On the last day of 2008, the U.S. Courts of Appeals award two more wins to employees, on issues arcane and significant. In the Third Circuit, a panel holds that a division of the state judiciary in Pennsylvania waived its Eleventh Amendment immunity to suit in federal court, by accepting federal dollars for its domestic relations section unrelated to the plaintiff’s employment. In the Fifth Circuit, a panel finds that the Title VII limitations period was tolled for a Louisiana manager alleging race discrimination and retaliation by the prior pendency of a Title VII class action in St. Louis.
Haybarger v. Lawarence County Adult Probation and Parole, No. 07-3720 (3d Cir. Dec. 31, 2008): Arms of state government enjoy immunity from federal damages suits in most instances under the Eleventh Amendment, although Congress itself may create a federal forum for relief directly under the Fourteenth Amendment or condition federal appropriations pursuant to the Spending Clause on waving federal immunity. In the latter category, this case concerns a division of a state court as employer — the plaintiff was a manager for a probation office — that received some federal funds. Query (in this interlocutory appeal) whether those appropriations waived immunity under the rehabilitation Act by operation of 42 U.S.C. § 2000d-7 (“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973”).
Under the Civil Rights Restoration Act of 1987, Congress acted to overturn Grove City College v. Bell, 465 U.S. 555 (1984) and Consol. Rail Corp. v. Darrone, 465 U.S. 624 (1984), writing into law a broad definition of a federally-funded “program or activity.” In this particular case, the nexus was “federal funds [received] under Title IV-D of the Social Security Act, 42 U.S.C. § 651. These federal monies – which were earmarked specifically for child support enforcement — flowed from the federal government to Pennsylvania’s Department of Public Welfare (DPW), which reports to the Governor of Pennsylvania. DPW then contracted with the domestic relations sections of various counties.”
The core issue, then, was whether the domestic relations section (DRS) that benefitted from the funds was part of the same arm of government (the Fifty-Third Judicial District) as the plaintiff’s employer, the Lawarence County Adult Probation and Parole Department (LCAPPD). The Third Circuit — construing the relevant state law — holds that all are part of the same unit, and receipt of funds by even the one office thus waived immunity for the entire District:
“[We cannot say that the DRS is an independent legal entity. Rather, the DRS is a subunit of the Fifty-Third Judicial District, which is in turn part of the UJS. Consequently, we hold that the receipt of federal funds by the DRS effectuated a waiver of Eleventh Amendment immunity under the RA for not just the DRS, but for all subunits of the Fifty-Third Judicial District, including the LCAPPD.”
Taylor v. UPS, Inc., No. 07-31000 (5th Cir. Dec. 31, 2008): Under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the filing a putative Rule 23 class action in federal court tolls the limitations period for all putative absent class members. Tolling halts when class certification is denied, but continues if the case is certified.
The UPS employee in this case had been an absent class member in a certified Title VII class action alleging racially discriminatory pay and promotion in St. Louis; this case ended in summary judgment for the employer. Morgan v. United Parcel Service of America, Inc., 143 F. Supp. 2d 1143 (E.D. Mo. 2000), aff’d, 380 F.3d 459 (8th Cir. 2004), cert. denied, 544 U.S. 999 (2005). After dismissal of the class claims in the Morgan suit in 2000, and while the appeal was pending, Taylor filed his own Title VII charge and civil action, individually alleging essentially the same claims as the class, while adding a retaliation claim.
Reviewing summary judgment for the employer, the Fifth Circuit considers the limitations issues associated with the class case:
“The most important question before us is the extent to which the Morgan class action tolled the statute of limitations governing Taylor’s claims. The district court correctly determined that Taylor’s non-Title VII promotion claims are subject to a one-year statute of limitations, Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir. 1985), LA. CIV. CODE ANN. art. 3492, while his non-Title VII pay disparity claims are subject to a four-year statute of limitations, White v. BFI Waste Services, LLC, 375 F.3d 288, 291-92 (4th Cir. 2004), 28 U.S.C. § 1658. Thus, those are the key periods we examine.”
One unresolved issue before the court was whether the class-action tolling continued during the appeal (i.e., from the time that the district court granted summary judgment on the class claims in 2000 until the ultimate disposition of the class case by the Eighth Circuit in 2004). If the appeal period was covered, several of Taylor’s claims remained timely. The Fifth Circuit concludes that, for a certified class such as here, the appeal period tolls the individual limitations period: “a party who sues on a cause of action tolls the statute of limitations during the entire prosecution of the action, including the prosecution of any appeal; otherwise, a plaintiff could not count on an appeal to protect his or her rights.”
It distinguishes this case from one where a class is not certified (which ends American Pipe tolling):
“When a class is certified, . . . the district court has necessarily determined that all of the Rule 23 factors are met. From that point forward, unless the district court later decertifies the class for failure to satisfy the Rule 23 factors, members of the certified class may continue to rely on the class representative to protect their interests throughout the entire prosecution of the suit, including appeal. A contrary rule would require certified class members to immediately intervene or file individual suits in the event of a merits dismissal of the class action in the district court.”
On the merits of Taylor’s pay discrimination case, the Fifth Circuit also reverses the district court’s hasty assessment of the plaintiff’s expert witness: “Dr. Borg’s analysis compares Taylor to two specific, apparently similarly situated white employees-those with similar evaluations and tenures-over the course of their employment at UPS. That comparison shows Taylor was paid 5.75% less than one of them and slightly over 17% less than the other. Thus, the district court erred in refusing to consider that portion of Dr. Borg’s report.”
So some good lawyering in the Fifth Circuit gets this case back on track. Hurray for something in 2008!