Monday, October 4, 2010

Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision

On Friday, the Third Circuit addressed the scope of the Lilly Ledbetter Fair Pay Act (FPA) in Noel v. Boeing Co., 2010 WL 3817090 (3d Cir. Oct. 1, 2010).

The plaintiff brought a Title VII claim based in part on his employer's failure to promote him in 2003. He did not file a charge of discrimination with the EEOC, however, until March 2005. This was well outside the 300-day statute of limitations (a complex issue, but suffice it to say it was 300 days here) so the District Court granted summary judgment in favor of the employer.

But wait! There was still a glimmer of hope for the plaintiff. Congress passed the Lilly Ledbetter Fair Pay Act (FPA) which took effect in 2009. As the Third Circuit described it:
[E]ach paycheck that stems from a discriminatory compensation decision or pay structure is a tainted, independent employment-action that commences the administrative statute of limitations.
See 42 U.S.C. § 2000e-5(e)(3)(A). So, if his failure-to-promote claim was covered by the FPA, he'd be back in business!

Alas, this glimmer of hope was short-lived. The Court held that "a failure-to-promote claim is not a discrimination-in-compensation charge within the meaning of the FPA." Plaintiff's Complaint made no allegations of disparate compensation during the relevant time period and his factual allegations focused on his employer's failure to promote him. Thus, the Third Circuit affirmed the District Court's grant of summary judgment in favor of the employer.

Sidenote: The Court also noted that the only other Circuit to address this issue similarly held that "the FPA's terms do not cover failure-to-promote grievances." See Schuler v. Pricewaterhouse Coopers, LLP, 595 F.3d 370, 375 (D.C.Cir.2010).

Image: Lilly Ledbetter speaks during the second day of the 2008 Democratic National Convention in Denver, Colorado. By Qqqqqq. Reused under Creative Commons Attribution-Share Alike 3.0 Unported license.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.