FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 17, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-17037

________________________

D. C. Docket No. 06-04720-CV-5-CLS

TELESA HESTER,

Plaintiff-Appellant,

versus

NORTH ALABAMA CENTER FOR EDUCATIONAL EXCELLENCE,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 17, 2009)

Before DUBINA, Chief Judge, BIRCH and SILER, Circuit Judges.

*

PER CURIAM:

Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting *

by designation.
Appellant Telesa Hester appeals the district court’s grant of summary

judgment in favor of the North Alabama Center for Educational Excellence

(“NACEE”) in her employment discrimination suit brought pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 3(a), and the Equal Pay Act

of 1963, 29 U.S.C. § 206(d). Hester’s complaint alleges that she was paid less than

male employees engaged in substantially equal work in violation of Title VII, 42

U.S.C. § 2000e-2(a), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and that

she was unlawfully retaliated against in violation of Title VII, 42 U.S.C. § 2000e3(a).

On appeal, Hester first argues that the district court erred in finding that her

Title VII wage discrimination claim was untimely under the Supreme Court’s

decision in Ledbetter v. Goodyear Tire and Rubber, 550 U.S. 618, 127 S. Ct. 2162,

167 L. Ed. 2d 982 (2007). Second, Hester argues that the district court erred when

it granted NACEE’s motion for summary judgment on her Equal Pay Act claim

based on finding that the pay differential was explained by a factor other than sex,

specifically, the relative experience levels of the coordinators. Finally, Hester

argues that the district court erred when it determined she could not establish a

prima facie case of retaliation under 42 U.S.C. § 2000e-3(a). We agree with

Hester’s arguments, and, accordingly, vacate the district court’s judgment and

2
remand for further proceedings.

We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-

62 (11th Cir. 2006). “Summary judgment is appropriate when ‘there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.

2004) (quoting Fed. R. Civ. P. 56(c)). “A genuine factual dispute exists if the jury

could return a verdict for the non-moving party.” Id. (internal quotation marks

omitted).

At oral argument, the parties agreed that Hester’s Title VII wage

discrimination claim was due to be remanded to the district court in light of the

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), signed

into law on January 29, 2009, and made retroactive to all Title VII wage

discrimination claims pending on or after May 28, 2007. Pub. L. No. 111-2, § 6,

123 Stat. 5, 7 (2009). Under the Act, an unlawful employment act occurs each

time an employee is paid under a discriminatory compensation scheme. 42 U.S.C.

§ 2000e-5(3)(A). Because Hester has shown that NACEE continued to pay her

under the same compensation scheme through the time she filed her EEOC charge,

3
her claim is not untimely. Thus, the district court’s grant of summary judgment on

the basis of untimeliness is vacated and the claim is remanded to the district court.

Similarly, Hester’s Title VII retaliation claim requires reconsideration in

light of Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.

Ct. 2405 (2006). The district court applied this court’s pre-Burlington standard to

Hester’s retaliation claim and required her to show that she suffered “an adverse

employment action” that had a “tangible, negative effect on her employment.” (R.

25 at 25.) In Burlington, the Supreme Court broadened the type of employer

conduct considered actionable under Title VII’s retaliation provision and held that

a plaintiff need only show that the employer’s actions were “harmful to the point

that they could well dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington, 548 U.S. at 57, 126 S. Ct. at 2409. Accord

Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008). This court has

recognized that the standard for proving a prima facie case of retaliation under

Title VII is now “decidedly more relaxed” than the standard applied by the district

court. Crawford, 529 F.3d at 973. Therefore, we vacate and remand Hester’s Title

VII retaliation claim for further consideration under Burlington, 548 U.S. 53, 126

S. Ct. 2405, and Crawford, 529 F.3d 961.

The district court’s grant of summary judgment in favor of NACEE on

4
Hester’s Equal Pay Act claim is also vacated and remanded to the district court, as

there is a genuine issue of material fact as to whether the pay differential can be

explained by a factor other than sex.

VACATED AND REMANDED.

5