United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2004 Decided June 3, 2005
No. 03-5325
WILLIAM E. SHEA ,
APPELLANT
v.
CONDOLEEZA RICE,
IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE ONLY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00577)
William E. Shea, pro se, argued the cause for the appellant.
Darrell C. Valdez, Assistant United States Attorney, argued
the cause for the appellee. Kenneth L. Wainstein, United States
Attorney, and Michael J. Ryan, Assistant United States
Attorney, were on brief. R. Craig Lawrence and Robert E.
Leidenheimer, Jr., Assistant United States Attorneys, entered
appearances.
Before: HENDERSON and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the court filed by Circuit Judge HENDERSON.
Separate opinion filed by Senior Circuit Judge WILLIAMS.
HENDERSON, Circuit Judge: William Shea appeals the district
court’s dismissal of his employment discrimination lawsuit
against Colin Powell, the former Secretary of the United States
Department of State1 (State Department), in the same capacity
that he litigated it below—pro se. While the district court
dismissed all of his allegations on the pleadings—finding none
stated a viable claim—Shea seeks review of only one: i.e., that
his pay and benefits are discriminatorily low because the State
Department set his pay grade pursuant to a diversity program
that disadvantaged him on account of his race (white) and
ethnicity (Irish), in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq., and the Equal Protection
component of the Fifth Amendment, U.S. CONST . amend V.
The district court erred in finding the claim time-barred, he
maintains, because each paycheck that he received within the
statute of limitations period and thereafter constitutes a discrete
discriminatory act. We agree and, for the reasons set forth
below, reverse the district court and remand for further
proceedings.
I.
For the purpose of Shea’s appeal, we assume the truth of the
factual allegations contained in his complaint,2 the salient
1
Shea sued Powell in his official capacity as Secretary of State. See
42 U.S.C. § 2000e-16(c). Powell has since resigned and his successor,
Condoleezza Rice, is automatically substituted pursuant to FEDERAL
RULES OF APPELLATE PROCEDURE Rule 43(c)(2).
2
Shea’s complaint was dismissed pursuant to FEDERAL RULES OF
CIVIL PROCEDURE Rule 12(b)(6). See Gilvin v. Fire, 259 F.3d 749,
3
aspects of which we briefly summarize. Shea is a Foreign
Service Officer (FSO) employed by the State Department and
has been so since May 1992. He is also white and of Irish
heritage. In the portion of his complaint he seeks to revive, he
alleged that, at the time of his hiring, he was assigned a lower
pay grade than similarly-situated minority hires pursuant to a
State Department program aimed at achieving diversity in its
workforce. As Shea alleged in his complaint:
[A]t the time I applied for a position as an FSO
in 1991 and started in 1992, the Department was
giving higher starting paygrades to minorities
with the same qualifications I had, and lower
starting paygrades to non-minorities. I was not
eligible to start at a higher grade only because of
my race/ethnicity. I would have started two
paygrades higher than I did, but for my non-
minority race/ethnicity status. The government
interest being advanced by this racially
discriminatory program was, again, achieving
racial balancing (diversity) in the workforce.
Joint Appendix (J.A.) 15. Shea further alleged that, as a result
of this “racially discriminatory program,” he “receiv[es] less pay
with each paycheck than [he] would . . . if [he] had not been
discriminated[] against.” Id. According to his complaint:
At an absolute minimum, even in the unlikely
event that I had never been promoted, if I had
756 (D.C. Cir. 2001) (“In considering the claims dismissed pursuant
to Rule 12(b)(6), we must treat the complaint’s factual allegations as
true, must grant plaintiff the benefit of all reasonable inferences from
the facts alleged, and may uphold the dismissal only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” (internal quotation marks
& citations omitted)).
4
started in 1992 at FS-3 I would today be
receiving pay at no less than the rate of an FS-3
step nine ($68,684 per year) rather than my
current FS-3 step 5 ($61,025). If I had started at
FS-3 and been promoted at about an average
rate, I would now be paid at about the grade of
FS-2 [sic] step 4 ($73,119). If promoted at a
faster-than-average rate, I would be receiving
higher pay than $73,119.
Id. Shea alleged that the receipt of each paycheck constitutes a
“recurring violation of Title VII.” Id.
Shea initially filed a grievance with the State Department, as
required by statute. See 22 U.S.C. § 4134(a). When the State
Department failed to act on his discrimination claims within 90
days, Shea filed his grievance with the Foreign Service
Grievance Board (Board). See id. § 4134(b). The Board
dismissed his grievance, finding that it lacked jurisdiction to
entertain it. Shea then filed suit in federal district court to obtain
review of the Board’s decision, as permitted by statute. See id.
§ 4140.
On September 30, 2003, the district court granted the
Secretary’s Rule 12(b)(6) motion to dismiss Shea’s complaint.
FED . R. CIV. P. 12(b)(6). As to the pay grade discrimination
claim, the district court concluded that “the allegedly
discriminatory act—the assignment of a pay grade two levels
below that of similarly qualified minority hires—did not occur
within the period covered by his administrative complaint.” J.A.
8. The district court first observed that, because a grievance
under the Foreign Service Act is statutorily time-barred if filed
later than 180 days “after the occurrence giving rise to the
grievance,” 22 U.S.C. § 4134(a) & (c)(1), Shea could not
recover on all of the paychecks he received since he was hired
in May 1992 but, at most, only on those received after January
12, 2001, or 180 days before he filed his grievance with the
5
State Department on July 11, 2001. It then concluded that Shea
could not recover on paychecks received after January 12, 2001
either. Relying on Neidermeier v. Office of Baucus, 153 F.
Supp. 2d 23, 29 (D.D.C. 2001), the district court explained that
Shea “did not allege that a discriminatory system akin to those
in Bazemore [v. Friday, 478 U.S. 385 (1986),] and Anderson [v.
Zubieta, 180 F.3d 329 (D.C. Cir. 1999),] was in place when he
filed suit” and thus his “complaint amounted to no more than
allegations of discrimination in May 1992, when he started at a
lower pay grade.” J.A. 8-9.
Shea now appeals.
II.
Our review is de novo. Gilvin v. Fire, 259 F.3d 749, 756
(D.C. Cir. 2001). Construing Shea’s factual allegations and all
reasonable inferences therefrom in his favor, we reverse the
district court’s dismissal of the one claim Shea appeals because
it does not appear “beyond doubt” that he cannot prove a “set of
facts in support of his claim which would entitle him to relief.”
Id.
Shea waited until July 11, 2001, to file an administrative
grievance with the State Department, alleging that he had
received discriminatorily low pay and benefits since he was
hired in May 1992. The rub, as the district court recognized, is
that the Foreign Service Act “forever” bars any grievance based
on alleged discrimination if the grievance is filed more than 180
days “after the occurrence giving rise to the grievance.” 22
U.S.C. § 4134(a) & (c)(1). The question, then, is whether Shea
can state a claim for relief regarding the allegedly discriminatory
paychecks he received both within the limitations period and
thereafter or whether, as the district court concluded, his entire
claim is time-barred.
The Secretary, relying on the holding in Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002), insists that Shea’s entire
6
claim is time-barred. In Morgan, the Court foreclosed the use
of the “continuing violation” doctrine to restore an untimely
claim involving a separate act of discrimination “such as
termination, failure to promote, denial of transfer, or refusal to
hire.” Id. at 113-14. It held that “discrete discriminatory acts
are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Id. at 113. “Each discrete
discriminatory act,” the Court explained, “starts a new clock for
filing charges alleging that act.” Id. Morgan dooms any hope
Shea entertained that his current (and allegedly discriminatory)
paychecks can resurrect his otherwise untimely challenges to the
paychecks he received before January 12, 2001—or 180 days
before he filed his grievance. Whether it also precludes him
from challenging the allegedly discriminatory paychecks
received thereafter is not as clear.
The Secretary contends that Shea merely complains about the
present effects of a past act—namely, the State Department’s
assignment of an allegedly discriminatorily low pay grade in
1992—and therefore even the post-January 12, 2001, claim is
barred. The district court accepted this argument, concluding
that “the allegedly discriminatory act—the assignment of a pay
grade two levels below that of similarly qualified minority
hires—did not occur within the period covered by his
administrative complaint.” J.A. 8. If Shea were complaining of
the assignment of a discriminatorily low pay grade only, we
would agree under a clear line of Supreme Court cases—United
Air Lines, 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
7
of limitations.”3 Cardenas v. Massey, 269 F.3d 251,
3
In Evans, the plaintiff was forced to resign in 1968 because a
United Air Lines policy barred female flight attendants who were
married. See 431 U.S. at 554. Following litigation that held United’s
“no marriage” policy violated Title VII—litigation to which she was
not a party—the plaintiff was rehired in 1972. See id. at 554-55.
When United gave her no seniority based on her earlier service,
however, she sued. See id. at 555-56. While she conceded that any
discrimination claim based on her forced resignation was untimely,
she alleged that the seniority system gave present effect to a past
discriminatory act and “therefore perpetuate[d] the consequences of
forbidden discrimination.” See id. at 557. The Supreme Court
rejected her claim, holding that, notwithstanding the fact that United’s
seniority system perpetuated a past discriminatory act by discounting
her prior service, she had failed to allege any current violation because
the seniority system itself was facially neutral and operated in a non-
discriminatory manner. Id. at 558. “[A] challenge to a neutral
system,” it explained, “may not be predicated on the mere fact that a
past event which has no present legal signific ance has affected the
calculation of seniority credit, even if the past event might at one time
have justified a valid claim against the employer.” Id. at 560.
In Ricks, the plaintiff, a junior professor, alleged that Delaware State
College discriminated against him based on his national origin when
it denied him tenure and instead gave him a one-year “ ‘terminal
contract.’ ” See 449 U.S. at 253. Relying on the continuing violation
doctrine, the plaintiff alleged that the limitations period did not
commence with the College’s tenure decision but with the expiration
of his terminal contract. Id. at 557. The Court disagreed, explaining
that because “the only alleged discrimination occurred–and the filing
limitations periods therefore commenced–at the time the tenure
decision was made and communicated to [the plaintiff],” the “[m]ere
continuity of employment, without more, is insufficient to prolong the
life of a cause of action for employment discrimination.” Id. at 557-
58. “That is so,” said the Court, “even though one of the effects of the
denial of tenure–the eventual loss of a teaching position–did not occur
until later.” Id. at 258 (emphasis in Ricks). “The emphasis is not upon
8
256 (3d Cir. 2001).
Shea’s complaint, however, is not simply that the State
Department discriminated against him in assigning him a lower
pay grade than similarly-situated minority hires in 1992 but that,
as a consequence of the “racially discriminatory” diversity
program it then operated, he “receiv[es] less pay with each
paycheck than [he] would be [receiving] if [he] had not been
discriminated[] against.” J.A. 15 (emphasis added). We
believe this allegation is properly analyzed not under the Evans-
Ricks-Lorance line of precedent, which treats discriminatory
acts under a facially-neutral employment system, but instead
under the holding in Bazemore v. Friday, 478 U.S. 385 (1986).
In Bazemore, the Court unanimously declared that the employer
the effects of earlier employment decisions; rather it ‘is [upon]
whether any present violation exists.’ ” Id. (quoting Evans, 431 U.S.
at 558) (alteration in Ricks).
Finally, in Lorance, the three female plaintiffs alleged that they were
demoted under a seniority system that “ha[d] its genesis in [sex]
discrimination.” 490 U.S. at 905 (internal quotation marks omitted &
alterations in Lorance). Because the seniority system was adopted
outside the limitations period and the plaintiffs alleged neither that it
“treat[ed] similarly situated employees differently [n]or that it [was]
operated in an intentionally discriminatory manner,” the Court, once
again refusing to apply the continuing violation doctrine, found their
challenge untimely. Id. “There is no doubt,” the Court explained,
“that a facially discriminatory seniority system (one that treats
similarly situated employees differently) can be challenged at any
time, and that even a facially neutral system, if it is adopted with
unlawful discriminatory motive, can be challenged within the
prescribed period after adoption.” Id. at 912. But, the Court held,
“[b]ecause the claimed invalidity of the facially nondiscriminatory and
neutrally applied tester seniority system is wholly dependent on the
alleged illegality of signing the underlying agreement, it is the date of
that signing which governs the limitations period.” Id. at 911.
9
committed a separate unlawful employment practice each time
he paid one employee less than another for a discriminatory
reason. See id. at 396 (Brennan, J., concurring, joined by all
other Members of the Court). “Each week’s paycheck that
delivers less to a black than to a similarly situated white is a
wrong actionable under Title VII, regardless of the fact that this
pattern was begun prior to” the limitations period. Id. at 395-
96.
This is not the first time our Circuit has recognized the
distinction between the Evans-Ricks-Lorance line, on the one
hand, and Bazemore, on the other. See Anderson v. Zubieta, 180
F.3d 329 (D.C. Cir. 1999). In Anderson, we said that “Bazemore
was a case in which [the] plaintiffs contended not just that the
pay system was originally adopted for discriminatory reasons,
but that it continued to discriminate unlawfully each time it was
applied,” concluding that the Anderson plaintiffs landed on the
Bazemore “side of the line.” Id. at 336. In Anderson, the
plaintiffs alleged that they received substantially less pay and
fewer benefits than other employees performing the same jobs
because the Panama Canal Commission (PCC) denied them
three types of employee benefits on account of their race and
national origin. See id. at 332. The PCC dismissed the
plaintiffs’ administrative complaint as untimely, concluding that
they had failed to complain within 45 days of both the date on
which the PCC amended the benefit policies as well as the date
they received notice of their exclusion. See id. at 335. We
disagreed, concluding that their complaints were timely because
they “allege continuing violations of Title VII, actionable upon
receipt of each paycheck.” See id. at 336. Relying on
Bazemore, we said that the plaintiffs “do not seek relief for the
PCC’s initial announcement of its discriminatory policies, but
rather for their continued application.” See id. Accordingly, we
held that the plaintiffs’ claim survived summary judgment
because “[i]f plaintiffs’ claim of a present violation is ultimately
proven, it will justify their request to be made whole for those
10
paychecks received during the 45-day window and for all
paychecks issued thereafter.”4 Id. at 337. The same goes here
because, unlike the dismissal in United Air Lines v. Evans, Inc.,
431 U.S. 553 (1977), or the failure to promote in Law v.
Continental Airlines Corp., 399 F.3d 330 (D.C. Cir. 2005), both
of which involved isolated discriminatory acts that had
continuing consequences under neutral salary systems, Shea
alleges a persistent discriminatory salary structure. See
Morgan, 536 U.S. at 112.
The Secretary nevertheless maintains that the Bazemore-
Anderson analysis was put to pasture in Morgan. Not so.
Granted, Morgan restricted the “continuing violation doctrine”
in holding that, while “a hostile work environment claim . . . will
not be time barred so long as all acts which constitute the claim
are part of the same unlawful employment practice and at least
one act falls within the time period,” 536 U.S. at 122, “discrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges,” id. at
113. But Bazemore survives Morgan; indeed, Morgan expressly
relied on Bazemore. See id. at 112. In Morgan, the Court
offered the Bazemore scenario—paychecks delivering less to
one group of employees than another—as an example of the
type of “discrete act” that is actionable under Title VII. See id.
at 111-12. It therefore comes as no surprise that, while several
sister Circuits have recognized that Morgan scuttled the
continuing violation doctrine, none has suggested that, in doing
so, the Court abandoned its holding in Bazemore. See, e.g.,
Williams v. Giant Food, Inc., 370 F.3d 423, 429 (4th Cir. 2004)
(relying on Bazemore to hold failures to promote constituted
4
Anderson, which we decided three years before the Morgan
decision, also allowed the plaintiffs to rely on the “continuing
violation” theory to recover for the paychecks they received before the
45-day limitations period. See 180 F.3d at 337.
11
discrete acts of discrimination); Hildebrandt v. Ill. Dep’t of Nat’l
Res., 347 F.3d 1014, 1027 (7th Cir. 2003) (“[T]he Court in
Morgan reaffirmed the Bazemore statement that each
discriminatory paycheck was a separate discriminatory act that
could give rise to a Title VII action.”); Reese v. Ice Cream
Specialties, Inc., 347 F.3d 1007, 1013 (7th Cir. 2003) (“In light
of the fact that the Supreme Court itself is not yet ready to give
up on Bazemore, we conclude that we are obliged to follow its
rule . . . .”); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1186
(10th Cir. 2003) (noting Morgan cited Bazemore “[a]s an
example”); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130,
134 (2nd Cir. 2003) (noting Bazemore provides “considerable
guidance”); cf. Cherosky v. Henderson, 330 F.3d 1243, 1247
(9th Cir. 2003) (relying on Bazemore to support conclusion that
“discriminatory policy claim does not extend the statute of
limitations”). Nor do we do so here.
The Secretary then responds that, even if Bazemore survives
Morgan, its rationale does not extend to Shea’s case. But the
precedent she relies on to support her assertion—Williams, 370
F.3d 423, and Elmenayer, 318 F.3d 130—in fact does not. In
Williams, the plaintiff alleged that her employer, Giant Food,
failed to promote her based on her age, gender and race, see 370
F.3d at 427, and, in Elmenayer, the plaintiff alleged that his
employer refused his one-time request to accommodate his
religious observance requirements, see 318 F.3d at 133.
Because in each case the complained-of act occurred outside the
limitations period covered by the administrative charge each
plaintiff filed with the Equal Employment Opportunity
Commission (EEOC), however, each sought to proceed under
the continuing violation doctrine. See Williams, 370 F.3d at
428; Elmenayer, 318 F.3d at 134. Both the Williams and the
Elmenayer courts acknowledged the Bazemore rule but both
held that Bazemore did not make their respective plaintiff’s
discrimination claim timely. See 370 F.3d at 429; 318 F.3d at
135. The Fourth Circuit explained that even if Williams’s
12
allegation that the defendant’s failures to promote her were part
of a larger pattern of discrimination, each failure to promote
nonetheless remained a discrete act of discrimination and none
had occurred within the limitations period. See Williams, 370
F.3d at 429. The Second Circuit similarly concluded that
“[o]nce the employer . . . rejected the proposed accommodation,
no periodic implementation of that decision occurs, comparable
to the weekly cutting of a payroll check in Bazemore.”
Elmenayer, 318 F.3d at 135. “Although the effect of the
employer’s rejection continues to be felt by the employee for as
long as he remains employed,” it explained, “that continued
effect is similar to the continued effect of being denied a
promotion or denied a transfer, denials that Morgan offered as
examples of a discrete act.” Id. (citing Morgan, 536 U.S. at
114) (emphasis in Elmenayer). But Shea did not attempt to
breathe new life into discriminatory acts that occurred outside
the limitations period by alleging they were part of a broader
pattern of discrimination, as did Williams, 370 F.3d at 429, or
by relying on their lingering effects in the present, as did
Elmenayer, 318 F.3d at 135. Rather, Shea alleged that the State
Department discriminated against him within the limitations
period (and thereafter) by issuing him discriminatory payroll
checks—or, as the Second Circuit stated, by its “periodic
implementation” of its allegedly discriminatory diversity policy.
Id.
The Secretary, as did the district court, finds support in the
dicta contained in Niedermeier v. Office of Baucus, 153 F. Supp.
2d 23 (D.D.C. 2001). We do not. In Niedermeier, the court
posited that Bazemore and Anderson “stand for the proposition
that when a discriminatory system is in place, each
discriminatory act pursuant to that system is a new act of
discrimination.” Id. at 29. It found the rule inapplicable,
however, because Niedermeier did not “state a current violation”
13
arising from a “discriminatory system.”5 Id. Applying this
formulation of the rule, the district court here concluded that
Shea’s claim likewise failed because his “complaint amounted
to no more than allegations of discrimination in May 1992,
when he started at a lower pay grade” and did not “allege that a
discriminatory system akin to those in Bazemore and Anderson
was in place when he filed suit.” J.A. 8-9. As we noted earlier,
however, 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. See J.A. 15. Shea’s allegation is thus just like the
Anderson plaintiffs’ claim that the PCC’s discriminatory system,
by its “continued application,” “ ‘currently treats similarly
situated employees differently.’ ” 180 F.3d at 336 (quoting
Lorance, 490 U.S. at 912); see also Law, 399 F.3d at 334.
Nor do we agree with the Secretary that our reading of
Bazemore “eviscerate[s] Morgan as well as the time
requirements of Title VII.” Appellee’s Br. at 10. Given that the
holding in Morgan relies on the holding in Bazemore, it is
difficult to see how the application of the latter holding could
“eviscerate” the former. The two decisions dovetail: Bazemore
holds that an employee may recover for discriminatorily low pay
received within the limitations period because each paycheck
constitutes a discrete discriminatory act, see 478 U.S. at 396,
and Morgan rejects the continuing violation theory because
“discrete discriminatory acts are not actionable if time barred,
5
Before the district court offered this analysis, it concluded that
“neither of these cases is new law and thus plaintiff’s attempt to raise
this argument post-judgment is not a sufficient ground for
reconsideration.” Niedermeier, 153 F. Supp. 2d at 29. The court thus
underlined the fact that what followed was dictum, noting that “even
considering the merits of plaintiff’s new legal argument, her claim
would fail.” Id. (emphasis added).
14
even when they are related to acts alleged in timely filed
charges,” 536 U.S. at 113.
We likewise cannot accept the Secretary’s related contention
that allowing Shea’s claim to proceed would “severely prejudice
[the Department] by forcing it to defend stale charges based on
actions that allegedly occurred long ago.” Appellee’s Br. at 9.
The Secretary is undoubtedly correct that “[s]tatutes of
limitation are statutes of repose; their purpose is to quiet stale
controversies, the evidence as to which may be eroded by time.”
Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., 452 F.2d
1346, 1356 (1970). These statutes, the Supreme Court tells us,
strike a balance between important but competing interests:
“ ‘[T]he period allowed for instituting suit inevitably reflects a
value judgment concerning the point at which the interests in
favor of protecting valid claims are outweighed by the interests
in prohibiting the prosecution of stale ones.’ ” Ricks, 449 U.S.
at 259-60 (quoting Johnson v. Ry. Express Agency, Inc., 421
U.S. 454, 463-64 (1973)); see also Lorance, 490 U.S. at 912.
But Shea’s challenge to the allegedly discriminatory paychecks
he received within the limitations period and thereafter has not
reached that point because Bazemore and Anderson tell us that
his challenge presents a claim that is protected. It is protected
because the current application of a discriminatory
system—here involving discriminatorily low paychecks—does
not present a stale claim.
Finally, the Secretary asserts that the Bazemore rule is
unavailable to Shea because it is limited to private class actions
and to suits brought by the government ex relatione on a pattern-
or-practice theory only. Bazemore is a pattern-or-practice case
but we find nothing in Bazemore to suggest that its holding is so
limited. See 478 U.S. at 395-96. Indeed, Morgan signals that it
was not so limited: the Court in Morgan had no trouble relying
on Bazemore’s holding despite the fact that Morgan made no
pattern-or-practice allegation. See 536 U.S. at 112, 114 n.7.
15
Circuit courts have similarly rejected the Secretary’s suggested
limitation. See, e.g., Hildebrandt, 347 F.3d at 1028 (holding
plaintiff who did not allege pattern-or-practice discrimination
could recover under Bazemore for “discriminatory pay received
within the statute of limitations period”); Reese, 347 F.3d at
1013 (same); Cardenas, 269 F.3d at 256-58 (same).6
For the foregoing reasons, the judgment of the district court
granting the Secretary of State’s motion to dismiss is reversed
and the case is remanded for further proceedings in accordance
with this opinion.
So ordered.
6
On this point, the Secretary cites two cases but neither supports her
position. In a parenthetical, she claims that the Ninth Circuit in
Cherosky “refus[ed] to allow non-class private plaintiffs to use
Bazemore to revive [an] action time-barred under Morgan.”
Appellee’s Br. at 7. That the plaintiffs were not class members played
no part in the decision and the court in fact relied on Bazemore in
concluding that “a discriminatory policy claim does not extend the
statute of limitations.” See Cherosky, 330 F.3d at 1247-48. The
Secretary also relies on Haynie v. Veneman, 272 F. Supp. 2d 10
(D.D.C. 2003), claiming that the district court there “declined to
permit a plaintiff to use Bazemore to evade the limitations period,
reasoning that ‘although plaintiff alleges that defendant engaged in a
‘pattern of racial discrimination’ . . . directed against [plaintiff] and
members of his family . . . this is not the type of claim intended by the
[Morgan] Court’s reference to ‘pattern-and-practice’ claims.”
Appellee’s Br. at 8. But the district court did not mention any
Bazemore limitation in observing that the plaintiff’s claim that the
defendant engaged in a “pattern of racial discrimination” likely did not
fall within the exception the Court alluded to in Morgan for
“allegations of systematic discrimination agains t a protected class of
individuals where the alleged acts reflect an intent to discriminate
against all persons in the class.” Haynie, 272 F. Supp. 2d at 17 n.4
(emphasis in Haynie).
WILLIAMS, Senior Circuit Judge, concurring: I write
separately to underscore the precise distinction that we draw,
following the Supreme Court to the best of our ability,
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. The distinction
turns, as I see it, on whether one may reasonably characterize
the defendant employer as applying a discriminatory salary
structure in the unbarred period. See Maj. Op. at 9-10.
First, of course, we put aside hostile environment claims,
which under National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 113-15 (2002), are treated as continuing
violations because they involve “repeated conduct” that
“cannot be said to occur on any particular day.” Id. at 115.
Further, because of their cumulative character the plaintiff
may not even have a claim until the behavior has persisted for
some time. See Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir.
1997) (citing Dasgupta v. University of Wisconsin Board of
Regents, 121 F.3d 1138, 1139 (7th Cir. 1997)).
Among cases of discrete acts, those allowing recovery
include Bazemore v. Friday, 478 U.S. 385 (1986), and
Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999). In
Bazemore the state agency employers had integrated
previously separate black and white agricultural extension
services, but made only partial equalizing pay adjustments.
478 U.S. at 391. The Court regarded their recent conduct as
persistence in a discriminatory system, as it made clear in
contrasting United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977). There the plaintiff flight attendant had been fired
years before because she had married; after being rehired she
complained that the resulting gap in her employment history
was currently affecting her seniority. The Bazemore Court
2
said that in Evans the “employer was not engaged in
discriminatory practices at the time the respondent . . . brought
suit,” 478 U.S. at 396 n.6, thus implying that the Bazemore
defendants were “engaged in discriminatory practices” in the
unbarred period. And in Anderson the employer, the Panama
Canal Commission, had started its complex and
discriminatory classification system in the barred period and
was applying precisely that system to plaintiffs in the
unbarred period. 180 F.3d at 334-35.
On the other side are cases where a plaintiff cannot
recover for a pay discrepancy in the unbarred period arising
from an employer’s act of alleged discrimination in a barred
period. The clearest example is Evans itself. At least in
ordinary language, it seems impossible to describe the airline
as currently applying a seniority policy that itself
discriminated on the basis of marital status. The Court, after
all, declared the system to be “neutral in its operation.” 431
U.S. at 558.
In Lorance v. AT&T Technologies, 490 U.S. 900 (1989),
the Court applied the Evans model. Plaintiffs claimed that the
employer’s one-time change in its method of computing
seniority (moving from service at a plant to service in a
specific type of work) had a disparate impact on female
employees, affecting their promotion and demotion (and thus
their pay) in the present. Id. at 902-03. Although plaintiffs
alleged that the shift had been intentionally discriminatory, the
Court found their claims barred because plaintiffs failed to
show, as required under the Court’s cases for a successful
challenge to a seniority system under § 703(h) of Title VII, 42
U.S.C. § 2000e-2(h), a “discriminatory intent” in the unbarred
period. See Lorance, 490 U.S. at 908-09. Again, without
3
linguistic contortions it would be difficult to describe the
employer’s ongoing system as discriminatory.
Most recently in Law v. Continental Airlines Corp., Inc.,
399 F.3d 330 (D.C. Cir. 2005), retired pilots requested “pay
protection”—seniority-based compensation awarded pilots
who were promoted to fly certain classes of aircraft but were
not actually flying them—that they would have received had
they not been (we assumed arguendo) discriminatorily denied
promotion in a barred period. We found the pilots’ claims
barred in light of Evans. Id. at 334.
Morgan, the district court’s main ground for barring
Shea’s claim, explicitly preserves Bazemore, which Morgan
described as addressing “a discriminatory salary structure.”
536 U.S. at 112. See also Maj. Op. at 10. It would be very
odd to use such a term for the facts in Evans, Lorance or Law.
The alleged wrong to each plaintiff or set of plaintiffs was an
isolated act—dismissal in Evans, revision of seniority
computation in Lorance, failure to promote in Law. The acts
had consequences under the employer’s non-discriminatory
seniority system, to be sure, but they could hardly be
described as launching a two-class pay structure based on a
forbidden criterion.
Shea, however, alleges just such a structure. See
Complaint at ¶ 6(b) (“[A]t the time I applied for a position . . .
the Department was giving higher starting paygrades to
minorities with the same qualifications I had, and lower
starting paygrades to non-minorities.”); ¶ 6(c) (“Because of
the . . . discrimination noted [earlier], I am today receiving
less pay with each paycheck than I would be if I had not been
discriminated against . . . . This is a recurring violation of
Title VII with the receipt of each paycheck.”). We can grasp
4
the allegation most easily if we imagine Shea’s situation in a
world with no inflation and no “time in grade” pay increases.
In such a world, it appears from his complaint, the State
Department’s current pay policy could reasonably be
described as follows: “Everyone will be paid $XX,XXX
except that (1) employees who have received special merit
promotions or demotions will also receive whatever
increments or decrements were prescribed at the relevant
times, and (2) white employees hired in 1992 will receive five
per cent less than they would otherwise.” This would look
very much like Bazemore and Anderson. It is hard to
construct a similar sentence to describe the policies being
applied in Evans, Lorance or Law.
Distinguishing currently discriminatory pay structures
from other, related employer policies is hardly an exact
science. Were we to start from scratch, we might find more
transparent criteria. But the distinction advanced above
appears to reconcile the cases. We therefore follow it here.