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Date: 07-22-2015

Case Style: Natasha DAvis v. Bomdardier Transportation Holdings (USA), Inc.

Case Number: 14‐289

Judge: Wesley

Court: United States Court of Appeals for the Second Circuit on appeal from the Eastern District of New York

Plaintiff's Attorney: Nadira S. Stewart, Charmaine M. Stewart, Stewart Law Firm, PLLC,
Rosedale, NY, for Plaintiff‐Appellant.

Defendant's Attorney: Celena R. Mayo, Ricki E. Roer, Wilson, Elser, Moskowitz, Edelman
& Dicker LLP, New York, NY, for Defendant‐Appellee.

Description: 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
BACKGROUND1
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.
DISCUSSION4
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 accrues
7
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 paydiscrimination
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 the
8
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 discrete
10
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 paydiscrimination
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 claims
11
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.

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

Plaintiff's Experts:

Defendant's Experts:

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