Caution: Exhaustion required, for real!
Just in time to finish off the year and get 2013 off to a good start, on December 11, 2012, the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Oklahoma employers) handed down a decision clarifying and/or reiterating several rules of employment discrimination law—all in favor of employers. The ruling shouldn’t change your daily practices, but it does add some extra armor if you ever find yourself in a lawsuit.
Regina Daniels had been a dispatcher for UPS for approximately 15 years when she retired in 2009. After she retired, she filed a lawsuit against the company claiming she suffered discrimination based on her gender and age. Specifically, she claimed she was denied promotions and training, reassigned to a different position so that a younger male could take her place, and retaliated against for complaining about discrimination. The trial court dismissed all her claims—some because they were untimely and others on the merits.
As most of you know, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) require an individual to exhaust her administrative remedies before she can file a lawsuit. The law requires her to file a complaint within 180 days of discrimination occurring. If the applicable state has its own discrimination agency and an agreement with the 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 doesn’t have a work-share agreement with the EEOC. Now, employees in Oklahoma must file a complaint with the EEOC within 180 days of discrimination occurring rather than 300 days.
Now back to the case
Daniels was assigned to UPS’s night shift until 2005, when she accepted a transfer to a cover position with the same pay and duties. She had been training for a “twilight” position, but in 2005, the company instituted a policy stating that only full-time supervisors could work the twilight shift. At that time, all the qualified employees were men.
In 2005 and 2006, Daniels submitted letters to HR expressing her desire for a promotion. She was advised at that time that HR had received her letters and a supervisor would contact her. She also was advised that her letters of interest would expire at the end of the year and that she would need to resubmit a letter each year to be eligible for promotion. UPS didn’t receive a promotion assessment from her manager and didn’t follow up.
In 2006 and again in 2007 and 2008, Daniels worked the nightshift position. Then, in 2008, she was permanently assigned to the nightshift 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, she learned it was company policy to follow up on promotion requests and that UPS had failed to do so. HR promised to investigate her complaints.
Daniels filed an EEOC complaint in November 2008. In February 2009, she met with HR to discuss her complaint. That same month, she retired. In June, she filed another complaint with the EEOC adding a charge of retaliation.
Was suit timely?
UPS argued that Daniels’ failure-to-promote and failure-to-train discrimination claims occurred in 2005 and 2006, well outside the 300-day window she had to file a complaint with the EEOC, and should be dismissed. Daniels claimed the time bar shouldn’t apply to her failure-to-promote claim because she didn’t know about UPS’s follow-up policy until 2008. She also argued that the time bar shouldn’t apply because any effort at subsequent promotions would have been futile and the failure to promote was a recurring event under the Lilly Ledbetter Fair Pay Act because she received less compensation every succeeding pay period.
The court stuck to 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’ lack of awareness of UPS’s failure to follow its own policy until 2008 was of no consequence because the promotion denial was the triggering event.
Further, the court said that Congress didn’t change the timeliness requirement by passing the Ledbetter Act. The Act makes equal pay claims a recurring violation so they continue to fall within the 180- or 300-day exhaustion period. According to the 10th Circuit, however, failure-to-promote claims aren’t equal pay claims simply because they “touch on pay.” Thus, Daniels failed to timely file 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. The 10th Circuit followed previous holdings that an individual may not file a pattern-and-practice claim—those are reserved for either class actions or the U.S. attorney general.
In addition to finding most of Daniels’ claims untimely, the court found that she hadn’t been subjected to adverse employment actions as required for retaliation cases. Specifically, the court found that a transfer from the day shift to the night shift alone wasn’t adverse under the law and that a failure to investigate a discrimination claim wasn’t an adverse action. Daniels v. UPS, Case No. 11-3211 (10th Cir., 12/11/12).
Bottom line for Oklahoma employers
So what does this mean for you? The courts are sticking to their guns and not letting employees file lawsuits about everything they believe has happened to them. To some extent, this limits your risk to things that have happened recently. And while you must keep in mind that hostile work environment claims are treated differently than “discrete acts” like a failure to promote, the courts won’t let employees escape their legal requirements by simply claiming you have a pattern and practice of discrimination.
While this ruling doesn’t change the landscape, it’s a timely opinion reiterating defenses employers have had and should have at their disposal in litigating employment discrimination claims. So don’t change what you’re doing—be diligent in prohibiting and preventing discrimination and investigating and resolving complaints. And rest easier knowing rules still apply. Happy 2013!