years of disability where the employee is out of work due to the underlying injury, returns to work, and then resigns. In light of this ruling, attorneys who handle workers' compensation retaliatory discharge cases should be particularly conscientious of the time-line of events leading to the alleged constructive discharge. ________________________________________ ABOUT THE AUTHOR This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers' compensation cases and related liability matters. Drummond and his firm are members of The National Workers' Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers' compensation and related employer liability fields. If you have questions about this article or Alabama workers' compensation issues in general, please feel free to contact the author at firstname.lastname@example.org or (205) 332-3414.