Green v. Donahoe, 2014 U.S. App. LEXIS 14290

Background

Marvin Green, longtime Postal Service postmaster, filed multiple EEO charges after being passed over for promotion (2008) and alleging subsequent retaliation (2009).
On December 11, 2009, Green received a vague letter instructing him to attend an investigative interview; after the interview he was placed on emergency (off-duty/nonpay) status and ordered not to return to his post.
OIG agents concluded there was no intentional mail delay; negotiations followed and on December 16 Green signed a settlement giving him paid leave through March 31, 2010, and the choice to retire or accept a lower-paying, relocated position; he ultimately retired effective March 31.
Green filed administrative EEO charges and later this lawsuit alleging five Title VII retaliatory acts: (1) the notice letter; (2) the investigative interview; (3) threat of criminal prosecution; (4) constructive discharge; and (5) emergency placement.
The district court dismissed claims 1–3 for failure to exhaust, granted summary judgment for defendant on constructive-discharge (untimely) and emergency-placement (not materially adverse); the Tenth Circuit affirmed all but reversed on emergency-placement and remanded that claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exhaustion: letter notifying him to attend investigative interview	The February 17 EEO charge encompassed December 11 events so the letter was within the scope of investigation	The charge did not describe the letter or interview as separate adverse acts, so plaintiff failed to administratively present them	Dismissed for failure to exhaust (charge did not reasonably encompass the letter/interview)
Exhaustion: investigative interview itself	Same as above — the interview was part of the December 11 adverse events alleged	Interview was not described with sufficient factual detail in the charge to trigger investigation of it as a discrete act	Dismissed for failure to exhaust (charge inadequate to cover interview)
Exhaustion / timeliness: threat of criminal prosecution	The April 23 charge alleged intimidation by threat of criminal charges and thus raised the claim	Defendant argued claim not administratively exhausted and in any event untimely (threat occurred in December 2009)	Tenth Circuit reluctant to dismiss for lack of inclusion but held claim untimely because counseling occurred more than 45 days after the December threat
Timeliness: constructive-discharge claim	Green argued accrual runs from his resignation/retirement decision, so his March 22 counseling was timely	Donahoe argued accrual runs from the last discriminatory act (settlement Dec. 16), making March counseling untimely	Claim time-barred: accrual is the date of the employer’s last discriminatory act (not the resignation), so plaintiff’s contact was beyond the 45-day limit
Merits: emergency-placement (off-duty/nonpay) as materially adverse	Placement on nonpay/off-duty status would deter a reasonable employee from engaging in protected activity; it risked loss of income and induced settlement/retirement	Placement was effectively administrative leave (no loss of pay) and did not dissuade plaintiff from pursuing claims; thus not materially adverse	Reversed: emergency placement is a materially adverse action (could dissuade a reasonable worker); remanded for further proceedings

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for discrimination/retaliation claims)
Suders v. Easton, 542 U.S. 129 (recognizes constructive discharge and its remedial equivalence to actual termination)
Delaware State College v. Ricks, 449 U.S. 250 (limitations focus on time of discriminatory acts, not when consequences are most painful)
Wallace v. Kato, 549 U.S. 384 (claim accrual when plaintiff has complete and present cause of action)
Jones v. UPS, Inc., 502 F.3d 1176 (10th Cir.) (administrative exhaustion scope; each discrete act must be presented)
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (discusses federal-employee Title VII administrative differences)
Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320 (timeliness vs. jurisdictional nature of exhaustion rules)
Somoza v. Univ. of Denver, 513 F.3d 1206 (standard for materially adverse action in retaliation context)