Just in time to finish off the year and get 2013 off to a good start, on December 11, 2012, the Tenth Circuit handed down a ruling clarifying and/or reiterating several rules of employment discrimination law—all in favor of employers. This ruling should not change your daily practices, but it does add some extra armor, if you ever find yourself in a lawsuit.
Regina Daniels was a dispatcher for United Parcel Service (UPS) for approximately fifteen (15) years, when she retired in 2009. After retirement, Daniels filed a lawsuit against UPS claiming she suffered discrimination based upon her gender and age. Specifically, Daniels claimed she was denied promotions and training, reassigned to a different position so a younger male could take her place, and retaliated against for complaining of discrimination. The trial court dismissed all of the claims against UPS—most because they were untimely, and others on the merits.
As most of you know, Title VII and the Age Discrimination in Employment Act require a plaintiff to exhaust her administrative remedies before she can bring a lawsuit. The law requires a plaintiff to file such a complaint within 180 days of discrimination occurring, or where the applicable state has its own discrimination agency and an agreement with the U.S. Equal Employment Opportunity Commission (EEOC), the complaint must be filed within 300 days.
The 180 versus 300 days requirement has become very interesting for Oklahoma employers over the last year or so. As of June 30, 2012, the Oklahoma Human Rights Commission ceased to exist, and as a result, Oklahoma does not have a work-share agreement with the EEOC. Now, Oklahoma complainants must file a complaint with the EEOC within 180 days of discrimination, rather than 300 days.
Now to this case: Daniels was assigned to work UPS’s night window until 2005, when she accepted a transfer to a cover position with the same pay and duties. Daniels had been training for a “twilight” position, but in 2005 UPS instituted policy that only full-time supervisors could work the twilight window; at that time all of the qualified employees were men. In 2005 and 2006, Daniels submitted letters to Human Resources expressing the desire for promotion. Daniels was advised at that time that HR had received her letters and she would be contacted by a supervisor. The letters also advised that her letters of interest would expire at the end of the year, and she would need to resubmit a letter each year to be eligible for promotion. UPS did not receive an evaluation from her manager and did not follow up.
In 2006 and again in 2007-2008, Daniels covered the night window position. Then, in 2008 she was permanently assigned to the night window position and a younger man was hired in the cover position. In July 2008, Daniels complained to HR about the replacement, the termination of her training back in 2005, and her not being promoted in 2005 and 2006. At that time Daniels learned it was company policy to follow up on promotions, and that UPS had failed to do so. HR promised to investigate her complaints.
Daniels filed an EEOC complaint in November 2008. In February, Daniels met with HR to discuss her complaint. Daniels retired in February 2009 and then filed another complaint with the EEOC adding retaliation in June of that year.
UPS argued Daniels’ failure-to-promote and failure-to-train discrimination claims occurred in 2005 and 2006, well outside the 300 days before she filed a complaint with the EEOC, and should be dismissed. Daniels claimed the time bar should not apply to the failure-to-promote claims, because she didn’t know about UPS’s follow-up policy until 2008. She also argued the time bar should not apply to the failure-to-promote claims because any effort at subsequent promotion would have been futile, and the failure to promote was a recurring event because she received less compensation every succeeding pay period under the Lilly Ledbetter Act.
The court stuck by its guns and held that claims of discrete discrimination must be timely filed, and that failure-to-promote claims are discrete employment actions. The court also made clear that Daniels’ unawareness of UPS’s failure to follow its own policy until 2008 was of no consequence, as the promotion denial was the triggering event.
The court also made clear that Congress did not change the timeliness requirement by passing the Ledbetter Act. The Ledbetter Act makes equal pay claims a recurring violation so they continue to fall within the exhaustion period. According to the Tenth Circuit, however, failure-to-promote claims are not such claims simply because they “touch on pay,” and thus Daniels failed to timely exhaust her claims.
In denying Daniels’ failure-to-train claim, the court specifically rejected her argument that because she alleged a pattern and practice of discrimination, her claim should be allowed to go forward. In doing so, the Tenth Circuit followed previous holdings that an individual may not bring a pattern-and-practice claim—those are reserved for either classes or the U.S. Attorney General.
In addition to finding most of Daniels’ claims untimely, the court found that Daniels had not been subjected to adverse employment actions as required for cases of retaliation. Specifically, the court found that a transfer from the day to the night shift alone was not adverse under the law, and that failure to investigate a claim of discrimination was not an adverse action.
So, what does this mean for employers? The courts are sticking by their guns and not letting employees file lawsuits about everything that they believe ever happened to them. To some extent, this limits your risks to those things that have happened recently. And, while you must keep in mind that hostile work environment claims are treated differently than “discrete acts,” like failure-to-promote, the courts will not let plaintiffs escape their legal requirements by simply claiming the employer has a pattern and practice of discrimination.
While Daniels does not change the landscape, it is a timely opinion reiterating principals employers have had and should have at their disposal in litigating employment discrimination claims. So, don’t change what you are doing—keep being diligent in prohibiting and preventing discrimination and investigating and resolving complaints when they arise. But, rest easier knowing rules still apply. Happy 2013!
- Daniels v. United Parcel Service, Inc., Case No. 11-3211 (10th Cir. 12/11/12)
- Title VII of the Civil Rights Act of 1964
- Age Discrimination in Employment Act of 1967 (ADEA)
- Lilly Ledbetter Fair Pay Act of 2009
- U.S. Equal Employment Opportunity Commission
- McAfee & Taft Labor and Employment Group