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Tuesday, May 29, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! With just one opinion this week, the Court is teeing up an extremely busy June.  Twenty-eight cases remain to be decided, so the Chief will have to start cracking the whip on his colleagues to meet a nearly one-case-a-day-pace if he wishes to finish on time. In other action, the Court cranked up the grant machine once again as it belatedly starts to populate its puny OT ’07 fall docket. Let’s recap the action.

Ledbetter v. Goodyear Tire & Rubber Co., 05-1074

Title VII requires a victim of employment discrimination to file a “charge” with the EEOC within 180 days of the discriminatory act; failure bars the plaintiff from bringing a federal lawsuit. Plaintiff Ledbetter received an allegedly sex-discriminatory performance evaluation that caused her to be denied an annual raise, but she failed to file an EEOC charge within 180 days. Instead, she filed a charge years later. She tried to satisfy the 180-day limit by arguing that each subsequent lower paycheck she received was a new discriminatory act since it ultimately resulted from the discriminatory evaluation. She did not, however, argue that Goodyear issued each paycheck with discriminatory intent, simply that Goodyear unknowingly carried forward the effect of the discriminatory evaluation.

Affiriming the CA11, the Court found Ledbetter’s claim barred by her untimely EEOC charge. Justice Alito (+ JGR, AS, AMK, CT) held that a claim accrues, and the 180-day clock starts ticking, when both elements of a Title VII violation occur—a discriminatory act coupled with discriminatory intent. Thus, the clock started running with the initial evaluation and raise denial. The clock did not restart with each subsequent lower paycheck because those paychecks were issued without discriminatory intent. SAA found this result compelled by 4 precedents holding that the continuing effects of past discrimination do not restart the 180-day clock. One of those precedents was a 1977 majority opinion by Justice Stevens, which Alito thoughtfully block-quoted for the benefit of the dissenters. (In fairness to JPS, the opinion was from his conservative days. Oh wait, I forgot, he is still conservative!) The Court also rejected Ledbetter’s argument that Bazemore v. Friday (1976) supported a paycheck-accrual rule, reading that decision as merely finding liability based on paychecks issued with discriminatory intent.  And the Court  rejected an analogy to hostile-work-environment claims, which may be brought within 180 days of the existence of a hostile environment, because Ledbetter’s claim alleged distinct temporal acts, not “a single wrong consisting of a succession of acts.” Finally, SAA declined to consider policy reasons for treating pay claims differently than other discrimination claims: Congress chose to subject all claims to a short, 180-day statute of limitations to prevent stale claims that would require inquiry into an employer’s intent in the distant past.

RBG (+3) dissented, feeling especially lonely for SOC’s fairly reliable vote on sex-discrimination issues. Justice Ginsburg reasoned that pay discrimination is different from other discriminatory employment actions (e.g., termination, non-promotion) because it often becomes apparent only over time, and she distinguished the majority’s precedents on this basis. RBG would treat pay claims more like hostile-environment claims and allow them to be brought within 180 days of any paycheck “infected by gender-based discrimination.” She argued that such an approach would be more consistent with Bazemore and the 1991 Civil Rights Act’s intent to make it easier to challenge the continuing effects of past discriminatory actions. Concerns about stale claims could be addressed through common-law defenses such as laches, RBG thought.  She closed her dissent by inviting Congress “to correct this Court’s parsimonious interpretation of Title VII.”

OPINION WATCH: With SAA’s majority opinion in Ledbetter, only the racial-integration cases remain from December, with only the Chief left to write. Unless he lost his majority, this will likely be the most important opinion of JGR’s young career.

Grants/CVSG

The Court’s 4 grants start with a fairly interesting arbitration question and go downhill rapidly from there.

Hall Street Associates LLC v. Mattel, Inc., 06-989

With this grant, the Court wades into a long-percolating 2-2 circuit split over whether parties may contract for more searching judicial review of an arbitration award than the Federal Arbitration Act provides. CA9 and CA10 say no, because the FAA provides the only terms for judicial review of arbitral awards. CA3 and CA5 say yes, because arbitration is all about enforcing contracts, and parties should be able to contract for more rigorous judicial review if they so choose.

CSX Transportation, Inc. v. Georgia State Board of Equalization, 06-1287

Ever wonder why tax assessors are euphemistically called boards of “equalization.” Well, this case won’t answer that question. But it will tell us whether a railroad may challenge a state’s method for calculating property taxes, as opposed to challenging the application of a given method. In doing so, the Court will have to interpret an Act so dense that Congress did not even bother to bless it with a euphonic acronym: the Railroad Revitalization & Regulatory Reform Act (pronounced Rur-rurr-rah by industry insiders).

John R. Sand & Gravel Co. v. United States, 06-1164

Despite the promising title, this case does not involve a reconsideration of Bedroc v. United States (2004)’s landmark holding that sand and gravel are not “valuable minerals” under federal mining laws. That utterly unimportant case epitomized the fractured decisions of the late Rehnquist Court: The Court split 4-2-3, and a footnote war ensued, with plurality author WHR pointedly citing John Marshall in response to JPS’s dissenting invocation of Israeli Chief Justice Aharon Barak. But alas, next Term’s sand-and-gravel extravaganza will probably produce no such fireworks. The question presented is whether the Tucker Act’s 6-year statute of limitations for claims against the United States is jurisdictional or may be waived by the government.

Ali v. Federal Bureau of Prisons, 06-9130

This case concerns a question so pressing that the Court allowed a 6-4 split to develop before begrudgingly granting it today. The Federal Tort Claims Act’s waiver of sovereign immunity does not cover “the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” Might the term “other law enforcement officer” be broad enough to cover a claim against prison officials for losing an inmate’s belongings? The SG hopes so, while inmate Ali understandably sees it differently.

Finally, the Court CVSG’d in United States ex rel. Bly-Magee v. Premo (06-1269), which asks whether public disclosure by a state or local official bars a qui tam False Claims Act suit under 31 U.S.C. § 3730(e)(4)(A). 

All in all, next Term looks positively thrilling so far. Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. 

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Posted by Administrators on May 29, 2007 at 07:57 PM in Constitutional thoughts | Permalink

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Comments

Simon:

In your hypo, I see why upper management might find that unfair, but I still don't think the statutory language necessarily precludes plaintiff from recovering. Also, one could add facts that make it more sympathetic to the plaintiff: what if the company had a rule explicitly forbidding upper-level managers from discussing their salaries with each other (permissible in at least most places if the employees aren't covered by the NLRA). Then, at the party, the hiring person says, "hey, you know what, I feel guilty about never telling you, but we've always had a policy of paying similarly-situated men less than women. And we've laughed and laughed at you guys not figuring that out."

Now, you might say, "but you're relying on a policy argument -- that it can often be hard to learn of pay discrepancies caused by old decisions." And it's true, I do think policy supports the plaintiff in this situation. But as a matter of statutory interpretation, I still don't see why the 180-day SOL as a matter of law automatically precludes each paycheck as being seen as another act of discrimination. One can analogize to the "discovery" rule -- when should plaintiff reasonably have known about this? I'm not saying it's an obvious slam dunk for plaintiffs, but since I don't think the statute dictates an answer, I think the court might have considered the policies and purposes of the rule and the statute, what the EEOC thought, etc.

Of course, that and $3.50 will get Ms. Ledbetter a grande latte at Starbucks. The Supreme Court has spoken. But I hope that Congress will address this matter.

Posted by: Joseph Slater | May 31, 2007 11:02:47 AM

Joseph,
I would say that my skepticism is rooted in the principle that cutting a paycheque is inherently a neutral act, and that only the determination of how much it's worth can be discriminatory. Hence, issuing a paycheque can't violate Title VI because it lacks the necessary coupling of discriminatory intent and some kind of action consummating that intent. But setting that aside for sake of argument, as a general matter, would it be your view that Justice Stevens was wrong in Mohasco? Because it seems to me that if that case was correct, then calling each pay packet a clock-starting event hollows out the purpose of the filing period. It may well be the case that the purpose of the filing period is at odds with the broader purpose of Title VII, but as Justice Stevens pointed out, that seems to be the trade-off that Congress decided to make. If each individual pay packet starts the clock anew, the statute of limitations evaporates: an employee has a claim at any time they are employed and thereafter 180 days after the last time they receive a paycheque.

Suppose you work for Boeing for thirty years, being paid monthly on the last day of the month. You then announce you're leaving, and on your last day - which is in the first week of whatever month, so you'll be getting a prorated paycheque three weeks later - they throw you a big party. At the party, the guy who hired you says that he's got a confession to make: he had discretion to increase or decrease starting pay by 10% based on his judgment of applicants' experience and qualification. He never told anyone else this, and certainly no one in Boeing's management, but when you interviewed, he's just read, you know, Andrea Dworkin, Germaine Greer, whoever, and was filled with righteous anger at the men of the world. Striking a blow for social justice, he deflated your starting salary by 10%, discriminating based on your gender. On these facts, setting aside questions of whether the filing period can toll for that long, do you still have a claim until 180 days after the last day of that month? The position Ledbetter and the Ledbetter dissenters would have had the court adopt would have to hold "yes," I would think, because every paycheque cut since that initial hiring draws from a poisoned well, and thus you can always recover until you've left.

Which, I suppose, may even be good policy, I don't know - but it's hard to reconcile with the existence of a limitation on when they can bring the claim.

Posted by: Simon | May 31, 2007 10:24:31 AM

Simon:

Thanks for the direct link and the reply. I agree that "180 days" is a fairly brutal time-period that is explicitly in the statute. But I'm not so sure that the statutory text dictates exactly what does, and does not, trigger the running of that 180 days. For example, the EEOC here agreed with plaintiffs (yeah, I know about deference due).

Anyway, Congress has had to amend Title VII before (1991) to fix either court decisions or inadequate language. We'll see what happens with this.

Posted by: Joseph Slater | May 30, 2007 1:27:00 PM

^ The direct link to Paul's post is here. Respectfully, in my view, Paul's argument that "this decision is inconsistent with the purposes of the Title VII" amounts to an argument that Title VII was badly drafted such that its text is inadequate to its purpose. The court's decision is entirely correct if one believes that courts should give effect to what the statute actually says, compared to what one might wish it to say, or what some members of Congress might have preferred it to say. In media coverage, this decision is being portrayed as the imposition of a fairly brutal timeline by the court, while it is in fact a fairly brutal timeline imposed by Congress. As Justice Stevens pointed out in a previous Title VII case, "it seems clear that … [imposing the filing period] represented a judgment [by Congress] that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination." Mohasco, 447 U.S. at 820.

The filing period may well "lead[] to an absurd situation where employees either must bring pay claims prematurely when there is not enough evidence that there has been unlawful pay discrimination or wait to a later time when there exists more substantial evidence of pay discrimination and be barred from bringing such claims by the statute of limitations," and both Paul and Justice Ginsburg seem to have the best of the argument that the statute should be amended, but it comes down (as ever) to a question of who gets to decide: if the statute, correctly construed, is inequitable or in tension with its purposes, should the court fix the mistake or leave that to Congress? It seems clear to me it's the latter.

Posted by: Simon | May 30, 2007 11:37:42 AM

For a thoughtful argument that Ledbetter came out the wrong way, see Paul Secunda's post in Workplace Prof blog:

http://lawprofessors.typepad.com/laborprof_blog/

Posted by: Joseph Slater | May 30, 2007 10:53:30 AM

The Mattel case is a very important case because it has the potentiai to change contract law in this country by allowing parties to alter the applicable standard of judicial review on the basis of freedom of contract principles. My brief review of this issue can be found here http://lawprofessors.typepad.com/adjunctprofs/2007/05/supreme_court_g.html
On my blog, you can also find a link to a law review article I wrote which discusses whether the standard of judicial review can be altered in labor arbitration and, in so doing, I discuss the applicable FAA decisions.
Mitch Rubinstein

Posted by: Mitchell Rubinstein | May 30, 2007 12:41:17 AM

Ledbetter came out essentially as I'd hoped, and I have a post talking about it here, if anyone's interested.

Posted by: Simon | May 30, 2007 12:06:06 AM

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