United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2009 Decided February 16, 2010
No. 08-7115
HAROLD SCHULER,
APPELLANT
v.
PRICEWATERHOUSECOOPERS, LLP, ET AL.,
APPELLEES
Consolidated with 08-7116, 08-7120
Appeals from the United States District Court
for the District of Columbia
(No. 1:02-cv-00982-RJL)
Richard A. Salzman argued the cause for appellant C.
Westbrook Murphy. Joshua N. Rose argued the cause for
appellant Harold Schuler. With them on the briefs were
Douglas B. Huron and David L. Rose. Tammany M. Kramer
entered an appearance.
Howard M. Shapiro argued the cause for appellee. With
him on the brief were Juanita A. Crowley, Edward C.
DuMont, Eric M. Nelson, and Stephen L. Sheinfeld.
2
Before: GINSBURG and HENDERSON, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The appellants, Harold Schuler
and C. Westbrook Murphy, sued PricewaterhouseCoopers,
LLP (PwC) alleging the firm refused to make them partners
because of their ages, in violation of the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the
District of Columbia Human Rights Act (DCHRA), D.C.
Code § 2-1401.01 et seq., and the New York Human Rights
Law (NYHRL), N.Y. Exec. Law § 290 et seq. The district
court (1) dismissed as untimely Schuler’s claims under the
ADEA for 1999 and 2000, (2) granted summary judgment for
PwC on Schuler’s claims under the ADEA and DCHRA for
2001 and on Murphy’s claims under those laws for 2000,
2001, and 2004, and (3) dismissed all counts under the
NYHRL for failure to state a claim.
We reverse the judgment of the district court insofar as it
dismissed the claims brought under the NYHRL. In all other
respects we affirm the judgment of the district court.
I. Background
PwC is a partnership headquartered in New York that
provides accounting, auditing, and other services to clients
worldwide. It has more than 20,000 employees and more
than 2,000 partners in the United States. The partnership
agreement provides each partner shall retire upon reaching
age 60 but in extraordinary circumstances a partner may delay
retirement until he reaches age 62. The structure of the
compensation and benefits package provided to a new partner
3
makes it financially undesirable for most employees over the
age of 55 to become partners.
During the years relevant to this case, PwC was
organized into several divisions, which were subdivided into
practices, each comprising multiple practice groups. The firm
hired Schuler in 1988, when he was 44 years old, and Murphy
in 1989, when he was 49, to work in the Regulatory and
Advisory Services (RAS) practice group in Washington, D.C.
The RAS was part of the banking practice, which was in turn
a part of the Audit and Business Advisory Services division.
The RAS had four or five partners and about two-dozen other
employees.
The process for selecting a new partner at PwC began at
the practice group level. Each year the managing partner or a
group of partners in each practice group could propose one or
more employees to be considered for partner. Current
partners were then asked to submit their reviews of that
employee — called “soundings” — to an evaluation
committee. An employee who received sufficiently numerous
and favorable soundings proceeded through further stages of
review and could be made a partner as of July of the
following year.
In 1998 the RAS proposed Schuler, then 55, for partner.
Only 12 partners submitted “soundings” about Schuler (six
favorable, two unfavorable, and four reporting insufficient
information), and he was not made a partner in 1999.
In 1999 the head of the RAS proposed another employee,
then 37 years old, for partner. He also wanted to propose
Schuler again but the head of the banking practice was not
amenable because, as he later explained, he believed there
had been “no significant change in circumstances or views”
about Schuler since the previous year. Twenty-two partners
submitted soundings about the other candidate (17 favorable,
none unfavorable, and five reporting insufficient information)
and he became a partner in 2000.
4
In 2001, a year in which the RAS proposed no one for
partner, Schuler and Murphy each filed an administrative
charge with the District of Columbia Office of Human Rights
and cross-filed the charge with the Equal Employment
Opportunity Commission (EEOC). Each alleged PwC had
refused to consider him for promotion to partner because of
his age — Schuler in 1999, 2000, and 2001 and Murphy in
2000 and 2001.
In 2002 Schuler and Murphy sued PwC, alleging, among
other things, the firm had “denied [them] promotion to partner
in 1999, 2000, and 2001 ... in violation of the ADEA, the
DCHRA, and the [NYHRL].” PwC moved to dismiss
Schuler’s 1999 and 2000 and Murphy’s 1999 claim under the
ADEA because “the plaintiffs failed to file a timely
administrative charge.” Murphy v. PricewaterhouseCoopers,
LLP, 357 F. Supp. 2d 230, 237 (D.D.C. 2004). The ADEA
required each appellant, before suing, to have filed an
administrative charge with the EEOC within 300 days of the
alleged discriminatory action, see 29 U.S.C. § 626(d)(1), but
Schuler filed his charge on June 29, 2001, more than 300 days
after he did not become a partner in July 2000 (let alone July
1999), and Murphy filed his charge on March 14, 2001, more
than 300 days after he did not become a partner in 1999.
PwC also moved to dismiss all counts under the NYHRL for
failure to state a claim upon which relief could be granted
because they did not allege a discriminatory act had occurred
in New York. Finally, PwC moved to dismiss all claims
under the DCHRA on the ground that the “exercise of ...
supplemental jurisdiction [was] not appropriate” because
those claims “predominate[d] over the remaining federal
claims.” Murphy, 357 F. Supp. 2d. at 237, 245. The district
court granted PwC’s motion, to the extent relevant here, by
dismissing as untimely Schuler’s claims under the ADEA for
1999 and 2000 and dismissing all counts under the NYHRL
for failure to state a claim upon which relief could be granted.
5
See id., 357 F. Supp. 2d at 239–40, 244. The district court
also dismissed as untimely Murphy’s 1999 claim under the
ADEA, which ruling Murphy has not appealed.
In 2003, the RAS proposed another employee for partner.
He received 18 soundings (16 favorable, none unfavorable,
and two reporting insufficient information) and became a
partner in 2004, when he was 39.
In 2005 the appellants each filed a new lawsuit. Murphy
alleged PwC did not make him a partner in 2004 because of
his age, in violation of the ADEA and the DCHRA. The
district court consolidated Murphy’s new suit with the one he
and Schuler had filed in 2002; it is these consolidated cases
that are now before us on appeal. Schuler’s 2005 lawsuit
alleged “PwC has engaged in a pattern and practice of age
discrimination in making decisions regarding assignments and
promotions in violation” of the same two statutes, see Schuler
v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1369 (D.C.
Cir. 2008) (quoting complaint); that suit is pending in the
district court (No. Civ. 05cv2355 (RJL)).
That same year the district court denied PwC’s motion
for summary judgment on the appellants’ remaining claims
under the ADEA and DCHRA. In 2008, however, after the
close of discovery PwC again moved for summary judgment,
which the district court granted as to Murphy’s claims under
the ADEA and DCHRA for 2000, 2001, and 2004 and as to
Schuler’s claims under those statutes for 2001. The court
concluded each had “failed to rebut PwC’s legitimate, non-
discriminatory explanations” for not making him a partner
and had “not presented sufficient evidence to support a
finding ... of intentional discrimination based on age.”
Murphy v. PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 4,
12 (2008) (Murphy); Murphy v. PricewaterhouseCoopers,
LLP, 580 F. Supp. 2d 16, 28 (2008) (Schuler). The court also
dismissed Schuler’s claims under the DCHRA for 1999 and
2000 as untimely because they “rel[ied] on discriminatory
6
acts occurring more than one year before the filing of
Schuler’s initial administrative complaint.” Murphy, 580 F.
Supp. 2d. at 25–26.
II. Analysis
Schuler and Murphy challenge the district court’s 2004
dismissal of their claims under the NYHRL and of Schuler’s
claims under the ADEA for 1999 and 2000. They also
challenge respectively the court’s grant of summary judgment
in 2008 on Schuler’s claims under the ADEA and DCHRA
for 2001 and on Murphy’s claims under those statutes for
2000, 2001, and 2004.
A. Schuler’s 1999 and 2000 claims under the ADEA
Schuler does not dispute that in 2004 the district court
correctly dismissed as untimely his ADEA claims for 1999
and 2000. Schuler maintains, however, that the Lilly
Ledbetter Fair Pay Act of 2009 (LLA), Pub. L. No. 111-2,
123 Stat. 5, which applies by its terms to claims of
“discrimination in compensation” pending on or after May
28, 2007, § 6, 123 Stat. at 7, made his claims timely. Section
4 of the LLA provides, in relevant part:
[A]n unlawful practice occurs, with respect to
discrimination in compensation in violation of
[the ADEA], when a discriminatory
compensation decision or other practice is
adopted, when a person becomes subject to a
discriminatory compensation decision or other
practice, or when a person is affected by
application of a discriminatory compensation
decision or other practice ....
7
Misquoting the statute, Schuler argues the decision not to
promote him was an “‘other act’ ... intertwined with a
discriminatory compensation decision” because as a result of
that decision he received significantly less remuneration than
he would have done as a partner. In support of this position
he refers us to the decisions of two district courts interpreting
the LLA, see Gentry v. Jackson State Univ., 610 F. Supp. 2d
564, 566 (S.D. Miss. 2009); Rehman v. State Univ. of N.Y.,
596 F. Supp. 2d 643, 651 (E.D.N.Y. 2009), and to the failure
of two proposed amendments, one to the 2009 bill that
became the LLA and one to an identical bill proposed in
2007, that would have deleted the phrase “other practice.”
Schuler contends the failure of those amendments “makes
clear that Congress did not intend to limit the [LLA] only to
‘compensation decisions.’”
For its part, PwC distinguishes between an employee’s
claim he was paid less than another employee for doing
similar work and Schuler’s claim that he should have been
promoted to a higher paying position. The former is clearly
discrimination in compensation and covered by the LLA; the
latter, PwC argues, is not.
There can be no dispute that in order to benefit from the
LLA Schuler must bring a claim involving “discrimination in
compensation” and point to a “discriminatory compensation
decision or other practice.” The question is whether he did so
by claiming PwC did not make him a partner because of his
age. The answer is that he did neither.
As PwC’s distinction implies, in employment law the
phrase “discrimination in compensation” means paying
different wages or providing different benefits to similarly
situated employees, not promoting one employee but not
another to a more remunerative position. See Anderson v.
Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999) (plaintiff
alleging “wage discrimination” under Title VII must show he
was “performing work substantially equal to that of …
8
employees ... compensated at higher rates” (internal quotation
marks omitted)); Taylor v. United Parcel Serv., Inc., 554 F.3d
510, 522 (5th Cir. 2008) (prima facie case of “discrimination
in compensation” under Title VII involves showing plaintiff
“was paid less than a non-member [of the protected class] for
work requiring substantially the same responsibility”);
MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th
Cir. 1991) (proof of “discrimination in compensation” under
ADEA requires showing “similarly situated persons outside
the protected age group received higher wages”). In contrast,
a discriminatory failure to promote is actionable regardless
whether it affects an employee’s compensation. See, e.g.,
MacKenzie v. City & County of Denver, 414 F.3d 1266,
1277–78 (10th Cir. 2005) (prima facie case of “failure-to-
promote” under ADEA requires showing only that qualified
plaintiff was rejected and “position was filled by someone
outside the protected class”); Cones v. Shalala, 199 F.3d 512,
514, 516 (D.C. Cir. 2000) (prima facie case of “deni[al] [of] a
promotion” under Title VII requires showing only that
qualified plaintiff was rejected and “either someone not of his
protected class filled the position or the position remained
vacant and the employer continued to seek applicants”). In
context, therefore, we do not understand “compensation
decision or other practice” to refer to the decision to promote
one employee but not another to a more remunerative
position.
Our interpretation of the LLA is fully consistent with the
patent intent of the Congress to overrule the Supreme Court’s
decision in Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007), see § 2, 123 Stat. at 5. The plaintiff there
claimed she was the victim of discrimination because, based
upon allegedly discriminatory performance reviews, she “was
being paid significantly less than any of her male colleagues,”
550 U.S. at 622, and the Court repeatedly referred to her
claim as one of “pay discrimination,” id. at 622–23, 638–42.
9
The Court held Ledbetter’s claim was untimely because she
filed an administrative charge too long after the decisions
about her compensation were made. Id. at 627. In the LLA
the Congress characterized Ledbetter as having “significantly
impair[ed] ... protections against discrimination in
compensation” and “ignore[d] the reality of wage
discrimination.” § 2, 123 Stat. at 5. That the Congress
drafted and passed the LLA specifically in order to overturn
Ledbetter strongly suggests the statute is directed at the
specific type of discrimination involved in that case and not to
other unspecified types of discrimination in employment.
Nor does our interpretation of the phrase “discriminatory
compensation decision or other practice” read “other
practice” out of the statute. We need look no further than
Ledbetter itself for an example of a discriminatory “other
practice,” viz., giving an employee a poor performance
evaluation based upon her sex (or any other unlawful
criterion) and then using the evaluation to determine her rate
of pay. See 550 U.S. at 622.
For these reasons, we conclude the decision whether to
promote an employee to a higher paying position is not a
“compensation decision or other practice” within the meaning
of that phrase in the LLA and Schuler’s failure-to-promote
claim is not a claim of “discrimination in compensation.”
The LLA therefore does not revive his claims under the
ADEA. *
*
In his Reply Brief (at 18–19) Schuler also argues his 2000 ADEA
claim is timely because he can “piggyback” upon Murphy’s timely
administrative charge filed in 2001. In his opening brief, however,
Schuler refers to piggybacking only in a footnote, App. Br. 54 n.17,
in which he makes no affirmative argument that he should be
allowed to piggyback, contending only the reasons the district court
gave for denying piggybacking were wrong. Because he first
makes his affirmative argument in his reply brief, we do not
consider it. See, e.g., Students Against Genocide v. Dep’t of State,
10
B. Other Claims under the ADEA and the DCHRA
We review de novo the district court’s grant of summary
judgment on Schuler’s 2001 and on Murphy’s 2000, 2001,
and 2004 claims under the ADEA and DCHRA. See
Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925, 929
(2008). In order to prevail at summary judgment, the plaintiff
in an ADEA case must show that a reasonable jury could find
his age was the “but-for” cause of the employment action he
challenges. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct.
2343, 2352 (2009); see also Baloch v. Kempthorne, 550 F.3d
1191, 1198 (D.C. Cir. 2008) (plaintiff must “produce[]
evidence sufficient for a reasonable jury to find” non-
discriminatory reason offered by employer was “not the
actual reason” for challenged action and “employer
intentionally discriminated against [plaintiff] based on his ...
age” (internal quotation marks omitted)) (citing Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.
2008)).
The courts of the District of Columbia “look[] to federal
court decisions interpreting the [ADEA] when evaluating age
discrimination claims under the DCHRA.” Washington
Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1073 n.7
(D.C. 2008). Under current D.C. precedent, which predates
the Supreme Court’s recent decision in Gross, a claimant
under the DCHRA, if he is to survive summary judgment,
must show a reasonable jury could find his age “had a
determinative influence on the” challenged employment
257 F.3d 828, 835 (D.C. Cir. 2001) (“we have repeatedly held that
an argument first made in a reply brief ordinarily comes too late for
our consideration”); see also United States v. Whren, 111 F.3d 956,
958 (D.C. Cir. 1997) (“absent extraordinary circumstances ... we do
not entertain an argument raised for the first time in ... a footnote”).
11
action. Id. at 1073 (citing Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 141 (2000)) (internal quotation marks
omitted); see also Hamilton v. Howard Univ., 960 A.2d 308,
314 (D.C. 2008) (stating issue as whether age “actually
motivated the employer’s decision”). We need not determine
whether D.C. case law prescribes a meaningfully different
standard from the one in Gross because, based upon the
evidence in this case, no reasonable jury could believe either
appellant’s age “had a determinative influence” upon PwC’s
failure to promote him or was the “but-for” cause of that
decision.
As for Schuler, PwC maintains it did not make him a
partner in 2001 because there was no business case for doing
so. The record shows business conditions had deteriorated: In
2000 and in 2001 the RAS nominated no one for partner, and
Schuler himself acknowledged there was “slow economic
activity and not a lot ... of regulatory action” in “2000-2001.”
Schuler presents no evidence rebutting that explanation. He
points to a statement made by the head of the RAS in
September 1999 when proposing him for partnership — the
“RAS is booming and I need full time partners” — but it is
anachronistic and therefore unavailing.
Murphy likewise fails to provide any basis upon which a
reasonable jury could disbelieve PwC’s primary explanation
for not making him a partner, viz., that employees were rated
on a scale of “1” to “4,” with “1” being the highest; the RAS
proposed for partnership only employees with performance
ratings of “1” in each of the three prior years; and Murphy
was not promoted because he did not meet that requirement.
The record documents the existence and exercise of such a
policy: Every candidate the RAS proposed for partner in the
years for which there are data in the record (1999 through
2004) had a performance rating of “1” in each of the three
years before he was proposed, see Murphy v.
PricewaterhouseCoopers, LLC, 580 F. Supp. 2d 4, 13 n.15
12
(D.D.C. 2008) (noting this fact), and Murphy did not have
three years of “1”s immediately before any year in which he
claims he should have been made a partner — 2000, 2001, or
2004. Murphy does not contest these facts.
Murphy does, however, maintain a reasonable jury could
find he received relatively low performance ratings only
because those rating him believed that, in view of his age,
PwC would never make him a partner. As evidence of a
general policy not to make older employees partners, Murphy
points to the provision for mandatory retirement in the
partnership agreement, to the modest number of employees
who were made partner after turning 50 (between 1998 and
2005 only 61 (3.6%) of new partners were 50 or older; six
(0.4%) were aged 55-59), and to comments three PwC
executives made about the value of bringing in younger
partners. No reasonable jury, however, could conclude from
this general evidence that Murphy’s ratings in particular were
the result of his age and not of his performance; the record
shows in the RAS alone at least two other employees over the
age of 50 each received ratings of “1” in multiple years.
Indeed, his co-plaintiff Schuler had received ratings of “1” for
each of the three years prior to his 1998 nomination for
partner, when he was 54. *
Finally Murphy asks us to provide “guidance” as to
whether the provision in the partnership agreement making
retirement mandatory at age 60 or 62 violates the ADEA
because, he says, the issue “is likely to rise [sic] again in this
litigation.” He contends most partners at PwC are more like
employees than owners of the firm and are therefore entitled
to the protection of the statute, which prohibits any mandatory
retirement age for employees over 40. See 29 U.S.C. §
623(a)(2) (unlawful to “limit” an employee in “any way
*
The appellants make other arguments, but they do not warrant
treatment in a published opinion.
13
which would deprive [him] of employment opportunities” or
“adversely affect his status as an employee because of [his]
age”); see also Clackamas Gastroenterology Assocs., PC v.
Wells, 538 U.S. 440, 445–46 (2003) (employees, but not
owners, of firm protected by antidiscrimination laws).
Be that as it may, the district court correctly observed, in
declining to pass upon the issue, that nothing in the present
case turns upon it. See Murphy, 580 F. Supp. 2d at 16 n.22.
Murphy seems to suggest the legality of the retirement
provision affects whether he should prevail here, but it does
not: Even if the partnership agreement violated the ADEA,
that violation would have no bearing upon whether a
reasonable jury could disbelieve PwC’s explanation for not
making Murphy a partner. Because a federal court does not
have jurisdiction to issue an advisory opinion, see, e.g., Flast
v. Cohen, 392 U.S. 83, 95 (1968) (“no justiciable controversy
is presented ... when the parties are asking for an advisory
opinion”), we must decline Murphy’s request to consider the
issue.
C. Claims under the NYHRL
The district court dismissed all counts under the NYHRL
for failure to state a claim upon which relief could be granted.
Murphy v. PricewaterhouseCoopers, LLP, 357 F. Supp. 2d
230, 244 (2004). Reviewing the issue de novo, Covad
Commc’ns Co. v. Bell Atl. Corp., 398 F.3d 666, 670–71 (D.C.
Cir. 2005), we conclude the district court erred.
The district court reasoned that in order to assert a claim
under the NYHRL a non-New-York resident such as Schuler
or Murphy “must allege that the actual impact of the
discriminatory act was felt in New York,” Murphy, 357 F.
Supp. 2d at 244, which the appellants have not done. In an
intervening decision in a related case we held it is enough that
a discriminatory act occurred in New York. Schuler v.
14
PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1378 (2008).
Thereafter the district court declined to reinstate the
appellants’ claims because it found “no evidence ... an act of
discrimination occurred in New York.” Murphy v.
PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 16, 22 n.17
(2008).
The relevant question is whether the appellants’
complaint alleges facts that, if true, would establish a
violation of the NYHRL. See Fed. R. Civ. P. 12(b)(6). The
appellants allege PwC did not promote them because it has a
policy of promoting only younger employees. Both that
policy and a decision pursuant thereto, if adopted in New
York, would violate § 296 of the NYHRL.
In Schuler we held that, in view of his “assertion that the
company is headquartered in New York,” Schuler was
entitled to the “reasonable inference” the alleged policy was
adopted in New York. 514 F.3d at 1377. Based upon our
reasoning in that case the appellants argue they are entitled to
the reasonable inference the discrimination alleged in this
case occurred in New York. * PwC says Schuler “does not
control” because it addressed only PwC’s adoption and
maintenance of a discriminatory policy, not the “discrete
decision[] not to admit [Schuler] to partnership.” To which
we say: Pettifoggery and piffle!
Because the appellants in this case allege PwC is
headquartered in New York, Compl. ¶ 4, both appellants are
entitled to the reasonable inference the decisions not to
promote them occurred in New York. The district court’s
rationale for dismissing the claims under the NYHRL both as
to Schuler and as to Murphy was therefore incorrect.
*
Although the appellants’ briefs focus in this respect upon Schuler,
their opening brief makes clear both “[p]laintiffs … appeal … the
district court’s order … dismissing their claims under the
[NYHRL],” and our analysis is equally applicable to both.
15
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court with respect to all claims brought under the
ADEA or the DCHRA. We reverse the judgment of the
district court with respect to the claims brought under the
NYHRL, which claims we remand to the district court for
further proceedings.
We recognize our decision leaves only state-law claims
pending in the district court. “Even if only state-law claims
remain[] after resolution of the federal question,” however, a
district court has “discretion ... to retain jurisdiction.” Osborn
v. Haley, 549 U.S. 225, 245 (2007). And “once it has
invested time and resources” in a case, “[c]onsiderations of
judicial economy, convenience and fairness to litigants ...
make it reasonable and proper for a federal court to proceed
to final judgment” upon the state-law claims. Id. (internal
citation and quotation marks omitted).
So ordered.