Noreen Hulteen Eleanora Collet, Linda Porter Elizabeth Snyder Communications Workers of America v. At & T Corporation

in Arizona. We lived wasn’t married know, HULTEEN; Collet, mean, Eleanora not Noreen you I he’s

Oklahoma. straight. Why Porter; Snyder; have story Linda Elizabeth getting somebody story else’s in the him America, tell Communications Workers of fucking place?” first Plaintiffs-Appellees, enough, Landrigan If that were following presentation made say if he would the court asked like CORPORATION, AT & T anything in his own behalf: Defendant-Appellant. out a point things

Yeah. few I’d like shit, way about I feel about how No. 04-16087. I think

this whole scenario went down. Appeals, fucking to let a United pretty ridiculous States it’s fate, my determine

fagot the one to Ninth Circuit. across in de- about how come his Argued and Submitted Oct. 2005. fense, supposedly fucking I about was I happened. This never this dude. 8, 2006. Filed March stinks. if thing think whole think you penalty, me the death give want to I’m it.

just right ready on. bring it 1226-27.2

Landrigan, 272 F.3d at (1) light evidence that Landri- his

gan and did control murderous could (2) any miti-

impulses, probability genetic or bio-

gating value of evidence

logical for violence would predisposition

have the evidence’s been overwhelmed tendency to show that Landri-

aggravating undeterrable,

gan Landrigan’s trial, has Landrigan

menacing behavior proven if cre- alleged facts that would probability an objectively

ate reasonable

that he have received different would Accordingly, not an

sentence. for the district court to

abuse of discretion

deny evidentiary hearing. I would him an court’s decision in its

affirm the district

entirety. my petition today, to withdraw Landrigan As of I want appears continues longer drop appeals. wish to I no case, all question approaches counsel’s to this his your any pursue any court or action from to this as indicated his hand-written letter others, date my execution to be and want stating: August court of you. possible. Thank as set soon

Joseph (argued) R. Joseph Guerra Palmore, Sidley Austin Brown & Wood LLP, D.C.; Washington, Charles C. Jack- Rich, Allegra Seyfarth son and R. Shaw LLP, IL; Chicago, A. Laura Raster and Custer, Valerie Fant AT T Corporation, & Bedminster, NJ, for the defendant-appel- lant.

M. Murphy (argued) Suzanne Blythe Mickelson, Weinberg, Roger & Ro- senfeld, Oakland, CA; Hewitt, Henry S. Erickson, Wilson, Beasley, & Hewitt Oak- CA; land, Farrell, Equal Noreen Rights Advocates, Francisco, CA; San E. Judith Francisco, CA, Kurtz, Mary K. female the Communications O’Mel- San (CWA), complain of America of Amer- Workers Workers veny, Communications D.C., failure ica, AFL-CIO, company’s give employees for the Washington, pre-PDA full service credit their plaintiffs-appellees. computation eligibility for and affects Ramshaw, Equal Employ- D. Paul retirement and is of benefits therefore Commission, Washing- Opportunity ment present violation of PDA. AT & T D.C., ton, Equal Employment amicus for arguments of marshaled a number based Opportunity Commission. of on the current state the law. court, acknowledging The district while “great and force” of AT & logical arguments, felt this compelled by T’s Bell, court’s decision Pallas v. Pacific (9th Cir.1991), to 940 F.2d 1324 conclude RYMER, TROTT, and Before: AT & determi- T’s benefits PLAGER,* Judges. Circuit the PDA. The nations violated district granted summary judg- court therefore PLAGER, Judge: Circuit in plaintiffs’ favor on their Title VII Rights This is a Title VII Civil case.1 reached claims. Because result T, in requires us to decide whether & gives impermissible court the PDA district deter- making current retirement benefits controlling under law to- retroactive effect minations, Ti- of violation discriminates day, judgment we of the dis- reverse took against women who pregnan- tle VII court. trict before 1979.1979was cy-related leaves Discrimination Pregnancy when the year BACKGROUND 1978(PDA), an to Title Act of amendment Collet, Hulteen, Linda Noreen Eleanora VII, became effective.2 Porter, Snyder long- and Elizabeth PDA, Telephone T employees AT & time Pacific employee Prior to the an (PT T), System oper- Telegraph ser- & Bell pregnancy leave was awarded on to AT period ating company her was transferred credit for the entire vice absence, former Bell tem- T when the other & whereas They to up in 1984. continued received full ser- broken porary T PT T for AT thereafter. & Although work & period. vice credit for time and, turn, AT & T maintain a “Net credit today preg- AT T awards full for & (NCS) case, for all em- leaves, four Service” date nancy plaintiffs in this Credited * birth, conditions; Jay Plager, or related medical S. Senior Circuit The Honorable Circuit, childbirth, sitting desig- Judge by pregnancy, for the Federal women affected nation. treat- medical conditions shall be or related pur- employment-related all ed the same for seq. et § 2000e U.S.C. poses, including receipt of under benefits employment it an unlawful 2. Title VII makes fringe programs, persons other benefit for an discriminate ability or in their not so affected similar against any of such indi- individual because work, nothing inability in section 2000e-2(a). § Con- vidual’s sex. U.S.C. 2000e-2(h) interpreted title shall provide: gress in 1978 to amended VII permit otherwise. or "on the basis The terms "because of sex” 2000e(k). 42 U.S.C. to, include, but not limited be- of sex” are pregnancy, child- cause of or on basis 29, 1979,

ployees. April The NCS date consists of an On the effective date of original adjust- PDA, T employee’s adopted Anticipated hire date and PT & (ADP), which periods during Disability superseded ments for no service Plan provided credit is accrued. Periods leave or oth- MPP and service credit for er that are not breaks service credited leaves on the same basis as later than temporary result NCS date the em- leaves taken disabili- original adjustment ployee’s hire date. The NCS date ties. No made to is used to determine benefits for which service credit of employees calculations employees may qualify, including subject the who had pre-MPP policies been pension payments, amount eligibility adopted, pre- the MPP was or for retirement, early qualification for ADP volun- Calculations when the ADP was n job tary adopted. termination packages, bidding, preferences, layoffs.

shift and for 1982 United States District Court for the of District Columbia entered a Hulteen, Collet, Snyder and Porter took consent Judg decree and Modified Final pregnancy leaves 1968 between and 1976. government’s to resolve the antitrust 7, 1977, August PT & T Before treated United, AT against suit & T. States v. Am. pregnancy personal leaves as leaves for Co., (D.D.C.1982), Tel. F.Supp. & Tel. 552 131 employee which the given maximum nom., Maryland v. sub United aff 'd credit; of days 30 service at the same States, 460 U.S. time, disability employees on leave for rea- (1983). Among things, than pregnancy sons other received full judgment required recognition pre- period service credit for the entire of their employment by divestiture service Also, absence. female employees who took newly-created regional telephone holding a personal pregnancy leave because of and subsidiaries, companies and their including temporarily became disabled while on that PT & T. It resulted in a of Reorgani Plan leave for reasons to pregnancy unrelated approved by zation that was the court in were ineligible disability for sickness or Co., 1983. United States v. Elec. Western for benefits or NCS credit excess of 30 (D.D.C.1983), 569 F.Supp. 1057 sub' aff'd days. 7,1977, August On PT & T adopted nom., States, v. United California (MPP) Maternity Payment Plan under (1983). which pregnant employees begin could Reorganization specifies The Plan of any mutually leave at conve- “all employees carry will pre- with them all nient eligible time and were for disability System divestiture Bell regardless service up benefits for to six They weeks leave. of the organizational corporation unit or period, received service credit for this they employed immediately are af this, beyond personal absence became a ter divestiture.” It also states “[a]ll leave. Employees pregnancy-relat- whose any pre-divesti- and retirees of disability ed longer lasted than six weeks ture System entity Bell have will the same and disability who then had a second re- pension benefit immediately entitlements period ceived no credit service for after divestiture as had immediately disability. Employees second on non- prior to existing divestiture under the [Bell pregnancy-related disability leave received System pension plans].” full period service credit for the entire disability absence, their including for years, leave Over the collective bargaining resulting from for agreements a different between AT T& and the disability. reason the initial from CWA have contained provisions recogniz- interlocutory ap- the order for established certified of NCS as ing the use em- granted to determine various company practice peal, petition and we & T’s AT & T has benefits. ployment-related appeal pursuant permission employees’ utilize NCS dates 1292(b). continued to U.S.C. computing benefits basis for in col- rights negotiated determining other DISCUSSION agreements. bargaining

lective arguments briefs this terminated employment was Hulteen’s focused on case were whether outcome force; through a June reduction by this Pallas deci- is dictated court’s 1991 early Voluntary under a Re- retired Collet us, however, is sion. The issue before Program on December Incentive tirement Pallas, but Hulteen —whether the trial 31, 1998; employee is a Porter current holding erred court case retired; Snyder vol- yet who has not plaintiffs. their her on Hulteen To sustain employment untarily terminated Voluntary April pursuant action, appeal to a VII cause Plan. Calculation of their ben- Termination things: one, way must do two find some oppor- efits the date of retirement pre-PDA credited have under been favorable have more tunities would rules; two, alleged and since PT T some or had AT T or & credited & to unlawful occurred all uncredited time previously of the find a hook on to base their lawsuit due to were off work enough is recent to avoid the statute that prior to 1979. charges requiring limitations be of days with the within 180 “af- filed EEOC Em- charge Equal filed a with the Each prac- alleged employment ter the unlawful ployment Opportunity Commission 2000e-5(e)(l). 42 tice occurred.” U.S.C. (EEOC). charges The first of these retroactivity problem; first is the The The a Letter filed in 1994. EEOC issued problem. of limitations finding cause second statute reasonable Determination T by AT & discriminated believe to be an The ultimate eligibility question and re- determining benefits is, offerings applicable based on the of control appeal light tirement in this swered The CWA likewise filed law, NCS date. is the result? Con ling what correct its on behalf of charge of discrimination case, in all in this cases trolling law employees. unit The EEOC bargaining law, Congress what governed by federal is right all claim- a notice of to sue to issued Supreme and what the has enacted Hulteen, Collet, Porter, Snyder ants. and key matters regarding the on has said on then filed suit 2001 their own behalf congressional case The which the turns. similarly and of a class of situat- on behalf VII, at issue Title as amend enactment is joined. employees. ed The CWA are from time time. There several ed of direct recent Court decisions for sum- parties filed cross-motions the terms Once we understand relevance. mary plaintiffs’ Title VII judgment law, then determine controlling we can Although the court found claims. district is is precedent whether there circuit it con- arguments “compelling,” T’s& so, no If will have choice inconsistent. we obligat- itself bound Pallas and sidered or, put precedent, ignore such Accordingly, plaintiffs’ it. ed to follow delicately, prece that such court conclude granted. The district more motion was 658 rules, binding.3 general

dent is with all ex- As there are ju- ceptions. When the issue is a court’s risdiction, id. at or a S.Ct. Retroactivity I. rules, change procedural 275, 114 id. at presumption against statutory “The 1483, intervening may S.Ct. statutes when retroactivity upon is founded sound consid appropriate be to current cases. general policy practice, erations of and and But when and dealing rights long widely accords with held and shared individual, property interests of the expectations operation about the usual “principle legal legislation.” those With words Su ordinarily conduct should be assessed preme thorough Court in 1994 concluded a under the law existed govern review and of the restatement law place conduct took has timeless uni- ing retroactivity of congressional en free, appeal.” dynamic versal In a soci- Prods., Landgraf actments. v. USI Film ety, creativity in both commercial S.Ct. artistic endeavors fostered a rule (1994). may Restatement be gives of law that people confidence about the wrong may change’ word—‘sea consequences their actions. more Before Landgraf, accurate. notions (citation 265-66, Id. at omit- injustice” such as similar “manifest ted). equitable phrases guidance were all the had, us, the lower courts not to mention lines In the case dealing before we are in opposite cases pointing rights directions cre with contractual or property related ating what the Court to as an pension referred to established and other retire- “apparent expres obligations tension” between and ben- sions used in the cases. rights Id. at 114 efits of the employees, which the 1483; S.Ct. compare Bradley v. Sch. Bd. largest Court described as category “[t]he of Richmond, 696, 2006, 416 94 in S.Ct. 40 of cases have applied we the (1974), with George presumption statutory Bowen v. against retroactivity 204, ..., Hosp., town Univ. 109 S.Ct. matters in which predictability and 468, (1988). 102 493 stability L.Ed.2d After Land prime importance.” are of Id. graf 271, the in unambiguous: PDA, rules are the 114 S.Ct. 1483. Before the the expression (and absence of a counting clear of intent applied by rules AT & T its Congress particular that legislative a en companies collectively related —hereafter T) apply actment is to to events that occurred AT grant & did not the of degree same before the effective date of the legislation, service credit for pregnancy leaves the default is no applica rule retroactive temporary were awarded other disabilities. “prospectivity objectionable tion: appropri now, remains the may As as that seem 272, ate default rule.” Id. at counting those rules at the time le- were 1483.4 gal, and had expressly been so held under (Fed.Cir.1995) (en banc); It is 3. hornbook law that decisions circuit Finkel v. Stratton appeals yield courts conflicting 169, to (2d decisions Cir.1992). Corp., 962 F.2d 174-75 Supreme of the Court. Both the Ninth Cir- Circuit, cuit and the Federal as aswell Though rule, described a "default” the as circuits, recognize panel that a is bound to Landgraf Court noted in may there latter, follow the not the former. See Miller v. process due or other constitutional limitations Gammie, 889, (9th 335 F.3d 899-900 Cir. Congress’s ability apply legislation ret- 2003) (en banc); Corp. Tex.Am. Oil v. United roactively. 1557, Dep't Energy, States 44 F.3d 1561

659 are to be statute of the Elec. sions See Gen. Title VII. then-existing the legal conse change the way as to such 97 Gilbert, 429 U.S. v.Co. prior to occurred of conduct that quences (1976). 50 L.Ed.2d relevant The enactment. statute’s the intend- PDA, effective The pre- employer’s practice, is the conduct accounting of that future use prohibit toed PDA, only limited service credit giving Thereafter, accordance distinction. leaves, acceptance the pregnancy for credit PDA, T’s service AT & with by the affected all subse- treat amended rules (and representatives). union their man- in the same pregnancy quent nothing in there is widely understood Plaintiffs’ disability leaves. as other ner congressional suggests PDA that what CWA, union, negotiated the statute retroactive. to make intent credit service PDA-compliant viewed Co., F.2d Penney v. J.C. Wambheim incor- has prospectively The CWA rules. (9th Cir.1981); see also 363 n. into its rules service credit these porated Co., 187 & Elec. v. Okla. Gas Whitehead agreements bargaining collective national (10th Cir.1999); Schwa F.3d since. AT & T ever 305, 310 667 F.2d of Educ., Bd. benbauer (2d Cir.1981); to obtain ser- Air v. United plaintiffs Condit for In order n. (4th Lines, Inc., 1139-40 631 F.2d pre-1979 their credit vice Cir.1980). Indeed, most the (in amount of that excess disability leaves “Congress is that i.e., on this issue could offer granted), then pro PDA be clearly intend back, one of did readjusted to be dates NCS 44 n. 9. Br. at only.” Appellees’ spective The happen. must things two Land- obviously falls far short That addi- grant voluntarily decide could ret- congressionally-mandated test for graf compel credits, could or the law tional roactivity. grounds do so on employer to The law. so is violation to do refusal explained As the sec- happened. obviously has first decision, has retro a statute Landgraf its of two by either arrived at can be ond at provision new when the active of full denial theories — events consequences to new taches leaves, maternity pre-1979 for the credit Before its enactment. before completed time, made unlawful been has at lawful the con be clear must happen, there can corrected; law, must be a matter as ret the statute to make intent gressional the today of the the denial applies: roactive, the default rule benefits otherwise constitutes earned would have credits full given retroactive will be the statute address wrong. We new, post-1979, of clear absence is an there Since effect. turn. contrary, theories the of these the each intent congressional is and the result applies here default rule A. law, new 1—that the theory number the PDA, pre-1979 the law has made change been the Has there unlaw counting method of full leave pregnancy the denial unlawful toas make such must foundation and legally without ful—is pregnancy pre-1979 credits rejected. (taken of the be enactment before leaves con as

PDA)? by plaintiffs law cited The B. is PDA. There is case the trolling this with problem the recognize indicate Plaintiffs PDA to text nothing case rest their and thus theory number provi- that the intent congressional clear theory number 2: it is not the initial by restating plaintiffs’ argument spe- crediting period of’the leave is the cific reference to the facts of their case: is offense, but the later —much later —award give unlawful to retirement or other of retirement or other only benefits: today benefits “[t]he to some women based on alleged acts as unlawful here are AT & T’s full maternity disability leave credit (leaves decisions denying equal benefits when occurring post-PDA), deny- while each plaintiffs and similarly ing equal situated benefits to women who received female employees retired or were termi- for their maternity only partial nated in leaves)? the mid-1990s and (pre-PDA credit If the answer is thereafter— decisions long made yes, PDA came that it is unlawful to have disparate after into effect.” Appellees’ Br. at 49. In plain- awarded, benefits only it can be because view, tiffs’ since the keyed benefits are the pre-PDA full, leaves are entitled to credits, the service the calculation of bene- partial than rather credit. And since the fits without full credit for pre-PDA partial leave credit leaves, regardless of when the leaves oc- lawful at the time the credits were award- curred, is a ed, current act of discrimination in change their status must be violation of Title VII. because the later-enacted PDA has the effect of changing that status. is That Enforcing the requirement preg- retroactivity. nancy given leaves be full regard- credit they occurred, less of when plaintiffs as key is differentiating cause from insist, provide would an result. If attractive effect. an action has the effect of caus- gives the same ing benefits a later consequence, action, if colleagues receive under though permissible time, at the is subse- essentially circumstances, the same and it quently impermissible made by a change carries purpose forward the law, of the change it cannot be the rule that such however, in law. In Landgraf, the Su- change always will the consequences make preme Court noted the point, latter original action also impermissible. rejected it as a basis for “It rule, decision: will If that were the every change in law frequently true, petitioner and amici have would consequences, retroactive forcefully here, argue ap- retroactive Landgraf s presumption against retroactiv- plication a new statute would vindicate ity would be meaningless. purpose its fully. more That consider- However, because cause and effect may ation, however, sufficient to rebut not always be so clear in specific fact presumption against retroactivity.” situations, and equities because

Landgraf, 285-86, may case argue for a result that corrects past discrimination, application of the regard With giving the the rule different requires cases careful same benefits their colleagues analysis. Assume a case in which black have, seemingly that equitable employees resolution are paid wages lower than the case also problems has must equal white for work. A stat- —we consider consequences the of such a ruling. passed that, ute is prospectively, prohibits get To that requires result that we do such discrimination employment. indirectly what we cannot do directly— Thereafter, though employer the no long- make the PDA retroactive. That such a er distinguishes between black and white only result is reachable a retroactive employees in salaries, terms of entrance application of PDA the can be illustrated raises, across-the-board and percentage

661 on her continuing impact have a indeed disparities salary raises, pre-existing some But em- the fringe and are benefits. pay remain whites blacks and between being re- wages placed on mere the actual not be phasis should reflected continu- The basis. ongoing question on an is continuity; the critical ceived into wage discrimination prior ation exists. any present violation whether “While permissible: is not wages current Evans, Lines, 431 U.S. Inc. v. Air United pre- permitted may not be recovery 1885, 558, 553, 97 S.Ct. discrimination, to the extent acts 1972 (1977). current could find no The Court perpetuated was discrimination this that employer. by the of Title VII violation imposed.” 1972, may be liability after her cause of argument, The dissent’s 385, 395, 478 Friday, v. Bazemore her at the time accrued action (1986). 3000, L.Ed.2d 315 92 106 S.Ct. she was re- recomputed after rights racial reflecting wages current the 561, 97 S.Ct. hired, unavailing. Id. in viola- put differences (Marshall, J., dissenting). in no holding law: “Our current tion of pre-1972 legal effect gives sense among the differences Admittedly, present on actions, ... focuses but subtle, recog are the cases sometimes if it is a structure, illegal is which salary controlling differences is yet nizing subtle pre-1965 dis- of the continuation mere case, is about.5 In judging what Id. at structure.” criminatory pay discussed of the cases though neither 6. 3000 n. plaintiffs’ with the four-square is above an in which with one that case Contrast Bazemore-type of situation, there is no employ- from her is terminated employee by plain continuing effect felt ongoing married) (that she a reason employment. throughout tiffs un- an unlawful is declared later is accounting method initial of that effect rehired, but the she is Title VII. Later der retirement endpoint, when only at felt a new hire her as employer treats finally cal benefits are specific and other rights as any seniority her grant refuses actions. those initial culated based “ Plaintiff employment. of her a result time of upon is focus proper ‘The alia, seniori- that her current inter alleges, acts, time at upon discriminatory past to the effect present gives status ty acts became consequences perpetuates and therefore illegal act ” Ricks, v. Del. State Coll. painful.’ most forbidden discrimination. consequences of suit fails: Plaintiffs v. Abramson (quoting out in pointing correct Respondent (9th Haw., 594 F.2d Univ. gives present seniority system Cir.1979)). make the are to we Unless act of discrimination.... past to a retroactively plaintiffs’ to these apply PDA seniority system does employer’s]

[The delayed only conse- Rice, teaching position was 451-53 Compare v. 409 F.3d Shea discriminatory denial allegedly (D.C.Cir.2005) quence cause of (holding VII that Title plaintiff Title VII viola- a current action exists under tenure and was Bazemore discriminatory salary Co., alleged persistent tion), 225 F.3d Publ’g Carter v. West Zubieta, structure), F.3d Cir.2000) and Anderson (11th dividend (holding (D.C.Cir.1999) (holding contin- 334-37 allegedly dis- resulting from earlier payments policy action- disparate pay application of ued offering only men criminatory practice of VII), Coll. v. with Del. State able under Title were company stock purchase opportunity to 498, 257-58, 250, Ricks, S.Ct. 449 U.S. VII). wrongs under Title not actionable loss of (holding that 66 L.Ed.2d 431 pre-PDA accounting remedy the Court application retroactive of the PDA.7 Plain- —a -plaintiffs that, denied allege have failed to tiffs employees as female who Evans— pregnancy a took prior show current violation Title VII.6 leaves to the enact- PDA, they ment of the were treated differ- ently employees from who took leave for C. temporary during disabilities Plaintiffs, however, have still a further same period. time groups, These two argument as to why the current calcula- however, similarly are not situated. Em- tion of benefits is a violation of Title VII. ployees in the latter group were not female They system describe the as NCS employees leaves, who took but to them “facially as discriminatory,” pre- were female and employees male who took sumably meaning system treats other types and, leaves under similarly employees situated differently. effect, the lawful rules then were enti- In their brief they before the court make tled seniority to accrue for the duration of allegation repeatedly quoted —the their leaves. employees Female who took appears term something fifty over times in pregnancy leaves under AT & T’s lawful variety of contextual e.g., formulas: “the pre-PDA policy accrued only service credit seniority system in today remains portion for a of their leaves. As earlier facially discriminatory on the basis of mentioned, though objectionable this is pregnancy,” 32; Appellees’ Br. at “[AT & light of later understandings, because 703(h) T] cannot claim the protection §of to distinguish between the two employment [of VII] decisions reasons for leaves to the PDA the made under a ‘bona seniority system, fide’ two groups were not similarly situated. because AT system & T’s NCS is facially The failure to award full service discriminatory,” Appellees’ Br. at 14. La- credit for their pregnancy leaves could be beling AT & T’s system as facial- labeled facially discriminatory only if em- ly discriminatory argue allows ployees in groups both similarly were situ- application each system to cal- ated, e.g., if legally all were entitled to culate benefits is a new act of discrimina- full receive credit their leaves before tion and present thus a violation of Title the enactment of PDA. But that would Techs., VII. See Lorance v. AT T Inc., & only be true if the PDA given imper- 900, 5, 912 n. 109 S.Ct. 104 missible retroactive effect. (1989); Bazemore, 478 U.S. at By token, the same distinguishing be- 395, 106 S.Ct. 3000. tween one set female employees who problem with plaintiffs’ position that took pregnancy and the NCS facially discriminatory other set who took pre-PDA pregnancy is that it necessarily depends, again, on a leaves cannot constitute facial diserimina- Rice, 6. See Shea v. 409 F.3d sequences 451-53 employer's under the non-discrimi- (D.C.Cir.2005) (Williams, J., concurring) natoiy sure, seniority system, to be ("[Nat'l Passenger R.R. Corp. Morgan v.] ... hardly could be launching described as a two- Bazemore, explicitly preserved Morgan pay class structure based on a forbidden crite- addressing described as discriminatory 'a sal- rion.”). [101,] ary structure.’ 536 U.S. 122 (2002)].... 153 L.Ed.2d 106[ It would Gilbert, 7. See 429 U.S. at 97 S.Ct. 401 very odd to use such term for the facts in (describing pre-PDA pregnancy leave Techs., [or Evans Lorance v. & T involving gender-based "no facial discrimi- nation”). (1989)].... The acts those had [in cases] con- action, law, if plaintiffs’ cause of had either, set is enti- pre-PDA the tion unless (1) post-PDA one, as the to the same benefits must have arisen either tled if PDA is only true That can be time, set. pre-1979, when the initial account- ac- pre-PDA to the retroactively ings for the were made sum, matter how no counting method. (on theory accounting such was then viewed, plaintiffs is of these the situation or at the latest when the PDA illegal), only discriminatory” label can “facially (on theory in became effective by making pre- correctly applied pre-Landgraf that under rules the statute accounting unlawful. PDA leave retroactive). way, filing was Either brief, T, offers citing AT & complaint clearly in 1994 is time-barred. explanation more technical somewhat 2000e-5(e)(l). See U.S.C. For that why plaintiffs “facially discriminatory” and reason, as as the absence of retroac- well policy “a inapplicable: of the term is use PDA, plaintiffs tive effect of the do not only ‘if “discrimi- its discriminates on face have a cause of action for a violation the terms of the apparent nation is from of Title defendants VII.8 require “refer- policy itself’ and does ” policy.’ a fact outside the enc[e to] III. Pallas v. Bell Pacific DiBiase v. (quoting at 25 [Appellees’ Br.] Corp., 48 F.3d Beecham SmithKline finally question turn to the of Pallas We (3d Cir.1995)).” AT & Reply Br. at 3. (9th Bell, v. 940 F.2d 1324 Cir. Pacific the face of the argues nothing T 1991), relationship to the outcome and its pension plans AT & T’s system or NCS in The trial court rested its this case. gender on the basis discriminates cir judgment plaintiffs’ favor on this pen- simply require that pregnancy they— Pallas, on similar cuit’s decision which on NCS be calculated based sion benefits pre-PDA calculations non- facts ruled the Id. dates. compliant. “facially view of discrimi- Under either when, The Pallas case arose ap- natory,” argument that each plaintiffs’ Pacific instituted a new retirement Bell system is a new of the NCS plication called management employees benefit VII, it is based as current violation of Early Opportunity. Plain- Retirement ac- labeling of current on unsubstantiated benefit, tiff, eligible otherwise for the “facially dis- tions defendants the em- because under denied the benefit and must criminatory,” unpersuasive (the system as ployer’s same NCS fail. case) days short of in this she was several II. of Limitations required Statute necessary service credit preg- had a obtain the benefit. She had analysis disposes The above which under nancy-related leave analysis also dis matter before us. The (pre-PDA) then the rules relating in the case poses of another issue leave; had it been personal treated as a limitations. In terms of to the statute of leaves, she as other credited limitations, absent applicable statute of the retirement eligible would have been as we theory violation’ the ‘current under current benefit. have seen is not available Cir.2000). Plan Comm.

8. Accord Ameritech Benefit Am., (7th 220 F.3d 814 Comm’n Workers of employer get VII, Pallas sued her regardless pattern the fact that this missing credit. The district court dis- begun prior was to the effective date missed her suit as time-barred —the rele- 395-96, Title VII.” 478 U.S. at action, leave, pregnancy vant had oc- 3000. In this case there is no ongoing curred 1972 and this was now some “pattern practice” to, pointed to be years fifteen later. This court appeal on no continuing current violation. reversed, holding that it not was time- barred: IV. Conclusion Pacific Bell pro- instituted a gram adopted, thereby perpet- There is little doubt that plaintiffs these uated, acts of discrimination which oc- similarly and others by pre- affected curred to the enactment of the policies PDA employer regarding [PDA], act of discriminating While the pregnancy leaves were gener- treated less not, itself, against Pallas in 1972 is ac- ously than who took dis- tionable, Pacific Bell is liable for its deci- ability impact leaves. The policies these sion to against discriminate Pallas in is even more apparent in the case of an 1987 on pregnancy. the basis of Pallas’ employee, Hulteen, who, like Ms. while on complaint states a valid claim Ti- under leave, pregnancy hospitalized for a tle VII. problem medical unrelated to pregnan- her Pallas, 940 F.2d cy. employer, T, PT & denied her the Thus it appear would that Pacific Bell’s unrelated leave to which she 1987 use of the ac- leave would otherwise have been entitled had counting constituted a new and current she already been maternity leave. violation of Title VII. For the reasons ex- above, Deserving as plained plaintiffs these necessarily would seem implicates a application retroactive be of some the 1979 PDA. accommodation determin- Stating certainty the basis for ing benefits, their current question Pallas result by is made awkward the fact before us is not whether that the court did not address underly- accommodation, owes these an ing retroactive given had to the but whether the compels law it. Because course, PDA. Of Pallas was decided before the PDA cannot be applied retroactively Supreme Court’s decision in Landgraf, either to original invalidate accounting parties and neither the nor the court had scheme for pregnancy leaves or to create a the benefit of that clarification of retroac- current violation of Title VII this defen- tivity law. dant, and plaintiffs’ because suit is not The Pallas court did cite and discuss facially based on a discriminatory retire- with favor the decision time-barred, and is thus Court in Bazemore v. Friday. For the because under controlling today law earlier, reasons explained we do not be- precedent Pallas cannot be viewed as lieve Bazemore is the analogy correct binding panel, on this we must reverse the the case before us. The Supreme judgment of the trial court and direct that Bazemore focused on the pay disparities plaintiffs’ suit under Title VII be dismissed that remained after the enactment of Title for failure to state a claim on which relief VII: “Each paycheck week’s that delivers can granted. less to a black than to a similarly situated white is a wrong actionable under Title REVERSED. determined that Pal- Pacific Bell service. dissenting:

RYMER, Judge, Circuit she was sever- eligible because las though even company reluctantly part amount of days required the al short of take my colleagues’ disagree do not I uncredited, credit as a result of her service slate, on a fresh analysis, a correct what on Pallas filed suit leave. pregnancy-related however, it, the I see like. As look should dis- The district court the PDA. under court, the district Like not clean. is slate on the basis of Su- Pallas’s action missed v. in Pallas opinion our that believe I dispa- holding decisions that Court preme (9th Cir.1991), Bell, F.2d 1324 940 Pacific a bona impacts rate from fide too, though & do parties controls. must be facially neutral system that is has since that Pallas to hold asks us T of limitations the statute challenged within imper- Pallas because undermined been See, adopted. time is from the the PDA to the missibly gave retroactive Inc., Technologies, T v. & e.g., Lorance AT au Supreme Court intervening contrary to 911-13, 2261, 900, 104 109 S.Ct. U.S. Prodzicts, 490 USI Film thority Landgraf v. (1989) facially (holding a 961 L.Ed.2d 1483, L.Ed.2d 244, 114 S.Ct. 128 U.S. 511 system can be discriminatory seniority “continuing vio (1994), the upon relied 229 facially a any time but in challenged at the doctrine lation” act oc- discriminatory system, Rail in National neutral subsequently invalidated adoption); time of United Morgan, only 536 U.S. at the Corp. v. curs Passenger road Evans, 553, Lines, 153 Inc. v. 122 Air leading Su 571 (2002), apply 557-58, to 52 L.Ed.2d and 97 S.Ct. failed VII addressing was entitled (holding Court case United preme Interna seniority systems, challenges to as lawful act of discrimination past treat a States, v. United Bhd. Teamsters had to file employee tional failed 396 52 L.Ed.2d EEOC, 97 S.Ct. and timely charge with argu accept (1977). I these As cannot present vio- is on whether emphasis Pallas, I must ments, play ostrich continuity). mere instead of on exists lation dissent. However, that these cases we held first, Pallas’s reasons: inapposite for two adopted the criteria complaint was about view, turns AT & T’s my appeal

In the new eligibility for to determine in 1987 law. If good Pallas is whether entirely attempt a belated program benefit —not controlling. so, that it is dispute is no there program; a pre-PDA litigate legality calculate second, used to NCS and Pacific Bell Pallas had worked Lana Oppor- Early Retirement under eligibility preg- leave for and taken had since facially because neutral tunity was preg- Bell counted in 1972. Pacific nancy women. against pregnant discriminates per- nancy leave for women sys- so, because explained, we This leave than as medical leave rather sonal employ- distinguishes between female tem enacted, Pa- like and the PDA was before to a due prior who took leave (PT T), ees Telegraph & and Telephone cific disability, employ- pregnancy-related ser- by the “net credited service measured to 1979 for prior who took leave ees for retire- Pallas system. vice” view, Thus, our temporary disabilities. Pacific Bell in 1987 after benefits was Bazemore controlling precedent called the retirement benefit adopted a new Friday, 478 U.S. Opportunity” “Early Retirement held (1986), the Court where accrued L.Ed.2d twenty years of employees with before, pay disparities which existed In way, date. imposed Pallas both after, and remained enactment of new duties on AT T respect Title VII & with to its sum, employees’ pre-PDA pregnancy-related were unlawful. we concluded that leaves, changed Pacific program “adopted, Bell’s 1987 conse quences of how thereby perpetuated, company pre- treated acts of discrimination such, PDA leaves. As AT & T which occurred to enactment of the contends, Pallas Landgrafs contravenes Pregnancy Discrimination Act. While the rule that a new statute has retroactive discriminating act of against Pallas in 1972 effect if it impairs rights a party pos pregnancy-related she took a [when leave] acted, sessed when it not, liability for itself, actionable, increases is Pacific Bell is lia- conduct, past or imposes new duties with against ble its decision to discriminate respect completed transactions. Land in pregnancy.” Pallas 1987 on the basis of 280, graf 511 at 114 S.Ct. 1483. Fi 940 F.2d at 1327. notes, nally, it Pallas this did without ad A dressing the issue of retroactivity. points

AT & T out that under Miller v. Landgraf read as refining, rather than (9th Gammie, Cir.2003) (en 335 F.3d 889 sea-changing, the landscape for the Court banc), panel explicitly is free to overrule upon Story’s Pallas drew Justice “influ- if it by is undermined ential definition” of supervening retroactivity Society Su in Wheeler, preme authority. Propagation Gospel There we the v. held for 756, 22 (1814), reasoning theory “where the or F.Cas. 766-69 of our make clear authority circuit how courts should clearly is determine whether a irreconcil operates statute retroactively: reasoning theory able with the or of inter vening higher authority, a three-judge A statute operate does not “retrospec- panel should by consider itself tively” bound the merely it because is in a controlling later and authority.” Id. at arising case from antedating conduct the T & submits that Landgraf enactment, statute’s upsets or expecta- controlling authority later and Rather, with which tions based in prior law. the Pallas is irreconcilable court Landgraf because must ask whether provi- the new makes clear that Pallas sion attaches interpreted legal consequences the new way PDA in a events gave completed the Act before improper its enactment. retroactive effect. AT & T conclusion that a particular reasons that rule operates pre-PDA “retroactively” the give decision not to full comes at ser process end of a judgment vice credit for maternity concerning leaves was time,1 nature and extent of yet change in Pallas ruled that reliance the law and degree pre-PDA connection decisions a operation between the benefit of the new determination rule was actionable be past and relevant pre-PDA cause event. “acts of discrimination” perpetuated after the Act’s effective proposition PDA, 1. For this AT & T relies on Gener noting was lawful before the that soon Gilbert, al Electric Co. v. Gilbert, 429 U.S. 97 deciding after the Court invalidated a (1976), S.Ct. 50 L.Ed.2d which held policy that favored men over women de policy compensating that a non-job- for all priving women of accumulated except pregnancy related disabilities did not returning maternity when from leave. Nash violate Title showing VII as there was no Satty, ville Gas Co. v. 434 U.S. Employees discrimination. take issue with (1977). assertion that discrimination argues T our AT & nevertheless stat- a federal implicates case aWhen suit, opinion Spink v. Lock- post-Landgraf after events enacted ute (9th Cir.1995) wheth- to determine task is F.3d 616 Corp., first court’s heed prescribed expressly has Congress I), er Corp. Lockheed overruled {Spink has Congress reach. If statute’s 882, 896-97, 116 Spink, course, need to so, there is no done II), (Spink When, rules. judicial default resort interpretation gives that Pallas’s indicates no such however, statute contains PDA. application Spink to the retroactive command, deter- the court must express Age to the Dis- amendments involved 1986 would statute whether the new mine Act of Employment crimination effect, ie., whether retroactive have 621, 623(i)(l), Employee § and the U.S.C. party possessed impair rights would Act of Security Income Retirement acted, party’s liabili- increase he 1054(b)(l)(i), prohibited U.S.C. conduct, impose new past ty excluding from new employers al- to transactions respect duties with participating from age 60 over would If the statute ready completed. Spink had worked plans. retirement traditional retroactively, our operate and be- between 1939 Lockheed not that it does teaches presumption age in 1979 at the working again there gan intent congressional clear absent govern by Lockheed’s 61. He was excluded favoring such a result. he was over 60. plan because retirement 280, 114 268, 269-70, Landgraf, 511 U.S. amendments, was Spink the 1986 After omitted). (internal citations S.Ct. 1483 in but was participate plan, to allowed or reasoning that the I not believe do based with accrued benefits credited Pallas is so irreconcilable theory of pri- with Lockheed years of service his on Landgraf as theory of reasoning or effective date. to the amendments’ it. Pal- license to panel overrule give this denying credit- that Spink sued. We held conduct was that the actionable las held employee that an older years service ed against T’s decision to discriminate PT & have accumulated was un- otherwise would on the employee basis In so do- the amendments. under lawful denied, for, was when she that, our the extent ing, “[t]o we observed deny early retirement. decision to in- employers interpretation requires in the world. was made benefits in years calcu- pre-enactment service clude ex rel. in States emphasized United As we benefits, applies it retroac- lating accrued Telecom, Inc., 52 Anderson v. Northern AT & T n. 1. tively.” 60 F.3d at (9th Cir.1995), changes if “the law F.3d 810 maintain that upon this remark seizes that of conduct legal consequences reversed our Supreme Court effect, goes into after the law place takes intended Congress that conclusion prospec- that conduct operates on the law effect, it neces- to have retroactive statute case, being the Id. at 814. This tively.” employers requiring sarily agreed (without that Con- deciding) assuming service calculat- pre-enactment include prospec- PDA to have intended the gress ap- a retroactive accrued benefits ing premised on only, tive Pallas much into the read so I cannot plication. deny a retire- decision to act—the discrete Spink Our observation Spink opinions. to a current gave rise ment benefit—-that decision ultimate not affect our did find- PDA. Pallas’s Given violation “based decision was because the case violation, Act operated a current ing of of the statute intent the retroactive on that decision. prospectively manifested in its text.” Id. The 2061. Some of the acts about which he simply complained occurred outside of disagreed with our construc- the 300- day Thus, period timely filing. held that analysis— tion of the statute. its We he could sue on claims that would other- like ours—was limited to Landgrafs first wise be time-barred because step. “sufficiently related” to incidents within short, Lcmdgraf does not control Pal- statutory period. Morgan v. National las’s determination of what constitutes the R.R. Passenger Corp., 232 F.3d conduct, actionable nor does it control Pal- (9th Cir.2000). reversed, The Court hold- las’s system conclusion NCS ing instead that a discriminatory discrete facially discriminatory. As these are the day act occurs on happens, it Pallas, dispositive rulings two I cannot each incident of discrimination constitutes conclude that is irreconcilable with separate actionable “unlawful employ- Landgraf. practice,” and that discrete acts are not actionable if time-barred if they even B are related to acts that are not. alternatively posits & T that Pallas reasoning Neither nor theory of relied “continuing on the violation” doc- Morgan is irreconcilable with Pallas. Pal- trine, since discredited National Rail- las held that the NCS is facially Passenger Corp. road v. Morgan, 536 U.S. discriminatory, an issue that was pre- Morgan. sented in Morgan sought dam- (2002), when it concluded that actions ages, Further, which Pallas did not. Mor- Pacific Bell within the statute of limita- gan proceeded on the basis of a continuing period “adopted, tions thereby perpet- violation, whereas upon Pallas relied PT & uated” acts of discrimination which oc- deny T’s decision to as benefits the dis- curred before the PDA was In enacted. crete act that was actionable. As the Pal- view, its necessarily Court it, court las saw this awas current viola- rejected particular theory Pallas’s of time- tion, not a continuing one. liness holding that discrete discrimina- AT T argues & that Morgan also makes tory acts challenged must be within the clear that Pallas’s reliance on Bazemore v. statute of period limitations for that deci- Friday, 478 U.S. 106 S.Ct. Thus, submits, sion.2 AT T& Pallas must (1986), was misplaced. This because, be overruled Morgan, after it is so, it, as AT T puts & because Pallas clear that each denial of additional service support invoked Bazemore to the notion credit to maternity women on leave was a give decisions that current discrete incident which should have been pre-PDA effect to “perpetuated” conduct challenged long ago, happened— when it discrimination and are therefore actionable later, when benefit determinations Pallas, in and of themselves. 940 F.2d at were made. I disagree. 1327. AT & T Morgan’s submits that In Morgan, a charges black male filed reading of Bazemore and United Air with the complaining EEOC Lines, that he was Evans, 553, 557-58, Inc. v. 431 U.S. “consistently harassed and disciplined (1977), 97 S.Ct. harshly more than on ac- shows that no action can arise out of a count of his race.” Id. at time-barred claim absent current unlawful charge Title VII alleged must file a employment practice unlawful oc- days the EEOC 2000e-5(e)(l). either 180 or 300 "after the curred.” 42 U.S.C. that “dis- Supreme Court’s clarification However, correctly or incorrect- conduct. discriminatory acts not action- of current crete are presence found the ly, Pallas construct, barred, they are if even when able time Given unlaiojul conduct alleged timely or to acts filed Bazemore related Morgan says about nothing At clearly at 122 S.Ct. 2061. charges.” Pallas Id. Morgan and makes Evans time, did not recede the same the Court irreconcilable. corollary principle employ- from Bazemore, government In filing charges from ees are barred workers differ and black paid white had long acts “so as the about related discrete applicable made Title VII was ently before discriminatory and independently acts are salary employees; disparity public those acts are them- charges addressing The held thereafter. Court continued Id. timely selves filed.” con that would have pattern Thus, take on Bazemore and Morgan’s VII, but Title a violation of stituted Pallas’s take Evans does not so undermine yet had not become that the statute fact nonbinding. Pallas While as render effec effective, upon its a violation became “continuing changed our law on Morgan employer is liable. date tive violations,” it did not overrule Bazemore. per past discrimination was this extent To panel say whether reiterated, is not for this Morgan petuated, “ correctly, or cor- Pallas read Bazemore delivered] paycheck week’s ‘[e]ach of Evans as rectly chose Bazemore instead similarly to a situated to a black than less authority. only question apt the more actionable under wrong is a white Pallas are Morgan is whether for us U.S. at Morgan, 536 VII...” irreconcilable, say and I cannot Bazemore, (quoting clearly are. 3000). 395, 106 S.Ct. Finally, AT & T notes—and acknowl- Evans, forced a had female United for the Appeals edge in 1968 because resign

flight attendant —that Pal- parted company with Seventh Circuit Evans marriage” policy. When its “no Comm. Plan las Ameritech subject to a she was rehired Benefit Am., 220 F.3d Communication Workers denied restoration policy different Cir.2000). (7th similar facts quite On had any employee previ- to who (Ameritech essentially the same NCS used rejected her Court ously resigned. The not PT & T and likewise did system pres- of a guilty argument United took to women who service credit give ent, of Title VII. continuing violation to the prior pregnancy-related entitled to treat that United was held Evans PDA), follow opted court to failed file lawful once Evans to past act as not, of are Bazemore. rather than We discrimination, charge of timely own course, of our to overrule one able rehiring her applied upon her policy to colleagues footing that on the precedents female applied male differently. court came out aon different Morgan particular importance alike. Of acts holding that “discrete was Evans’s C statutory time period fall within the reason advances as third & T that fall outside timely make acts do to cite Pallas its disregarding failure Morgan, 536 U.S. period.” time Evans). precedent, Supreme Court controlling 112, This (citing Teamsters Bhd. namely, International doctrine did “continuing violation” court’s States, 97 S.Ct. v. United hence principle, with this square (1977), it main- which II clearly tains foreclosed Pallas’s claim be- no acceptable appears As basis to over- cause Teamsters immunizes neutral senior- Pallas, rule and AT & T offers no reason ity systems they from challenge even when it, distinguishing my view Pallas give present effect to acts that would be binding disposition remains and controls thought discriminatory if to- occurred this case. day. Teamsters was concerned with the seniority system” provision “bona fide VII,3 respect and held with to this

provision Congressional intent was

not to existing seniority outlaw the use of simply

lists because the had en-

gaged passage in discrimination

the Act. UNION, HEALTHCARE EMPLOYEES Local Affiliated Service pan- I do not need to decide whether a Employees Union, International AFL- arguably el’s failure to consider controlling CIO, Petitioner, authority a proper Court ground upon overrule the law of

the circuit say because cannot that Pal- NATIONAL LABOR RELATIONS Although las failed to do so. the Pallas BOARD, Respondent, Teamsters, opinion does not cite it does Center, St. Vincent Medical Inc., Technologies,

cite Lorance v. AT & T Respondent-Intervenor. 109 S.Ct. 104 L.Ed.2d (1989), which in turn cites Teamsters. No. 03-72029. Lorance, 905, 909, 490 U.S. at United States of Appeals, 2261. Lorance is a more recent decision in Ninth Circuit. which the Court discussed the difference facially between a seniority system neutral Argued and Submitted Feb. 2005. facially and a discriminatory system, hold- Filed March ing facially that a discriminatory system may challenged whenever it is facially

whereas a neutral may be

challenged only adopted. when it is Id. at

911-12, 109 S.Ct. 2261. As Pallas found system facially NCS to be discrimina-

tory, and Teamsters involved a neutral, that was otherwise we are

not obliged depart just from Pallas

because it failed to cite Teamsters. VII, 703(h)

3. Section pursuant of Title codified at 42 seniority sys- to a bona fide 2000e~2(h), provides: U.S.C. provided tem ... that such differences are employment [I]t shall not be an unlawful not the result of an intention to discrimi- apply race, color, sex, for an different religion, nate because of or compensation, standards of or different origin.... national terms, conditions, privileges employ-

Case Details

Case Name: Noreen Hulteen Eleanora Collet, Linda Porter Elizabeth Snyder Communications Workers of America v. At & T Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 8, 2006

Citation: 441 F.3d 653

Docket Number: 04-16087

Court Abbreviation: 9th Cir.