MEMORANDUM OPINION
HOLLIS HORTON, Justice.
The appellants, Quwanda Grant and Celeste Brown (the tenants) seek attorney's fees and taxable costs following Hope Village's non-suit of its forcible entry and detainer case. In three appellate issues, the tenants contend (1) the trial court's order of September 11, 2009, is not a final and appealable judgment; (2) the trial court's August 21, 2009, order releasing funds from the court's registry should be vacated; and (3) the trial court's August 6, 2009, order of dismissal allowed the trial court to avoid ruling on their pending motions and claims.
Similar issues regarding the finality of the trial court's orders are raised in another appeal involving a different tenant but the same landlord, which is styled Johnson v. Hope Village Apartments, No. 09-09-00526-CV, ___ WL ___ (Tex. App.-Beaumont, October 28, 2010, no pet. h.).
While the tenants filed a notice of appeal from the trial court's September 11 order, the tenants' issues attack the trial court's August 6 order of dismissal and the trial court's order of August 21 releasing funds from the court's registry. We conclude that the tenants failed to timely perfect an appeal from the trial court's final and appealable August 6 order. As the tenants did not timely file their notice of appeal, and their notice was filed more than fifteen days after the date it was due, we are without jurisdiction to reach the complaints the tenants raise about the August 6 order of dismissal.
We further conclude that the trial court's order of August 21, 2009, is separately appealable. While the tenants failed to timely perfect an appeal from the trial court's August 21 order, their notice of appeal was filed within fifteen days of their filing deadline to perfect an appeal from that order. Under Rule 26.3 of the Texas Rules of Appellate Procedure, we are authorized to grant the tenants an extension, which allows our exercise of appellate jurisdiction over the trial court's August 21 order. Therefore, we consider the tenants' complaints only as they relate to the trial court's August 21 order.
Background
In September 2006, the tenants leased an apartment from Hope Village. In March 2009, claiming that the tenants had not paid the rental amounts that were due, Hope Village filed a forcible entry and detainer action in the justice of the peace court. After Hope Village obtained a judgment giving it the right to possess the apartment the tenants had leased, the tenants exercised their right to appeal to the county court for a trial de novo. See Tex. R. Civ. P. 749. To stay the order giving Hope Village the right to possession during the appeal, the tenants paid rent as it became due into the county court's registry. See Tex. R. Civ. P. 749b.
After both parties filed motions for summary judgment in the trial court, and for reasons that are not apparent from the record, Hope Village decided to dismiss the proceedings. In July 2009, Hope Village filed a notice with the county clerk non-suiting its forcible entry and detainer case. On August 6, 2009, the trial court entered an "Order Confirming Nonsuit." When the trial court signed the order non-suiting all claims, the tenants' answer was their live pleading. The tenants' answer asserts a general denial and several affirmative defenses. The record does not reflect that the tenants ever filed a counterclaim. However, the tenants' live pleading requests awards of attorney's fees and costs of court.
Before the trial court entered the order of dismissal, the tenants filed a traditional motion for summary judgment. See Tex. R. Civ. P. 166a(c). The tenants' motion for summary judgment asserts that the tenants' lease was not properly terminated. The tenants' motion for summary judgment asks the trial court to enter a take-nothing judgment, requests the trial court to dismiss Hope Village's case with prejudice, and requests that Hope Village be taxed with costs.
Two weeks after the trial court entered the order of dismissal, Hope Village filed a motion requesting the trial court to release to it funds that Johnson had paid into the court's registry. Although the record before us is not complete, we assume that the tenants had deposited funds in the court's registry based on the provisions of Rule 749b(2) of the Texas Rules of Civil Procedure. On the same day that Hope Village filed its motion asking the court to release funds, the tenants filed their motion opposing the release of the funds, claiming that the August 6 order of dismissal had not dismissed all claims. On August 21, 2009, the trial court signed an order releasing "all such funds" to Hope Village.
The partial record before us does not reveal the amount that the tenants paid into the court's registry, but we assume that they followed the provisions of Rule 749b by depositing the amount of rent "due under the rental agreement." Tex. R. Civ. P. 749b(2). The tenants do not assert in their appeal that Hope Village received more than the amount of rent due to it under the rental agreement.
Finality of August 6 Order
In issue one, the tenants assert the trial court's order of September 11, 2009 is not a final order because the order did not "dispose of every pending claim" and because the order does not recite that it was intended to be a final order. In response, Hope Village asserts that the trial court's order of August 6 disposed of all claims and parties because the tenants had no pending claims for affirmative relief when Hope Village non-suited its claims.
Under the Texas Rules of Civil Procedure, a plaintiff may dismiss a case or take a non-suit at any time prior to introducing all of his evidence, other than rebuttal evidence. Tex. R. Civ. P. 162. "The trial court generally has no discretion to refuse to dismiss the suit, and its order doing so is ministerial." Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). While a non-suit is effective when filed, the date the trial court signs its dismissal order is "the ?starting point for determining when a trial court's plenary power expires[.]'" Id. (quoting In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997)).
As Blackmon explained, Rule 162 provides that a plaintiff's right to non-suit neither prejudices an adverse party's right to be heard on pending claims for affirmative relief nor excuses payment of costs taxed by the clerk. Id.; see Tex. R. Civ. P. 162. Further, a dismissal does not affect "any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal[.]" Tex. R. Civ. P. 162. Claims for affirmative relief "must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action." Blackmon, 195 S.W.3d at 101.
The tenants argue that the trial court's September 11 order denying all pending motions did not dispose of all pending claims and does not contain any language of finality. The tenants point to their request for attorney's fees and costs as the claims they made that were still "pending" when the trial court entered the order of dismissal. However, after reviewing the pleadings on file when the trial court entered its order of dismissal, we conclude that neither the tenants' motion for summary judgment nor their live answer contain independent claims for affirmative relief.
To allege a claim seeking affirmative relief, a defendant must allege that he "has a cause of action, independent of the plaintiff's claim, on which he could recover benefits, compensation or relief[.]" Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990) (quoting Weaver v. Jock, 717 S.W.2d 654, 657 (Tex. App.-Waco 1986, writ ref'd n.r.e.)). "If a defendant does nothing more than resist plaintiff's right to recover, the plaintiff has an absolute right to the nonsuit." Id. Generally, matters of avoidance, not affirmative claims, are found in a defendant's answer. Affirmative defenses are theories by which a defendant seeks to avoid liability for the claims advanced by the plaintiff. See Tex. R. Civ. P. 94 (requiring the defendant to plead matters "constituting an avoidance or affirmative defense"). On the other hand, and while a claim for affirmative relief can theoretically be found in an answer, a claim for affirmative relief is still required to contain "a short statement of the cause of action sufficient to give fair notice of the claim involved[.]" Tex. R. Civ. P. 47.
A request for attorney's fees in the defendant's answer, not made in connection with an affirmative claim alleging that the opposing party has independently committed a breach of the party's contract, does not constitute a claim for affirmative relief. See Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 578 (Tex. App.-San Antonio 1997, no pet.). The tenants' answer does not allege an independent claim for attorney's fees based on Hope Village's alleged breach of the lease. Moreover, the tenants' answer contains no reference to a statutory basis for the tenants' request for attorney's fees, nor does their answer contain a short statement of their attorney's fee claim that explains the basis upon which the tenants claim to be entitled to a recovery of attorney's fees. Because the tenants' answer fails to contain a statement of an affirmative claim for relief as contemplated by Rule 47 of the Texas Rules of Civil Procedure, we conclude the tenants had no pending independent claim for attorney's fees when the trial court dismissed Hope Village's case.
In Villafani, the Texas Supreme Court cites to the Leon Springs opinion for the proposition that "[a] claim for attorney's fees is not an affirmative claim where it is based solely on the defense against the other party's claims but is an affirmative claim where it is based on an independent ground or as a sanction." Villafani v. Trejo, 251 S.W.3d 466, 470 (Tex. 2008).
Next, we address whether the tenants had a pending claim for costs when the trial court dismissed the case on August 6. In their brief, the tenants acknowledge that the trial court has plenary power to rule on a motion for costs. While the tenants requested a recovery of costs in their answer and in their motion for summary judgment, the record does not reflect that the tenants ever filed a motion to tax costs to Hope Village, or that they provided the trial court with any evidence that they had incurred costs taxable to Hope Village. Moreover, the tenants fail to provide any record reference in their brief to indicate where the record reflects that they paid any taxable costs. Moreover, a prayer to recover taxable costs is not considered to be a claim for affirmative relief. Anglo Exploration Corp. v. Grayshon, 562 S.W.2d 567, 568 ((Tex. Civ. App.-Houston [14th] 1978, writ ref'd n.r.e.).
We hold that the tenants' answer and motion for summary judgment that merely ask for a recovery of costs do not raise affirmative claims for relief within the meaning of Rule 47 of the Texas Rules of Civil Procedure. Therefore, the tenants' requests to recover costs were not pending independent claims for affirmative relief when the trial court entered its August 6 order of dismissal.
In arguing that their pleadings raised independent claims, the tenants' brief refers to the Texas Supreme Court's denial of Hope Village's motion to dismiss a mandamus that arose from a discovery dispute involving another tenant whose case is mentioned in footnote one. The discovery dispute in that matter, involving a tenant named Benjie Johnson, resulted in a mandamus filed in our court. In Re Benjie F. Johnson, No. 09-09-00194-CV, 2009 WL 1650343, *2 (Tex. App.-Beaumont, June 11, 2009, orig. proceeding [mand. denied]). We refused Johnson's writ, which, had it been granted, would have allowed him to avoid the trial court's order requiring that he submit to a deposition. Johnson then filed a petition for mandamus in the Texas Supreme Court concerning the same matter, which was also denied. Id. Here, the tenants argue that the Texas Supreme Court's denial of Hope Village's motion to dismiss on the basis the matter was moot constitutes an implicit ruling that Johnson still had pending claims. Without citing any legal authority, the tenants argue that the law of the case doctrine establishes that "this matter is not mooted and there remains a live controversy that requires resolution."
"The ?law of the case' doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages." Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986).
Although "[a]ppellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver[,]" we conclude that the tenants have not sufficiently briefed their "law of the case" argument to require that it be addressed on its merits. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). We are not required to make the tenants' argument for them, nor are we required to brief the argument on their behalf. See George v. Houston Eye Assocs., No. 14-02-00629-CV, 2003 WL 22232651, at *3 (Tex. App.-Houston [14th] Sept. 30, 2003, pet. denied) ("It is not the appellate court's responsibility to create the appellant's argument."). To the extent that the tenants argue that the "law of the case" doctrine dictates a result in their favor, we hold that the tenants' brief is inadequate to present a challenge to the finality of the trial court's ruling on that basis. See Tex. R. App. P. 38.1(i); Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gave general cite to one case stating elements of cause of action); Sterling v. Alexander, 99 S.W.3d 793, 798-99 (Tex. App.-Houston [14th] 2003, pet. denied) (issue inadequately briefed when party failed to make proper citations to authority or the record and in failing to make a cogent argument); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st] 2002, no pet.) (issue inadequately briefed when party did little more than summarily state his point of error, without citations to legal authority or substantive analysis); Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App.-El Paso 2005, no pet.) (issue inadequately briefed when argument did not contain any references to relevant cases or legal principles).
Having determined that the tenants had no independent pending claims for affirmative relief when the trial court dismissed the case, we now address whether the absence of an express statement to the effect that the trial court intended the order of dismissal to function as a final judgment undermines the finality of the trial court's order. An order dismissing all claims in a case is a final judgment. See Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) ("?[A]n order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition.'") (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001)). Although the trial court's order of non-suit does not recite that the trial court intended the dismissal to function as a final judgment, an order of dismissal that disposes of all claims for affirmative relief functions as a final judgment and is appealable. See Lehmann, 39 S.W.3d at 192-93 (explaining that "a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties."). Here, the trial court's August 6 order of dismissal was final and appealable because it dismissed all of Hope Village's pending claims, and the tenants had pled no independent affirmative claims for relief. Cf. Crites v. Collins, 284 S.W.3d 839, 840-41 (Tex. 2009) (explaining that an order of non-suit did not function as a final judgment where it did not dispose of a cross-action requesting sanctions).
Because the order was final, we must now determine whether we have jurisdiction over that part of an appeal that complains of the trial court's August 6 order. Where a party files a motion for new trial, a notice of appeal must be filed within ninety days after the judgment is signed. See Tex. R. App. P. 26.1(a)(1) (providing that notice of appeal must be filed within 90 days after judgment is signed where any party files a timely motion for new trial). The tenants filed their notice of appeal on November 20, 2009, more than ninety days after the trial court entered its August 6 order.
The deadline to file a notice of appeal runs from the date of the judgment. Id. The trial court's rulings on the tenants' motions can be appealed as part of their appeal from the trial court's final judgment. Id. We conclude that the tenants' deadline to appeal from the trial court's rulings of August 6 and September 11 began to run from August 6, the date the trial court ordered a dismissal of all claims that were at that point in time pending. By failing to timely file a notice of appeal, the tenants allowed the August 6 order of dismissal to become final.
The tenants' appeal with respect to the August 6 order does not fall within the fifteen day grace period during which an appellate court may grant an extension for filing the notice. Tex. R. App. P. 26.3.
In summary, the tenants' complaints in issue one attacking the September 11 order are controlled by the trial court's August 6 order of dismissal. The tenants failed to timely perfect an appeal from the trial court's August 6 order, depriving us of jurisdiction to consider the complaints they make with respect to the trial court's ruling on their motion for new trial and motion for summary judgment. Issue one is dismissed for want of jurisdiction.
In issue three, the tenants complaints all concern the trial court's August 6 order. For the same reasons, we further conclude that we do not have jurisdiction over the tenants' issue three complaints. We dismiss the tenants' complaints in issue one and three for want of jurisdiction.
August 21 Order Releasing Funds
In issue two, the tenants complain about Hope Village's failure to file a sworn motion to procure a release of the funds they had deposited into the court's registry. Generally, a trial court has authority to enter post-judgment orders to enforce its judgment. See Tex. R. Civ. P. 308. Post-judgment orders "enforcing the court's judgment itself are appealable orders; they function like judgments." Cook v. Stallcup, 170 S.W.3d 916, 920 (Tex. App.-Dallas 2005, no pet.)
With respect to forcible entry and detainer cases, Rule 749b(4) provides a trial court with three alternative circumstances allowing a trial court to permit the landlord to withdraw funds deposited by a pauper into the court's registry. See Tex. R. Civ. P. 749b(4). One of these authorizes trial courts to release funds in the court's registry when the appeal of a forcible entry and detainer case is dismissed. Tex. R. Civ. P. 749b(4)(b).
On August 21, 2009, the trial court entered an order that required "all such funds be paid to [Hope Village]." The trial court's order was entered after the trial court dismissed the case. Because the August 21 order was intended to enforce the trial court's order of dismissal, it is separately appealable. See Cook, 170 S.W.3d at 920.
We now address whether we have jurisdiction to hear an appeal complaining in part about the trial court's order of August 21. The deadline to file a notice of appeal from the August 21 order was November 19, 2009, and the tenants filed their notice of appeal on November 20, 2009. Thus, the tenants failed to perfect a timely appeal by filing their notice of appeal within ninety days of the trial court's August 21 order. See Tex. R. App. P. 26.1(a)(1). Nevertheless, the tenants' notice of appeal was filed within the fifteen day grace period allowed, extending the time to perfect appeals. See Tex. R. App. P. 26.3. Because their notice was filed in the grace period allowed under Rule 26.3, we imply that the tenants intended to request an extension. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that in civil cases, "a motion for extension of time is necessarily implied" when the appellant, acting in good faith, files notice of appeal beyond time permitted by Rule 26.1, but within fifteen-day period in which the appellant would be entitled to move to extend filing deadline under Rule 26.3).
The tenants' explanation for filing their notice of appeal beyond the ninety day period is apparent from the argument that they make in their brief. Although the tenants are mistaken with respect to whether their pleadings assert independent claims for affirmative relief for the reasons we have already explained, the tenants' confusion may be considered to constitute a reasonable explanation for their delay in filing a timely notice of appeal. See Hone v. Hanafin, 104 S.W.3d 884, 886-87 (Tex. 2003) (explaining that ordinarily, the appeals court should accept the appellant's explanation for his delay as reasonable). Accepting the tenants' confusion about their deadline to file a timely notice of appeal, we extend the tenants' deadline for filing the notice of appeal from the August 21 order by one day to avoid a dismissal of the tenants' complaints about the trial court's August 21 order.
We are unable to use Rule 26.3 of the Texas Rules of Appellate Procedure to save the tenants' appeal of the August 6 order, as their notice was filed beyond fifteen days of the deadline. See Verburgt, 959 S.W.2d at 617 (stating "once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction.").
Having extended the tenants' deadline to appeal from the August 21 order, we turn to the tenants' issue two complaints. In issue two, the tenants assert the trial court's order of August 21 should be vacated "because the requirements under Texas Rule of Civil Procedure 749b(4) were not met." The tenants' argument presumes, incorrectly, that when the trial court dismissed the case on August 6 the tenants still had pending independent claims for attorney's fees and costs. Based on the tenants' belief that they had pending independent claims, the tenants argue that Hope Village "needed to comply with the proper subsections of Rule 749(b); which is subsection [749b(4)](a) and not (b)." However, the tenants' brief states that they "do not oppose [Hope Village] obtaining the funds from the registry[.]" Nevertheless, the tenants contend the trial court should have required Hope Village to file a sworn motion complying with the provisions of Rule749b(4)(a) before releasing the funds on deposit to Hope Village.
The tenants' brief asserts that the trial court failed to hold a hearing on Hope Village's motion to withdraw funds, but the trial court's August 21 order recites that the order was entered "after reviewing the pleadings and the evidence, and hearing any arguments of counsel[.]" We have no transcript of a hearing conducted by the trial court resulting in the August 21 order, but we expressly note that the tenants have not raised an issue complaining of the lack of an evidentiary hearing, nor have they shown that they were harmed because they were unable to present evidence at a hearing on Hope Village's motion. Based on the tenants' brief, we assume that Hope Village credited the tenants' accounts in an amount equal to the funds the trial court released. See Tex. R. Civ. P. 749b(1)-(2).
Rule 749b provides:
In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal, by complying with the following procedure:
(1) Within five days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the justice court registry one rental period's rent under the terms of the rental agreement.
(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.
(3) If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution.
(4) Landlord/appellee may withdraw any or all rent in the county court registry upon a) sworn motion and hearing, prior to final determination of the case, showing just cause, b) dismissal of the appeal, or c) order of the court upon final hearing.
(5) All hearings and motions under this rule shall be entitled to precedence in the county court.
Tex. R. Civ. P. 749(b).
We have previously explained that the trial court's August 6 order of dismissal effectively dismissed all of Hope Village's claims, and that the tenants' pleadings assert no independent claims for affirmative relief. Rule 749b reinforces the general authority trial courts posses over funds in their registries. "Funds on deposit in the registry of a trial court are always subject to the control and order of the trial court, and the court enjoys great latitude in dealing with them." Burns v. Bishop, 48 S.W.3d 459, 467 (Tex. App.-Houston [14th] 2001, no pet.).
Because Rule 749b(4)(b) expressly authorizes trial courts to release funds in their registries upon the dismissal of the appeal, we conclude the trial court was authorized to enter the order that is now in dispute. See Tex. R. Civ. P. 749b(4)(b). The tenants do not claim they are entitled to receive any of the funds that the trial court released based on its order dated August 21. In light of the trial court's dismissal of their appeal, and because there appears to be no dispute that Hope Village is entitled to the funds in the registry based on the tenants' obligation to pay rent that accrued during their appeal, we conclude the trial court did not err by entering an order releasing the funds to Hope Village. We overrule issue two.
Conclusion
We have no jurisdiction over the complaints that the tenants raise concerning the trial court's August 6 order. Issues one and three of the tenants' appeal are dismissed for want of jurisdiction. With respect to the tenants' second issue, which concerns the trial court's release of funds from its registry, we hold the trial court did not err in releasing the funds the tenants had deposited in the court's registry. The funds in the court's registry were due Hope Village for past due rent and were subject to being released upon a dismissal of the appeal of the forcible entry and detainer case that had originated in the justice of the peace court. Finding no reversible error with respect to the trial court's entry of the August 21 order, we affirm the trial court's August 21 order. Affirmed in Part, Dismissed in Part — Want of Jurisdiction.
xhausted, therefore, the court's inquiry is limited to the scope of the allegations raised in the administrative charge because "[a] plaintiff's claim in federal court is generally limited by the scope of the administrative
investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.'"
"In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim; this follows from the rule that `each discrete incident' of alleged discrimination or retaliation `constitutes its own "unlawful employment practice" for which administrative remedies must be exhausted.'"
Termination, failure to promote, denial of transfer, or refusal to hire are such "discrete acts."
"[U]nexhausted claims involving discrete employment actions are no longer viable,"
and may not be asserted under a "continuing violation" theory.
Therefore, "[a] party may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances."
The Court examines each plaintiffs' administrative charge.
Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (quoting MacKenzie v. City County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)).
Id. (quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)).
Martinez, 347 F.3d at 1210 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).
Id.
Id. at 1211 (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003)).
Schroder v. Runyon, 1 F. Supp. 2d 1272, 1274 (D. Kan. 1998) (quoting Harrell v. Spangler, Inc., 957 F. Supp. 1215, 1219 (D. Kan. 1997)).
1. Weems
Defendant argues that Weems's administrative complaint challenged USD's failure to give him an annual wage increase in 2005 (a claim he later abandoned), but did not mention the 2004 transfer to a lower-paying position and pay freeze, or the August 2006 pay reduction. The Pretrial Order only asserts a claim based on a "wage cut." As this Court previously noted, and plaintiffs have admitted, Weems's administrative charge makes no mention of a wage cut. Hence, administrative remedies were not exhausted as to this claim. Furthermore, Weems included no factual allegations relating to the 2004 job elimination or job transfer, therefore, administrative remedies have not been exhausted as to these claims either. To whatever extent Weems's wage-reduction claim (although unexhausted) was a delayed consequence of prior unexhausted "discrete acts," the Court will address those arguments in determining the timeliness of Weems's claim below.
(Doc. 69 at 7.)
See Doc. 52 at 5-7.
See Duncan v. Manager, Dep't of Safety, City County of Denver, 397 F.3d 1300, 1314 (10th Cir. 2005) (dismissing claim because plaintiff was required to "exhaust administrative remedies for each individual discriminatory or retaliatory act") (citation omitted); Martinez, 347 F.3d at 1211 (holding that discrete acts of discrimination must be individually exhausted, even if the incidents occurred after the filing of an EEO complaint); Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir. 2004) (same).
See Jones v. United Postal Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) ("In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim").
In the original order, this Court also held that it lacked subject-matter jurisdiction over Weems's claims because his KHRC complaint did not mention the RIF that caused his job transfer, salary freeze, and pay reduction. The Court addresses this in the section on timeliness.
Plaintiffs have attached additional evidence to their supplemental briefing — Exhibit 3, entitled "You May File a Charge," and Exhibit 10, entitled "Complaint Information Sheet." At the time the parties agreed to brief the effect of the FPA on the statute of limitations in this case, they agreed to rely on the present factual record. Any request to supplement the facts was to be made by separate motion, requesting leave and setting forth compelling reasons for the request. Plaintiffs have not done so. Therefore, the Court declines to consider this late evidence. It was not presented in response to the original summary judgment motion; it does not relate to the issue of "timely exhaustion," which the parties agreed to re-brief; and plaintiffs did not request leave of Court to reopen the factual record, nor did they state "compelling reasons" for doing so. Even if the Court were to consider the additional evidence, plaintiffs have not shown that either exhibit was intended to serve as a "charge." Weems's wage-cut claim is dismissed for lack of subject matter jurisdiction.
(Doc. 69, Ex. 10.)
(Doc. 65.)
See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147 (2008). A document filed with the EEOC is a charge if it "(i) provides the minimum information the regulations require, and (ii) can `be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and employee.'" Semsroth v. City of Wichita, 304 F. App'x 707, 713 (10th Cir. 2008) (quoting Holowecki, 552 U.S. at 402). The second factor is viewed objectively and is informed by whether the EEOC actually treated the filing as a charge. Id. at 713. Here, plaintiffs have made no such showing.
2. Almond
Although Almond's administrative complaint challenged the September 2005 pay reduction, defendant argues Almond did not challenge the 2003 decision to eliminate his position and transfer him to a lower-paying position with a two-year salary freeze. In essence, defendant contends Almond did not identify the correct factual basis for his claim. Because the 2005 wage reduction was a result of the 2003 job elimination and transfer to a lower-paying position, the real source of Almond's grievance was the series of budget decisions made in 2003. And because the 2003 decisions were not mentioned, Almond has not properly exhausted the factual basis for his wage-reduction claim.
In the administrative complaint, Almond specifically challenged the September 12, 2005 "wage decrease." In the Pretrial Order, he claimed he was subjected to age discrimination when he experienced a "wage cut." This claim, therefore, has been exhausted. Almond did not include any facts in his administrative complaint relating to the 2003 job elimination or transfer to a lower-paying position with a two-year salary freeze. To whatever extent there is a causal relationship between the 2003 unexhausted events and the 2005 exhausted events ( i.e., whether Almond's wage-reduction was part of a previous, but unexhausted, "discrete act"), the Court considers those arguments in evaluating the timeliness of Almond's administrative complaint.
B. Failure to Timely Exhaust
Defendant argues Almond's and Weems's claims each arose out of a "discrete act" that occurred in 2003 and 2004, respectively, when they were informed their positions were being eliminated, and they were offered transfers to lower-paying positions, with saved pay grade for two years. Defendant argues the decisions "occurred" — thereby triggering the period for filing a claim — at the time the decisions were announced and the plaintiffs were transferred. Defendant argues the plaintiff's claims are thus time barred.
Plaintiffs respond that their administrative claims were timely under the FPA because they were filed within 300 days after they were "subject[ed] to" or "affected by" a discriminatory compensation decision, i.e., within 300 days of the effective date of the wage reductions, in 2005 and 2006, respectively. Plaintiffs contend the wage reductions were not after effects of a "discrete act," rather the wage freezes and pay reductions, or the RIF, constituted "discriminatory compensation decision[s] or other practice[s]" which they were later "subject[ed] to" or "affected by."
Plaintiffs also argue "the decision (to freeze wages and reduce pay) or practice (the RIF) was specifically intended to reduce pay to Plaintiffs and other employees of the district based on age." (Doc. 69 at 4-5.) To the extent plaintiffs are arguing that courts must consider the employer's intent at the time of the decision to determine whether it was a "compensation decision or other practice" within the meaning of the FPA, the Court declines to consider defendant's intent as part of statutory construction or proceed to the merits of plaintiffs' claims.
Because the Court must consider materials outside the Complaint to determine when plaintiffs' claims accrued, it applies a summary judgment standard. If "there is no genuine issue as to any material fact," then the movant is "entitled to judgment as a matter of law." A fact is material if a dispute over it would affect the outcome of the suit. An issue is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." In considering the facts, the court is cognizant that it may not make credibility determinations or weight the evidence; and all inferences are viewed in the light most favorable to the nonmoving party.
Fed.R.Civ.P. 56(c)(2).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Here, the relevant facts are uncontroverted; and the dispute involves a question of law. In order to determine which events triggered the statute of limitations, the Court reviews its prior decision under pre- Ledbetter law, the language and purpose of the FPA, and post- Ledbetter case law.
1. Pre- Ledbetter Law
Although this Court's previous decision cited to the Ledbetter decision, the relevant legal standards pertaining to administrative exhaustion of "discrete acts" of discrimination, pre-existed Ledbetter.
Under Title VII, an aggrieved individual is required to file a charge within a specified period of time after the allegedly unlawful conduct. For ADEA claims, plaintiffs are allotted up to 300 days to challenge the discriminatory action. Generally, "[t]he EEOC charging period is triggered when a discrete unlawful practice takes place." And "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."
Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007).
Haynes v. Level 3 Commc'ns, L.L.C., 456 F.3d 1215, 1222 (10th Cir. 2006).
Id.; Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Morgan, 536 U.S. at 113.
Id.
This was the law before Ledbetter, and the rule of law upon which this Court relied in holding that plaintiffs' claims were untimely because they "rel[ied] on the consequence of the discrete unlawful employment action — the reductions in pay," rather than "the actual discrete employment action — the decision to demote and freeze pay with a grace period until a pay reduction in 2006." Even before Ledbetter, the Tenth Circuit held that a discrete act accrues under the ADEA on "the date the employee is notified of an adverse employment decision by the employer." "An employee receives notice of an `adverse employment decision when a particular event or decision is announced by the employer.'" "[N]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of action to accrue . . . [o]n the contrary, it is knowledge of the adverse employment decision itself that triggers the running of the statute of limitations." This Court previously held that the allegedly unlawful employment actions were "discrete acts" that occurred in 2003 and 2004 when plaintiffs were notified that their job positions were being eliminated and they accepted lower-paying positions with a two-year pay freeze. Even after the FPA, and independent of Ledbetter, this Court finds plaintiffs' job eliminations and transfers were discrete acts because they were clearly identifiable employment decisions that were announced to plaintiffs more than 300 days before plaintiffs filed their administrative charges.
(Doc. 52 at 8.)
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)).
Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 (10th Cir. 2007) (quoting Hulsey, 43 F.3d at 557).
Davidson, 337 F.3d at 1187 (quoting Hulsey, 43 F.3d at 558-59); Clark v. Yellow Transp., Inc., No. 07-2072-JPO, 2009 WL 2710196, at *7 (D. Kan. Aug. 25, 2009).
For plaintiffs to now benefit from the newly-enacted FPA — whereby a claim accrues with each discriminatory paycheck — their wage-reduction claims must involve "discrimination in compensation" and plaintiffs must point to a "discriminatory compensation decision or other practice." Plaintiffs contend the wage reductions, which were instituted as part of their transfers two years earlier, were each the result of a "compensation decision or other practice" within the meaning of the FPA. Defendant argues the job eliminations and transfers were "discrete acts," not covered by the FPA. The Court looks to the language of the statute and legislative history to determine its scope.
Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 374 (D.C. Cir. 2010).
2. Statutory Construction
The court's primary task in interpreting statutes is to determine Congressional intent using traditional tools of statutory construction. The court begins with the statute's plain language. "If the statute's plain language is ambiguous as to Congressional intent, `we look to the legislative history and the underlying public policy of the statute.'" "As a general rule of statutory construction, a statute is ambiguous if it is `capable of being understood in two or more possible senses or ways.'"
United States v. Manning, 526 F.3d 611, 614 (10th Cir. 2008) (quoting St. Charles Inv. Co. v. Comm'r, 232 F.3d 773, 776 (10th Cir. 2000)).
Id. (citing United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir. 1991)).
Id. (quoting United States v. LaHue, 170 F.3d 1026, 1028 (10th Cir. 1999)).
Houghton ex rel. Houghton v. Reinertson, 382 F.3d 1162, 1169 (10th Cir. 2004) (quoting Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001)).
The text of the FPA reveals that its dominant purpose was to reverse the Ledbetter opinion, and specifically, the holding in Ledbetter that had impaired statutory protections against "discrimination in compensation." Congress objected specifically to the "limitation imposed by the Court on the filing of discriminatory compensation claims" because it "ignores the reality of wage discrimination." Moreover, the section of the Act that amended the ADEA did so by adding a paragraph defining when "an unlawful practice occurs, with respect to discrimination in compensation." Congress made the FPA effective as if enacted on May 28, 2007 — the day before the Supreme Court decided Ledbetter — and applied it "to all claims of discrimination in compensation" brought under several statutes, including the ADEA. Thus, the Act clearly limits its scope to "discrimination in compensation," and leaves intact other kinds of "discrete acts" of discrimination recognized under pre- Ledbetter case law.
42 U.S.C. § 2000e-5, note (as amended by FPA § 2(1)).
42 U.S.C. § 2000e-5, note (as amended by FPA § 2(2)).
29 U.S.C. § 626(d)(3) (as amended by FPA § 4).
42 U.S.C. § 2000e-5, note (as amended by FPA § 6).
Section 4 of the Act, amending the ADEA, states that an "unlawful practice . . . with respect to discrimination in compensation" occurs when a "discriminatory compensation decision or other practice" is adopted, applied to the complainant, or affects the complainant's pay. Via this language, the amendment is limited to practices "with respect to discrimination in compensation," so that the words "discriminatory compensation" modify both the word "decision" and the phrase "other practice." Under the plain language of the statute, then, a decision to eliminate a position and transfer an employee to a lower-paying position is not a "compensation decision" or a "compensation practice."
29 U.S.C. § 626(d)(3) (as amended by FPA, § 4).
Plaintiffs argue, and defendant concedes, that the statute is ambiguous as to what employment decisions could potentially be captured within the phrase "or other practice." The phrase is not defined in the statute. Plaintiffs argue it is broad enough to encompass, not just "compensation decisions," but "any decision affecting pay." And therefore, any time an employee is paid reduced wages as a result of a decision affecting pay, a new claim may be asserted.
Application of the general maxim of statutory construction noscitur a sociis leads to an interpretation closer to that advocated by defendant. "Under the venerable interpretive canons of noscitur a sociis and ejusdem generis, the meaning of a catchall phrase is given precise content by the specific terms that precede it." "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." Under this rule, the catchall phrase "or other practice" is understood to mean "or other discriminatory compensation practice." This interpretation encompasses the facts in the Ledbetter case without being overly broad or allowing a broad swath of employment discrimination claims to escape the 180- or 300-day administrative statute of limitations.
United States v. Phillips, 543 F.3d 1197, 1206 (10th Cir. 2008).
In re Ford, 574 F.3d 1279, 1289 (10th Cir. 2009) (quoting Jarecki v. G.D. Searle Co., 367 U.S. 303, 307 (1961)).
See Noel v. Boeing Co., ___ F.3d ___, 2010 WL 3817090, at *6 n. 6 (3d Cir. Oct. 1, 2010); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010).
Reading "other practices" to mean "discriminatory compensation practices" is also consistent with Congressional intent as revealed in the legislative history. The Lilly Ledbetter Fair Pay Act of 2007, H.R. 2831 — a predecessor to the FPA that was enacted in 2009 — was introduced with very similar provisions. In explaining the purpose of the proposed legislation, the House Education and Labor Committee explained that every discriminatory paycheck resulting from an "earlier discriminatory pay decision or other practice" would be actionable regardless of the date on which the "decision or other practice to provide the discriminatory compensation" was adopted. In rejecting an amendment offered by Rep. Ric Keller that would have struck the phrase "other practices" from the House Bill, the Committee explained that the bill was intended "to capture the wide gamut of compensation practices, from single, discrete decisions about pay to arrangements, schemes, systems, or other practices related to pay." The Committee also pointed out that a bill that excludes "other practices" would not fully reverse Ledbetter, in that "`other practices' captures the fact pattern in [Ledbetter], where sex-based performance evaluations were used in conjunction with a performance-based pay system to effectuate the discriminatory pay." Moreover, during the Senate floor debate on the Lilly
H.R. Rep. No. 110-237, at 3 (2007).
H.R. Rep. No. 110-237, at 5 (emphasis added).
H.R. Rep. No. 110-237, at 5.
Ledbetter Fair Pay Act of 2009, Senate Bill 181, concerning an amendment offered by Sen. Specter that would have removed the phrase "or other practices," Sen. Mikulski, the primary sponsor of the Senate Bill responded:
Senator Specter has said that his amendment is necessary because the bill, as drafted, is overbroad and could apply to discrete personnel decisions, like promotions and discharges. That's not true. The bill specifically says that it is addressing "discrimination in compensation." That limiting language means that it already only covers such claims — nothing more, nothing less.
The legislative history similarly demonstrates that the bill was drafted in response to, and in reliance on, Justice Ginsburg's dissent in Ledbetter. In discussing the 2007 proposed legislation, the House Education and Labor Committee noted that the Court's decision in Ledbetter was "fundamentally unfair to victims of pay discrimination who may lose their right to challenge a discriminatory compensation action" because, "[w]hile workers know immediately when they are fired, refused employment or denied a promotion or transfer, the secrecy and confidentiality associated with employees' salaries make pay discrimination difficult to detect." The House committee also noted that Ledbetter "ignores the reality that pay discrimination is incredibly difficult to detect" because workplace norms discourage conversations about salaries, many employers have formal policies prohibiting such discussions with co-workers, and pay discrimination is "rarely accompanied by circumstances suggestive of bias." The Committee cited to Justice Ginsburg's dissent.
H.R. Rep. No. 110-237, at 6.
H.R. Rep. No. 110-237, at 7.
H.R. Rep. No. 110-237, at 8, 10, 16-17.
In the Senate debate on Senate Bill 181 that followed, the bill's proponents likewise argued that the bill was necessary because employers are so easily able to "conceal" discriminatory pay decisions. After noting that the bill would reinstate the pre- Ledbetter interpretation of when the 180- or 300-day time limit began to run, Sen. Leahy stated, "[i]n this way it allows workers who are continuing to be short-changed to challenge that ongoing discrimination when the employer conceals its initial discriminatory pay decision." Sen. Durbin similarly explained that the FPA would not do away with the administrative statute of limitations, but would carve out an exception to the general rule, comparable to tolling in cases of fraud or concealment:
155 Cong. Rec. S558 (daily ed. Jan. 15, 2009) (statement of Sen. Leahy).
But we make an exception in most cases for what is known as fraud and concealment. If the person guilty of the wrongdoing has concealed what they are doing and you don't know it, you can't
say the time is running. It doesn't run in that circumstance because there is concealment. In this case, there is clearly a situation where you don't know what your fellow employee is being paid.
Finally, proponents of the legislation continued to identify promotions and demotions as examples of "discrete acts" of discrimination of which an employee is immediately aware:
Unlike hiring, firing, promotion and demotion decisions where an individual immediately knows that he or she has suffered an adverse employment action, there is often no clearly adverse employment event that occurs with a discriminatory pay decision. A pay-setting decision, unless it implements a pay cut, is unlikely to be viewed as discrimination at the time it occurs.
Thus, a job elimination and transfer — like a demotion — continues to be a "discrete act" that triggers the charging period the day it is announced.
The legislative history clarifies that not all employment decisions affecting pay are consumed within the meaning of the phrase "other practice." Rather, the FPA was predominantly concerned with protecting the rights of employees to challenge compensation discrimination that is difficult to detect or concealed by the employer.
See Noel v. Boeing Co., ___ F.3d ___, 2010 WL 3817090, at *8 (3d Cir. Oct. 1, 2010).
The employment decisions in this case, however, did not involve the kind of concealment anticipated by the FPA, nor were they "compensation decisions." Defendant informed both plaintiffs of its decision to eliminate their job positions. Both plaintiffs were offered, and both accepted, lower-paying positions within the district, in lieu of termination. Defendant's employment decisions were easily identifiable discrete acts, not within the scope of the FPA. "The mere continuity of the employment relationship, in and of itself, is not enough to prolong the life of a cause of action." Therefore, plaintiffs were required to file a charge within 300 days of the date they were notified of the employment decisions they now belatedly seek to challenge.
Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006) (quoting Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980)).
3. Case Law After the FPA
Post FPA, other courts have generally agreed that, unless the claim involves a discriminatory compensation decision or a hostile work environment, a discrete discriminatory act is an immediately actionable unlawful employment practice upon which an administrative charge must be filed within 180 or 300 days. For Congress expressed no intent to overturn National Railroad Passenger Corp. v. Morgan, which held that discrete acts include "termination, failure to promote, denial of transfer, or refusal to hire," and each incident of discrimination constitutes a "separate actionable `unlawful employment practice.'" One court noted that, "[w]hile the [FPA] certainly contains expansive language in superseding the holding in Ledbetter v. Goodyear Tire Rubber Co., [citation omitted], it does not purport to overturn Morgan, and thus does not save otherwise untimely claims outside the discriminatory compensation context." Under Morgan, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."
See, e.g., Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 F. App'x 346, 350 n. 2 (5th Cir. 2010); Russell v. County of Nassau, 696 F. Supp. 2d 213, 226-29 (E.D.N.Y. 2010); Tryals v. Altairstrickland, LP, No. H-08-3653, 2010 WL 743917, at *7 (S.D. Tex. Feb. 26, 2010); Rehman v. State Univ. of N.Y. at Stony Brook, 596 F. Supp. 2d 643, 651 (E.D.N.Y. 2009); Speer v. Mountaineer Gas Co., No. 5:06CV41, 2009 WL 2255512, at *7 (N.D. W. Va. July 28, 2009).
536 U.S. 101 (2002).
Id. at 114.
Richards v. Johnson Johnson, Inc., No. 5-3663 (KSH), 2009 WL 1562952, at *9 (D.N.J. June 2, 2009).
Morgan, 536 U.S. at 113.
And, although the FPA does not define the phrase "discriminatory compensation decision" or "other practice," yet courts have interpreted these phrases as distinguishable from other "discrete acts" identified by the Supreme Court before Ledbetter, even if they impact pay. Courts have held that an employer's failure-to-promote or decision to demote are not "compensation decisions," but are easily identifiable "discrete acts" that "occur" — for purposes of triggering the charging period — at the time they are announced. In making this distinction, the Court of Appeals for the District of Columbia noted that "discrimination in compensation" had an established meaning in employment law before Congress enacted the FPA:
See Noel v. Boeing Co., ___ F.3d ___, 2010 WL 3817090, at *6 (3d Cir. Oct. 1, 2010).
See, e.g., Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010) (holding that a decision whether to promote an employee to a higher paying position is not a "compensation decision" within the meaning of the FPA); Harris v. Auxilium Pharms., Inc., 664 F. Supp. 2d 711, 747 (S.D. Tex. 2009) (holding that a claim based on failure to promote was not a "compensation decision," but an identifiable "discrete act" of which the plaintiff was immediately aware and could have filed a charge within the 300-day period, but failed to do so); Tryals v. Altairstrickland, LP, No. H-08-3653, 2010 WL 743917, at *7-*8 (S.D. Tex. Feb. 26, 2010) (holding that a demotion was a discrete act that triggered the 300-day period when it occurred); Canaday v. Wynne, No. 5:09cv247/RS/EMT, 2010 WL 2688065, at *10 (N.D. Fla. Apr. 26, 2010) (holding failure-to-promote claim was not covered by FPA) (Report and Recommendation adopted by Canaday v. Wynn, No. 5:09cv247/RS-EMT, 2010 WL 2688066 (N.D. Fla. July 2, 2010)); Russell v. County of Nassau, 96 F. Supp. 2d 213, 228 (E.D.N.Y. 2010) (holding that plaintiff's removal from a graded civil service position to an ungraded position was a discrete act, similar to a termination). In Russell, the court also held that, as to plaintiff's claim that his wages were the result of a discriminatory decision to pay him less because of his race, the court found this claim timely under the FPA. 96 F. Supp. 2d at 227.
[I]n 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. In contrast, a discriminatory failure to promote is actionable regardless whether it affects an employee's compensation. 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.
. . . That the Congress drafted and passed the [FPA] 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.
The Third Circuit has similarly noted the limited scope of the FPA: "the FPA was enacted to address a particular type of employment discrimination, compensation decisions, which are often concealed and not discovered until long after the 180- or 300-day administrative period expires." Although not binding, these cases are persuasive authority that the FPA's application to "discriminatory compensation decisions" and "practices" leaves unaffected other "discrete acts" of discrimination, such as demotions or job eliminations, for which the statute of limitations begins to run when the decision is announced. Tryals v. Altairstrickland, LP is especially analogous. Tryals filed a charge challenging his demotion, which resulted in a change in job title and pay, more than 300 days after it occurred, arguing that it was a discriminatory compensation decision under the FPA. The district court found that the demotion was a "discrete act" and therefore Tryals's claim was untimely. In so holding, the court noted that, on the day of his demotion, "Tryals knew all the facts he relies on in this case." Here, plaintiffs knew all the facts forming the basis of their claims when defendant informed them of its decision to eliminate their positions and transfer them to lower-paying positions with a two-year wage freeze. Plaintiffs do not argue that defendant concealed the effect of these decisions.
Noel, 2010 WL 3817090, at *7.
See also Ragsdale v. Holder, 668 F. Supp. 2d 7, 19 n. 10 (D.D.C. 2009) (holding that plaintiff's claim based on denial of advance annual leave in pay period 15 was a discrete discriminatory act); Onyiah v. St. Cloud State Univ., 655 F. Supp. 2d 948, 964 (D. Minn. 2009) (dismissing plaintiff's age discrimination claim because he failed to provide any nexus between the alleged refusal to hire and his pay discrimination claims); Leach v. Baylor Coll. of Med., No. H-07-0921, 2009 WL 385450, at *18 (S.D. Tex. Feb. 17, 2009) (noting, without deciding, that plaintiff's complaint regarding disparate job responsibilities may have accrued when he received notice that his job responsibilities had changed).
No. H-08-3653, 2010 WL 743917 (S.D. Tex. Feb. 26, 2010).
Id. at *7.
Id. at *7-*8.
Id. at *7-*8.
Although in the minority, a few courts have given a broader reach to the FPA's amendments. The Third Circuit held that "the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied." In Gentry v. Jackson State University, the district court denied summary judgment because there was an issue of material fact whether defendant's denial of tenure, although a "discrete act," was a "compensation decision" or "other practice" under the FPA because it negatively affected plaintiff's compensation. And in Bush v. Orange County Corrections Department, the court held that plaintiffs' pay-reduction claims were not time barred because, at the time of their demotions, plaintiffs did not realize their pay had been reduced. These cases are thus inapposite.
Mikula v. Allegheny County of PA, 583 F.3d 181, 186 (3d Cir. 2009).
610 F. Supp. 2d 564 (S.D. Miss. 2009).
Id. at 566.
597 F. Supp. 2d 1293 (M.D. Fla. 2009).
Id. at 1296; see Robinson v. Brooklyn Coll., No. 09-CV-2174 (DLI) (LB), 2010 WL 3924012, at *6 (E.D.N.Y. Sept. 29, 2010) (finding plaintiff's demotion claim was timely because the demotion was undisclosed to plaintiff).
The present case is the antithesis of the kinds of disguised compensation decisions with which Congress was concerned when it passed the FPA. Here, plaintiffs' job eliminations were explained to them directly and, when given the option in lieu of termination, plaintiffs chose to accept transfers to lower-paying positions rather than to seek employment elsewhere. Although the positions involved reduced pay, plaintiffs were informed of this before they accepted defendant's offer. Moreover, defendant provided a two-year wage freeze, but informed plaintiffs that their pay would be reduced to the rate appropriate to their new positions in two years. Plaintiffs, therefore, were fully aware of the consequences of accepting the job transfers. Nothing was concealed from them. These discrete, identifiable employment decisions are not the kinds of subversive decisions creating undetected wage disparities that the FPA was intended to protect against.
4. Timeliness of Plaintiffs' Claims
The Court must first identify the precise "unlawful employment practice" of which plaintiffs complain before determining whether it comes within the intended scope of the FPA. In so doing, "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful." Defendant made a set of decisions in 2003 and 2004 that affected Almond and Weems; defendant decided to eliminate their positions and to offer to transfer them to other positions in USD at lower pay, with saved pay grade for two years. Almond and Weems were made fully aware of the decision to eliminate their positions and were made fully aware of the offer to transfer them to lower paid positions with saved pay for two years. Neither plaintiff challenged the elimination of his position; both accepted the offer to transfer to lower paid positions and did not object to or challenge the transfers to lower-paying positions. Instead, they attempted to carve out their claims based on the consequences of accepting job transfers to a lower-paying positions. Assuming both plaintiffs included these facts in their 2006 administrative complaints, their claims are now time barred.
Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980).
Brown v. Unified Sch. Dist. 501, Topeka Pub. Schs., 465 F.3d 1184, 1187 (10th Cir. 2006) (quoting Ricks, 449 U.S. at 258) (emphasis in original).
The wage reductions, although delayed, were a known consequence of the job transfers of which Almond and Weems were both aware at the time they accepted transfers in lieu of termination, but did not challenge. Plaintiffs' failure — or inability — to take advantage of the grace period extended to them before the full force of the job transfers was felt, does not toll the statute of limitations for filing claims on the basis of their transfers to lower-paying positions. Furthermore, the benefit defendant extended to them at the time of their transfers — i.e., the wage freeze — did not transform the subsequent wage reductions into separate and discrete acts of discrimination, nor did the job eliminations and plaintiffs' decisions to accept job transfers then become a "compensation decision or other practice" under the FPA. In her dissent to Ledbetter, Justice Ginsburg explained the critical difference between wage discrimination and other forms of discrimination:
In their response to defendant's original motion, plaintiffs argued that they did not challenge the job elimination or transfer because they were not "adverse" employment actions until their wages were actually reduced. There is no authority for the argument that only employment decisions affecting wages are "adverse." See Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004) (noting that the phrase "adverse employment action" is not limited to "monetary losses in the form of wages or benefits"); see also MacKenzie v. City County of Denver, 414 F.3d 1266, 1277-78 (10th Cir. 2005) (setting forth the elements of prima facie case for failure to promote, but wages is not an element of the claim). Rather, a "reassignment with significantly different responsibilities, or a decision causing a significant change in benefits" will rise to the level of an adverse employment action. Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006) (quoting Dick v. Phone Directories CO., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005)).
Chardon v. Fernandez, 454 U.S. 6, 8 (1981) ("The fact that they were afforded reasonable notice cannot extend the period within which suit must be filed.").
Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. . . . Pay disparities are thus significantly different from adverse actions "such as
termination, failure to promote, . . . or refusal to hire," all involving fully communicated discrete acts, "easy to identify" as discriminatory. . . .
The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts "easy to identify." A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight.
Not only is wage discrimination more likely to be hidden, but, like a hostile work environment, its adverse effect is incremental and cumulative.
Id. at 648 — 49 (Ginsburg, J., dissenting).
Here, however, plaintiffs are challenging fully communicated discrete acts that are easy to identify. Specifically, they challenge defendant's decision to eliminate their positions and plaintiffs' informed decisions to accept transfers to lower-paying positions. The wage reductions were merely a delayed but inevitable consequence of those employment decisions, of which they were both undisputedly aware at the time they were transferred. None of the employment decisions plaintiffs are presently challenging were previously concealed from them or unknown to them. The charging period was triggered when defendant notified Almond and Weems on June 10, 2003 and May 19, 2004, respectively, of the decision to eliminate their positions and the
Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 (10th Cir. 2007); see Ricks, 449 U.S. at 258 (holding that termination of employment was a "delayed, but inevitable, consequence of the denial of tenure," and the discrimination "occurred" at the time the tenure decision was made and communicated to Ricks, even though the effects did not occur until later); see also Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (holding that the "proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful") (emphasis in original).
offer to transfer them to lower-paying positions with a two year wage freeze. Because plaintiffs both filed their administrative complaints in April 2006, more than 300 days after they were transferred, their claims are now time barred.
Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (holding that a cause of action based on a demotion and transfer accrues on the date the employer notifies the employee); see Haynes, 456 F.3d at 1226 (noting that "[t]he mere continuity of the employment relationship, in and of itself, is not enough to prolong the life of a cause of action") (quoting Ricks, 449 U.S. at 257-58); see also McIntire v. Tulsa County Sheriff, 121 F. App'x 295, 299 (10th Cir. 2005) (holding that claim accrued when the decision to terminate plaintiff was announced, rather than her last day of actual work); Rzepiennik v. Archstone-Smith, Inc., 331 F. App'x 584, 589 (10th Cir. 2009) (holding, even after the FPA, that a "discrete adverse action `takes place' when a decision is made and communicated to the plaintiff, even if the effects of the action do not occur until later").
Accordingly, Weems's wage-reduction claim is dismissed for lack of subject matter jurisdiction. The Court grants summary judgment to defendant on both of plaintiffs' claims as time barred.
IT IS THEREFORE ORDERED BY THE COURT that defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction or Alternatively for Summary Judgment (Doc. 44) is granted.
IT IS SO ORDERED.