Williams v. the Boeing Company

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOLOMON WILLIAMS, 
Plaintiff,
and
MARA FERRARI; RHONDA CAPPS;
KEVIN BIGLOW; DOREEN FERGUSON; No. 06-35196
BEVERLY TROTTER,
Plaintiffs-Appellants,  D.C. No.
CV-98-00761-MJP
v.
OPINION
THE BOEING COMPANY; BOEING
NORTH AMERICAN, INC., a Delaware
corp.; MCDONNELL DOUGLAS
CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

Argued and Submitted
January 11, 2008—Seattle, Washington

Filed February 27, 2008

Before: Robert R. Beezer, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

1707
1712 WILLIAMS v. THE BOEING COMPANY

COUNSEL

Steve W. Berman, Craig R. Spiegel (argued), Ivy D. Arai,
Hagens Berman Sobol Shapiro LLP, Seattle, Washington, for
the appellants.

Michael Reiss (argued), David C. Tarshes, Kristina Silja Ben-
nard, Davis Wright Tremaine LLP, Seattle, Washington, for
the appellee.

OPINION

TALLMAN, Circuit Judge:

Nearly ten years ago, Plaintiffs filed suit against The Boe-
ing Company (“Boeing”) claiming that they had been discrim-
inated against in their employment on the basis of their race.
The case has a complicated procedural history and has, at
times, involved a number of different claims and plaintiff
classes. The issues on appeal are fairly narrow. Specifically,
Plaintiffs allege that between June 4, 1994, and May 28, 2000,
 WILLIAMS v. THE BOEING COMPANY 1713
Boeing paid African-American salaried employees less than
similarly situated Caucasian employees.

We address two separate questions. First, whether the
named Plaintiffs had standing to challenge Boeing’s allegedly
discriminatory compensation practices for the period prior to
May 28, 2000, in the district court and whether they continue
to have standing on appeal. Second, whether the district court
properly held that the pre-May 28, 2000, compensation dis-
crimination claim is barred by the statute of limitation.

I

On June 4, 1998, sixteen individual plaintiffs filed a class
action against Boeing alleging that they had “been denied the
opportunity for promotion, . . . subjected to a hostile work
environment, and . . . retaliated against because of Boeing’s
policy and practice of racial discrimination.” In November
1998, the plaintiffs filed a First Amended Complaint, which
included substantially the same factual allegations, named
additional plaintiffs, and included additional causes of action
for negligent misrepresentation and breach of contract. The
five Plaintiffs named in this appeal—Mara Ferrari, Rhonda
Capps, Kevin Biglow, Doreen Ferguson, and Beverly Trotter
—were included in the First Amended Complaint.

In January 1999, before substantial discovery had been
undertaken, the parties sought court approval of a class settle-
ment. The district court certified a settlement class and
approved the proposed Consent Decree. Several class mem-
bers objected to the settlement and appealed the district
court’s order. In Staton v. Boeing Co., a prior panel of our
court affirmed certification of the settlement class but rejected
the Consent Decree. We determined that the distribution of
proceeds between named and unnamed class members and the
manner in which attorneys’ fees were to be awarded did not
meet the “fair, adequate, and reasonable” standard of Federal
1714 WILLIAMS v. THE BOEING COMPANY
Rule of Civil Procedure 23(e). 327 F.3d 938, 959, 972, 974,
978 (9th Cir. 2003).

On remand, Plaintiffs, represented by new lead counsel and
before a different district judge, filed a Second Amended
Complaint, which explicitly included a claim of compensation
discrimination. The Second Amended Complaint included
factual allegations relevant to the compensation discrimina-
tion claim, but did not include additional factual allegations
on behalf of the individually named Plaintiffs.

In response to the Second Amended Complaint, Boeing
moved for partial summary judgment. Boeing argued Plain-
tiffs had not previously alleged compensation discrimination
and, therefore, the statute of limitation barred a claim for con-
duct occurring more than four years before the Second
Amended Complaint was filed. The district court granted par-
tial summary judgment in favor of Boeing on January 10,
2005. The district court dismissed Plaintiffs’ compensation
discrimination claim “relating to conduct or actions prior to
June 11, 2000 (four years before the Second Amended Com-
plaint was filed).” On February 15, 2005, the district court
denied Plaintiffs’ Motion for Reconsideration, but amended
its prior order to hold the limitation period ran from May 28,
2000, four years before Plaintiffs lodged their Second
Amended Complaint, and not June 11, 2000, four years before
the complaint was actually filed.1

At the same time Boeing was seeking partial summary
judgment on the pre-2000 compensation discrimination claim,
the parties were briefing the issue of class certification. On
January 21, 2005, the district court certified a class of
1
For the sake of brevity, we will refer to the compensation discrimina-
tion claim found by the district court to be barred by the statute of limita-
tion as the “pre-2000” claim. The compensation discrimination claim not
barred by the statute of limitation will be referred to as the “post-2000”
claim.
 WILLIAMS v. THE BOEING COMPANY 1715
“African-American salaried employees employed . . . from
June 6, 1994 to the present . . . seeking injunctive relief for
racial discrimination in compensation and promotions.” It is
unclear why the district court certified a class including
employees making a compensation discrimination claim from
1994 forward given that eleven days earlier it had determined
that there was no viable claim for compensation discrimina-
tion arising between June 6, 1994, and May 28, 2000. Neither
party contested this aspect of the class certification decision.

After the district court issued its certification order, Boeing
again moved for partial summary judgment and argued that
Plaintiffs’ post-2000 compensation discrimination claim
could not meet the legal standard required to prove a pattern
and practice of disparate treatment under § 1981. In the alter-
native, Boeing sought dismissal of the individual Plaintiffs’
post-2000 compensation discrimination claims for lack of
standing and decertification of the compensation discrimina-
tion class.2 The district court found that “the named Plaintiffs
[did] not offer[ ] affidavits or other evidence that, even if
taken as true, would show that they themselves have suffered
injury after May 28, 2000 due to compensation discrimina-
tion” and therefore “[had] not demonstrated standing to main-
tain such individual claims during the relevant liability
period.” Because the named Plaintiffs all lacked standing to
maintain individual compensation discrimination claims, the
district court decertified the class with regard to the class claim.3
2
Boeing sought decertification of the compensation discrimination class
generally, but its arguments in favor of decertification were limited to the
post-2000 compensation discrimination claim. Specifically, Boeing argued
that decertification was proper because none of the named Plaintiffs had
standing to raise individual post-2000 compensation discrimination claims
and therefore none could properly represent a class asserting such a claim.
Boeing’s decertification argument was not relevant or related to the pre-
2000 compensation discrimination claim.
3
Like Boeing’s Motion to Decertify the Class, the district court’s order
refers to the class “originally certified,” which included employees assert-
1716 WILLIAMS v. THE BOEING COMPANY
The district court also denied Plaintiffs’ request for leave to
move for intervention by an absent class member with a post-
2000 compensation claim. Because the district court decerti-
fied the compensation discrimination class, it determined that
“it would not be necessary or appropriate . . . to reach Boe-
ing’s request for summary judgment on the class compensa-
tion discrimination claim,” and left open the possibility that
absent class members could pursue “compensation discrimi-
nation against Boeing, either as individuals or as a putative
class action.”

In December 2005, Plaintiffs’ class pattern and practice
promotion discrimination claim was tried to a jury. The class
disparate impact promotion discrimination claim was tried to
the court. Both the jury and the court found in favor of Boe-
ing. After trial, the district court directed entry of final judg-
ment by the parties’ stipulation under Rule 54(b) “as to all
claims alleged by all members of the class” originally certi-
fied, specifically excluding compensation discrimination
claims of absent class members. Plaintiffs then appealed chal-
lenging only: 1) the district court’s determination that the pre-
2000 compensation discrimination claim is barred by the stat-
ute of limitation, and 2) the district court’s order decertifying
the class.

After this appeal had been fully briefed, the district court
ordered the parties to submit a joint status report, indicating

ing pre-2000 compensation discrimination claims, but by its reasoning
applies only to the post-2000 claim. The district court recognized that it
certified the compensation discrimination class without properly determin-
ing whether the named Plaintiffs satisfied the Rule 23 requirements. How-
ever, in making the decertification decision, the district court only
analyzed the propriety of class certification with regard to the post-2000
claim. Because it had previously determined that the pre-2000 claim was
barred by the statute of limitation, it appears that the district court did not
decide whether certification of the pre-2000 class was appropriate or
whether decertification was required.
 WILLIAMS v. THE BOEING COMPANY 1717
Plaintiffs Ferrari, Capps, Biglow, Ferguson, and Trotter “may
have individual claims remaining.” The parties responded,
stating that Ferrari, Capps, Biglow, and Ferguson “informed
plaintiffs’ counsel that they do not wish to proceed with
[their] claims on an individual basis.” Trotter did not respond
“as to whether . . . she wants to pursue . . . her claim[ ] on an
individual basis, despite plaintiffs’ counsel’s repeated efforts
to contact [her] by phone, letters and in some cases email.”
Pursuant to the proposal in the joint status report, Ferrari,
Capps, Biglow, and Ferguson filed an unopposed motion to
dismiss their remaining individual claims with prejudice,
which the district court granted on January 8, 2007. The order
contained the following sentence: “This Order does not affect
these plaintiffs’ rights to pursue an appeal (Ferrari, et al. v.
The Boeing Co., No. 06-35196), which is pending in the Ninth
Circuit.” Trotter’s claims were dismissed without prejudice
the same day.

Almost a year later, and a month before oral argument was
scheduled, Boeing moved to dismiss claiming that because
Plaintiffs had dismissed their individual claims they lacked
standing to pursue this appeal and the appeal was moot. At
oral argument Boeing urged that Plaintiffs had never suffi-
ciently demonstrated standing to challenge Boeing’s pre-2000
compensation practices, requiring dismissal of their claim for
lack of standing. Plaintiffs contended that the allegations in
their Complaints were sufficient to establish standing on the
pre-2000 compensation discrimination claim, that they had
not abandoned that claim, and that the claims they had volun-
tarily dismissed were “only [the] remaining claims, i.e., their
individual claims for discrimination in areas other than com-
pensation.”

II

Article III of the United States Constitution “requires a liti-
gant to have ‘standing’ to invoke the power of a federal
court.” Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting
1718 WILLIAMS v. THE BOEING COMPANY
Warth v. Seldin, 422 U.S. 490, 498 (1975)). To have standing,
a “plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Id. at 751. Although stand-
ing with regard to Plaintiffs’ pre-2000 compensation discrimi-
nation claim was not an issue before the district court, “we
have an independent obligation to examine our own and the
district court’s jurisdiction.” See Rivas v. Rail Delivery Serv.,
Inc., 423 F.3d 1079, 1082 (9th Cir. 2005).

A

[1] “At least one named plaintiff must satisfy the actual
injury component of standing in order to seek relief on behalf
of himself or the class.” Casey v. Lewis, 4 F.3d 1516, 1519
(9th Cir. 1993) (citing O’Shea v. Littleton, 414 U.S. 488, 494-
95 (1974)). This requires that the plaintiff demonstrate that
“he has sustained or is imminently in danger of sustaining a
direct injury as the result of the challenged conduct.” Id. On
a motion to dismiss, “general factual allegations of injury
resulting from the defendant’s conduct may suffice [because]
we ‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’ ” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)) (sec-
ond alteration in the original). Plaintiffs have met their burden
here.

[2] In the Second Amended Complaint Plaintiffs alleged
that they had been denied equal pay based on their race. They
claimed that there were “racial differences in initial pay code
assignments,” and that these “differences in starting salaries
tended to track with employees throughout their careers.”
Plaintiffs also alleged that Boeing performed internal analyses
of disparities in salaries, which “often disclosed that African-
Americans were paid less than their Caucasian counterparts at
Boeing.” Each named Plaintiff is an African-American
employed by Boeing between 1994 and 2000 in a salaried
 WILLIAMS v. THE BOEING COMPANY 1719
position. Plaintiffs’ allegations that they sustained a direct
injury in the form of less pay as a result of Boeing’s discrimi-
natory compensation practices are sufficient on a motion to
dismiss to establish their standing with regard to the pre-2000
compensation discrimination claim.4 See United States v. Stu-
dents Challenging Regulatory Agency Procedures (SCRAP),
412 U.S. 669, 688-90 (1973); Casey, 4 F.3d at 1519 & n.2;
Harmsen v. Smith, 693 F.2d 932, 942-43 (9th Cir. 1982).

Boeing argues Plaintiffs lack standing because they did not
offer specific, individualized factual allegations of pre-2000
compensation discrimination. “[E]ach element [of standing]
must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive
stages of the litigation.” Defenders of Wildlife, 504 U.S. at
561. On a summary judgment motion challenging standing a
plaintiff may not rest on “mere allegations, but must set forth
by affidavit or other evidence specific facts” that demonstrate
standing. See id. (quotation marks omitted).

[3] Boeing moved for summary judgment for lack of stand-
ing on Plaintiffs’ individual post-2000 compensation discrimi-
nation claims and the district court dismissed those claims
because Plaintiffs failed to offer “affidavits or other evidence
that, even if taken as true, would show that they themselves
4
Ferguson was deposed and stated that she did not have any complaints
about the pay within any given job, as opposed to complaints about pay
as a function of promotions. Because Ferguson affirmatively stated that
she was not injured by Boeing’s compensation practices, she does not
have standing with regard to the compensation discrimination claim. See
Casey, 4 F.3d at 1524. It is also not clear that Biglow, who opted out of
the class and pursued his individual claims, including his compensation
discrimination claim, against Boeing in district court in Kansas, has stand-
ing. However, because at least one named Plaintiff has demonstrated
standing, the lack of standing with regard to these two Plaintiffs is not
fatal. See Village of Arlington Heights v. Metro. Housing Dev. Corp., 429
U.S. 252, 264 (1977).
1720 WILLIAMS v. THE BOEING COMPANY
have suffered injury after May 28, 2000 due to compensation
discrimination.” But Boeing never moved for summary judg-
ment for lack of standing on Plaintiffs’ pre-2000 compensa-
tion discrimination claim. Instead, Boeing sought summary
judgment on the ground that the pre-2000 claim was barred by
the statute of limitation. Because Boeing did not move for
summary judgment on standing grounds, Plaintiffs were never
forced to come forward with “specific facts” to support their
standing for the pre-2000 claim. See SCRAP, 412 U.S. at 690
n.15 (noting that the defendants “object[ed] to the fact that the
allegations were not more precise,” but stating that “[i]f the
[defendants] thought that it was necessary to take evidence, or
if they believed summary judgment was appropriate, they
could have moved for such relief”).

[4] The district court determined that the pre-2000 compen-
sation discrimination claim was barred by the statute of limi-
tation before Plaintiffs were given the opportunity to present
evidence in support of the claim.5 Plaintiffs’ allegations of
compensation discrimination in the Second Amended Com-
plaint, although not detailed or extensive, are “concrete and
particularized,” and “fairly traceable” to Boeing’s allegedly
discriminatory compensation practices. Their injury, unequal
pay, would likely be redressed by a favorable decision.
Absent a specific challenge requiring Plaintiffs to come for-
ward with proof to substantiate their claim of injury, the alle-
gations were sufficient to confer standing and, accordingly,
jurisdiction lies in the district court to enter the partial sum-
mary judgment order Plaintiffs are now challenging on
appeal.
5
Boeing’s reliance on the declarations Plaintiffs filed in opposition to
Boeing’s first Motion to Dismiss in 1998 is misplaced. The fact that Plain-
tiffs’ declarations do not refer to compensation disparities is not evidence
of lack of injury, but rather evidence that compensation discrimination
was not alleged.
 WILLIAMS v. THE BOEING COMPANY 1721
B

In addition to having standing at the outset, a plaintiff’s
stake in the litigation must continue throughout the proceed-
ings, including on appeal. See Employers-Teamsters Local
Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advi-
sors, 498 F.3d 920, 923 (9th Cir. 2007). Boeing argues Plain-
tiffs lack standing to pursue this appeal because, after the
appeal was taken, they voluntarily dismissed their individual
claims and no longer had an interest in the outcome of the liti-
gation. See Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835,
848 (9th Cir. 2002) (noting that to have Article III standing,
it “must be likely that the injury will be ‘redressed by a favor-
able decision’ ”) (quoting Defenders of Wildlife, 504 U.S. at
561). Boeing urges us to dismiss the appeal since “if none of
the named plaintiffs purporting to represent a class establishes
the requisite of a case or controversy with the defendants,
none may seek relief on behalf of himself or any other mem-
ber of the class.” O’Shea v. Littleton, 414 U.S. 488, 494
(1974) (footnote and citations omitted).

[5] We agree with Plaintiffs, however, that the voluntary
dismissal of their individual claims did not include their pre-
2000 compensation discrimination claims. In January 2005,
the district court held Plaintiffs’ pre-2000 compensation dis-
crimination claim was barred by the statute of limitation.
Final judgment was entered against that claim on February 6,
2006.6 Plaintiffs appealed the district court’s ruling on March
7, 2006. Because the compensation discrimination claim had
already been resolved, the district court’s reference in its
6
In April 2007, Boeing admitted that final judgment had been entered
with regard to all compensation discrimination claims, pre- and post-2000,
as of February 6, 2006. Their argument that the district court expressly
declined to decide the class’s pre-2000 compensation discrimination claim
is unavailing. The district court’s order decertifying the compensation dis-
crimination class, rather than granting class-wide summary judgment,
applied only to the post-2000 claim; the pre-2000 claim was resolved by
the first partial summary judgment order.
1722 WILLIAMS v. THE BOEING COMPANY
October 31, 2006, Order for a Joint Status Report to claims
Plaintiffs “may have had remaining” necessarily referred to
claims other than Plaintiffs’ compensation discrimination
claims. It is the remaining non-compensation claims Plaintiffs
moved to voluntarily dismiss after their appeal had been filed.7

Additional evidence supports this conclusion. First, Plain-
tiffs’ Motion for an Order of Dismissal stated that dismissal
would be proper under Rule 41 because dismissal was sought
“before the Court has even established a discovery and pre-
trial schedule for their claims.” There would have been no
reason to establish a discovery or pretrial schedule for the pre-
2000 compensation discrimination claim, which the district
court had already determined was barred by the statute of lim-
itation. Also in their Motion, Plaintiffs explicitly stated that
they were not waiving their right to pursue this appeal. The
district court recognized the same in its order granting the
Plaintiffs’ Motion. Although parties cannot “invoke the judi-
cial power of the United States in litigation which does not
present an actual ‘case or controversy,’ ” Sosna v. Iowa, 419
U.S. 393, 398 (1975) (citation omitted), Plaintiffs’ statement
that they were not waiving their right to appeal and the district
court’s recognition of the same may be fairly read as an effort
to confirm that Plaintiffs were not abandoning the claims that
were pending on an appeal, rather than an attempt to create
jurisdiction where none existed.

[6] Since the district court had jurisdiction to enter partial
summary judgment in favor of Boeing on Plaintiffs’ pre-2000
7
Plaintiffs’ individual promotion discrimination claims remained after
final judgment had been entered. These claims were not resolved at the
trial, which focused only on the class promotion discrimination claims.
The Supreme Court has held that judgment in a class action, which deter-
mines that an employer did not engage in a pattern or practice of racial
discrimination against a certified class of employees does not preclude
individual class members from maintaining subsequent civil actions alleg-
ing individual claims of discrimination against the employer. Cooper v.
Fed. Res. Bank, 467 U.S. 867, 876-78 (1984).
 WILLIAMS v. THE BOEING COMPANY 1723
compensation discrimination claim, and since Plaintiffs con-
tinue to have standing to pursue this appeal, we deny Boe-
ing’s Motion to Dismiss and we address the merits of the
district court’s statute of limitation ruling.

III

[7] Plaintiffs’ compensation discrimination claim, brought
pursuant to 42 U.S.C. § 1981, is subject to a four-year statute
of limitation. 28 U.S.C. § 1658(a). Boeing argues that the stat-
ute of limitation bars the compensation discrimination claim
for acts of discrimination occurring before May 28, 2000, four
years before Plaintiffs’ Second Amended Complaint was
lodged. Plaintiffs argue that the limitation period begins to run
in 1994, four years before their Original and First Amended
Complaints were filed. Plaintiffs advance a number of theo-
ries in support of their argument: 1) that the Original and First
Amended Complaints stated a cause of action for compensa-
tion discrimination; 2) that even if the Original and First
Amended Complaints did not state a cause of action for com-
pensation discrimination, the allegations in the Second
Amended Complaint relate back to the earlier filings; 3) that,
in any case, Boeing is judicially estopped to assert that Plain-
tiffs did not state a cause of action for compensation discrimi-
nation in the Original or First Amended Complaint; and 4)
that the limitation period was tolled from the time the district
court approved the Consent Decree until, at the earliest, it was
finally rejected by this court. We consider each of these argu-
ments in turn.

A

If Plaintiffs’ Original or First Amended Complaint alleged
a claim of compensation discrimination, the statute of limita-
tion would run from 1994, not 2000. The district court found
Plaintiffs’ “Second Amended Complaint is the first time they
allege a claim for racial discrimination in compensation for
salaried employees.” We determine de novo whether the
1724 WILLIAMS v. THE BOEING COMPANY
Original and First Amended Complaints asserted a compensa-
tion discrimination claim. See Dominguez v. Miller (In re
Dominguez), 51 F.3d 1502, 1508 n.5 (9th Cir. 1995)
(“Because the question whether a complaint provides suffi-
cient information to satisfy the notice pleading requirements
is essentially a question of law, we review that . . . question
de novo.”).

[8] Even though heightened pleading is not required in dis-
crimination cases, the complaint must still “give the defendant
fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (2002) (quotation omitted). Plaintiffs rely on the
allegation in the First Amended Complaint that they were
“subjected to different terms and conditions of employment,”
arguing that this allegation is “not limited to particular
employment benefits.” Plaintiffs’ claim that, under Swier-
kiewicz, such “conclusory allegations of discrimination” are
sufficient to provide notice under Federal Rule of Civil Proce-
dure 8. See Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th
Cir. 2004).

In Swierkiewicz, the district court dismissed the plaintiff’s
complaint because he failed to “allege facts constituting a
prima facie case of discrimination” under the McDonnell-
Douglas burden shifting test. 534 U.S. at 509. The Supreme
Court reversed holding that a plaintiff need not set forth a
prima facie case of discrimination in his complaint to survive
a motion to dismiss. Id. at 515. The Court eschewed the rule
adopted in some circuits employing heightened pleading
requirements for discrimination cases and applied the same
general notice pleading requirements applicable to the major-
ity of civil actions. See id. at 510 n.2, 513. Thus, the fact that
the plaintiff included only conclusory allegations of discrimi-
nation in his complaint, insufficient to raise an inference of
discrimination for a prima facie case, did not defeat his claim
because his complaint “detailed the events leading to his ter-
mination, provided relevant dates, and included the ages and
 WILLIAMS v. THE BOEING COMPANY 1725
nationalities of at least some of the relevant persons involved
with his termination,” providing “fair notice of what [his]
claims [were] and the grounds upon which they rest[ed].” Id.
at 514-15.

[9] Here, Plaintiffs’ general allegations that they were dis-
criminated against with regard to “terms of employment” did
not provide “fair notice” of the compensation discrimination
claim. See Barcume v. City of Flint, 819 F. Supp. 631, 638
(E.D. Mich. 1993) (finding that allegation of discrimination in
the “terms and conditions of employment” did not provide
defendants notice of claims other than those specifically
alleged in the complaint); Davis v. Bethlehem Steel Corp., 600
F. Supp. 1312, 1318-19 (D. Md. 1985), aff’d, 769 F.2d 210
(4th Cir. 1985) (in the context of tolling noting that “notice
only of the fact that [defendants] were being charged with
racial discrimination in any and all types of general employ-
ment practices . . . does not give the defendants . . . fair
notice”).

[10] Nor do the specific references to pay in the Original
and First Amended Complaints provide notice of a compensa-
tion discrimination claim. See Fontana v. Haskin, 262 F.3d
871, 877 (9th Cir. 2001) (“Specific legal theories need not be
pleaded so long as sufficient factual averments show that the
claimant may be entitled to some relief.”). The Original and
First Amendment Complaints explicitly refer to Plaintiffs
having been denied promotions, subjected to a hostile work
environment, and retaliated against on the basis of their race.
The specific factual allegations included in the Complaints
support these claims. The Complaints do not make any gen-
eral or specific allegations of salary inequities apart from
promotion-related differences; the references to pay in the
Original and First Amended Complaint are related only to the
pay increases accompanying promotions. Such factual aver-
ments are not sufficient to allege a separate claim for compen-
sation discrimination. See Richards v. Harper, 864 F.2d 85,
88 (9th Cir. 1988); cf. Swierkiewicz, 534 U.S. at 514-15
1726 WILLIAMS v. THE BOEING COMPANY
(holding that plaintiff’s complaint, which “included the ages
and nationalities of at least some of the relevant persons
involved with his termination” was sufficient to provide
notice of plaintiff’s age and national origin discrimination
claims) (emphasis added); Austin v. Terhune, 367 F.3d 1167,
1171 (9th Cir. 2004) (holding that prisoner’s complaint alleg-
ing that he was “punished for filing a grievance” against a
correctional officer was sufficient to provide notice of claim
that he was retailed against for exercising his First Amend-
ment rights).

Plaintiffs’ reliance on the language of the Consent Decree
and our previous description of the case as proof of what was
alleged in the Original and First Amended Complaints is also
unavailing. First, the Consent Decree never became effective
and by its terms is not admissible as evidence on this or any
other issue.

[11] The “Litigation Background” section of the Consent
Decree describes the action as follows:

The Plaintiffs in the Alleged Class Action contend
that Boeing has engaged in a policy or pattern or
practice of unlawful Discrimination on the basis of
Race against them . . . in respect to promotions
within the hourly ranks, promotions from hourly
positions into managerial and other salaried posi-
tions, promotions among salaried positions, training,
education, skills and career development, perfor-
mance appraisals, transfers, compensation, dis-
charge, discipline and other terms, benefits and
conditions of employment.

Although this provision implies that Plaintiffs alleged a com-
pensation discrimination claim, “the intent of the language
used in the Decree was to effectuate a broad release of all pos-
sible claims,” including claims that had not been alleged in
the Complaints. See 4 Alba Conte & Herbert B. Newberg, NEW-
 WILLIAMS v. THE BOEING COMPANY 1727
BERG ON CLASS ACTIONS § 12:15 (4th ed. 2007) (“In order to
stifle the threat of further litigation, the defendant will seek a
judgment as broad as the law permits.”). This intent is sup-
ported by the fact that the language cited also refers to claims
for discharge and discipline discrimination, neither of which
is purportedly alleged in the Original or First Amended Com-
plaints. Further, as the district court found, the relief provided
in the Consent Decree was aimed at remedying promotion
discrimination and the allegedly hostile work environment,
not compensation disparities. The one passing reference to
compensation in the 40-page Consent Decree that never
became effective is not sufficient to prove that the Original
and First Amended Complaints set forth a compensation dis-
crimination claim, especially when it is clear from the face of
the pleadings that such a claim was not alleged and the only
complaint about compensation was as it related to higher pay
accompanying the denied promotions.

Plaintiffs also rely on a description of the litigation in our
decision in Staton to support their claim that compensation
discrimination was alleged in the Original and First Amended
Complaints. In Staton we stated: “The action alleged that
Boeing’s promotion, compensation, and career development
decisions were systematically discriminatory and that Boeing
created and permitted a racially hostile work environment,”
327 F.3d at 946 (emphasis added), and “[T]he class here com-
plains of a complex of discriminatory practices that includes
compensation, training, and work environment in addition to
promotions,” id. at 955 (emphasis added).

[12] These statements merely characterized Plaintiffs’
cause of action and were not essential to the holding. For
example, the first statement, describing Plaintiffs’ allegations,
does not include retaliation, but Plaintiffs continue to assert
that the Original and First Amended Complaints included a
retaliation claim. With regard to the second statement, we
were pointing out that “commonality” was not defeated
merely because different types of discrimination affected dif-
1728 WILLIAMS v. THE BOEING COMPANY
ferent class members. 327 F.3d at 955. Although we may
have more precisely described the “other alleged axes of dis-
crimination” applicable to class members unable to assert pro-
motion discrimination claims, the reference to compensation
was merely illustrative and does not have any preclusive
effect here. See Thacker v. Fed. Commc’ns Comm’n (In re
Magnacom Wireless, LLC), 503 F.3d 984, 993-94 (9th Cir.
2007) (“In our circuit, statements made in passing, without
analysis, are not binding precedent.”).

[13] Plaintiffs did not allege compensation discrimination
based on race sufficiently to provide notice of that claim to
Boeing under Federal Rule of Civil Procedure 8(a). The sub-
sequent characterizations of Plaintiffs’ claims, in the Consent
Decree and in our prior opinion, do not provide evidence to
the contrary.

B

Plaintiffs contend that even if the Original and First
Amended Complaints did not state a claim of compensation
discrimination, the allegations of compensation discrimination
in the Second Amended Complaint relate back to the earlier
filings under Federal Rule of Civil Procedure 15(c) and are
not barred by the statute of limitation. The district court
rejected this argument. We review de novo the district court’s
application of the relation-back doctrine under Rule 15(c).8
Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th
Cir. 2006).
8
Boeing contends that we sometimes apply the abuse of discretion stan-
dard to relation back issues. The cases it cites, however, deal with review
of the district court’s decision to grant or deny a motion to amend a com-
plaint that will relate back under Rule 15(c). See Eaglesmith v. Ward, 73
F.3d 857, 860 (9th Cir. 1995); Louisiana-Pacific Corp. v. ASARCO, Inc.,
5 F.3d 431, 434 (9th Cir. 1993). Here, Plaintiffs were granted leave to file
their Second Amended Complaint. The issue is whether, once filed, it did
in fact relate back.
 WILLIAMS v. THE BOEING COMPANY 1729
[14] Rule 15(c)(1)(B) provides: “An amendment to a plead-
ing relates back to the date of the original pleading when . . .
the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading . . . .” Claims arise out of
the same conduct, transaction, or occurrence if they “share a
common core of operative facts” such that the plaintiff will
rely on the same evidence to prove each claim. See Martell v.
Trilogy Ltd., 872 F.2d 322, 325-26 (9th Cir. 1989) (finding
that amended complaint related back where amended com-
plaint added new theory of recovery based on facts alleged in
original complaint); Percy v. S.F. Gen. Hosp., 841 F.2d 975,
978 (9th Cir. 1988).9

[15] Here, there is no common core of operative facts
between the compensation discrimination claim and the pro-
motion discrimination, hostile work environment, and retalia-
tion claims. Plaintiffs’ Second Amended Complaint had to
include additional facts to support the compensation discrimi-
nation claim. As the district court noted, different statistical
evidence and witnesses would be used to prove the compensa-
tion and promotion discrimination claims because of the dif-
ferent processes Boeing uses to make salary and promotion
decisions. The fact that both the compensation and promotion
discrimination claims involve allegations of racial discrimina-
tion does not alter our conclusion. See Barcume, 819 F. Supp.
at 636; cf. Jones v. Greenspan, 445 F. Supp. 2d 53, 56-57
(D.D.C. 2006). The compensation discrimination claim is a
new legal theory depending on different facts, not a new legal
theory depending on the same facts. It does not relate back
under Rule 15(c).10 See Markus v. Gschwend (In re Markus),
9
The requirement that the allegations in the amended complaint arise
from the same conduct, transaction, or occurrence is meant to ensure that
the original pleading provided adequate notice of the claims raised in the
amended pleading. Martell, 872 F.2d at 326. As noted in Part III.A, the
allegations of the Original and First Amended Complaints did not put
Boeing on notice of Plaintiffs’ compensation discrimination claim.
10
In this regard, it is useful to compare Plaintiffs’ First Amended Com-
plaint, which added claims of negligent misrepresentation and breach of
1730 WILLIAMS v. THE BOEING COMPANY
313 F.3d 1146, 1151 (9th Cir. 2002); Percy, 841 F.2d at 979-
80; SEC v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir.
1982).

Plaintiffs contend that the compensation discrimination
claim must be based on “the identical factual predicate as the
claims alleged” in the Original and First Amended Com-
plaints because otherwise the compensation discrimination
claim could not have been released by the Consent Decree.
See 5 Alba Conte & Herbert Newberg, NEWBERG ON CLASS
ACTIONS § 16:7 (4th ed. 2007) (“It is well-settled that in order
to achieve a comprehensive settlement . . . a court may permit
the release of a claim based on the identical factual predicate
as that underlying the claims in the settled class action even
though the claim was not presented and might not have been
presentable in the class action.”). Because the compensation
discrimination claim satisfies the identical factual predicate
standard for settlement, Plaintiffs argue, it necessarily satis-
fies the same conduct, transaction or occurrence standard for
relation back.

[16] Plaintiffs’ argument assumes that the compensation
discrimination claim would have been released by the Con-
sent Decree if it had been finally approved.11 While Boeing
may have drafted the settlement agreement to include as
broad a release as possible, the release would have only been
enforceable as to subsequent “claims relying upon a legal the-
ory different from that relied upon in the class action com-

contract based on the same allegation of discrimination included in the
Original Complaint with Plaintiffs’ Second Amended Complaint, which
adds an entirely new claim for compensation discrimination unrelated to
the promotion, hostile work environment, and retaliation claims.
11
Rather than conceding that the compensation discrimination claim
would not have been released by the Consent Decree, Boeing argues that
a claim may satisfy the “identical factual predicate” standard for settle-
ment even if it doesn’t satisfy the “same conduct, transaction, or occur-
rence” standard for relation back. We need not and do not reach this issue.
 WILLIAMS v. THE BOEING COMPANY 1731
plaint, but depending upon the same set of facts.” 4 NEWBERG
ON CLASS ACTIONS § 12:15. In any case, the scope of the Con-
sent Decree is not relevant to whether the compensation dis-
crimination claim relates back to Original and First Amended
Complaints because it is clear from the pleadings themselves
that the compensation discrimination claim included in the
Second Amended Complaint does not arise from the same
“conduct, transaction, or occurrence” alleged in the Original
and First Amended Complaints. Finally, by its terms, the
Consent Decree is inadmissible as evidence “regarding any
. . . issue or subject” because it never received final judicial
approval. Plaintiffs’ compensation discrimination claim,
alleged for the first time in the Second Amended Complaint,
does not relate back to the Original and First Amended Com-
plaint.

C

Plaintiffs next contend that Boeing should be judicially
estopped to argue that Plaintiffs did not allege compensation
discrimination in the Original and First Amended Complaints
because such a position is contrary to the position Boeing
took in the Consent Decree. The district court held that “noth-
ing in the Consent Decree judicially estops Boeing from
obtaining partial summary judgment on the salary compensa-
tion claim.” We review this holding for abuse of discretion.
See Broussard v. Univ. of Cal., 192 F.3d 1252, 1255 (9th Cir.
1999); Johnson v. Or. Dep’t of Human Res., 141 F.3d 1361,
1364 (9th Cir. 1998) (“Because a court invokes judicial estop-
pel at its discretion, we review the application of judicial
estoppel to the particular facts of a case for abuse of discre-
tion.”).

[17] The equitable doctrine of judicial estoppel is not
reducible to an exhaustive formula. New Hampshire v. Maine,
532 U.S. 742, 750 (2001). However, a party generally will be
judicially estopped to assert a certain position when: 1) the
party’s current position is “clearly inconsistent” with its ear-
1732 WILLIAMS v. THE BOEING COMPANY
lier position, 2) the party was successful in persuading a court
to accept its earlier position, and 3) the party would “derive
an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.” Id. at 750-51.

[18] The district court focused on the first factor—whether
Boeing had taken clearly inconsistent positions in the litiga-
tion. The district court noted that the “Consent Decree lan-
guage refers to a compensation claim alleged by Plaintiffs,”
but found that this was not sufficient to establish that “Boe-
ing’s current position that Plaintiffs never asserted a salary
compensation claim until they filed their Second Amended
Complaint [was] . . . ‘clearly inconsistent’ with the position
Boeing took in the Consent Decree.” Specifically, the district
court recognized that a Consent Decree may release claims
broader than those included in the pleadings and emphasized
that the Consent Decree did not include any relief regarding
compensation discrimination as it did for promotion discrimi-
nation, harassment, and retaliation. The district court did not
abuse its discretion in refusing to rely on one reference to
compensation in the Consent Decree as determinative of the
position Boeing had taken previously in the litigation. See
United Steel Workers v. Ret. Income Plan for Hourly-Rated
Employees of ASARCO, Inc., 512 F.3d 555, 563 (9th Cir.
2008).

Because the district court found that Boeing’s current posi-
tion was not clearly inconsistent with the position Boeing had
allegedly taken in the Consent Decree, the district court did
not address other factors relevant to judicial estoppel except
to state that “nothing in the Consent Decree judicially estops
Boeing from obtaining partial summary judgment.” See Klam-
ath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th
Cir. 2006) (noting that “an inconsistent factual or legal posi-
tion is a threshold requirement of the doctrine” of judicial
estoppel) (quoting United States v. Lence, 445 F.3d 1047,
1051 (9th Cir. 2006)). Looking briefly at the other two con-
siderations listed above, it is clear that the district court did
 WILLIAMS v. THE BOEING COMPANY 1733
not act “clearly against the logic and effect of the facts as are
found.” See Rabkin v. Or. Health Scis. Univ., 350 F.3d 967,
977 (9th Cir. 2003) (quotation omitted). First, there was no
risk of inconsistent judicial determinations because the Con-
sent Decree was not accepted on appeal and never became
effective. Cf. New Hampshire, 532 U.S. at 752-53. Boeing
will not derive an unfair advantage if not judicially estopped;
the Consent Decree was never effective and Boeing was not
protected against additional claims. Any advantage that did
enure to Boeing was not “unfair” because Boeing was not pre-
cluded from seeking a release broader than the pleadings. 4
NEWBERG ON CLASS ACTIONS § 12:15. Plaintiffs’ judicial estop-
pel argument therefore fails.

D

Plaintiffs’ final argument is that the statute of limitation on
their compensation discrimination claim was tolled from Jan-
uary 22, 1999, when the parties filed their joint motion for
approval of the Consent Decree, until our prior panel over-
turned the Consent Decree on April 29, 2003, or later. The
district court rejected this argument in its ruling on Plaintiffs’
Motion for Reconsideration. We review de novo whether the
statute of limitation is tolled. See Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 780 (9th Cir. 2002).

Plaintiffs first argue that, under the doctrine of issue preclu-
sion, the district court’s approval of the Consent Decree pre-
vented class members from asserting compensation
discrimination claims even while it was pending on appeal.
Because the Consent Decree barred individual lawsuits by
class members, Plaintiffs argue, the statute of limitation was
tolled until the Consent Decree was rejected. However, by its
own terms, the Consent Decree was not in effect while on
appeal. The district court properly concluded that Plaintiffs
could have filed a compensation discrimination claim while
the Consent Decree was on appeal and Boeing could not have
1734 WILLIAMS v. THE BOEING COMPANY
asserted an affirmative defense that the claim had been
released, defeating Plaintiffs’ tolling argument.

[19] Plaintiffs also rely on American Pipe & Construction
Co. v. Utah, 414 U.S. 538 (1974), for the proposition that the
statute of limitation was tolled from the time the district court
certified the settlement class and continued to be tolled
despite the Staton decision because Staton upheld certification
of the settlement class. Plaintiffs misread American Pipe,
which holds that commencement of a class action itself, not
the class certification decision, suspends the statute of limita-
tion as to all asserted members of the class, even if the class
is eventually decertified. 414 U.S. at 554; Crown, Cork &
Seal Co., Inc. v. Parker, 462 U.S. 345, 350 (1983). Tolling is
fair in such a case because when the complaint is filed defen-
dants have notice of the “substantive claims being brought
against them.” Crown, Cork & Seal Co., 462 U.S. at 352-53
(quotation omitted). However, the tolling rule does not
“leave[ ] a plaintiff free to raise different or peripheral claims
following denial of class status.” Id. at 354 (Powell, J. concur-
ring). As described in detail in Part III.A, neither the Original
nor the First Amended Complaints stated a claim for compen-
sation discrimination. Therefore the statute of limitation was
not tolled for that claim as it would have been for the promo-
tion discrimination, hostile work environment, and retaliation
claims properly raised.

IV

[20] Plaintiffs have also challenged the district court’s
order decertifying the compensation discrimination class. To
the extent Plaintiffs are challenging the district court’s deci-
sion to decertify the post-2000 compensation discrimination
class, the district court did not abuse its discretion because the
named Plaintiffs concede that they do not have standing with
regard to the post-2000 claim. See Lierboe v. State Farm Mut.
Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (holding
that named plaintiff who did not have a viable claim against
 WILLIAMS v. THE BOEING COMPANY 1735
defendant could not serve as a class representative and vacat-
ing class certification accordingly).

[21] To the extent Plaintiffs are challenging the district
court’s decision to decertify the pre-2000 compensation dis-
crimination class, it is not clear that there is an order to chal-
lenge. See supra note 3. In any case, the challenge is moot
because the pre-2000 claim is barred by the statute of
limitation—there is no viable claim for a class to assert. See
Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999)
(“Since the plaintiffs, having lost on the merits in this court,
cannot possibly benefit from class certification, and the defen-
dants are not seeking it, we shall treat the issue as moot
. . . .”).

V

Plaintiffs’ allegations of injury in the Second Amended
Complaint were sufficient to establish standing. The district
court had jurisdiction to decide whether the pre-2000 compen-
sation discrimination claim was barred by the statute of limi-
tation. We have jurisdiction to review the district court’s
decision because Plaintiffs continued to have standing on
appeal; they did not abandon their individual pre-2000 com-
pensation discrimination claims. Boeing’s Motion to Dismiss
is DENIED.

On the merits, the district court properly determined that
Plaintiffs’ pre-2000 compensation discrimination claim is
barred by the statute of limitation. The district court’s order
granting partial summary judgment in favor of Boeing on
Plaintiffs’ pre-2000 compensation discrimination claim is
AFFIRMED. Because the claim is barred by the statute of
limitation, we need not decide whether the class was properly
certified or decertified, and we DISMISS this portion of
Plaintiffs’ appeal as moot.
1736 WILLIAMS v. THE BOEING COMPANY
AFFIRMED IN PART; DISMISSED IN PART AS MOOT.

Each party shall bear its own costs.