United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2005 Decided February 25, 2005
No. 03-7153
RICHARD LAW, ET AL.,
APPELLANTS
v.
CONTINENTAL AIRLINES CORPORATION, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01711)
Daniel S. Kozma argued the cause and filed the briefs for
appellants.
Jon A. Geier argued the cause and filed the brief for
appellee.
Before: GINSBURG, Chief Judge, and GARLAND, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
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WILLIAMS, Senior Circuit Judge: Continental Airlines
generally promotes its pilots based on seniority. The Federal
Aviation Administration’s Age 60 Rule, however, bars airlines
from employing pilots aged 60 years or older. 14
C.F.R. § 121.383(c). Because training to pilot new aircraft may
take months, an airline might find itself training a pilot at
considerable expense who would have little or no opportunity to
use the acquired skills flying the airline’s planes. To avoid that,
Continental negotiated with its pilots union not to promote pilots
aged 58 or older to positions requiring new training, but to give
those pilots “pay protection”—the salary they would have
earned on promotion. Under the resulting provision, 1998
Collective Bargaining Agreement (“CBA”) § 9(3)(K)(2),
Continental would “pay protect[]” a pilot aged 58 or older not
accepted for promotion from the day the junior pilot who was
awarded the slot assumed his new position after training.
Plaintiffs, three retired pilots not accepted for promotion at
age 58 and thus covered by § 9(3)(K)(2), contrast that provision
with another section of the CBA, § 3(12)(B), which gives pay
protection to a pilot who is accepted for promotion but is
leapfrogged by a junior pilot, starting from the day the junior
pilot begins training. Plaintiffs brought an “opt-in” class action
suit against Continental, requesting accelerated pay protection
akin to that of § 3 rather than delayed pay protection under § 9.
The district court deemed their claims time-barred and granted
Continental’s motion for summary judgment. We affirm.
* * *
Viewed in the light most favorable to the plaintiffs, the
relevant facts are as follows. Plaintiffs Law, Davis, and
Krichbaum bid for captaincies that Continental made available
in May 1999. Continental awarded the captaincies two months
3
later, selecting junior pilots because plaintiffs would retire fewer
than two years after promotion. The junior pilots awarded bids
over Law and Davis began training in September 1999, while
Krichbaum alleges the awarded junior pilot in his case began
training in December 1999. Davis bid unsuccessfully for
another captaincy in January 2000, for which the awarded junior
pilot began training that same month.
Under § 9(3)(K)(2) of the CBA, “[a] pilot . . . 58 years old
or older on the effective date of a system staffing will not be
awarded a higher status . . . but will be pay protected . . . on the
effective date of the bid.” (emphasis added). The bid’s effective
date is the date the junior pilot formally assumes his new
position after completing training. Pursuant to § 9, Continental
pay protected plaintiffs for the May 1999 openings beginning in
June 2000, and pay protected Davis for the January 2000
opening beginning in January 2001. By contrast, a pilot
accepted for promotion and covered by § 3(12)(B) “will be pay
protected when a junior pilot is advanced to his new sub-base
and status before a more senior pilot is advanced to the same
sub-base and status on the same system staffing award.”
(emphasis added). Advancement to a new sub-base corresponds
to the first day of pre-promotion training. Continental and the
union eventually revised § 9 to match the timetable of § 3, but
too late—December 2000—to apply to plaintiffs. Letter of
Agreement 12.
On learning that Continental, in response to 1996
grievances, had pay protected two 58-year-old pilots from the
day the promoted junior pilots began training, Law and Davis
filed grievances, which Continental denied in February 2000.
Law and Davis then filed charges of age discrimination with the
Equal Employment Opportunity Commission (“EEOC”) in
January 2001 and April 2001, respectively. Krichbaum appears
4
to have filed no grievance; he attempted to file a charge at the
EEOC in September 2001, but we are told that the EEOC
rejected the filing because it repeated Law’s charge. Law and
Davis received right to sue letters, and plaintiffs filed a
complaint in the district court in August 2001.
The court granted Continental’s motion for summary
judgment and dismissed the suit with prejudice. Plaintiffs’
claims were time-barred, the court held, because plaintiffs did
not file EEOC charges within 300 days of Continental’s alleged
discrimination, as the Age Discrimination in Employment Act
(“ADEA”) requires. 29 U.S.C. § 626(d)(2). The court found no
discrimination within the statutory window because the two
relevant sections of the CBA did not treat similarly situated
employees differently. On appeal, we review the district court’s
grant of summary judgment de novo. Apotex, Inc. v. FDA, 393
F.3d 210, 216 (D.C. Cir. 2004).
* * *
Plaintiffs revised their main argument between briefs.
Compare Appellants’ Brief at 21-24, with Reply Brief at 11-12.
The apparently final version is that “each paycheck within the
300 day limitations period is separately actionable, but those
falling outside of the limitations period are time-barred.” Reply
Brief at 12. Each paycheck under § 9 was discriminatory, they
contend, because § 9 denies pilots 58 years or older the benefits
of § 3’s general rule of accelerated pay protection. Accordingly,
Continental allegedly owes plaintiffs for the months within the
ADEA window during which the awarded junior pilots were
training but had not yet assumed their new captaincies. That
period evidently comprises April and May 2000 for Law, and
June to December 2000 for Davis. EEOC did not accept
Krichbaum’s attempted filing, and nothing in the record in any
5
event indicates he is entitled to relief within what would have
been the ADEA window.
Plaintiffs rely principally on Bazemore v. Friday, 478 U.S.
385 (1986), which permitted black agricultural workers to
recover from a state agency for salary discrimination that
predated the violated statute. Id. at 390-91. “Each week’s
paycheck that delivers less to a black than to a similarly situated
white is a wrong actionable under Title VII, regardless [whether]
this pattern was begun prior to the effective date of Title VII.”
Id. at 395-96. Plaintiffs thus view each pay-unprotected
paycheck within the 300-day window as discriminatory and
separately actionable. They concede, in turn, that any deficient
prior paycheck is a “discrete act,” so that claims based on such
acts are time-barred “even when they are related to acts alleged
in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002); see also id. at 111.
Continental regards Bazemore as inapt, arguing that the
plaintiffs here were not “similarly situated” to the pilots who
enjoyed § 3 pay protection. Continental also argues that any
discrimination conceivably playing a role in the paycheck
differential must have occurred in the time-barred period when
the plaintiffs were not accepted for promotion. Continental cites
in support Taylor v. FDIC, 132 F.3d 753 (D.C. Cir. 1997), for
the reminder that “an untimely suit cannot be revived by
pointing to effects within the limitations period of unlawful acts
that occurred earlier.” Id. at 765 (internal quotation marks and
citation omitted). “Appellants,” Continental complains,
“attempt to make the consequences of the act (less pay) appear
to be the discriminatory act, rather than the act that caused their
pay to remain at the same level (the bid denial).” Appellee’s
Brief at 34-35 (citing Delaware State College v. Ricks, 449 U.S.
250, 258 (1980)). We agree with Continental’s analysis.
6
According to Morgan, “[e]ach discrete discriminatory act
starts a new clock for filing charges alleging that act.” 536 U.S.
at 113. To call a paycheck a discrete act is simple enough, but
plaintiffs’ claims survive only if the disputed paychecks are
“discriminatory.” This would be true if Continental’s seniority
system were facially discriminatory. “There is no doubt, of
course, that a facially discriminatory seniority system ( one that
treats similarly situated employees differently) can be
challenged at any time.” Lorance v. AT&T Technologies, 490
U.S. 900, 912 (1989) (emphasis added). “[T]he normal
definition of discrimination [is] differential treatment of
similarly situated groups.” Olmstead v. L.C. ex rel Zimring, 527
U.S. 581, 613 (1999) (Kennedy, J., concurring).
Plaintiffs argue the CBA is facially discriminatory because
§ 9 “den[ies] pay protection to pilots each month solely because
of their age.” Appellants’ Brief at 38. This is incorrect. By the
CBA’s terms, pilots enjoying pay protection under § 9 have “not
be[en] awarded a higher status” (emphasis added), whereas
those subject to § 3 have been “awarded” a promotion and will
be “pay protected” until they are “advanced” to the promoted
position. In other words, § 3 applies to a senior pilot who is
awarded promotion and therefore ultimately will advance, and
it bases pay protection not on the senior pilot’s age, but on the
fact that he will be advanced. Plaintiffs instead urge us to read
§ 3 as a “general rule” of accelerated pay protection, Appellants’
Brief at 19, by which they evidently mean a rule extending
accelerated pay protection to pilots who are not accepted for
promotion. But such a reading violates the language of § 3.
Plaintiffs seek help from Letter of Agreement 12, which
revised § 9 to render covered pilots “pay protected, in
accordance with § 3.” But, assuming the Letter’s admissibility,
its language only confirms that pilots under § 9 were previously
7
beyond § 3’s reach. Sections 3 and 9 are therefore not facially
discriminatory, and cannot in themselves render the paychecks
within the 300-day window actionable.
The present case is thus quite distinct from Bazemore and
our own decision in Anderson v. Zubieta, 180 F.3d 329 (D.C.
Cir. 1999). In Bazemore the employing agency had
“perpetuat[ed]” pay discrimination against blacks “after the
[agency] became covered by Title VII.” 478 U.S. at 395. And
in Zubieta the plaintiffs attacked the “continued application” of
a racially discriminatory policy, saying that the “policy currently
‘treats similarly situated employees differently.’” 180 F.3d at
336 (quoting Lorance, 490 U.S. at 912).
Plaintiffs are thus left with an allegation that Continental
discriminated against them by denying them advancement to
new positions, which would have made them eligible for § 3’s
relatively early pay protection. But that act occurred in the time-
barred period, and even if discriminatory, is like plaintiff flight
attendant’s forced resignation because of her marriage in United
Air Lines, Inc. v. Evans, 431 U.S. 553, 554 (1977). Although
the resignation interrupted Evans’s career with United and thus
caused her to enjoy less seniority and lower pay and fringe
benefits when she returned four years later to work for the
airline, her claim that “the seniority system [gave] present effect
to the past illegal act and therefore perpetuate[d] the
consequences of forbidden discrimination” could not render
those differentials currently actionable. Id. at 557-58.
Morgan does, however, contain one caveat that plaintiffs do
not raise. It allows plaintiffs to use “prior acts as background
evidence in support of a timely claim.” Morgan, 536 U.S. at
113. Put another way, a prior act “may constitute relevant
background evidence in a proceeding in which the status of a
8
current practice is at issue.” Evans, 431 U.S. at 558. The exact
scope of this caveat is unclear. Whatever the caveat’s precise
reach, such background evidence cannot suffice where plaintiffs
have offered no evidence of discriminatory purpose other than
(at most) the discrete time-barred decision not to advance them.
To decide otherwise would completely undo Morgan’s
insistence that “[e]ach discrete discriminatory act starts a new
clock for filing charges alleging that act.” 536 U.S. at 113. Cf.
Lorance, 490 U.S. at 901-06 (interpreting Title VI’s seniority
provisions to bar claim by female plaintiffs, demoted in an
unbarred period as a result of an earlier, facially neutral
modification of the employer’s seniority system, a modification
plaintiffs alleged had been adopted “in order to protect” male
employees).
The judgment of the district court is
Affirmed.