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In blocking the Lilly Ledbetter Fair Pay Act, the U.S. Senate left in place more than a narrow time limit for filing sex discrimination charges under Title VII. It also left the expanding progeny of Ledbetter v. Goodyear Tire & Rubber: lower court decisions that are further limiting the rights of employees and other plaintiffs. News of the Senate vote serves as a reminder of the strict tone of the U.S. Supreme Court last year. It had seemed to change this term in Federal Express v. Holowecki, when the Court rescued workers who file discrimination charges on the wrong EEOC form, reasoning that laypersons have no detailed knowledge of statutory mechanisms and agency processes. But the Court did not save those who file late because they lack similar knowledge of workplace pay-setting mechanisms and processes. So, under Ledbetter, a filing period can be triggered by “discrete acts” that are also discreet acts. Previously, in the U.S. Court of Appeals for the Second Circuit, a woman’s awareness of her employer’s decision-making regime had been established as a key to her rights. When Danuta Ryduchowski, an engineer, sued for pay discrimination, the Court of Appeals ruled that her employer, the Port Authority, could not point to its merit system unless it showed that Ms. Ryduchowski was aware of that system. 1 But the Ledbetter Court avoided the question of employee awareness. It ruled that Lilly Ledbetter was too late in filing her Title VII pay discrimination suit, and it rejected the dissent’s observation that many employees work for a long time before discovering that they are getting less money than coworkers. A Discreet Act Ledbetter held that the EEOC charge period, akin to a statute of limitations, is triggered immediately when a discrete, easily identified act of discrimination occurs at work. The Court had listed examples of such acts in National Railroad Passenger Corporation v. Morgan: “termination, failure to promote, denial of a transfer, [and] refusal to hire.” 2 A discriminatory pay decision, in the Second Circuit, was also well-established as a discrete act, but one that kept triggering a new charge period with each new paycheck. 3 That rule still holds under the Equal Pay Act. So a woman may file suit whenever she pierces the silence that usually surrounds paychecks and finds out what the men around her are earning. But the Ledbetter Court rejected this approach for Title VII cases. Instead, it added “pay-setting decision” to the Morgan list of “obvious” discriminatory acts, which, if not timely charged, become unreachable. In her dissent, Justice Ruth Bader Ginsburg argued that the result was to “grandfather” discrimination that went unnoticed during the charging period. She also predicted that those most impeded would not be women, who still had the EPA, but racial and other minorities, who lack parallel legislation. 4‘Ledbetter’ impedes minority workers, among others. That was the case for Eric A. Longmire, a biracial man who brought a pay discrimination claim under 42 U.S.C. §1981, which is subject to the same burden-shifting analysis as intentional discrimination claims under Title VII. Hired as a research analyst for Guy P. Wyser-Pratte, a risk arbitrage company, he rose to positions of increasing authority and pay. But he alleged that, after he disclosed his African-American heritage, he received a lower base pay and lower incentive fee share than the Caucasians he would replace in successive promotions. At one point, when he took on two positions simultaneously, he still was paid at a lower rate than a white employee who had occupied just one of the positions. To show his continuing and cumulative income loss would not have availed him. Most of his pay rates were set in decisions occurring from 1991 to the start of 2001. By the time he brought his July, 2005 claim, they were beyond the four-year limitation that applies to the statute. The U.S. District Court for the Southern District of New York followed Ledbetter as it granted summary judgment to the defendant. 5 Ledbetter also thwarted an older plaintiff who invoked the Age Discrimination in Employment Act (ADEA). Dr. Richard G. Grant retired after nearly 37 years as a teacher and an assistant principal in the New York City Department of Education. Because he had applied for a 2001 retirement date of June 30 rather than July 1, Dr. Grant was deprived of a full year of service credit, on which his pension was based. In October, the U.S. District Court for the Southern District of New York construed his pro se argument to be that the Teachers’ Retirement System continued to refuse to recalculate his retirement credit and that his pension continued to be less than it should be. Then, citing Ledbetter, the court dismissed his claims, holding that what hurt Dr. Grant was a discrete act that occurred in 2001. Neither the continuing effect of that harm nor the continuing refusal by the defendant to remedy it could revive or extend his claim. 6Lower courts expand ‘Ledbetter.’ Since Ledbetter, lower courts have extended its reach. The Southern District added yet another contribution to the Morgan list of discrete acts that immediately trigger the EEOC charge period. In Al-Haideri v. Columbia University, an Iraqi-born scientist claimed that she was hired in 1991 into a capacity lower than that for which she was qualified and that she suffered adverse actions on account of her national origin, age and disability. The court found that, by the time of her action, in January of last year, most of her Title VII, ADEA and ADA claims were time-barred under Ledbetter. The new discrete act discovered by the court was “denial of opportunities for scholarly recognition in connection with various project assignments.” 7 The Eastern District of New York has expanded Ledbetter in a different way, by announcing a rule that the Court had refrained from writing. The U.S. Supreme Court noted that Ms. Ledbetter did not argue that she would be helped by a “discovery rule,” which would begin the EEOC charge period at the moment an employee learned of the discriminatory act. Therefore, the Court continued, “we have no occasion to address this issue.” 8 A discovery rule, however, was already established in the Second Circuit. 9 Still, in Waheed v. SUNY Brooklyn Educational Opportunity Center, the district court read Ledbetter as rejecting a discovery rule. Irina Waheed had been hired in April 2002, as a student “lab monitor” for $7.50 an hour. She learned in August or September that a non-Russian-Ukrainian employee was being paid $10 an hour. Neither spring nor late summer fell within her charge period. Still, the district court distinguished them, citing Ledbetter to conclude that the date for determining a charge period “is not the discovery of the disparity, but when the salary was determined.” 10 In the Southern District, a discovery rule may or may not exist. The court allowed a Hispanic man’s claim under 42 U.S.C. 1983 to survive a motion for summary judgment. Saul Nieves alleged that, 10 years after being sworn in as a deputy sheriff in Orange County and after enforcing laws, making arrests and carrying a weapon, he was informed that he was a civilian employee. He thereafter discovered that his salary and benefits had long been less than those of peers. In Nieves v. County of Orange, H. Frank Bigger, the district court cited the dissenting observation in Ledbetter – that employees normally keep their salaries quiet – and it shifted the discovery question: “Defendants have not demonstrated that Plaintiff’s filing of his complaint a few months after Plaintiff realized he had a cause of action violates the statute of limitations.” 11 But the district court reasoned differently when Howard Henry, an African-American chemist, refrained from objecting to some early reviews of his performance for Wyeth Pharmaceuticals until later events caused him to re-evaluate those reviews and other decisions. He filed an administrative charge of racial discrimination in September 2004 and included performance reviews dating back to 2001. Since a filing deadline is not jurisdictional, the court pointed out that it could be subject to equitable tolling, but only if the defendant had actively concealed facts, it said, not “merely because the plaintiff was unaware of this cause of action.” 12 His Title VII claims relating to conduct before November 2003 were time-barred. Continuous Violation The Southern District expanded Ledbetter in Plant v. Deutsche Bank. Gerard Plant, a vice president who had enjoyed broad authority, found himself excluded from planning and development in his area of responsibility. Over the next four years, his bonus was cut and his responsibilities were curtailed until he finally was terminated. Under Ledbetter, where job discrimination consists of a succession of related acts that are not individually actionable, the period for filing a charge can be extended to include early instances of this continuous violation. But the court, writing that the Ledbetter and Morgan courts had not addressed the issue specifically, added small job curtailments to the list of “discrete acts” requiring immediate action. It dismissed Mr. Plant’s claim, concluding that “a plaintiff cannot invoke the continuing violation doctrine by pleading that his employer gradually eliminated his job in series of small steps culminating in final termination.” 13 ‘Ledbetter’ Behind Bars Ledbetter has also been employed to limit an Eighth Amendment claim. A prisoner at the Federal Correctional Institution in Otisville, N.Y., Frank Barbaro charged that prison officials repeatedly and intentionally denied him medical care for auto accident injuries that he received before he was imprisoned in 1998. He alleged that he made more than 100 requests for treatment before he learned from a radiologist in 2003 that continued inattention had caused a “marked degenerative changing within the cervical spine.” 14 Citing Ledbetter, the Southern District of New York rejected Mr. Barbaro’s “continuing violation” theory and found that each denial of treatment was a discrete act. That made the initial denials of medical care unreachable. Limiting ‘Ledbetter’s’ Impact A case from the U.S. District Court for the District of Connecticut may point to an approach for plaintiffs to use in addressing Ledbetter. In Osborn v. Home Depot, the court heard the case of a woman hired in November 2002, at an hourly rate lower than that of two male employees hired at the same time. Even three subsequent pay raises based on her superior performance as a kitchen designer and sales representative did not bring her up to their initial pay rate. Michele Osborn did not learn of the wage disparity until October 2003, nearly a year after she was hired, and she did not file her charge with the EEOC until Feb. 1, 2005. Under the 300-day limitation period that accompanies a dual filing with the Connecticut Commission on Human Rights and Opportunities, discrete acts before April 7, 2004, would fall outside of her Title VII claim. Nonetheless, in denying Home Depot’s motion for summary judgment, the court found that claim timely. Rather than echoing Ms. Ledbetter’s argument that each paycheck gave present effect to discriminatory conduct outside of the liability period, Ms. Osborn had argued that, because she frequently complained to her boss about her low pay, each paycheck constituted a new failure to address her complaints and that failure was based on her gender. Her most recent pay raise, which still failed to make up the difference she complained about, gave her grounds for a timely charge. The court held that, “[a]s is critical to the issue of timeliness, this pay adjustment – and any ongoing decisions to not make further adjustments – occurred within the . . . liability period.” 15 For the practicing plaintiff’s attorney, the ability to confront quiet acts of discrimination is becoming more difficult. The legacy of Ledbetter appears to be that the disabled, minority and older clients who are most likely to prevail will be those who have been the least cheerful. The law prefers grumblers and gripers. Clients should be quick to suspect that they are being subjected to discrimination and quick to act on their suspicions. Failing that, it may help if they just keep on complaining. Thomas F. Bello is a solo practitioner in Staten Island and was plaintiff’s counsel in ‘Ryduchowski v. Port Authority of New York and New Jersey.’ Carol Pauli is an assistant professor of mass communication law and journalism at Marist College in Poughkeepsie. Endnotes: 1. Ryduchowski v. Port Authority of New York and New Jersey, 203 F.3d 135 (2000) at 142-143. In this case of first impression, the Second Circuit drew on decisions in sister circuits and some lower courts. 2. Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007). 3. Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997). 4. Ledbetter, 127 S.Ct. at 2186. 5. Longmire v. Wyser-Pratt, 2007 U.S. Dist. LEXIS 65844. 6. Grant v. Teacher’s Retirement System of the City of New York (2007) U.S. Dist. LEXIS 79462. 7. Al-Haideri v. Trustees of Columbia University, 2007 U.S. Dist. LEXIS 55099. 8. Ledbetter, 127 S.Ct. at 2177 FN 10. 9. Flaherty v. Metromail Corp., 235 F.3d 133 at 137. “It has long been settled that a claim of employment discrimination accrues for statute of limitations purposes on the date the employee learns of the employer’s discriminatory conduct.” 10. Waheed v. SUNY Brooklyn Educational Opportunity Center (2007) U.S. Dist. LEXIS 53680 at 15. 11. Nieves v. County of Orange, H. Frank Bigger, 2008 U.S. Dist. LEXIS 55087 at 26. 12. Henry v. Wyeth Pharmaceuticals Inc., 2007 U.S. Dist. LEXIS 57921 at 79. This case, addressing a non-pay-discrimination claim cited Morgan but not Ledbetter. 13. Plant v. Deutsche Bank Securities Inc., 2007 U.S. Dist. LEXIS 55100. 14. Barbaro v. United States ex rel. Federal Bureau of Prisons FCI Otisville, 2007 U.S. Dist. LEXIS 80148 at 4. 15. Osborn v. Home Depot U.S.A. Inc., 2007 U.S. Dist. LEXIS 69996.

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