DC Court of Appeals pay discrimination decision

The D.C. Court of Appeals, on September 20, 2007, denied George Washington University’s motion for a new trial, in a pay discrimination case involving a female employee of GWU who worked in the Development Office (fundraising), and who alleged that a male comparator was paid substantially more for performing the same or less work.

There's a good discussion of the Supreme Court's intervening Ledbetter decision and whether it applies to equal pay claims under the DCHRA. Ordinarily, the plaintiff would not be able to prevail on untimely claims, but here (1) GWU waived the statute of limitations defense; and (2) Ledbetter should not be retroactively applied since the waiver of the statute of limitations is an independent basis for rejecting GWU's assertion re: untimely claims.

It is not clear why the compensatory and punitive damages or front pay claims were disallowed, as there was no cross-appeal on that issue.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/04-CV-1237.PDF

 

THE GEORGE WASHINGTON UNIVERSITY, APPELLANT, v. LAURA VIOLAND, APPELLEE.

Before REID and KRAMER, Associate Judges, and KING, Senior Judge.

REID, Associate Judge:

Appellant, The George Washington University ("GWU" or "the university"), appeals from the trial court's denial of its post-trial motions challenging a jury verdict in favor of appellee, Laura Violand, on her complaint alleging unequal pay because of her sex (female) (Appeal No. 04-CV-1237). We affirm the judgment of the trial court.

. . . Dr. Violand filed her complaint against GWU on August 6, 2001. She claimed unlawful sex discrimination and retaliation based on GWU's payment of her "comparator" (Dr. Feldman) at a grade 24 level compared to her salary at the grade 17 level (Count I); intentional infliction of emotional distress (Count II); and a violation of the District of Columbia Human Rights Act with respect to her compensation (Count III). GWU filed an answer to the complaint on August 26, 2001, responding generally to Dr. Violand's allegations, and asserting certain boilerplate affirmative defenses. Two days later, GWU filed a partial motion to dismiss Counts I and II of the complaint, contending that Counts I and III were "duplicitous" and that Count II was barred by the three-year statute of limitations pertaining to intentional infliction of emotional distress claims. Dr. Violand opposed the motion but, in an order filed on November 7, 2001, the Honorable Susan R. Winfield dismissed Count I, without prejudice, and Count II, with prejudice. Thereafter, the parties proceeded with discovery and depositions. . . .

. . . At the close of GWU's case, the trial court denied the university's renewed motion to dismiss Dr. Violand's complaint as a matter of law. And, during discussions with counsel about certain legal issues, GWU insisted that any back pay award should be limited to the period August 6, 2000 to May 1, 2001, the date on which Dr. Feldman left his position at the Medical Center. Judge Dixon asked whether this was not "an issue that should have been resolved before the case g[o]t to him." Counsel for GWU agreed that it should have been resolved earlier but it was not, even though GWU briefed the issue. Counsel for Ms. Violand asserted that a prior judge had rejected GWU's continuing violation argument in denying summary judgment. At the conclusion of legal discussions, the trial court ruled that issues relating to "front or future pay," "punitive damages," and "compensatory damages," would not be submitted to the jury.

Following the trial court's final instructions to the jury on March 7, 2003, to which there were no objections, the parties presented closing arguments. The jury retired to deliberate just before noon. Prior to the end of the day, the jury reached a verdict. The jury verdict form, to which there had been no objection, posed three questions. First, "[o]n plaintiff's claim that she and Jack Feldman performed substantially equal work for jobs requiring substantially equal skill, effort, and responsibilities," does the jury find in favor of the plaintiff or the defendant? The jury responded in favor of the plaintiff. Second, "[i]f the jury's verdict is for plaintiff, [] [t]he period of time for which plaintiff is entitled to back pay is [] [t]hrough date of this Judgment [or] [u]ntil the date when Jack Feldman was no longer employed in the Medical Center Development Office." The jury answered "[t]hrough the present date." Third, "[w]hat amount does the jury award for back pay?" The jury replied, "$280,955."

We begin with the statute of limitations issue. GWU contends in its main brief that "[e]ven if this [c]ourt were to conclude that [Dr.] Violand established an equal pay violation, the majority of the jury's award should be vacated because it is based on claims that are barred by the applicable one-year statute of limitations set forth in the [DCHRA]"; hence, "[t]he one-year statute of limitations bars all of [Dr.] Violand's claims and damages arising prior to August 6, 2000." They assert that Dr. Violand's "untimely claims are not saved by the 'continuing violation' doctrine" because an allegation of unequal pay involves a discrete discriminatory act and such acts are barred if they are not filed within the statute of limitations. Dr. Violand responds that her claim for back pay, based on unequal pay because of sex discrimination, "is not barred by the one-year statute of limitations of the [DCHRA], and is timely under the 'continuing violation theory.'"

Because the Supreme Court granted certiorari in a Title VII equal pay case five months after the oral argument in this case, and issued its opinion in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), on May 29, 2007, we asked the parties to file supplemental briefs "discussing only the impact, if any, of Ledbetter on the disposition of this case." In its supplemental brief, GWU argues that all of Dr. Violand's claims are barred under Ledbetter, but that "at a minimum, the [DCHRA's] one-year statute of limitations bars [Dr.] Violand's claims based on allegedly unequal pay she received prior to August 6, 2000, and requires vacating the jury's award of back pay attributable to allegedly unequal pay she received between that date and August of 1996, when she contends she performed the same work as her alleged male comparator." Dr. Violand argues that Ledbetter is inapplicable because her "employment discrimination claim of unequal pay for equal work proceeded, and was tried, under the [DCHRA] based on the instruction and guidance of the [federal] Equal Pay Act." In addition, she claims that GWU "waived the statute of limitations defenses. . . ."

. . . . 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 asserted 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 raised the statute of limitations in its motion to dismiss only with respect to the intentional infliction of emotional distress count. And, GWU did not assert the statute of limitations, with regard to Dr. Violand's pay discrimination claim, either in its motion for summary judgment or in the joint pretrial statement.2 The university's initial argument concerning the statute of limitations and the continuing violation theory first appeared in a trial brief earmarked for a judge who did not preside over the trial. There is no indication in this record that Judge Dixon, the trial judge, became aware of GWU's trial brief argument until its 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, our case law dictates that GWU waived the statute of limitations. As we said in Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 734 (D.C. 2000), "[t]he statute of limitations is an affirmative defense which . . . must be set forth affirmatively in a responsive pleading and may be waived if not promptly pleaded" (citations omitted); see also Oparaugo v. Watts, 884 A.2d 63, 73 (D.C. 2005). 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. See Executive Sandwich Shoppe, Inc., supra, 749 A.2d at 735 ("there are situations in which a court may preclude a party from asserting a statute of limitations defense when to allow the defense would be prejudicial to the plaintiff") (citations omitted).

Alan R. Kabat, Bernabei & Wachtel, PLLC