Opinion
4:02cv44-WS
February 24, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Allen LeBlanc ("Plaintiff") sues his employer, the City of Tallahassee ("Defendant"), for race discrimination. Among other things, Plaintiff contends that he received lower merit pay increases than similarly situated white employees. Plaintiff seeks relief under (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, Title 42, United States Code, Sections 2000e-2000e-17; and (2) the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes.
Before the court at this time is Defendant's motion for summary judgment (doc. 33). Plaintiff has responded (doc. 48) in opposition to the motion, and the parties have been advised (doc. 60) that the motion would be taken under advisement as of a date certain.
I.
In support of its motion for summary judgment, the defendant has filed affidavits, deposition transcripts, and other documents that reveal the following:Defendant initially hired Plaintiff on October 10, 1990, as a temporary utility clerk. On November 25, 1991, Plaintiff was hired into a permanent position as an Energy Services Representative ("ESR"). He was promoted to ESR Il on February 21, 1993. Since his promotion, Plaintiff has received merit pay increases every year.
On March 6, 2000, the Florida Commission on Human Relations ("FCHR") received a charge of discrimination, dated March 2, 2000, from Plaintiff. In that charge, Plaintiff alleged that, during his employment, he had been denied a promotion, training and comparable pay increases because of his race. Specifically, Plaintiff stated:
1. I am the only Black person in my workplace, one of the most experienced, most qualified and lowest paid. I have done some research and discovered that almost every other employee in my section, from Administrative to Energy Service Representatives, are [sic] experiencing higher rates of pay increases than myself. For example, Bryan Kerwin (White Male) were both [sic] hired 13 years ago as independent contractors. He was making about $2000 more than myself at the time. Now he is making close to $9,000 more than myself. Julian Ganaoudis was hired as a Energy Representative I making $3630 less than myself annually. In 1999, he was promoted to a II, making $6,633 more than myself although I have been a Il for 6 years.
2. On September 30, 1999, all employees got a raise, yet mine was one of the lowest, if not the lowest.
Pl.'s Affidavit at Ex. 18.
Plaintiffs FCHR charge was dual filed with the Equal Employment Opportunity Commission ("EEOC"). By letter dated October 4, 2001, the United States Department of Justice advised Plaintiff that he had the right to institute a civil action pursuant to Title VII. On or about January 2, 2002, Plaintiff filed the complaint in this action.
II.
Title VII permits a complainant to seek relief in federal court provided the complainant satisfies the conditions precedent specified by Congress. 42 U.S.C. § 2000e-5(f)(1). The timely filing of an administrative charge of discrimination is one such condition precedent to suit. Title VII provides that:
A charge . . . shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . ., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.42 U.S.C. § 2000e-5(e). Because Florida has a state agency — the FCHR — with authority to grant or seek relief from discriminatory employment practices, complainants in Florida must file their administrative charges of discrimination within three hundred (300) days after an alleged unlawful employment action takes place, Complainants who seek administrative relief for discriminatory conduct occurring outside the 300-day charge-filing period will find their claims time-barred absent special circumstances.
In this case, Plaintiff's charge of discrimination was filed on March 6, 2000, the date the charge was received by the FCHR. Plaintiff's charge-filing period thus began three hundred days earlier, or on May 10, 1999.See 29 C.F.R. § 1601.13(a) (providing that the timeliness of a filing is determined by the date on which the charge is received by the agency); Johnson v. Host Enterprise. Inc., 470 F. Supp. 381, 383 (E.D. Pa. 1979) (dismissing Title VII claim where plaintiff mailed his charge within the applicable limitations period but his charge was not received by the EEOC until after the expiration of the statutory filing period). To the extent Plaintiff seeks relief for discriminatory actions occurring on or after May 10, 1999, his claims are actionable. Otherwise, his claims are time-barred unless he demonstrates special circumstances.
Plaintiff seeks to circumvent the Title VII filing deadline by arguing that Defendant's failure to pay him at a salary level commensurate with his white co-workers should be treated as a continuing violation. Under the continuing violation doctrine, acts of discrimination that occur outside the 300-day period are not time-barred if they are part of a continuing violation that extends into the limitations period. Stated differently, an otherwise time-barred claim may be considered timely if it and a timely-filed claim are treated as a single claim directed at continuing discriminatory conduct, part of which occurred within the statutory filing period.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court held that a discrete discriminatory act occurs on the day it happens. In the Court's words:
[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180 or 300 day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.Morgan, 122 S.Ct. at 2072. The Court explained that "discrete acts" include events that "are easy to identify," including "termination, failure to promote, denial of transfer, or refusal to hire." Morgan, 122 S.Ct. at 2073.
Before Morgan, many courts had treated pay claims as continuing violations of Title VII. See, e.g., Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1010 (10th Cir.) (decided six months prior to Morgan and holding that pay discrimination is a continuing violation), cert. denied, ___ U.S. ___, 123 S.Ct. 340, 154 L.Ed.2d 248 (2002); Miller v. Beneficial Mgmt Corp., 977 F.2d 834, 843 (3d Cir. 1992) (noting that "[m]ost courts appear to treat pay discrimination claims as continuing violations"); Galloway v. Partners Nan Health Plans, 986 F.2d 446, 449 (11th Cir. 1993) (concluding that race-based, discriminatory wage payments constitute continuing violations of Title VII). Morgan, however, limited the applicability of the continuing violations theory and cast doubt on the continued viability of the doctrine's extension to pay claims. Indeed, since Morgan, a number of courts have refused to apply the continuing violation doctrine to pay claims. See, e.g., Inglis v. Buena Vista Univ., 235 F. Supp.2d (N.D. Iowa 2002) (noting that "Morgan will likely halt the previous trend of analyzing pay claims under a continuing violations theory" while explaining that, "[b]ecause each discriminatory pay check is unlawful, issuance of such a paycheck is a discrete act of discrimination that, like a termination, a failure to promote, or refusal to hire, is easily identifiable, its occurrence can be pinpointed in time, and is itself actionable");Russell v. EIi Lilly Co., No. TH 01-0160-C TH, 2002 WL 31427441, at *4 (S.D. Ind. Oct. 16, 2002) (holding that, "underMorgan, the continuing violation theory cannot save Plaintiffs claim based on a denial of a pay raise [because] [a] denial of a pay raise, like a termination, failure to promote, denial of a transfer, or failure to hire, is a discrete discriminatory act"); Quarless v. Bronx-Lebanon Hosp. Ctr., 228 F. Supp.2d 377, 383 (S.D.N.Y. 2002) (citing Morgan and explaining that "[b]ecause each paycheck that the Plaintiff received was an (alleged) immediate and individual wrong which gave rise to a separate disparate pay claim, the Plaintiff cannot use the continuing violation doctrine to render timely any disparate pay violations which occurred outside the 300 day statute of limitations").
Even before Morgan was decided, some courts — including the Eleventh Circuit — had backed away from using the continuing violation doctrine to render timely disparate pay violations that occurred outside the 300 day statute of limitations. See, e.g., Pollis v. New Sch. for Social Research, 132 F.3d 115, 119 (2d Cir. 1997) (stating that "a cause of action based on receipt of a paycheck prior to the limitations period is untimely and recovery for pay differentials prior to the limitations period is barred irrespective of subsequent, similar timely violations"); Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371 (S.D.N.Y. 1999) (holding that "recurring pay discrimination does not constitute a continuing violation, as each receipt of a paycheck is the basis for a separate cause of action for which suit must be brought within the limitations period"); Knight v. Columbus. Georgia, 19 F.3d 579, 584 (11th Cir. 1994) (rejecting application of continuing violation theory to an FLSA pay claim, stating: "We are not convinced that each successive paycheck which pays the non-officers a lower rate than overtime-exempt public safety employees constitutes a new act of wage discrimination as opposed to merely the lingering effect of a past unlawful act").
Here, Plaintiff claims that, after he was promoted on February 21, 1993, he received annual merit pay increases that were less than those received by his white counterparts. Under Defendant's pay policies, each regular employee is considered for a merit adjustment once a year at the beginning of each fiscal year. Like employee start dates and salaries, the annual merit pay increases awarded by Defendant are a matter of public record. Indeed, Plaintiff does not suggest that he could not have known about the alleged discrepancy in pay increases at the time the increases were awarded. Under Morgan, each pay increase was a discrete act that gave rise to a separate disparate pay claim. To the extent Plaintiff failed to file a charge of discrimination within 300 days of each discrete act, his claims are time-barred. Defendant is accordingly entitled to summary judgment on all claims arising out of events that pre-date May 10, 1999.
III.
In his complaint, Plaintiff alleges that, in 1999, "all employees of the Energy Services Department within Defendant received a raise but Plaintiffs was one of [the] lowest raises while white employees received larger raises than Plaintiff." Compl. at ¶ 2. In his affidavit, filed in response to Defendant's motion for summary judgment, Plaintiff provides few specifics. Instead, he asserts generally: "My pay is less than it should be for my experience and skills, and my work assignments in no way compare to those of my white coworkers, despite my skills, education, and experience." Pl.'s Aff. at ¶ 9. He claims that his "all-white team of coworkers — with less seniority and education than myself — were far outpacing me in advancement." Pl.'s Aff. at ¶ 3. He does not state when these various coworkers were "advanced," nor does he state that he himself requested — and was denied — similar advancement.
In contrast to Plaintiff's conclusory, self-serving assertions, Defendant has produced (1) a prepared summary of specific pay increases that were awarded in the years 1999 to 2002 to fourteen employees in the Retail Services Division; Seaton's Aff. at Ex. 11; and (2) a summary of performance evaluation scores that were considered by Defendant when awarding merit pay increases. Seaton's Aff. at Ex. 12. Defendant's evidence reveals that, in 1999, four white employees received lower percentage raises than Plaintiff. Of those receiving higher raises, at least three received higher scores on their performance evaluations than did Plaintiff. In 2000, Plaintiff and ten other employees in the Retail Services Division each received a 5% merit raise, the maximum award under that year's funding guidelines. In 2001, Plaintiff and four others received 4% merit increases while six others received 5% increases. The five receiving 4% raises at) had an "exceed" rating on their performance evaluations as opposed to the "outstanding" scores received by at least three of the six who received 5% increases. In 2002, one employee received a 5.27% merit increase; Plaintiff and two others received raises of 5.04%; and seven others received lesser awards ranging from 3.04% to 5.01%. Such evidence in no way suggests that, in the charge filing period, Plaintiff received lower raises than his white coworkers on the basis of his race.
To survive Defendant's amply-supported motion for summary judgment, Plaintiff must produce more than a scintilla of evidence to suggest that Defendant discriminated against him on the basis of race. This he has not done.
Accordingly, it is ORDERED:
1. Defendant's motion for summary judgment (doc. 33) is GRANTED.
2. Plaintiffs motion for order permitting filing of a substitute affidavit (doc. 61) is DENIED.
3. The clerk is directed to enter judgment in favor of Defendant. Costs shall be taxed against Plaintiff.
DONE AND ORDERED
JUDGMENT
This action came to trial or hearing before the Court with the Honorable William Stafford presiding. The issues have been tried or heard and a decision has been rendered.Defendant's motion for summary judgment is granted. Judgment in favor of defendant CITY OF TALLAHASSEE and against plaintiff ALLEN LEBLANC. Costs shall be taxed against Plaintiff. Case closed.