The D.C. Circuit, in the first published opinion in the U.S. Courts of Appeals construing the scope of the Lilly Ledbetter Fair Pay Act coverage — i.e., “compensation decision or other practice” — finds that the denial of a promotion does not constitute an “other practice.” Nonetheless, while affirming summary judgment under the ADEA on timing grounds, the panel remands the case under the New York Human Rights Law. The Tenth Circuit reverses summary judgment and remands a Rehabilitation Act retaliation case for trial.
Schuler v. PricewaterhouseCoopers, LLP, No. 08-7115 (D.C. Cir. Feb. 16, 2010): The Lilly Ledbetter Fair Pay Act of 2009 (LLA), Pub. L. No. 111-2, 123 Stat. 5, — intended in part to overrule the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) — applies by its terms to claims of “discrimination in compensation” pending on or after May 28, 2007. Section 4 of the LLA provides, in relevant part:
“[A]n unlawful practice occurs, with respect to discrimination in compensation in violation of [the ADEA], when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice ….”
In this case, one of the two plaintiffs argued that denial of a partnership was a “compensation decision or other practice” within the scope of the Act, rendering his claims from 1999 and 2000 timely.
The D.C. Circuit, though, interprets the “other practice” language narrowly, and affirms summary judgment on these ADEA claims on timing grounds:
“[I]n employment law the phrase ‘discrimination in compensation’ means paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position. . . . In context, therefore, we do not understand ‘compensation decision or other practice’ to refer to the decision to promote one employee but not another to a more remunerative position.
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“Nor does our interpretation of the phrase ‘discriminatory compensation decision or other practice’ read ‘other practice’ out of the statute. We need look no further than Ledbetter itself for an example of a discriminatory ‘other practice,’ viz., giving an employee a poor performance evaluation based upon her sex (or any other unlawful criterion) and then using the evaluation to determine her rate of pay.”
The court also affirms summary judgment on the remaining, timely claims on the ground that the two plaintiff failed to establish that the firm’s reasons for not promoting them were pretextual (i.e., economic considerations in one case, insufficiently high partner ratings in another).
But the panel revives the plaintiff’s New York state law claims. It holds that plaintiffs’ allegation that the firm’s discriminatory promotion policy originated from the firm’s New York headquarters brings the claim within the scope of New York law.
“In an intervening decision in a related case we held it is enough that a discriminatory act occurred in New York. Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1378 (2008). . . . Based upon our reasoning in that case the appellants argue they are entitled to the reasonable inference the discrimination alleged in this case occurred in New York. PwC says Schuler ‘does not control’ because it addressed only PwC’s adoption and maintenance of a discriminatory policy, not the ‘discrete decision not to admit [Schuler] to partnership.’ To which we say: Pettifoggery and piffle!”
Reinhardt v. Albuquerque Public schools, No. 09-2005 (10th Cir. Feb. 16, 2010): The employee, a high-school teacher, complained about the school district’s failure to produce timely and accurate caseload lists of disabled students. “As she was unable to get APS to respond to her repeated complaints about the inaccurate caseload lists and corresponding deprivation of services to qualified students, Ms. Reinhardt consulted an attorney and filed an Individuals with Disabilities Education Act (IDEA) complaint with the New Mexico Public Education Department (NMPED) against APS on October 3, 2005 (‘state complaint’). Aplt. App. 100-07, 204. The state conducted an investigation and ordered APS to take corrective action. Aplt. App. 106-07.” She thereafter brought suit for retaliation under the Rehabilitation Act § 504 and the First Amendment when she gradually began to suffer set backs at work.
The Tenth Circuit reversed summary judgment on both claims. It finds, among other things, that being assigned to work only with ninth graders arguably constituted a “materially adverse action”:
“Contrary to APS’s assertion, being assigned to serve only 9th grade students was not merely ‘an alteration in job responsibilities.’ Applee. Br. 31. The changed assignment directly led to a reduction in compensation because Ms. Reinhardt no longer qualified for an extended contract. When her caseload increased, APS did not grant her an extended contract, and this also affected her salary. In fact, because Ms. Reinhardt’s original 2004-2005 caseload list only included six students, Rio Grande High’s assistant principal acknowledged that it ‘would . . . be reasonable that [Ms. Reinhardt] would be fearful for her job.’ Aplt. App. 295. This is not to say that a denial of overtime opportunity is always a materially adverse action, [fn.] but under these facts, we think a reasonable employee might have been dissuaded from advocating for special education students knowing that her workload and salary would be reduced.”
The panel also holds that adverse actions taken even months after the employee complains may still be held casually related, where there is an intervening event that delays the employer from acting, such as here where a summer-vacation period delayed implementation of the school’s decision. Finally, the court faults the school district in proffering a supposedly legitimate, non-discriminatory reason for its action — “that it assigned Ms. Reinhardt only 9th grade students for the 2004-2005 school year because she had experience transitioning middle school” — where there were two other teachers with equally relevant experience, but neither was limited to work only with ninth graders, and the school district could not explain the difference in treatment.
students to high school through her work during the previous school year”