Pollis v. New School for Social Research
| Decision Date | 22 December 1997 |
| Docket Number | No. 1656,D,1656 |
| Citation | 132 F.3d 115 |
| Parties | 76 Fair Empl.Prac.Cas. (BNA) 173, 74 Empl. Prac. Dec. P 45,487, 122 Ed. Law Rep. 1123 Adamantia POLLIS, Plaintiff-Appellee, v. The NEW SCHOOL FOR SOCIAL RESEARCH, Defendant-Appellant. ocket 96-9361. |
| Court | U.S. Court of Appeals — Second Circuit |
Janice Goodman, New York City (Sean Farhang, Goodman & Zuchlewski, New York City, On the Brief), for Plaintiff-Appellee.
O. PETER SHERWOOD, New York City (Richard E. Bierman, Kalkines, Arky, Zall & Bernstein, LLP, New York City, Of Counsel), for Defendant-Appellant.
Herbert Eisenberg, New York City (Davis & Eisenberg, New York City), for Amicus Curiae, National Employment Lawyers Association.
Before: WINTER, Chief Judge, JACOBS and LEVAL, Circuit Judges.
The New School for Social Research (the "New School") appeals the judgment of the United States District Court of the Southern District of New York (Haight, J.), entered pursuant to jury verdict, awarding damages to Dr. Adamantia Pollis, a retired professor of political science. The New School contests (i) the sufficiency of evidence in support of the jury's finding of willfulness, with respect to its violation of the Equal Pay Act, 29 U.S.C. § 206(d), in paying Pollis less than comparable male faculty members; (ii) the court's use of the doctrine of continuing violation to award damages for nineteen years of unequal pay in the face of a three-year limitations period, 29 U.S.C. § 255(a); and (iii) the sufficiency of the evidence to support the jury's finding that the New School discriminated on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and § 296 of the New York Human Rights Law, N.Y. Exec. Law § 296, by failing to give Pollis full-time or more substantial part-time employment after she reached the mandatory retirement age of 70.
We affirm the jury's finding that the New School's violation of the Equal Pay Act was willful or reckless, but vacate the judgment and remand for recalculation of the award, which should have been limited to the amount of damages incurred within the limitations period. We reverse the award of damages for intentional gender discrimination.
Pollis was hired as a professor of political science at the Graduate Faculty of the New School in 1964. She was granted tenure in 1966, and promoted to full professor in 1976. During her employment at the New School, she twice served as chair of the political science department. Her primary areas of specialty were human rights and Greek politics. According to evidence Pollis submitted at trial, her salary was lower than the salaries of five male teachers who were comparable to her.
The New School by-laws in effect between 1968 and 1994 provided that all full-time faculty members were required to retire at the end of the school year in which they turned 70. Under this rule, Pollis was required to retire at the end of the 1992/93 academic year.
In December 1992, Pollis requested that she be allowed to stay on in her tenured position after June 1993. She also applied for a vacant full-time teaching position for comparative politics in the political science department. She testified at trial that she offered to forego tenure if she were given the position. Her requests were rejected. She was offered, instead, an adjunct position as senior lecturer, teaching two courses per year for $4,000 per course. She accepted this position under protest and filed suit alleging violations of Title VII, the New York Human Rights Law, and the Equal Pay Act.
After trial, the jury found in favor of Pollis on her claim that the New School's refusal to offer her a full-time or substantial part-time post-retirement position violated Title VII and the New York Human Rights Law. It also found in Pollis's favor on her claim that the New School violated the Equal Pay Act by paying her less than comparable male faculty, and made the additional finding that the Equal Pay Act violation was committed willfully or with reckless disregard for Pollis's rights. However, the jury found in favor of the New School on the claim that Pollis's lesser rate of pay resulted from intentional gender discrimination. In a special verdict, the jury expressly found that Pollis's lower rate of pay was not motivated in any part by intent to discriminate on the basis of gender.
The district court awarded nineteen years of back pay under the Equal Pay Act, doubled because of the jury finding of willful or reckless violation. The court awarded compensatory and punitive damages for the refusal of more substantial post-retirement employment. Finally, the court awarded substantial attorneys' fees, costs, and expenses.
Pollis showed at trial that, during a nineteen year period, her salary was less than that paid to five comparable male teachers of the New School. On that basis, the jury found a violation of the Equal Pay Act.
The Equal Pay Act is violated if an employer whose employees are subject to the Fair Labor Standards Act pays wages to an employee
at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions....
A violation occurs when an employer pays lower wages to an employee of one gender than to substantially equivalent employees of the opposite gender in similar circumstances. A plaintiff need not prove that the pay disparity was motivated by an intention to discriminate on the basis of gender. See Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995). The New School does not contest the sufficiency of the evidence to support the finding of a violation.
Under 29 U.S.C. § 255(a), however, a claim under the Equal Pay Act must be commenced within two years of its accrual, or three years if the violation is willful. As the district court noted, back pay awards for Equal Pay Act violations are typically limited to damages sustained within this period. See Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir.1994); Gandy v. Sullivan County, 24 F.3d 861, 865 (6th Cir.1994).
The district court held the statutory period was not applicable because the New School's payment of unequal wages constituted a "continuing violation." The continuing violation doctrine allows a plaintiff in certain circumstances to recover on the basis of an ongoing policy or practice of illegal activity initiated prior to the limitations period. See Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968).
In Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978), we recognized that the "continuing violation" doctrine might in some instances justify a remedy for discrimination occurring prior to the limitations period. A group of female police officers, suing under Title VII, claimed that the use of discriminatory hiring policies had denied them seniority and made them vulnerable to layoff. In dicta, we explained that the district court had the authority to grant "retroactive seniority" pre-dating the limitations period if the plaintiffs could prove that a discriminatory policy which had deprived them of seniority was still in effect within the limitations period and that the plaintiffs continued to suffer as a result. "[W]here an illegal policy is so maintained," we explained, "relief for injuries sustained even before the beginning of the limitations period is appropriate." 570 F.2d at 65.
We believe that Acha's reasoning is inapplicable to the present case. Seniority rights are not of immediate value, but have determinative effect on the future terms of one's employment, such as work assignments or insulation from layoff. As a consequence, a discriminatory policy that results in a wrongful denial of seniority causes harm not so much at the moment of denial as in the future, and thus only by an award of retroactive seniority can future continuing injury be avoided. A discriminatory pay scale, in contrast, has immediate effect; prospective relief requires nothing more than discontinuance of the unlawful conduct.
Furthermore, a claim of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action. As the Supreme Court explained in Bazemore v. Friday, characterizing the harm imposed by a racially discriminatory pay scale, "Each week's paycheck that delivers less to a [disadvantaged class member] than to a similarly situated [favored class member] is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date" of limitation. 478 U.S. 385, 395-96, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986) ().
Under this view, "each continuation or repetition of the wrongful conduct may be regarded as a separate cause of action for which suit must be brought within the period beginning with its occurrence." Developments in the Law--Statute of Limitations, 63 Harv. L.Rev. 1177, 1205 (1950); see also Klehr v. A.O. Smith Corp., 521 U.S. 179, ----, 117 S.Ct. 1984, 1990, 138 L.Ed.2d 373 (1997). Thus, 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. See Knight v. Columbus, 19 F.3d 579, 582 (11th Cir.), cert. denied, 513 U.S. 929, 115 S.Ct. 318, 130 L.Ed.2d 280 (1994); see also ...
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