§ 1.10.3 STATUTE OF LIMITATIONS.

• Jurisdiction: Arizona

§ 1.10.3 Statute of Limitations. There is no separate statute of limitations provision applicable to constructive discharge claims, separate and distinct from the basis for alleging that the constructive discharge was illegal. The statute of limitations for constructive discharge claims will depend upon the statutory or common-law basis for the illegality of the constructive discharge. The statute of limitations could be as little as 180 days to file a charge of discrimination under the Arizona Civil Rights Act,⁶ 180 days for a public employee to serve a notice of claim,⁷ or 300 days to file a charge under federal discrimination laws,⁸ or one year under A.R.S. § 12-541. The practitioner should therefore consult articles in this Handbook that deal with the various employment statutes and common-law theories under which a plaintiff may allege he or she was constructively discharged in order to determine the statute of limitations applicable in a particular case.

Although there is no separate statute of limitations period for constructive discharge, the Ninth Circuit has established that "the date of discharge triggers the limitations period in a constructive discharge case, just as in all other cases of wrongful discharge."⁹ In Draper, the Ninth Circuit faced the issue of determining when a cause of action for constructive discharge accrues if the employee's resignation was the result of the cumulative effects of alleged discriminatory acts, and most of those acts occurred before the statute of limitations period.¹⁰ The appellate court addressed the district court's finding that the employee's constructive discharge claim was untimely because the resignation, which occurred within the limitations period, was not an "act of discrimination" under Title VII.¹¹ The appellate court disagreed with the district court and found that, when a resignation is a constructive discharge, it is an act of discrimination.¹² Thus, the statute of limitations for a constructive discharge claim begins to run on the date of the resignation, even if some of the underlying events that caused the resignation would be time-barred.¹³

In Green v. Brennan, the U.S. Supreme Court held that the deadline for a federal employee to assert constructive discharge under Title VII began to run on the date of resignation, and not when the last discriminatory act occurred.¹⁴ Thus, the Supreme Court reached the same conclusion as the Ninth Circuit in Draper.

In Brennan, the Supreme Court also clarified that a constructive discharge claim accrues when an employee gives notice of a resignation, not when the resignation becomes effective.¹⁵ However, the decision of the Arizona Court of...