14

‐ 289

Davis v. Bombardier Transp. Holdings

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2014

(Submitted: March 6, 2015 Decided: July 22, 2015)

Docket No. 14

‐ 289

NATASHA DAVIS,

Plaintiff

‐ Appellant

,

‐ v. ‐

BOMBARDIER TRANSPORTATION HOLDINGS (USA) INC.,

Defendant

‐ Appellee

.

Before: W ESLEY

, L IVINGSTON

, and C ARNEY

, Circuit Judges

.

Plaintiff

‐ Appellant Natasha Davis brought claims of disability

‐ based

employment discrimination and retaliation against her former employer,

Defendant

‐ Appellee Bombardier Transportation Holdings (USA) Inc. The

United States District Court for the Eastern District of New York (Mauskopf, J.)

granted Bombardier’s motion for summary judgment, finding, in relevant part,2 that Davis’s demotion

‐ based claim was time barred. On appeal, Davis argues

that the Lilly Ledbetter Fair Pay Act of 2009 applies to and revives this otherwise

time

‐ barred claim. We AFFIRM.

Nadira S. Stewart, Charmaine M. Stewart, Stewart Law Firm, PLLC,

Rosedale, NY, for Plaintiff

‐ Appellant

.

Celena R. Mayo, Ricki E. Roer, Wilson, Elser, Moskowitz, Edelman

& Dicker LLP, New York, NY, for Defendant

‐ Appellee

.

W ESLEY

, Circuit Judge :

Plaintiff

‐ Appellant Natasha Davis brought claims of disability

‐ based

employment discrimination and retaliation against her former employer,

Defendant

‐ Appellee Bombardier Transportation Holdings (USA) Inc.

(“Bombardier”). The United States District Court for the Eastern District of New

York (Mauskopf, J.) granted Bombardier’s motion for summary judgment,

finding, in relevant part, that Davis’s demotion

‐ based claim was time barred. On

appeal, Davis argues that the Lilly Ledbetter Fair Pay Act of 2009 applies to and

revives this otherwise time

‐ barred claim.

For the reasons below, the judgment of the district court is AFFIRMED.3 BACKGROUND 1

Bombardier built and operates the Air Train, a computer

‐ driven train that

transports passengers between major transportation hubs in New York City and

the terminals of John F. Kennedy International Airport. In 2002, knowing that

Natasha Davis was a Type I diabetic, Bombardier hired her as a Customer

Service Agent. Davis never actually worked as a Customer Service Agent

because Bombardier altered the Customer Service Agent position prior to Davis’s

commencement date. Bombardier renamed the position Air Train Agent

(“ATA”) and separated it into two categories: ATA I and ATA II. Employees in

both positions had similar responsibilities, but the ATA II job title carried the

additional responsibility of manually operating the Air Train during

emergencies. In 2004, Davis became an ATA II.

On January 25, 2007, Davis went on disability leave for diabetic

retinopathy. Davis underwent at least six eye surgeries during her leave. In

August 2007, Davis notified Bombardier that she was prepared to return to work,

and she submitted to a return

‐ to

‐ work physical. The parties dispute whether

Bombardier routinely administered this physical to employees who had been on

1 Except as otherwise noted, the facts are not in dispute and are drawn from the district

court’s memorandum, supplemented as necessary by the record.4 leave for more than 90 days. Bombardier informed Davis that she failed the

physical and eye exams, but Davis contends she passed. Bombardier thereafter

determined that Davis could no longer operate the Air Train in an emergency. 2

On September 1, 2007, Bombardier “demoted” Davis to the ATA I position,

which paid 75 cents less per hour than the ATA II position. 3

Davis then applied for two positions with Bombardier but was not hired

for either. In both instances, Davis had poorer computer skills than the

successful candidates and she received lower scores in most of the categories

considered by Bombardier to be relevant for the positions. On September 5,

2008, Davis filed a discrimination charge with the Equal Employment

Opportunity Commission (“EEOC”). Davis filed her federal suit on February 16,

2011. Following discovery, Bombardier moved for summary judgment. The

district court granted Bombardier’s motion for summary judgment on all of

Davis’s federal claims, and declined to exercise supplemental jurisdiction over

Davis’s other claims. Relevant to this appeal, the district court dismissed Davis’s

2 Bombardier asserts that its demotion decision was based on the results of Davis’s eye

exam while Davis contests Bombardier’s motivation.

3 Bombardier characterizes Davis’s reclassification from ATA II to ATA I as a “transfer”

throughout its appellate brief; however, Davis and the district court described this

event as a “demotion,” see, e.g.

, J.A. at 83 n.3, and Bombardier does not take issue with

this characterization. Without passing judgment on the merits of her underlying claim,

we adopt Davis’s use of the term “demotion” to describe what occurred here.5 demotion claim as untimely because the demotion occurred more than 300 days

prior to when she filed her EEOC charge of discrimination. See 42 U.S.C. § 2000e

‐

5(e); id. § 12117.

DISCUSSION 4

On appeal, Davis principally argues that the Lilly Ledbetter Fair Pay Act of

2009 (“Ledbetter Act”), 42 U.S.C. § 2000e

‐ 5(e)(3)(A), applies to her otherwise

time

‐ barred demotion claim. 5 The Ledbetter Act makes it unlawful to apply a

discriminatory compensation decision to an employee and starts a new statute of

limitations clock with each paycheck that reflects that decision. Davis argues

that Bombardier’s demotion decision was made with disability

‐ based

4 “We review a district court’s grant of summary judgment de novo, construing the

evidence in the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. Summary judgment is appropriate only if there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Kuebel v. Black & Decker Inc.

, 643 F.3d 352, 358 (2d Cir. 2011) (internal

quotation marks and citation omitted).

5 Davis also argues that the district court erred by failing to consider how demographic

information might have created a genuine issue of material fact related to her failure to

promote claims, which, unlike her demotion claim, are timely regardless of whether the

Ledbetter Act applies. During discovery, Bombardier disclosed the application

materials of only the hired candidates, not application materials for every candidate.

Davis did not move to compel disclosure of any additional application materials.

Bombardier contends that Davis never argued below that demographic information

could potentially create a genuine issue of material fact. But whether or not Davis

forfeited this argument is unimportant because it lacks merit. “[M]ere speculation and

conjecture is insufficient to preclude the granting of [summary judgment].” Harlen

Assocs. v. Incorporated Vill. of Mineola

, 273 F.3d 494, 499 (2d Cir. 2001).6 discriminatory intent and, as a result, reduced her compensation. Thus, she

submits that her claim is timely when measured from her last paycheck and not

the date of her demotion. Bombardier responds that the Ledbetter Act does not

resurrect otherwise time

‐ barred demotion claims because the statute is

applicable only to discriminatory compensation practices.

Under the Americans with Disabilities Act (“ADA”), it is unlawful for an

employer to discriminate against a “qualified individual” on the basis of her

disability “in regard to

. . . employee compensation.” 42 U.S.C. § 12112(a). The

ADA incorporates the Ledbetter Act, id. § 12117(a), which provides that:

[A]n unlawful employment practice occurs, with respect to

discrimination in compensation in violation of this subchapter,

when a discriminatory compensation decision or other practice is

adopted, when an individual becomes subject to a discriminatory

compensation decision or other practice, or when an individual is

affected by application of a discriminatory compensation decision or

other practice, including each time wages, benefits, or other

compensation is paid, resulting in whole or in part from such a

decision or other practice.

Id. § 2000e

‐ 5(e)(3)(A). In short, this provision specifies that an unlawful

employment action occurs when the discriminatory compensation decision or

practice is adopted and when the individual is “subject to” and “affected by” the

decision. Id. Davis is right that a compensation claim under the statute accrues7 not only at the time of the discriminatory decision but also with each paycheck

the victim receives. See Schwartz v. Merrill Lynch & Co.

, 665 F.3d 444, 449 (2d Cir.

2011). But that alone does not resolve her appeal.

We conclude that the Ledbetter Act does not encompass a claim of a

discriminatory demotion decision that results in lower wages where, as here, the

plaintiff has not offered any proof that the compensation itself was set in a

discriminatory manner. A plaintiff must plead and prove the elements of a pay

‐

discrimination claim to benefit from the Ledbetter Act’s accrual provisions.

In early 2009, Congress passed the Ledbetter Act to overrule the Supreme

Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.

, 550 U.S. 618 (2007).

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111

‐ 2, 123 Stat. 5 (2009). In

Ledbetter

, the Supreme Court found that the plaintiff’s pay

‐ discrimination claim,

which was based on disparate pay rates between the plaintiff and her male

colleagues for the same work, was untimely. 550 U.S. at 621

‐ 22. “The [ Ledbetter ]

Court rejected the contention that each pay check issued to the plaintiff

constituted a cognizable act of discrimination, concluding that ‘when the

disparate pay is received during the statutory limitations period, but is the result

of intentionally discriminatory pay decisions that occurred outside the8 limitations period,’ the claim for discrimination in salary in violation of Title VII

is time

‐ barred[.]” Schwartz

, 665 F.3d at 448 (quoting Ledbetter

, 550 U.S. at 623).

Justice Ginsburg, joined by three of her colleagues, dissented. She argued

that, among other things, the “realities of the workplace” reveal why claims of

discriminatory compensation should accrue when discriminatory wages are

paid. Ledbetter

, 550 U.S. at 649

‐ 51 (Ginsburg, J., dissenting). Specifically, she

stated that “[w]hen an employer makes a decision of [an] open and definitive

character, [such as promotions, transfers, hirings, and firings,] an employee can

immediately seek out an explanation and evaluate it for pretext.” Id. at 649. In

contrast, pay levels—and, thus, pay disparities—are frequently concealed by

both employers and employees. Id. at 649

‐ 50. Congress agreed. In passing the

Ledbetter Act, Congress overruled the Court’s narrow interpretation of when

compensation

‐ based claims accrue. See Schwartz

, 665 F.3d at 449. The Ledbetter

Act’s congressional findings section states: “The limitation imposed by the Court

on the filing of discriminatory compensation claims ignores the reality of wage

discrimination and is at odds with the robust application of the civil rights laws

that Congress intended.” Ledbetter Act, Pub. L. No. 111

‐ 2, § 2.9 Turning to Davis’s claim, we begin with the plain language of the statute.

See United States v. Robinson

, 702 F.3d 22, 31 (2d Cir. 2012). The Ledbetter Act

encompasses “discrimination in compensation,” described as “discriminatory

compensation decision[s] or other practice[s].” 42 U.S.C. § 2000e

‐ 5(e)(3)(A).

These repeated references to compensation lead us to concur with the Third

Circuit’s assessment that “the plain language of the [Ledbetter Act] covers

compensation decisions and not other discrete employment decisions,” such as

hirings, firings, promotions, and demotions. Noel v. Boeing Co.

, 622 F.3d 266, 274

(3d Cir. 2010).

But the demotion decision here did also affect Davis’s level of

compensation. One might think that if the discriminatory act results in a loss of

pay the demotion is in fact a part of a compensation decision. As this case makes

clear, such an assumption is not always correct because a change in pay,

standing by itself, is not sufficient to bring a claim within the ambit of the

Ledbetter Act. In Ledbetter

, the plaintiff sought to prove pay discrimination by

showing that she was paid substantially less than her male colleagues. 550 U.S.

at 622; see also id. at 643 (Ginsburg, J., dissenting). In her dissent, Justice Ginsburg

explains that notice to the affected employee is a significant reason why discrete10 employment actions differ from pay discrimination. See also id. at 649

‐ 50. Pay

discrimination is often not obvious to its victim because many employers are not

transparent about compensation levels; indeed, to state such a claim, an

employee needs to compare his compensation to that of his co

‐ workers. See id.

On the other hand, employees are put on notice of demotions, promotions,

hirings, and firings by the nature of how those decisions are communicated. See

id. at 649. Employers will also communicate to the demoted employee any pay

reduction that is concomitant with the demotion. The demoted employee, on

notice of his pay reduction, “can immediately seek out an explanation and

evaluate it for pretext.” Id. If the employee has been wrongfully demoted, he is

entitled to an award of back pay for lost compensation caused by the demotion.

See 42 U.S.C. § 12117(a) (referring to 42 U.S.C. § 2000e

‐ 5). Such an award will

make a demoted employee whole—without the need for the Ledbetter Act’s

generous accrual provisions because the employee had notice of the pay

reduction. Since the Ledbetter decision specifically dealt with a pay

‐

discrimination claim that was cognizable without regard to other adverse

employment actions, we find that the Ledbetter Act’s reference to

“discrimination in compensation” was to traditional pay

‐ discrimination claims11 rather than to a pay reduction that flows from another adverse employment

action. 6

The state of the law at the time the Ledbetter Act was passed further

supports the distinct nature of pay

‐ discrimination claims and pay reductions that

occur with a demotion. See Lorillard v. Pons

, 434 U.S. 575, 581 (1978) (“[W]here

. . . Congress adopts a new law incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge of the interpretation given to

the incorporated law, at least insofar as it affects the new statute.”). For example,

in Taylor v. United Parcel Service, Inc.

, 554 F.3d 510, 522 (5th Cir. 2008), the Fifth

Circuit noted that in order to state a claim for “discrimination in compensation”

under Title VII, “a plaintiff must show that he was a member of a protected class

and that he was paid less than a non

‐ member for work requiring substantially

the same responsibility.” Likewise, interpreting the Age Discrimination in

Employment Act (“ADEA”), the Eleventh Circuit developed a prima facie case

for “age discrimination in compensation” that required the plaintiff to show that,

among other things, “similarly situated persons outside the protected age group

6 We note that our conclusion is consistent with the decisions of our sister circuits that

have interpreted the Ledbetter Act. Almond v. Unified Sch. Dist. #501

, 665 F.3d 1174,

1175, 1180–81 (10th Cir. 2011); Noel

, 622 F.3d at 274; Schuler v. PricewaterhouseCoopers,

LLP

, 595 F.3d 370, 374–75 (D.C. Cir. 2010).12 received higher wages.” MacPherson v. Univ. of Montevallo

, 922 F.2d 766, 774

(11th Cir. 1991). We find these cases persuasive evidence of Congress’s intent

because the Ledbetter Act modified the ADA, Title VII, and the ADEA.

Here, after analyzing the Ledbetter decision, Congress’s response to that

case, and courts’ interpretation of civil rights statutes that existed at the time

Congress passed the Ledbetter Act, we conclude that Davis’s claim falls outside

the scope of the statute. Davis’s attempt to salvage her time

‐ barred demotion

claim by virtue of a concomitant pay reduction is unpersuasive because her claim

is based on the theory that she was demoted and paid less when she was still

able to perform higher

‐ paying work. Her claim is not that she was paid less than

employees engaged in the same work because she was disabled. Davis does not

dispute that her new hourly pay was the same as all other ATA I employees. The

record evidence does not permit the conclusion that the Ledbetter Act’s accrual

provisions apply to Davis’s demotion claim—her claim is untimely.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.