Opposition Brief — Ledbetter v. Goodyear Tire & Rubber Co., Inc.

Supreme Ounst, U.S.

» fin

No. 05-1074

IN THE OFFICE OF THE CLIRK

Supreme Court of the United States

LILLY M. LEDBETTER,

Petitioner,

v.

THE GOODYEAR TIRE & RUBBER COMPANY, INC.,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED States CourRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

!

Jay St. CLaR

Counsel of Record

Ke ty H. Estes

Scott Burnett SMITH

BRADLEY ARANT ROSE & WHITE LLP

One Federal Place

1819 Fifth Avenue North

Birmingham, Alabama 35203

(205) 521-8000

Attorneys for Respondent

201423 Sg

COUNSE( PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Whether a plaintiff asserting a disparate pay claim under

Title VII against an employer that periodically reviewed and -

re-established her pay under a facially neutral compensation

system may chailenge pay decisions prior to the last decision

immediately preceding the start of the statutory limitations

period.

ul

CORPORATE DISCLOSURE STATEMENT

The Goodyear Tire & Rubber Company, Inc. does not have

a parent company. No publicly held company owns 10 percent

or more of its stock.

lil

TABLE OF CONTENTS

Page

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Corporate Disclosure Statement ................ ll

EE Es ee kiew kb ueeteee es ili

Table of Cited Authorities iepawin de akeneeuee’ iV

Re ne ee re ee rare eee l

Ne ids ie ddaviuwekwedebe 2

Reasons for Denying the Petition ............... 5

I. The Court Of Appeals Did Not Decide The

Question Framed By The Petition. ........ 5

Il. The Courts Of Appeals Are Not In Conflict

Over The Question Presented. ........... 8

Ill. The Eleventh Circuit’s Decision Is Consistent

With This Court’s Precedent. ............ 13

IV. This Case Does Not Provide A Good Vehicle

For Deciding The Limitations Question

Because Petitioner’s Claim Fails On The

I Re dn et eee OU De 19

Ns Ri a i 22

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Bazemore vy. Friday, 478 U.S. 385 (1986) ... 4,9, 17, 18

Calloway v. Partners National Health Plans, 986

bog ae) os || Per 12

Delaware State College v. Ricks, 449 U.S. 250

PD co vscveneseseee onsen 11, 16, 17, 19

Forsyth v. Federation Employment & Guidance

Serv., 409 F.3d 565 (2nd Cir. 2005) ...... 8,9, 10, 12

Hildebrandt v. Illinois Dept. of Natural Res., 347

RS BONS CH CR, BEG ccc vvcsvtsvsesutees 8

Law v. Continental Airlines Corp., 399 F.3d 330

li. 2 ae ee 8

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

SOUND scccndaxcedsteueuceunuseseeeeeen 11, 18

McDonald Douglas Corp. v. Green, 411 U.S. 792

CRVGR x oss 0uctseetessdusewnseeeeeeeeee 20

National Railroad Passenger Corp. v. Morgan, 536

FR of: Serre passim

Order of Railroad Telegraphers v. Railway Express

Agency, 321 U.S. 342 (1944) ...........5545. 18, 19

V

Cited Authorities

Page

Reese v. Ice Cream Specialties, 347 F.3d 1007

i en ed is euet nd bese 6s 8

Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) . 8,9, 10, 11, 12

Tademe vy. St. Cloud State Univ., 328 F.3d 982

i ccc kedGeedededevdeseeseeece es .

Texas Department of Community Affairs v. Burdine,

te ccketedcevewsvessacvees 20

United Air Lines, in v. Evans, 431 U.S. 553

ESE ae ae a a passim

Statutes:

ie cevkdedevéeseseseveseces 19 n.5

42 U.S.C. § 2000e-2(a) .......... settee eee ees 15

ey Rs SP EIILED cece scccccceccesece ; 1,14

Se is POLS ccc cc cccccvececccees 18

one 7 —— + : AF |

7) 7a 7 ~*> a

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INTRODUCTION

The only employment “practices” that can form the basis

of liability under Title VII are those that “occurred” within

180 days of an employee’s EEOC charge. 42 U.S.C. § 2000e-

5(e)(1). Despite this limitation, the district court below

permitted Petitioner to challenge discrete salary decisions

made at different times by different people over her nineteen-

year career at Goodyear. Pet. App. 20a. The Eleventh Circuit

reversed, holding that with respect to “this specie of disparate

pay claims—that is, those in which the salary or pay level

being challenged was periodically reviewed and re-

established by the defendant-employer”—the employee “may

reach outside the limitations period created by her EEOC

charge no further tha[n] the last such decision immediately

preceding the start of the limitations period.” Jd. at 14a.

The Court should deny the Petition for several reasons.

First, the Eleventh Circuit did not decide the question framed

by the Petition, and there is no circuit conflict on the question

framed by the court of appeals. Second, even as to the

question framed by the Petition, there is no conflict in the

circuits. Third, the Eleventh Circuit’s decision is entirely

consonant with the decisions of this Court. Fourth, the Court

need not reach the limitations question because Petitioner’s

claim fails on the merits. Thus, even if the Eleventh Circuit

had decided the question framed by the Petition, and even if

there were a circuit split on that question, this case would

not be an appropriate vehicle for deciding it.

2

STATEMENT OF THE CASE

1. Petitioner worked at Goodyear’s Gadsden, Alabama,

tire plant for nineteen years as a Supervisor and later as an

Area Manager. Pet. App. 5a. She was hired on February 5,

1979 (id.), and was initially paid the same salary as a similarly

situated male employee. /d. at 12a. In 1980 and 1981,

Petitioner received the same pay increase as all other Area

Managers at the plant. Tr. 125-28. Beginning in 1982,

Goodyear determined the salaries of its managerial employees

using a system of annual merit-based raises. Pet. App. 4a.

Raises were based on individual performance appraisals that

incorporated an employee’s performance ranking, present

salary, and salary range. /d. Petitioner and her co-workers

thus had their salaries reviewed at least once annually by

plant management. /d. at 5a.

Petitioner worked in several different departments under

several different supervisors before 1992. Pet. App. Sa.

Earlier in her career, she was included in two general layoffs.

Id. Her longest layoff started in 1986 and lasted into 1987.

Tr. 128-30. She did not receive salary increases in 1986 or

1987 because of that layoff. /d. at 129-31. She was also

included in another general layoff in 1989. Jd. at 131-32.

At trial, Petitioner conceded that the manager who

established her raises in 1990, 1991, and 1992 did not

discriminate against her because of her sex. Tr. 132-33. She

also offered no evidence of “who, prior to 1992, the other

Area Managers in [her] immediate areas of the plant were,

how [she] fared against them in end-of-year performance

rankings, or how her salary or the merit-based raises she

received compared to theirs.” Pet. App. 5a.

3

From mid-1992 until 1996, Petitioner was supervised by

Mike Tucker, who also supervised three male Area Managers.

Pet. App. 5a. Based upon Tucker’s recommendations, Petitioner

received a 5.28 percent salary increase in 1993, a 5 percent

increase in 1994, and a 7.85 percent increase in 1995. Id. at 6a.

Petitioner’s cumulative salary increase for this period was higher

than the increases for all three of the male Area Managers

working under Tucker’s supervision. /d.; Tr. 134-36; DX 57.

Petitioner was ineligible for a salary increase in 1996

because her 1995 raise had not yet been in effect for the

minimum time interval required between raises at that time.

Pet. App. 7a. She was also ineligible for a raise in 1997 because

she was slated to be included in an upcoming general layoff. /d.

at 7a—8a. She did not receive a salary increase in 1998 because

her manager at the time concluded that her performance did not

warrant an increase. /d. at 9a.

In August 1998, Goodyear announced that it planned to

downsize the Gadsden plant and offered an early retirement

option. Pet. App. 9a. Petitioner applied and was accepted for

carly retirement, and she retired effective November |, 1998.

Id. Goodyear announced in February 1999 that the Gadsden

plant was to close. Jd. The plant never completely shut down,

but large-scale layoffs and transfers occurred, reducing the

number of Area Managers from sixteen to four. Jd. at 9a—10a.

2. Petitioner filed suit on November 24, 1999, asserting

various Claims of employment discrimination. Pet. App. 10a &

n.7. The district court submitted four claims to the jury, including

Petitioner’s disparate pay claim under Title VII.' The jury

1. Although the Petition states that Petitioner “sought backpay

for the period beginning 180 days before she filed her EEOC charge”

(Pet. 3), in fact she sought, and the district court awarded, backpay

for a period beginning two years prior to her first EEOC filing.

Pet. App. 41a; Doc. 76; Tr. 236; PX 207; PX 210; PX 211.

oy

——_———

4

returned a verdict in Petitioner’s favor only on the pay claim,

ruling in Goodyear’s favor on the remaining claims. After

the district court denied Goodyear’s renewed motion for

judgment as a matter of law on the pay claim, Goodyear filed

a timely appeal. /d. at.1 la—12a.

3. The Eleventh Circuit reversed. The court expressly

limited its decision to “this specie of disparate pay claims—

that is, those in which the salary or pay level being challenged

was periodically reviewed and re-established by the

defendant-employer.” Pet. App. 14a; see also id. at 23a—24a,

26a, 37a. In such a case, the court held that “an employee

seeking to establish that his or her pay level was unlawfully

depressed may look no further into the past than the last

affirmative decision directly affecting the employee's pay

immediately preceding the start of the limitations period.”

Id. at 24a. The court distinguished this case, where

Petitioner’s pay “had been reviewed and re-established over

a dozen times,” from cases in which employees do not have

such “regular opportunities to complain of improperly

deflated pay and to seek a raise.” Jd. at 26a. The court

expressly declined to decide whether other courts faced with

Title VII pay cases have read Bazemore v. Friday, 478 U.S.

385 (1986), too broadly. Pet. App. 27a. The court noted that

it “remains an open question whether a disparate-pay

plaintiff, in contrast to a pattern-and-practice pay plaintiff,

should be able to challenge any decision made outside the

limitations period.” Jd. The court of appeals stated: “We need

not address that question today, however.” Jd.

The Eleventh Circuit then reviewed the sufficiency of

the evidence supporting Petitioner’s claim that she was

denied pay increases in 1997 and 1998 because of her sex.

5

Pet. App. 27a—37a.’ Petitioner's EEOC questionnaire and

charge were both filed within 180 days of the 1998 decision,

so there was no issue regarding the timeliness of that claim.

On the merits, the court held that Petitioner “failed to produce

a scintilla of evidence from which a reasonable jury could

have found” that the 1998 decision was affected by her sex.

Id. at 31a.

The Eleventh Circuit also examined the merits of

Petitioner’s claim concerning the decision not to give her a

raise in 1997. The court did so even though the 1997 decision

was made more than 180 days prior to Petitioner’s first filing

with the EEOC. Pet. App. 32a-37a. Again, the court of

appeals held that “no reasonable factfinder could find the

decision was motivated by [Petitioner’s] sex.” Jd. at 36a—

37a.

REASONS FOR DENYING THE PETITION

I. The Court Of Appeals Did Not Decide The Question

Framed By The Petition.

The Petition asks this Court to decide “[w]hether and

under what circumstances a plaintiff may bring an action

under Title VII... alleging illegal pay discrimination when

the disparate pay is received during the statutory limitations

period, but is the result of intentionally discriminatory pay

2. Petitioner incorrectly claims the Eleventh Circuit refused to

consider evidence falling outside the limitations period as

background evidence in support of a timely claim. Pet. 25. The court

explicitly recognized the relevance of such evidence (Pet. App. 24a)

but held, even considering this evidence, no reasonable jury could

find that either the 1997 or 1998 pay decision was discriminatory.

Id. at 31a & n.21, 34a & n.25, 35a & nn.26-27, 36a-37a.

6

decisions that occurred outside the limitations pericd.”

Pet. i. The Eleventh Circuit did not decide that question,

however. Instead, it decided a different and much narrower

question. As the Eleventh Circuit framed it, the issue was

“how Title VII’s timely-filing requirement applies to this

specie of disparate pay claims—that is, those in which the

salary or pay level being challenged was periodically

reviewed and re-established by the defendant-employer.”

Pet. App. 14a. The court of appeals described the issue in

those terms not once, as Petitioner asserts (Pet. 4 n.5), but at

least four times. Pet. App. 2a (“The question we must decide

. is how Title VII's timely-filing requirement applies in

this specie of disparate pay cases—that is, cases involving

an employer that annually reviews and re-establishes

employee salary levels’’); id. at 14a; id. at 23a—24a (“Limits

on how far into the past the plaintiff can look for an

intentionally discriminatory decision are most obviously

warranted where, as here, the employee’s pay level was

subjected to periodic re-assessment through regularly-

scheduled raise decisions.”’); id. at 26a (prior Eleventh Circuit

decision “did not involve, as this case does, an employee

whose pay had been reviewed and re-established over a dozen

times.”). There is no circuit split on the narrow question

decided by the Eleventh Circuit, nor does Petitioner even

suggest there is.

Petitioner in a footnote now quibbles with the Eleventh

Circuit’s framing of the question, claiming that her pay was

not in fact “periodically reviewed and re-established” by

Goodyear. Pet. 4n.5. This is a factual argument that Petitioner

did not raise in her rehearing petition below. Accordingly,

neither the panel nor the full Eleventh Circuit had an

opportunity to consider the argument she raises now for the

7

first time.* There can be no question that the precedential

effect of the Eleventh Circuit’s decision is limited to the issue

framed and decided by the court. More important, the nature

of Goodyear’s annual pay raise system is a fact-bound issue

that does not merit review by this Court.

Even as to the narrow question framed by the Eleventh

Circuit, the court’s holding was limited and qualified. The

court held only “that in the search for an improperly

motivated, affirmative decision directly affecting the

employee’s pay, the employee may reach outside the

limitations period created by her EEOC charge no further

tha[n]} the last such decision immediately preceding the start

of the limitations period.” Pet. App. 14a. The court qualified

its holding, stating, “We do not hold that an erhployee may

reach back even that far; what we hold is that she may reach

no further.” /d.

In sum, the question framed by the Eleventh Circuit’s

opinion is different from and much narrower than the

question framed by the Petition. The court’s tentative and

limited answer to the narrow question it framed does not

3. Petitioner does not dispute that her pay was re-evaluated

periodically, but apparently contends that the periodic reviews did

not “re-establish” her pay because employees’ salary rates carried

over from the prior year and annual increases were subject to certain

caps. Pet. 4 n.5. Yet as Petitioner herself acknowledges, the annual

pay evaluations also included consideration of the employee's present

salary and salary range. /d. See also Pet. App. 6a & n.3 (noting there

was evidence at trial that Ledbetter received a substantial increase

of 7.85 percent in 1995 because her supervisor “wanted to raise her

salary and thought he could only do so significantly by giving her a

‘top performance award’”). Moreover, pay increases could exceed

annual caps. In fact, Petitioner’s substantial increase in 1995 was

well in excess of the annual “cap.” /d. at 6a.

8

conflict with any decision of this Court or any other court of

appeals. Petitioner does not even suggest the existence of a

conflict on the question decided by the Eleventh Circuit that

would warrant further review.

Ii. The Courts Of Appeals Are Not In Conflict Over The

Question Presented.

Even if the Eleventh Circuit had actually decided the

broad question framed by the Petition, its decision would

not conflict with any decision of another court of appeals.

This Court’s recent decision in National Railroad Passenger

Corp. v. Morgan resolved how to determine the timeliness

of discrete discrimination claims as well as hostile

environment claims under Title VII. 536 U.S. 101, 110-22

(2002). The Court decided Morgan just four Terms ago. Since

then, less than haif the circuits have issued published opinions

applying Morgan to disparate pay claims. See Forsyth v.

Federation Employment & Guidance Serv., 409 F.3d 565,

572-74 (2nd Cir. 2005) (concluding that district court erred

in finding pro se plaintiff's disparate pay claims untimely

but affirming summary judgment for employer on the merits);

Shea v. Rice, 409 F.3d 448, 451-56 (D.C. Cir. 2005)

(reversing Rule 12(b)(6) dismissal of pro se plaintiffs Title

VII pay claims as untimely); Law v. Continental Airlines

Corp., 399 F.3d 330, 332-34 (D.C. Cir. 2005) (affirming

summary judgment holding ADEA pay claims were time-

barred); Reese v. Ice Cream Specialties, 347 F.3d 1007, 1009-

14 (7th Cir. 2003) (reversing summary judgment finding

disparate pay claims untimely); Hildebrandt v. Illinois Dept.

of Natural Res., 347 F.3d 1014, 1025-29 (7th Cir. 2003)

(remanding disparate pay claims under Title VII for further

proceedings following trial of claims under Equal Pay Act);

9

Tademe v. St. Cloud State Univ. , 328 F.3d 982, 989-90 (8th

Cir. 2003) (assuming pay claims were timely but affirming

summary judgment for employer on the merits). The decision

below was the Eleventh Circuit’s first published opinion

applying Morgan outside the context of hostile environment

claims. See Pet. App. 16a—19a.

Petitioner asserts that the Eleventh Circuit “acknowledged

that its decision was in conflict with the post-Morgan decisions

of other courts of appeals, including the Second and D.C.

Circuits.” Pet. 7 (citing Pet. App. 27a & n.19). Petitioner is

incorrect. After discussing Morgan in the context of discrete

pay discrimination claims, the Eleventh Circuit stated that

Morgan “may indicate” that some courts have “read Bazemore

too broadly.” Pet. App. 27a (emphasis added). The court stated

that “it therefore remains an open question whether a disparate-

pay plaintiff . . . should be able to challenge any decision made

outside the limitations period.” Jd. The court dropped a footnote

with citations to other circuit cases—including the Second

Circuit and D.C. Circuit decisions discussed in the Petition—

that had reached this question. /d. at n.19. This explains

why the footnote begins with the words “But see. . . .” /d.

The Eleventh Circuit then stated, “We need not address that

question today, however.” Id. at 27a (emphasis added). Thus,

the Eleventh Circuit did not acknowledge a split with the Second

and D.C. Circuits. It simply noted that other circuits had decided

a limitations question that it chose to leave unresolved; the court

opted instead to decide the case on the merits.

Moreover, the Second Circuit’s decision in Forsyth and the

D.C. Circuit’s decision in Shea do not conflict with the decision

below because the plaintiffs in both Forsyth and Shea challenged

a facially discriminatory pay structure. The plaintiff in Forsyth

alleged a discriminatory “salary structure” or “pay scale”

10

imposed when the defendant hired him as its first black employee

in 1989. 409 F.3d at 567-68, 573. The record showed that the

plaintiff's unequal pay was attributable to differences between

him and other employees in their starting wage. /d. at 568. The

district court granted summary judgment to the employer,

finding the plaintiff's claims were untimely and that he had failed

to establish a genuine issue of discrimination. /d. at 566-67.

Petitioner incorrectly asserts that the Second Circuit reversed

the judgment of the district court. Pet. 10 (“On appeal, the

Second Circuit reversed.”’). In fact, the court affirmed. 409

F.3d at 573-74. See id. at 567 (“Although we affirm that

judgment, we write to explain that plaintiff’s claim for relief

alleging salary discrimination was properly dismissed

because Forsyth failed to establish genuine issues of triable

fact with respect to it, and not because plaintiff's claim was

time-barred as the district court believed.”). The Second

Circuit’s discussion of the limitations question was thus

unnecessary to its ultimate disposition of the case.

Furthermore, Forsyth’s limitations discussion does notapply

here because the plaintiff there, unlike Petitioner, was

challenging “a discriminatory pay scale set up outside of the

Statutory period.” /d. at 573.

Similarly, the plaintiff in Shea challenged a State

Department diversity program that set his initial pay grade

too low on account of his race and ethnicity. 409 F.3d at

449-50. In other words, he alleged that the State Department

had adopted a two-tier wage structure that discriminated

against white employees of Irish descent. /d. Moreover, the

D.C. Circuit decided Shea on appeal from a dismissal under

Federal Rule of Civil Procedure 12(b)(6). /d. The court

emphasized that at that early stage of the litigation, dismissal

was appropriate only if it appeared “beyond doubt” that the

plaintiff could not prove a set of facts in support of his claim

1]

which would entitle him to relief. Jd. at 451. Even in the

context of a motion to dismiss, the D.C. Circuit stated that

discrete pay claims such as Petitioner’s would be untimely:

If Shea were complaining of the assignment of a

discriminatorily low pay grade only, we would

agree [his claim would be untimely] under a clear

line of Supreme Court cases—United Airlines,

Inc. v. Evans, 431 U.S. 553 (1977), Delaware State

College v. Ricks, 449 U.S. 250 (1980) and Lorance

v. AT&T Techs, Inc., 490 U.S. 900 (1989)—that

bars claims where the relevant aspect of the

employment system (such as a promotion,

seniority, or termination) is facially neutral, and

any discrete discriminatory conduct took place and

ceased outside the period of limitations.

Id. (parallel citations, internal quotation, and citation

omitted). It was only because the plaintiff's allegations went

further to challenge “a persistent discriminatory salary

structure” (id. at 453), as opposed to isolated decisions under

a neutral salary system, that the court held he had pleaded an

actionable claim:

Shea’s claim is explicitly premised on the

existence of such a “discriminatory system.” He

alleged that he was hired at a lower pay grade and

continues to receive discriminatory pay pursuant

to the State Department’s discriminatory diversity

program.

Id. at 455.

12

Judge Williams concurred separately in Shea “to

underscore the precise distinction that we draw . . . between

cases where a plaintiff can recover for the current

consequences of a discrete discriminatory act in a time-barred

period and cases where he or she may not.” Jd. at 456

(Williams, J., concurring). In his opinion, “[tjhe distinction

turns ... on whether one may reasonably characterize the

defendant employer as applying a discriminatory salary

structure in the unbarred period.” /d. at 456 (emphasis

added). Because the plaintiff had alleged a “two-class pay

Structure” rather than an “isolated act” arising in the time-

barred period, Judge Williams agreed that the complaint

could proceed. /d. at 458.

Forsyth and Shea are readily distinguishable from the

Eleventh Circuit’s decision. This case does not involve a

facially discriminatory pay scale or salary structure, such as

those challenged in Forsyth and Shea. Rather, Petitioner was

hired at the same pay rate as a male comparator. Pet. App.

12a. Her claim is based upon isolated pay decisions made at

different times by different decisionmakers under a facial'y

neutral compensation program. See Pet. 4; Pet. App. 20a.

Contrary to Petitioner's argument (Pet. 11—12), such claims

would be untimely even under Shea. See 409 F.3d at 451.

Similarly, the Shea plaintiff's claims would be timely under

the Eleventh Circuit’s opinion because he challenged only

his initial wage assignment, not any intervening decision.

See Pet. App. 25a—-27a (explaining that, like Shea, the

Eleventh Circuit's prior decision in Calloway v. Partners

National Health Plans, 986 F.2d 446 (Lith Cir. 1993),

“belongs in a different category of pay-related cases and is

fully consistent with the rule we announce today’). There is

thus no circuit conflict even on the question framed by the

Petition. To the extent there is any doctrinal disagreement

13

among the circuits over how Morgan applies to pay claims,

that disagreement is narrow and immature and thus does not

warrant review by this Court.

Furthermore, no other court of appeals has considered

the Eleventh Circuit’s suggestion “that in the search for an

improperly motivated, affirmative decision directly affecting

the employee’s pay, the employee may reach outside the

limitations period created by her EEOC charge no further

tha[n] the last such decision immediately preceding the start

of the limitations period.” Pet. App. 14a. Indeed, the Eleventh

Circuit itself did not definitively decide the question here,

leaving that for another day. /d. (“We do not hold that an

employee may reach back even that far; what we hold is that

she may reach no further.”). This Court should not grant

certiorari to resolve that issue before it has been definitively

decided by the Eleventh Circuit and considered by any other

court of appeals.

Ill. The Eleventh Circuit’s Decision Is Consistent With

This Court’s Precedent.

The Eleventh Circuit's decision is correct and supported

by this Court’s precedent. In applying Title VII's time

limitations, this Court has consistently held that discrete acts

of discrimination are actionable only if they are challenged

in a timely EEOC charge. Absent such a charge, the Court

has refused to allow the present effects of past actions to

save an untimely claim. Petitioner's attempt to challenge

every allegedly discriminatory decision made since 1979,

when she was hired, based on the effects those decisions had

on paychecks received within 180 days of March 25, 1998,

when she filed her EEOC questionnaire, finds no support in

this Court’s Title VII jurisprudence.

14

In Morgan, the Court rejected the various “continuing

violation” concepts the circuits had adopted to extend Title

VII's time limitations. 536 U.S. at 107-08. It recognized that

_“[b]ly choosing what are obviously quite short deadlines,

Congress clearly intended to encourage the prompt

processing of all charges of employment discrimination.”

Id. at 109 (internal quotation omitted). The Court therefore

looked to Title VII's “statutory text,” which provides that

“[a] charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful

employment practice occurred.” Id. (quoting 42 U.S.C.

§ 2000e-5(e)(1)) (emphasis added by the Court). The critical

questions, the Court observed, are: “What constitutes an

‘unlawful employment practice’ and when has that practice

‘occurred.’” /d. at 110. The Court held that “[a] discrete-

retaliatory or discriminatory act ‘occurred’ on the day that it

‘happened.’” /d. Because the employee sought to challenge

discrete acts that occurred outside the charge filing period,

the Court concluded his Title VII claims concerning those

acts were “untimely filed and no longer actionable.” /d. at

114-15. “While Morgan alleged that he suffered from

numerous discriminatory and retaliatory acts from the date

that he was hired through . . . the date that he was fired,” the

Court said “only incidents that took place within the timely

filing period are actionable.” /d. at 114.

Petitioner’s theory that she should be able to challenge

pay decisions made “at any point in the past” based solely

on “paychecks received during the limitations period”

(Pet. 9) is untenable after Morgan. The plaintiff in Morgan

similarly argued that his employer’s past acts constituted an

“ongoing violation that can endure or recur over a period of

time.” 536 U.S. at 110. The Court rejected that argument. It

looked instead to Title VII's definition of “unlawful

15

employment practices,” which lists “numerous discrete acts”

such as “to fail or refuse to hire or to discharge any individual,

or to otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

of employment.” /d. at 111 (quoting 42 U.S.C. § 2000e-2(a))

(emphasis added). Discrete acts such as these “are easy to

identify” and must be made the subject of a timely charge to

be actionable, the Court held. /d. at 114. In so holding, the

Court explicitly rejected Petitioner’s theory “that so long as

one act falls within the charge filing period, discriminatory

and retaliatory acts that are plausibly or sufficiently related

to that act may also be considered for the purposes of

liability.” Jd.

Morgan is only the most recent of this Court’s decisions

on point. In United Air Lines, Inc. v. Evans, the Court also

held that the present effects of past acts of discrimination

are not actionable without a timely charge. 431 U.S. 553,

558 (1977). Evans had been forced to resign because of

United’s policy against married female flight attendants.

Id. at 554. Years later, after abandoning the policy, United

rehired Evans but did not give her credit for her prior service.

Id. at 555. This directly affected her rate of pay. Id. at 555 &

n.5. Like Petitioner, Evans argued that because her pay was

lower than it would have been but for the discriminatory acts

years earlier, the seniority system gave “present effect to the

past illegal act and therefore perpetuate[d] the consequences

of forbidden discrimination.” Compare id. at 557 with Pet.

4. Although the Court agreed that “United’s seniority system

does indeed have a continuing impact on her pay and fringe

benefits,” the Court held that Evans had failed to assert a

timely claim. 431 U.S. at 558. As in Morgan, the Court

observed that “the emphasis should not be placed on mere

continuity; the critical question is whether any present

16

violation exists.” Id. Because there was no present violation,

the Court concluded “United was entitled to treat [the]

past act as lawful after [she] failed to file a charge of

discrimination” within the charge filing period. /d.

Similarly, in Delaware State College v. Ricks, the Court

refused to apply a “continuing violation” theory to save a

discrete employment decision from the limitations bar. 449

U.S. 250, 257 (1980). The Court observed that “[{mlJere

continuity of employment, without more, is insufficient to

prolong the life of a cause of action for employment

discrimination.” Jd. Ricks was a college professor who was

denied tenure. /d. at 252. Rather than challenge the decision

when it was made, Ricks waited almost a year to file his

EEOC charge, near the end of his one-year terminal contract.

Id. at 253-54. As in Morgan, the Court focused on when

exactly the alleged “unlawful employment practice” occurred.

Id. at 257. Distinguishing between the act’s occurrence and

its lingering effects, the Court observed that “the only alleged

discrimination occurred—and the filing limitations periods

therefore commenced—at the time the tenure decision was

made and communicated to Ricks. That is so even though

one of the effects of the denial of tenure—the eventual loss

of a teaching position—did not occur until later.” /d. at 258.

The Court rejected Ricks’s argument that his termination gave

“present effect to the past illegal act and therefore perpetuates

the consequences of forbidden discrimination.” /d. (internal

quotation omitted). As in Evans, the Court stated “the proper

focus is upon the time of the discriminatory acts, not upon

the time at which the consequences of the ects became most

painful.” /d. (internal alterations, quotation, and citations

omitted).

17

Petitioner tries to escape the holdings of Morgan, Evans,

and Ricks by arguing tat pay discrimination claims somehow

require a different limitations analysis. Pet. 21-22 & n.15.

Her support for this argument is a single sentence, taken out

of context, from the Court’s opinion in Bazemore v. Friday.

Pet. 20-21. Despite Petitioner’s claim that Bazemore

“explained that the plaintiff's claim was timely” (Pet. 24),

the issue presented in Bazemore was not a limitations

question. Rather, it was whether Title VII applied to a facially

discriminatory two-tier wage structure that had been in place

since before Congress made Title VII applicable to public

employers. 478 U.S. at 386-87, 394. Moreover, Bazemore

did not involve past acts of discrimination that had present

effects on a single employee’s pay. Instead, the case was a

pattern-or-practice case in which the United States alleged

that Title VII required the employer to stop its admitted,

ongoing pra ice of paying its black employees jess than

white employees because of their race. Jd. at 391-95.*

In those circumstances, the Court held,

A pattern or practice that would have constituted

a violation of Title VII, but for the fact that the

statute had not yet become effective, became a

violation upon Title VII’s effective date, and to

the extent an employer continued to engage in that

practice, it is liable under that statute.

Id. at 395 (emphasis added). It was in this context that the

Court stated, “Each week’s paycheck that delivers less to a

black than to a similarly situated white is a wrong actionable

4. The Court in Morgan reserved judgment on “the timely filing

question with respect to ‘pattern-or-practice’ claims brought by

private litigants.” 536 U.S. at 115 n.9.

18

under Title VII, regardless of the fact that this pattern was

begun prior to the effective date of Title VII.” Jd. =

Petitioner’s reliance on Bazemore is thus misplaced. In

Bazemore itself, the Court noted that Evans still applies

where, as here, a neutral pay system merely carries forward

the effects of past acts that a single employee failed to

challenge in a timely matter. 478 U.S. at 396 n.6. See also

Evans, 431 U.S. at 558. Because this is not a pattern-or-

practice case, and Petitioner did not challenge Goodyear’s

annual pay review system as facially discriminatory,

Bazemore is inapposite. See Lorance v. AT&T Technologies,

Inc., 490 U.S. 900, 906-08, 912 n.5 (1989) (observing that

Evans and Ricks foreclosed plaintiffs’ argument that alleged

Title VII violation occurred not only when their prior

seniority “was eliminated but also when each of the concrete

effects of that elimination was felt” and stating that a facially

neutral system that has present effects is not equivalent to a

facially discriminatory system, as in Bazemore, that “by

definition discriminates each time it is applied”), superseded

by 42 U.S.C. § 2000e-5(e)(2) “with respect to a seniority

system that has been adopted for an intentionally

discriminatory purpose.”

Petitioner acknowledges that she is seeking to “reclaim”

her Title VII rights. Pet. 23. But Title VII rights, like most

Statutory rights, are subject to statutes of limitations that are

designed to prevent “revival of claims that have been allowed

to slumber.” Order of Railroad Telegraphers v. Railway

Express Agency, 321 U.S. 342, 348-49 (1944). “The theory

is that even if one has a just claim it is unjust not to put the

adversary on notice to defend within the period of limitation

and that the right to be free of stale claims in time comes to

prevail over the right to prosecute them.” /d. at 349. As the

19

Court held in Evans, Title VII affords no rights to a plaintiff

who does not file a timely charge of discrimination. 431 U.S.

at 558. Petitioner refuses to accept the basic point, recognized

in Ricks, that Title VII’s “limitations periods, while

guaranteeing the protection of the civil rights law, also protect

employers from the burden of defending claims arising from

employment decisions that are long past.” Ricks, 449 U.S. at

256-57. Under Petitioner’s theory, she should have been

allowed to hold Goodyear liable for any disparity reflected

in her 1998 paychecks, even if that disparity was “caused by

decision[s] made years earlier.” Pet. 8. Yet this would allow

employees to wait as long as possible—after decisionmakers

had retired or died, documents had been lost or discarded,”

and witnesses’ memories had faded—before challenging

isolated decisions made over the course of their career. Order

of Railroad Telegraphers, 321 U.S. ot 348-49. As the Court

observed in Morgan, Congress adopted “quite short

deadlines” in Title VII to protect employers against such stale

claims. 536 U.S. at 109 (internal quotation omitted). See Pet.

App. 23a.

IV. This Case Does Not Provide A Good Vehicle For

Deciding The Limitations Question Because Petitioner’s

Claim Fails On The Merits.

Even if the Eleventh Circuit had decided the statute of

limitations question framed by the Petition, and even if there

were a real and mature circuit conflict on that question, this

case would not be a good vehicle for resolving that conflict.

5. The applicable EEOC regulation only requires an employer

to preserve “records having to do with. . . rates of pay or other terms

of compensation ... for a period of one year from the date of the

making of the record or the personnel action involved, whichever

occurs later.” 29 C.F.R. § 1602.14 (emphasis added).

20

This is so because the court decided the core of Petitioner’s

case—the 1997 and 1998 pay decisions—based on the

sufficiency of the evidence presented at trial. See Pet. App.

27a—37a. Petitioner glosses over the latter portion of the

court’s opinion, which applied the doctrine established in

McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973),

and Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981), to the record evidence. See Pet. 7-8.

The Eleventh Circuit’s decision on the merits rests on the

application of settled doctrine to fact-bound issues following

a jury trial.

Although the Eleventh Circuit did not make a definitive

holding on the merits of salary decisions made prior to

1997, it is clear from its opinion and the trial record that

no reasonable jury could have found intentional sex

discrimination even in those years. For example, Petitioner

was not eligible for a raise in 1996 (Pet. App. 7a), so she has

no claim for that year. In addition, the manager who reviewed

Petitioner’s pay in 1995, 1994, and 1993 recommended that

she receive higher cumulative pay raises over that period

than any of the male Area Managers he supervised. Pet. App.

S5a—6a; DX 57.° And Petitioner conceded at trial that the

manager who determined her raises in 1992, 1991, and 1990

had no discriminatory animus. Tr. 132-33. Petitioner thus

failed to produce sufficient evidence at trial showing any

discriminatory decision from 1990 through 1996.

6. Although Defendant's Exhibit 57 shows one male employee,

Dick Jones, had a higher cumulative pay raise for this period,

Petitioner admitted at ‘rial that Jones was not similarly situated to

her. Tr. 134-36.

21

The Eleventh Circuit recognized that Petitioner also

failed to produce sufficient evidence to support her claims

for the period prior to 1992:

The record does not disclose who, prior to 1992, the

other Area Managers in Ledbetter’s immediate areas

of the plant were, how Ledbetter fared against them

in end-of-year performance rankings, or how her

salary or the merit-based raises she received

compared to theirs.

Pet. App. 5a. Petitioner thus failed to prove even the most basic

elements of a pay discrimination claim for the years prior to

1992. Id.

At trial, Petitioner offered only bits of anecdotal evidence,

such as two isolated sexist comments by a plant manager or her

testimony that a non-managerial employee admitted to her that

he manipulated some of her performance data.’ Petitioner

discusses this anecdotal evidence (see Pet. 3—4), but she fails to

acknowledge that the Eleventh Circuit found this evidence had

no probative value. The court described her testimony of sexist

comments supposedly made by a plant manager as “hearsay

upon hearsay.” * Pet. App. 35a & n.27. Moreover, Petitioner did

not prove when these statements supposedly were made,

or whether the speaker played any role in setting her salary.

Id. at 35a—36a. For these reasons the court concluded that

this testimony was not sufficient to support an inference of

discrimination. /d. at 36a—37a. The court also found that

7. The person whom Petitioner claims made this admission

could not rebut her testimony at trial because he was dead. Tr. 147.

8. Goodyear objected to this hearsay testimony, but the district

court overruled the objection. Pet. App. 35a & n.27.

22

Petitioner’s evidence concerning falsified data had no probative

value because it was relevant only to the accuracy of her

manager’s independent performance rankings, not to his intent.

The court explained, “It is not discriminatory to honestly rely

on inaccurate information, and there was no evidence that

[Petitioner's manager at the time] acted any way but in good

faith reliance on the information he was using.” /d. at 3la-

32a & n.21 (citations Omitted).

This case is thus not an appropriate vehicle for deciding

the broad timeliness question framed by the Petition. It is

apparent from the Eleventh Circuit’s opinion and the trial

record that Petitioner failed to adduce sufficient evidence to

prevail on her pay discrimination claim at any time during

her career. Deciding the question presented will not change

the outcome of this case.

CONCLUSION

For these reasons, the Court should deny the Petition.

Respectfully submitted,

Jay St. CLAIR

Counsel of Record

Keity H. Estes

Scotr BuRNETT SMITH

BRADLEY ARANT Rose & WHITE LLP

One Federal Place

1819 Fifth Avenue North

Birmingham, Alabama 35203

(205) 521-8000

Attorneys for Respondent