The opinion of the court was delivered by: James Robertson United States District Judge
The single surviving claim in this case by the pro se plaintiff, William Shea, invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Equal Protection clause of the Fifth Amendment, U.S. Const. amend V, is that he has been underpaid for the last sixteen years because of his race - white. Before the court is a renewed motion for summary judgment that focuses on the correct application of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. --, 127 S.Ct. 2162 (2007) which was handed down after the Court of Appeals decided that Shea could base his claim on "each paycheck that he received within the statute of limitations period and thereafter." Shea v. Rice, 409 F.3d 448, 449 (D.C. Cir. 2005). The motion must be granted.
The facts are undisputed. Shea is a white male of Irish descent who has been employed in the Foreign service since May 1992. Dkt. 1 at ¶ 3. He was hired at a time when the State Department was using a mid-level placement program that sought to promote workforce diversity by assigning more senior pay grades to entry-level American Indians, Alaskan natives, Asians, Pacific Islanders, Blacks and Hispanics with certain qualifications. Def. MSJ, ex. 3. Shea knew when he was hired that several such "minorities" were paid salaries higher than his. Def. MSJ at 1, ex. 5. The State Department terminated the mid-level placement program on or about February 4, 1993. Def. MSJ., ex. 9.
On July 11, 2001 Shea filed a grievance with the State Department asserting, among other things, racial discrimination in violation of Title VII because of the disparate pay he was then (still) receiving. Def. MSJ at 1. The State Department failed to act within 90 days, and Shea complained to the Foreign Service Grievance Board. The Foreign Service Grievance Board dismissed his complaint, Def. MSJ at 2, and he filed suit in this Court, Dkt. 1. I dismissed Shea's claims for failure to state a claim upon which relief could be granted. Dkt. 15; 16. Shea appealed only my ruling that his Title VII claim was untimely. Dkt. 17. The Court of Appeals reversed that ruling and remanded, Dkt. 19, agreeing with Shea that "each paycheck that he received within the statute of limitations period and thereafter constitutes a discrete discriminatory act." Shea v. Rice, 409 F.3d 448, 449 (D.C. Cir. 2005).
Upon remand, I referred the case to a magistrate for possible settlement, which never materialized. Dkt. 24; 27. Then, in May 2007, the Supreme Court handed down its decision in Ledbetter, holding that "a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is facially non-discriminatory and neutrally applied." Ledbetter, 127 S.Ct. at 2174. In reliance upon this new authority, the government filed a Rule 12(c) motion for judgment on the pleadings, essentially arguing that Ledbetter had overruled Shea v. Rice. Dkt. 36. I denied that motion but invited a motion for summary judgment after the factual record was developed. Dkt. 43. The government accepted this invitation, and in their motion for summary judgment again argued that Ledbetter is dispositive of Shea's claim. Dkt. 46. Shea filed an opposition and a cross-motion for partial summary judgment, claiming that he would have been accepted to the mid-level placement program had it not been racially discriminatory, and that his pay during and since the charging period would therefore have been greater than in fact it was. Dkt. 51.
Under 22 U.S.C. §§ 4134(a) & (c)(1) an individual has 180 days from an act of alleged discrimination to file a grievance with the Foreign Service Grievance Board. It is undisputed that Shea was hired in May 1992, that the allegedly discriminatory mid-level placement system was disbanded in 1993, and that Shea filed his grievances in 2001.
The question presented by this motion is whether Ledbetter has resurrected the Secretary's statute of limitations defense after its rejection by the Court of Appeals. Lilly Ledbetter received lower pay than her male co-workers because of various discrete discriminatory adverse actions, including denials of raises, that were all time-barred. Id. at 2166. It was undisputed that each paycheck she received would have been larger but for the discriminatory conduct, but the Supreme Court declined to find that each paycheck was a "separate act of discrimination" that "carried forward intentional discriminatory disparities from prior years," reasoning that "[a] disparate-treatment claim comprises two elements: an employment practice, and discriminatory intent," and that to adopt Ledbetter's "carry-forward" theory would "jettison the defining element of the legal claim on which her Title VII claim was based." Id. at 2167. Ledbetter's argument impermissibly "gave present effect to discriminatory conduct outside of [the charging] period" because it "would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive . . . [and t]he effect of this shift would be to impose liability in the absence of the requisite intent." Id. at 2169, 2170. Because Ledbetter did not present any other evidence of "actual discriminatory intent" with the issuance of each paycheck, her claim failed. Id. at 2167.
The government argues that Ledbetter is dispositive of this case because the State Department did not apply a facially discriminatory pay system to Shea within the charging period, and because the lower pay that he complains about is merely the effect of uncharged discrimination which the Secretary has no duty to rectify. Def. MSJ at 3-9; Ledbetter, 127 S.Ct. 2174. Shea responds by attempting to distinguish the facts and holding of Ledbetter. He argues that because the Foreign Service used a facially discriminatory pay system when he was hired, his case falls under the rule in Bazemore v. Friday, 478 U.S. 385 (1986), which Ledbetter "simply reaffirmed . . . as the D.C. Circuit understood and applied it in Shea v. Rice." Pl. MSJ at 25.
The Shea v. Rice panel held that Shea's claim was not time barred because, if true, his allegations that "as a consequence of the racially discriminatory diversity program [the State Department] operated [at the time of his hiring], he receiv[es] less pay with each paycheck than [he] would be [receiving] if [he] had not been discriminated[ ] against," Shea v. Rice, 409 F.3d at 452, would establish the continuation of a "persistent discriminatory salary structure," id. at 453, under which each paycheck in the charging period was actionable as a "discrete discriminatory act," id. at 455. The fact that the Secretary had not "corrected" Shea's paygrade to a non-discriminatory level was enough to make the issuance of each disparate paycheck actionable discrimination as a "periodic implementation" of the facially discriminatory 1992 hiring policy, even though that policy had been dismantled years before and had not been applied to Shea since 1992. Id. at 455. Shea v. Rice thus held that, unless the effects of a former facially discriminatory pay system are rectified, "the law imputes current discriminatory intent to the employer with each paycheck it issues." Pl. MSJ at 25 (emphasis added).
That holding, and Shea's argument, cannot be successfully distinguished from the "paycheck accrual rule" that Ledbetter argued for and that the Supreme Court rejected because it "dispensed with the need to prove actual discriminatory intent in pay cases." Ledbetter, 127 S.Ct. at 2172 (emphasis added).*fn1
Plaintiff fares no better with his argument that this case is controlled by Bazemore rather than Ledbetter. Bazemore was a case that:
concerned a disparate-treatment pay claim brought against the North Carolina Agricultural Extension Service (Service). Service employees were originally segregated into "a white branch" and "a Negro branch," with the latter receiving less pay, but in 1965 the two branches were merged. After Title VII was extended to public employees in 1972, black employees ...