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Gilmore v. Macy's Retail Holdings

February 4, 2009


The opinion of the court was delivered by: Jerome B. Simandle United States District Judge



SIMANDLE, District Judge

This matter is before the Court upon its own motion to consider the impact of the recently enacted Lilly Ledbetter Fair Pay Act of 2009 upon Plaintiff's Title VII claim. THIS COURT FINDS AS FOLLOWS:

1. This is a case of alleged employment discrimination by Defendant, Macy's Retail Holdings, against Plaintiff, Janice Gilmore, which, according to Plaintiff's allegations, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-2.1, et seq. Plaintiff is a longtime employee of Defendant's store in Hamilton, New Jersey, and has been employed in the store's Fine Jewelry Department since February 2001. (Gilmore Dep. at 16.)

2. Plaintiff filed a charge with the United States Equal Employment Opportunities Commission ("EEOC") on the basis of alleged racial discrimination on July 7, 2005, (id. at 174-75), and, after the EEOC issued a Dismissal and Notice of Rights informing Plaintiff that the Commission was "unable to conclude" that Defendant had violated Title VII, (Def.'s Br. Ex. F), commenced this action on May 10, 2006 [Docket Item 1]. Plaintiff asserted that Defendant discriminated against her by failing to promote her from the Fine Jewelry Department's Gold Bay*fn1 to the Diamond Bay, and also asserted a disparate treatment claim premised upon numerous instances in which Defendant had allegedly treated Plaintiff differently from her white colleagues in the Fine Jewelry Department on account of her race.

3. In its March 11, 2008 Opinion and Order [Docket Items 40, 41], this Court granted in part and denied in part Defendant's motion for summary judgment. As to Plaintiff's failure-to-promote claim and the vast majority of alleged instances of disparate treatment, the Court entered summary judgment in Defendant's favor, finding that Plaintiff's own evidence failed to support her claims. (Docket Item 40 at 11-23.) However, as to a single aspect of Plaintiff's disparate treatment claim -- whether Plaintiff, when she was an associate in the Gold Bay, was denied the opportunity to fill in for absent Diamond Bay associates on account of her race, and was thereby deprived the opportunity to earn bonuses on sales of more expensive products -- the Court denied Defendant's motion for summary judgment. (Id. at 24-27.) The jury trial on the merits of this sole remaining theory of liability (asserted pursuant to Title VII and the NJLAD) commenced on February 2, 2009.

4. Meanwhile, on January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009 (the "FPA"). The FPA responded to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162 (2007), in which the Court held, in defining which activities qualify as unlawful employment practices in cases of discrimination with respect to compensation, that

[t]he EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. 127 S.Ct. at 2169.

5. As Congress explained in the FPA, the "Ledbetter decision undermines . . . [statutory protections against discrimination] by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress." 123 Stat 5. The FPA amends Title VII's provisions in Section 706(e) (42 U.S.C. § 2000e-5(e))*fn2 regarding the statutory charging period by introducing the following provisions, which add Section 706(e)(3)(A) & (B):

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

Id. The FPA "take[s] effect as if enacted on May 28, 2007 and appl[ies] to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) . . . that are pending on or after that date." Id. The FPA therefore applies to this case.

6. In light of the fact that Congress expressly indicated that the FPA was to apply retroactively, id., the Court has considered the impact of the Act upon this case, including its impact upon Plaintiff's remaining Title VII claim. First, the Court notes that the FPA has no impact upon the Court's prior summary judgment decision -- the Court's rulings turned upon the insufficiency of Plaintiff's evidence (and her inability to raise a genuine issue of material fact) as to the majority of her claims, not on the timeliness of her claims or the accrual of the charging period. Those claims that the ...

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