Opinion
No. 04-CV-1237
Filed January 31, 2008
CA5891-01.
Before: Washington, Chief Judge; Farrell, Ruiz, *Reid, Glickman, *Kramer, Fisher, Blackburne-Rigsby, and Thompson, Associate Judges; and *King, Senior Judge.
ORDER
On consideration of appellant's motion for leave to file the lodged petition for rehearing or rehearing en banc, the response thereto, and appellee's motion to file the lodged errata sheet, it is
ORDERED that the motions are granted and the Clerk is directed to file the lodged appellant's petition for rehearing or rehearing en banc and the lodged errata sheet of appellee.
It is FURTHER ORDERED by the merits division* that the petition for rehearing is granted to the extent that this court's opinion filed September 20, 2007, ( 932 A.2d 1109, D.C. 2007), is hereby vacated. That opinion issued on September 20, 2007, is hereby amended as follows; and the attached amended opinion, incorporating these changes, is issued on this date.
(1) The second paragraph, left hand column and the first paragraph, right hand column of the FACTUAL SUMMARY at 932 A.2d 1113 are modified, in part, to read:
GWU filed a motion for summary judgment on May 8, 2002, and an amended (technical) motion on May 21, 2002, basically arguing that Dr. Violand could not meet her burden to establish a prima facie case of pay discrimination. The motion contained a footnote indicating, in part, that "the majority of [Dr. Violand's] allegations are also barred by the applicable one year statute of limitations under the [DCHRA]," and that "[p]rocedurally, therefore, any claim arising prior to August 6, 2000 is time barred." However, the motion included neither textual argument concerning the statute of limitations, nor citation to any applicable case law. The Honorable Mary Ellen Abrecht denied GWU's summary judgment motion in an order docketed on June 6, 2002; the order did not mention GWU's footnote pertaining to the statute of limitations. On June 12, 2002, GWU filed a "Motion for Reconsideration of its Motion for Summary Judgment." No contention concerning the statute of limitations appeared in the motion for reconsideration. Dr. Violand opposed the motion for reconsideration on June 25, 2002. On July 1, 2002, Judge Abrecht denied the motion for reconsideration, and stated that: "Summary judgment was denied because of disputed facts, especially facts concerning whether Plaintiff's fund raising work was equal to her comparator." The parties filed a joint pretrial statement on October 30, 2002. Under the section headed "Claims and/or Defenses," Dr. Violand set forth several, including: "Plaintiff was denied equal pay for equal work because of her sex in violation of the DCHRA." GWU stated simply: "Defendant denies each and every allegation asserted by Plaintiff."
Judge Abrecht filed a pretrial order on November 7, 2002, which, in part, incorporated the parties' Pretrial Statement, specified that "[n]o other claims or defenses will be entertained at trial absent exceptionally good cause," and stated that "[t]rial briefs for new calendar judge, if filed, [were] to be filed one week before trial. . . ." On February 24, 2003, GWU filed a Trial Brief in the Civil Actions Branch of the trial court, with a copy to the Honorable Melvin Wright.
No other part of the FACTUAL SUMMARY is modified.
(2) In the ANALYSIS, the section on The Statute of Limitations Issue is modified at 932 A.2d 1117, full paragraph of the right hand column and continuing in the carryover paragraph of the left hand column, 932 A.2d 1118, to read:
Ledbetter does not control the outcome of GWU's appeal. Unlike the case before us, Ms. Ledbetter's former employer "contended . . . throughout the litigation, that [her] pay claim . . . was barred by Title VII's requirement that the conduct complained of in a Title VII action must have been the focus of an EEOC charge filed within 180 days of the occurrence of the conduct." Ledbetter v. Goodyear Tire Rubber Co., 421 F.3d 1169, 1176 (11th Cir. 2005). In contrast, although GWU raised a boilerplate statute of limitations affirmative defense in its answer to Dr. Violand's complaint ("Some or all of the claims set forth in the Complaint are barred by the applicable statute of limitations. . . ."), it mentioned the statute of limitations in its motion to dismiss only with respect to the intentional infliction of emotional distress count. And, although GWU included a footnote on the statute of limitations in its motion for summary judgment, it made no textual argument on that subject and cited no applicable case law. Moreover, after the trial court denied its motion for summary judgment, with no mention of the statute of limitations, GWU lodged a motion for reconsideration. That motion contained neither argument nor a footnote on the statute of limitations and its relation to Dr. Violand's pay discrimination claim. Significantly, GWU did not assert the statute of limitations as an affirmative defense in the parties' joint pretrial statement. The university's initial argument concerning the statute of limitations and the continuing violation theory first appeared in a trial brief, filed one week before trial. GWU also invoked this trial brief argument in a mid-trial motion to dismiss as a matter of law, and later during its renewed motion to dismiss. At that time the trial judge suggested that the issue should have been resolved before the case reached him for trial. Under these circumstances, we conclude that GWU waived or abandoned the statute of limitations defense.
The Joint Pretrial Statement is signed by counsel for the plaintiff and the defendant. Under the heading "Claims and/or Defenses," the plaintiff identified seven (7) claims, and for defenses, the defendant made one statement: "Defendant denies each and every allegation asserted by Plaintiff." The Pretrial Order issued by the trial judge after a November 6, 2002, Pretrial Conference with the parties specified, in part: "Except as modified by this Order, the parties' Joint Pretrial Statement is incorporated in this Pretrial Order. No other claims or defenses will be entertained at trial absent exceptionally good cause." (Emphasis in original).
There is a distinction between waiving or abandoning an affirmative defense and forfeiture of the defense: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.'" United States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted). Here, by not asserting the statute of limitations as an affirmative defense in its pretrial statement (or even in its motion for reconsideration of its motion for summary judgment), GWU waived or abandoned that affirmative defense. Attempting to assert it in a continuing violation argument in its trial brief, and again during mid-trial, came too late to avoid waiver or abandonment, especially since the trial court's pretrial order of November 7, 2002, incorporating the parties' joint pretrial order, declared in essence that any defense not appearing in the joint pretrial statement could not be raised at trial "absent exceptionally good cause." GWU did not offer an "exceptionally good cause" in its trial brief, nor in its mid-trial motion. Had the trial court entertained GWU's very late, mid-trial assertion of a statute of limitations defense with respect to the pay discrimination claim, Dr. Violand undoubtedly would have been prejudiced.
(3) In the ANALYSIS, the section on The Statute Of Limitations Issue is further modified at 932 A.2d 1119, carryover paragraph of the left-hand column, by changing the sentence beginning, "The exception that applies in this case", to read: "The exception that applies in this case is the second one, and we conclude that the legal principle governing waiver or abandonment of an affirmative defense constitutes `a previously existing, independent legal basis (having nothing to do with retroactivity) for [declaring that Ledbetter does not control the outcome of the case before us'].[4] Reynoldsville Casket, supra, 514 U.S. 759."
No other part of the analysis is amended.
It is FURTHER ORDERED that the petition for rehearing en banc is denied as moot, without prejudice to the filing of a petition for rehearing or rehearing en banc directed to the amended opinion issued on January 31, 2008.