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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0244%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 618

## Text

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
EE re ee ne i
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
av -

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dees

]

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0244%3A03. Public record. Not legal advice.