Booker v. the Boeing Co.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 5, 2005 Session

PAULA P. KING BOOKER v. THE BOEING COMPANY, d/b/a BOEING-

OAK RIDGE COMPANY

Rule 23 Certified Question of Law

United States District Court for the Eastern District of Tennessee

No. 3:01-CV-275 Thomas W. Phillips, Judge

No. M2005-00832-SC-R23-CQ - Filed April 19, 2006

We accepted a question certified to this Court from the United States District Court for the Eastern

District of Tennessee to clarify the operation of the statute of limitations for discriminatory pay

claims under the Tennessee Human Rights Act. After considering the arguments of the parties and

the applicable authority, we hold that a claim of discriminatory pay may be brought at any time

within one year that a plaintiff has received discriminatory pay and that backpay is available for the

duration of the unequal pay.

Tenn. Sup. Ct. R. 23 Certified Question of Law

E. RILEY ANDERSON , J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and

ADOLPHO A. BIRCH , JR., JANICE M. HOLDER ,and CORNELIA A. CLARK, JJ., joined.

David R. Wigler, Knoxville, Tennessee, for the Appellant, Paula P. King Booker.

E. H. Rayson and John C. Burgin, Jr., Knoxville, Tennessee, for the Appellee, The Boeing Company.

OPINION

Background

The facts as stated in the federal district court’s certification order include the following.

Plaintiff Paula P. King Booker (“Booker”) went to work for the Boeing Company, d/b/a Boeing-Oak

Ridge Company (“Boeing”), as an hourly employee in 1982. In 1989, she was promoted to a salaried

managerial position in “Supply Chain Management” and has remained in essentially the same

position ever since. In 1997, she discovered that she was being paid less than her male peers. On

August 10, 1998, Booker filed an internal equal employment opportunity (“EEO”) complaint.

Lacking satisfactory resolution, on July 2, 1999, Booker filed a complaint with the federal Equal

Employment Opportunity Commission (“EEOC”). On May 1, 2001, Booker filed this lawsuit in

Anderson County Chancery Court seeking relief under the Tennessee Human Rights Act, Tennessee

Code Annotated sections 4-21-101 to -1004 (2005) (“THRA”), including backpay to 1989.

The case was removed to the Federal District Court for the Eastern District of Tennessee.

Among the disputed issues before that court is whether the THRA’s statute of limitations permits

Booker to recover backpay to 1989, when she became a manager, or only to 2000, one year prior to

the date she filed her lawsuit.

To aid in resolving the dispute, the district court certified the following question to this

Court:

Whether a discriminatory salary “ceases” within the plain meaning of

the Tennessee Human Rights Act’s statute of limitations when it

ends, or whether it “ceases” when the alleged discriminatory act

should trigger an employee’s awareness of a duty to assert his or her

rights.

We accepted the certified question.

Analysis

The THRA’s statute of limitations provides, “[a] civil cause of action under this section shall

be filed in chancery court or circuit court within one (1) year after the alleged discriminatory practice

ceases . . . .” Tenn. Code Ann. § 4-21-311(d) (2005). Booker argues that the “alleged discriminatory

practice” in this case, unequal pay based on gender, began in 1989 and had not yet ceased as of the

time she filed her lawsuit. Thus, Booker argues that the THRA permits her to recover backpay to

1989. Boeing argues that each unequal paycheck Booker received was a separate and discrete

discriminatory act such that Booker may only recover backpay for paychecks received within one

year of the date she filed suit.

We note at the outset that the certified question as articulated by the district court does not

capture the full dispute between the parties regarding the THRA’s statute of limitations. The

question as certified essentially asks whether a plaintiff’s relief may be limited if she fails to file suit

upon learning of a discriminatory practice, even though the discriminatory practice may not yet have

“ceased.” In other words, must a plaintiff file her suit within one year of her discovery of an

allegedly discriminatory practice to recover damages for the entire practice, or does she have until

one year after the discriminatory practice ceases? In this case, Booker became aware of the pay

disparity in 1997 but did not file her suit until 2001. If the discovery rule operates to make her suit

for relief to 1989 untimely, she would be limited to seeking relief for only the year prior to the date

she filed suit.

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The question as certified assumes that pursuant to the “continuing violation” doctrine,

unequal pay is a single discriminatory practice under the THRA rather than a series of discrete

discriminatory acts. Boeing argues, however, that in light of recent federal case law this Court

should hold that the continuing violation doctrine is inapplicable to pay discrimination cases.

Therefore, Boeing argues that under no circumstances should Booker be permitted to seek backpay

for any period longer than one year prior to the date she filed suit. Booker argues that this Court

should modify the continuing violation doctrine, but that it should hold that it is applicable to pay

discrimination claims.

Continuing Violation Doctrine

The continuing violation doctrine essentially allows a plaintiff to bring a claim for

discriminatory conduct that occurs outside the limitations period if the discriminatory conduct is

sufficiently related to conduct occurring within the limitations period. Spicer v. Beaman Bottling

Co., 937 S.W.2d 884, 889 (Tenn. 1996). The doctrine affects both the jurisdiction of a court to hear

a charge of discrimination and the remedies the court may impose; it allows a court to assert

jurisdiction over a charge of discrimination occurring outside the limitations period and also permits

the court to fashion a remedy extending beyond the limitations period. Gandy v. Sullivan County,

24 F.3d 861, 864 (6th Cir. 1994); see also Thelma A. Crivens, The Continuing Violation Theory and

Systemic Discrimination: In Search of a Judicial Standard for Timely Filing, 41 Vand. L. Rev. 1171,

1172 (1988). In the context of an unequal pay claim, the continuing violation doctrine would operate

to “link” all related instances of unequal pay into a single practice, such that a suit for unequal pay

could seek redress and backpay for all the violations, including those that occurred outside the

limitations period.

The continuing violation doctrine was developed by federal courts interpreting federal anti-

discrimination statutes, particularly Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. (“Title VII”). See, e.g., Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir.

1983). Because “the stated purpose and intent of the [THRA] is to provide for execution within

Tennessee of the policies embodied in the federal anti-discrimination acts,” Spicer, 937 S.W.2d at

888 (citing Tenn. Code Ann. § 4-21-101(a)(1) (1991 Repl.)), this Court approved the continuing

violation doctrine in Spicer. We observed in Spicer that

Courts have recognized . . . only two narrowly limited instances in

which the continuing violation doctrine applies. The first category

arises where there is some evidence of present discriminatory activity

giving rise to a claim of a continuing violation, for example where an

employer continues to presently impose disparate work assignment[s]

or pay rates between similarly situated employee groups. Key to

establishing this exception is proof that at least one of the forbidden

discriminatory acts occurred within the relevant limitations period.

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The second category of “continuing violation” arises where

there has been a longstanding and demonstrable policy of

discrimination such as an established and repeated pattern of paying

men more than women. To constitute such an established pattern, the

plaintiff must clearly demonstrate some “overarching policy of

discrimination,” and not merely the occurrence of an isolated incident

of discriminatory conduct.

Spicer at 889-90 (citations and footnotes omitted; emphasis added).

As these examples illustrate, perhaps the most important factor supporting use of the

continuing violation doctrine in employment discrimination cases is the fact that “many

discriminatory acts cannot be viewed as discrete incidents, and often unfold rather than occur,

making it difficult to precisely pinpoint the time when they take place.” Id. at 889 (citation omitted).

As this statement implicitly recognized, the doctrine does not apply to “discrete incidents” or

individual acts of discrimination. Rather, the continuing violation doctrine applies when the

discriminatory acts take place over time.

Noting that “application of the continuing violation doctrine is not always clear and simple,”

id. at 889, we adopted the doctrine as articulated by the Fifth Circuit in Berry. Spicer, 937 S.W.2d

at 890. The Berry formulation, which was the majority rule at the time we decided Spicer, looks to

three factors to determine whether the alleged discriminatory acts are a series of individual violations

or are part of a single continuing violation. The first factor is whether “‘the alleged acts involve the

same type of discrimination, tending to connect them . . . .’” Spicer, 937 S.W.2d at 890 (quoting

Berry, 715 F.2d at 981). The second factor is “‘frequency,’” considering whether the alleged acts

are “‘recurring (e.g., a bi-weekly paycheck) or more in the nature of an isolated work assignment or

employment decision[.]’” Id. (emphasis added). The third factor is “‘degree of permanence.’” This

factor asks whether the “‘act ha[s] the degree of permanence which should trigger an employee’s

awareness of and duty to assert his or her rights . . . .’” Id.1 It is the interplay of this third factor with

the plain language of the THRA’s statute of limitations that the district court’s certified question

seeks to clarify. That is, is a suit only timely once the plaintiff should be aware of her rights, as

provided in the Berry rule, or is the suit timely as long as the discriminatory practice has not yet

“cease[d],” as provided in the THRA’s statute of limitations, Tennessee Code Annotated section 4-

21-311(d)?

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Although we approved the continuing violation doctrine in Spicer, we held that the plaintiff in that case could

not invoke it because the evidence did not show that any instances of discrimination had occurred within the one-year

limitations period. Id. at 890-91.

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The THRA’s Statute of Limitations

As originally enacted, the THRA did not contain a statute of limitations. See 1978 Tenn.

Pub. Acts, ch. 748, § 2. Courts applied to THRA claims the one-year statute of limitations for

“[c]ivil actions for compensatory or punitive damages, or both, brought under the federal civil rights

statutes” set forth in Tennessee Code Annotated section 28-3-104(a)(3). See Spicer, 937 S.W.2d at

890 n.6; see also Bennett v. Steiner-Liff Iron & Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992). In

1992, the General Assembly amended the THRA to add a statute of limitations. 1992 Tenn. Pub.

Acts, ch. 1027, § 8. The statute states that suits must be filed “within one (1) year after the alleged

discriminatory practice ceases . . . .” Tenn. Code Ann. § 4-21-311(d).

We noted in Spicer that the THRA’s then-newly-enacted statute of limitations “apparently

incorporates the continuing violation exception . . . .’” Spicer, 937 S.W.2d at 890 n.6. Thus, our

holding in Spicer that the continuing violation doctrine is applicable to claims brought under the

THRA was of limited import for claims brought after the effective date of the legislation creating

the THRA’s statute of limitations, because we recognized that the Legislature intended to make the

continuing violation doctrine available to claims brought after that date. We reiterated in Weber v.

Moses, 938 S.W.2d 387 (Tenn. 1996), that “[t]he [THRA] statute of limitations . . . adopts the

‘continuing violation exception’ which we judicially adopted and explained fully in Spicer.” Id. at

391 n.4

Shortly after our decision in Spicer, we addressed the proper framework for analyzing the

THRA’s new statute of limitations in Weber. In Weber, the plaintiff alleged that he was terminated

from his job because he refused to follow his employer’s racially-discriminatory hiring policy. The

plaintiff was orally informed of the termination in early August of 1992, the termination was

effective on August 31, 1992, and the plaintiff received written notice of termination on or after

September 1, 1992. The plaintiff filed suit on August 31, 1993. 938 S.W.2d at 388-89.

We held that because the statute of limitations directs that suits be filed within one year of

when the “alleged discriminatory practice ceases . . . we must first identify the alleged discriminatory

practice.” Id. at 390. The Court identified the discriminatory practice in Weber as the decision to

terminate the plaintiff, rather than the termination itself. Therefore, the Court stated that the next

step was to “determine the date on which the discriminatory practice ended,” or ceased. Id. The

plaintiff argued that the discriminatory practice did not cease until he received written notice of his

termination, on or after September 1, 1992. The defendant employer argued that the discriminatory

practice ended on the date in early August when the plaintiff was orally advised of the decision to

terminate his employment.

The Court agreed with the employer and held that the suit was barred by the one-year statute

of limitations. Looking to analogous cases decided under federal law, we emphasized that “a

discriminatory termination ceases and is complete[] when the plaintiff is given unequivocal notice

of the employer’s termination decision, even if employment does not cease until a designated date

in the future.” Id. at 391-92. We explained that, “‘the proper focus is on the time of the

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discriminatory act not the point at which the consequences of the act become painful.’” Id. at 391

(quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). Weber was consistent with Spicer’s

recognition that the continuing violation doctrine does not apply to discrete acts. Where the alleged

discriminatory practice is a discrete act, such as the decision to terminate an employee, the

continuing violation doctrine is inapplicable to extend the THRA’s statute of limitations. A discrete

discriminatory act “ceases” as of the time it occurs, not as of the time the consequences of the act

cease.

The United States Supreme Court’s Morgan Decision

In 2002, the United States Supreme Court clarified that under federal law, the continuing

violation doctrine is likewise not applicable to extend Title VII’s statute of limitations where a

plaintiff alleges “discrete incidents” of discrimination. In National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002), the plaintiff alleged that he had been subjected to discrete acts of

discrimination and retaliation based on race in violation of Title VII. He also alleged that he had

been subjected to a racially hostile work environment in violation of Title VII. Id. at 104. Many of

the discriminatory acts alleged in the plaintiff’s complaint occurred outside Title VII’s 300-day

limitations period for filing a charge. The Ninth Circuit Court of Appeals held that pursuant to the

continuing violation doctrine, the plaintiff could “sue on claims that would ordinarily be time barred

so long as they either are ‘sufficiently related’ to incidents that fall within the statutory period or are

part of a systematic policy or practice of discrimination that took place, at least in part, within the

limitations period.” Id. at 105.

The Supreme Court reversed in part and affirmed in part. The Court did not explicitly

approve or disapprove the use of the continuing violation doctrine. Rather, relying on Title VII’s

prohibition of unlawful employment “practices,” the Court drew a distinction between hostile

environment claims, which are “a series of separate acts that collectively constitute one ‘unlawful

employment practice,’” and “discrete acts” of discrimination, which constitute a single, identifiable

prohibited “practice.” Id. at 114-17.

The Court explained that in the case of hostile environment claims, “[p]rovided that an act

contributing to the claim occurs within the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of determining liability.” Id. at 117. The

Court explained that hostile environment claims “are different” because “[t]heir very nature involves

repeated conduct.” Id. at 115. The Court therefore reasoned that,

A hostile work environment claim is composed of a series of separate

acts that collectively constitute one “unlawful employment practice.”

42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires

that a Title VII plaintiff file a charge within a certain number of days

after the unlawful practice happened. It does not matter, for purposes

of the statute, that some of the component acts of the hostile work

environment fall outside the statutory time period. Provided that an

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act contributing to the claim occurs within the filing period, the entire

time period of the hostile environment may be considered by a court

for the purposes of determining liability.

Id. at 117. In other words, a hostile environment claim is not made timely by linking the “component

acts” together through the continuing violation doctrine. Rather, the hostile environment constitutes

one unified, unlawful employment practice, and filing is timely as long as some act contributing to

the hostile environment occurs within the limitations period.

In contrast, the Court held that where the alleged discriminatory practice is a “[d]iscrete act[]

such as termination, failure to promote, denial of transfer, or refusal to hire,” each alleged act of

discrimination must be evaluated independently to determine whether it occurred within the

limitations period. Id. at 114. The Court did not define a “discrete discriminatory act” beyond

offering examples of what might be a discrete act. The Court also explained, in response to the

plaintiff’s argument that Title VII’s use of the term “practice” envisions an ongoing course of

conduct rather than a discrete act,

We have repeatedly interpreted the term “practice” to apply to a

discrete act or single “occurrence,” even when it has a connection to

other acts. For example . . . in Bazemore v. Friday, 478 U.S. 385

(1986) (per curiam), a pattern-or- practice case, when considering a

discriminatory salary structure, the Court noted that although the

salary discrimination began prior to the date that the act was

actionable under Title VII, “[e]ach week’s paycheck that deliver[ed]

less to a black than to a similarly situated white is a wrong actionable

under Title VII . . . .” Id. at 395.

Id. at 111-12. In sum, Morgan essentially rendered the continuing violation doctrine irrelevant to

claims under federal discrimination law, dividing the universe of discriminatory practices into hostile

environment claims and discrete acts of discrimination.2

Since Morgan, a number of federal courts have held that pay discrimination claims involve

“discrete acts” of discrimination such that plaintiffs are limited to recovering damages for only the

discriminatory acts occurring within the limitations period. See, e.g., Ledbetter v. Goodyear Tire

& Rubber Co., 421 F.3d 1169, 1182-83 (11th Cir. 2005) (each discriminatory decision setting pay

is a discrete act); Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1027 (7th Cir. 2003) (each

discriminatory paycheck is a discrete act). Indeed, some federal courts so held before the Morgan

decision. See, e.g., Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (“a claim

of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment

2

Morgan did, however, save the question of what effect its holding would have on pattern-and-practice claims,

noting that “none are at issue here.” 536 U.S. at 115 n.9. Likewise, Booker does not allege a pattern-or-practice claim.

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because it involves a series of discrete, individual wrongs rather than a single and indivisible course

of wrongful action.”).

Because it essentially eliminated the continuing violation doctrine, Morgan is of limited use

to us in interpreting the THRA, since the THRA’s statute of limitations incorporates the continuing

violation exception. Tenn. Code Ann. § 4-21-311(d); Spicer, 937 S.W.2d at 890 n.6. Morgan’s

holding does not change the plain language of the THRA’s statute of limitations. As we have

observed, however, we have previously determined that, like Title VII’s statute of limitations, the

THRA’s statute of limitations does not operate to extend the limitations period on discrete acts of

discrimination. Weber, 938 S.W.2d at 391-92. The question we must resolve, therefore, is whether,

under Tennessee law, pay discrimination is a series of discrete acts, or whether it is a continuing

discriminatory practice that is actionable until it ceases.

Is Discriminatory Pay a Continuing Violation under the THRA?

Boeing argues that because the THRA is meant to conform to Title VII, this Court should

adopt the federal courts’ reasoning that discriminatory pay is not a continuing violation. Booker

argues that although Tennessee courts use federal civil rights law as a guide, this Court is not bound

by federal civil rights law where the language of the THRA compels a different result. Specifically,

Booker argues that because the THRA’s statute of limitations provides that suits must be filed within

one year of when the “alleged discriminatory practice ceases,” Tenn. Code Ann. § 4-21-311(d)

(emphasis added), we should not adopt the federal courts’ severe restriction of the continuing

violation doctrine.

Although Boeing is correct that the purpose of the THRA is to “[p]rovide for execution

within Tennessee of the policies embodied in the federal Civil Rights Acts,” Tenn. Code Ann. § 4-

21-101(a)(1) (2005), as we have discussed, “we are neither bound by nor restricted by the federal law

when interpreting our own anti-discrimination laws.” Barnes v. Goodyear Tire & Rubber Co., 48

S.W.3d 698, 705 (Tenn. 2000); see also Phillips v. Interstate Hotels Corp. No. L07, 974 S.W.2d 680,

683-84 (Tenn. 1998) (same). Therefore, we will not apply the reasoning and conclusions of federal

civil rights decisions where doing so would conflict with the THRA. At least one other state court

has declined to follow Morgan strictly where plaintiffs allege claims under state laws prohibiting

discrimination. See, e.g., Yanowitz v. L’Oreal, USA, Inc., 36 Cal. 4th 1028, 1057 (2005) (declining

to apply Morgan to state-law retaliation claim because doing so “would mark a significant departure

from the reasoning and underlying policy rationale of our previous cases”).

Moreover, the THRA’s statute of limitations is fundamentally different than Title VII’s

statute of limitations. Title VII provides that a charge of discrimination must be filed within a set

period “after the alleged unlawful employment practice occurred.” 42 U.S.C. 2000e-5(e)(1)

(emphasis added). The THRA provides that a suit must be filed “within one (1) year after the alleged

discriminatory practice ceases.” Tenn. Code Ann. § 4-21-311(d) (emphasis added). Boeing argues

that the difference between the words “occurred” and “ceases” is immaterial, arguing that any

practice that has already “occurred” must by definition have “ceased.” However, Boeing’s argument

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ignores the fact that “cease” and “occurred” have entirely different meanings. To “cease” means “to

bring or come to an end; stop; discontinue.” Webster’s New World Dictionary (2d ed. 1980).

“Occurred,” on the other hand, means “to take place; happen.” Id. Thus, “occurred” connotes and

contemplates a single instance, whereas “ceases” connotes and contemplates an ongoing course of

conduct. In stating that a claim must be brought within one year of the time a practice “ceases,” as

we have explained, the Legislature incorporated the continuing violation exception into the statute

of limitations. Therefore, rather than accepting the federal courts’ limitation on the continuing

violation doctrine, we must conduct our own analysis.

Boeing argues that pay discrimination is not a continuing violation because each payment is

a discrete discriminatory act that “ceased” at the time the payment was made. In our view, however,

a discriminatory pay rate is not a discrete act in the same sense that a termination or a denial of

promotion is a discrete act. Something is “discrete” if it is “separate and distinct; not attached to

others; unrelated.” Id. Payments of a salary are not “distinct or unconnected.” Rather, they are part

of an ongoing course of conduct. We do not hold that a single discriminatory paycheck does not

constitute a discriminatory act. It does. But in our view, a discriminatory pay rate, whether it occurs

for two weeks, two years, or more, constitutes precisely the type of continuing violation envisioned

by the Legislature in enacting the THRA’s statute of limitations. Indeed, we recognized as much in

Spicer when we cited as an example of a continuing violation, “an employer [who] continues to

presently impose disparate work assignment or pay rates.” 937 S.W.2d at 889 (emphasis added).

A discriminatory pay rate is actionable until it “ceases.” It does not cease each time an employee

receives a paycheck. Rather, it ceases when the employer brings the employee into parity with his

or her peers.

Under the continuing violation doctrine as adopted in Spicer, a plaintiff must bring suit when

the discriminatory “‘act ha[s] the degree of permanence which should trigger [the] employee’s

awareness of and duty to assert his or her rights . . . .’” Spicer, 937 S.W.2d at 890 (quoting Berry,

715 F.2d at 981). If this “discovery rule” applies to pay discrimination claims, then it would not

matter, for purposes of the statute of limitations, whether the discriminatory conduct had “ceased”

or not. Once the discriminatory pay rate had “trigger[ed]” the employee’s awareness of a duty to

assert his or her rights, then the statute would be tolled. We agree with Booker that this rule is

incompatible with the plain language of the THRA. A discriminatory pay rate “ceases” when it ends,

not when the employee’s awareness of it should alert him or her to assert his or her rights.

We overrule Spicer to the extent that it imposed a “discovery rule” on continuing violation

claims. However, we note that employers may still invoke equitable doctrines such as laches and

estoppel to limit claims in cases where an employee has slept on his or her rights.

Conclusion

After considering the applicable authority and the arguments of the parties, we conclude that

discriminatory pay is a continuing violation under the THRA. We further conclude that a plaintiff

may seek backpay for the duration of the practice, until it “ceases,” although equitable doctrines may

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bar some or all of the plaintiff’s relief. Costs of the appeal shall be assessed to the appellee, the

Boeing Company, d/b/a Boeing-Oak Ridge Company.

______________________________

E. RILEY ANDERSON, JUSTICE

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