In June 3, 2005, the US Court of Appeals for the District of Columbia Circuit reversed a lower court ruling that dismissed Mr. Shea’s claim of discrimination relating to his pay as untimely. Shea v. Rice, Secretary, Department of State, No. 03-5325, U.S. Court of Appeals for the District of Columbia Circuit, June 3, 2005. In Shea, the employee alleged that when he was hired as a Foreign Service Officer with the State Department in 1992, his pay grade was at least 2 levels below what it should have been and the reason for that was because of his race. Mr. Shea also alleged that he was discriminated against regarding his pay level with each pay check. Mr. Shea did not file his grievance alleging discriminatory pay with the Foreign Service Grievance Board until July 2001, even though he was alleging the discrimination started in 1992 when he was hired.
The US District Court dismissed Mr. Shea’s complaint holding that because the discriminatory act regarding his pay level occurred in 1992, his grievance was untimely as it was not filed within 180 calendar days of date of the discriminatory event. (Note: Unlike the EEOC’s regulations which require an employee to contact an EEO counselor within 45 calendar days of a discriminatory event, the Foreign Service Act requires grievances based upon alleged discrimination to be filed within 180 calendar days after the occurrence giving rise to the grievance).
In reversing the District Court’s ruling, the DC Circuit held that, under the Supreme Court’s decision in Bazemore v. Friday, 478 U.S. 385 (1986), each discriminatory paycheck is a separate discriminatory act that can give rise to a Title VII violation. The Court of Appeals rejected the notion that Mr. Shea was trying to “breathe new life” into discriminatory actions that occurred outside the limitations period by alleging they were part of a broader pattern of discrimination by relying on their current lingering effects. Instead, the Court of Appeals held that Mr. Shea was alleging that the State Department discriminated against him during the limitations period by issuing him discriminatory paychecks or “periodic implementation” of its alleged discriminatory policy.
This case emphasizes the need to file timely claims of pay discrimination which can include violations of the Equal Pay Act involving comparators who are of a different gender. The court limited the potential recovery to pay received after January 12, 2001, 180 days prior to Mr. Shea having filed his grievance, not back to 1992 when the pay discrimination allegedly began.
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