See Noel v. The Boeing Co., 622 F.3d 266, 275 (3rd Cir.2010) (plain language of FPA covers compensation decisions and not other discrete employment decisions). See also Almond v. Unified Sch. Dist. No. 501, 749 F.Supp.2d 1196, 1209 (D.Kan.2010) (decision to eliminate position and transfer employee to lower paid position not a “compensation decision” or a “compensation practice” under the FPA); Tryals v. Altairstrickland, LP, No. H–08–3653, 2010 WL 743917 at *7 (S.D.Tex. February 26, 2010) (“The rule set out in Ledbetter and prior cases—that ‘current effects alone cannot breathe new life into prior, uncharged discrimination,’ is still binding law for Title VII disparate treatment cases involving discrete acts other than pay”).

] While the Sixth Circuit has not considered this specific argument, other courts have found it meritless. For example, the Third Circuit discussed the flaws in a similar theory at length in Noel v. The Boeing Co., 662 F.3d 226 (3d Cir. 2010), concluding the FPA does not apply to failure to promote claims. The D.C. Circuit Court, the Tenth Circuit, and various district judges across the country have also reached the same conclusion. See, e.g., Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630-31 (10th Cir. 2012); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010); Almond v. Unified School Dist. No. 501, 749 F. Supp. 2d 1196 (D. Kan. 2010); Harris v. Auxilium Pharma., Inc., 664 F. Supp. 2d 711, 744-47 (S.D. Tex. 2009), vacated in part on other grounds by Harris v. Auxilium Pharma., Inc., No. 4:07-cv-3938, 2010 WL 3817150 (S.D. Tex. Sept. 28, 2010). Notably, nothing in Ransdell's complaint suggests his case was initially intended to actually implicate the FPA. The complaint never mentions compensation or how Ransdell's salary may or may not have been affected by the Route 9 promotion. [See R. 1.] In fact, the FPA is never referenced at all, and were it not for Ransdell's response brief, the Court would remain entirely unaware that Ransdell intended to plead anything beyond a standard Rehabilitation Act failure to promote claim.

In an attempt to circumvent the above analysis, Defendants rely on caselaw which has held that the FPA does not apply to certain types of claims-- namely, failure-to-promote claims and reduction-in-force claims. See, e.g., Noel v. The Boeing Co., 622 F.3d 266 (3d Cir. 2010); Almond III v. Unified Sch. Dist. #501, 749 F. Supp. 2d 1196 (D. Kan. 2010). In distinguishing such claims from wage discrimination claims, courts have explained that the distinction makes sense because "compensation decisions . . . are often concealed and not discovered until long after the 180-or 300-day administrative period expires," whereas "discrete employment decisions, like promotion decisions" are usually "'fully communicated discrete acts [which are] easy to identify as discriminatory'" at the time the action is taken.

Furthermore, defendant argues that even if naming "Owens Corning (Union)" was sufficient to implicate defendant, the allegations contained in plaintiff's complaint exceed those contained in the charge and must be dismissed. See Almond v. Unified Sch. Dist. No. 501, 749 F. Supp. 2d 1196 (D. Kan. 2010) (noting that a party may not complain to the EEOC of only certain instances of discrimination and then seek judicial relief for different instances). Discussion

FN63. See H.R.Rep. No. 110–237 (2007); Almond v. Unif. Sch. Dist. No. 501, 749 F.Supp.2d 1196, 1209–15 (D.Kan.2010) (discussing legislative history and postLedbetter case law); see also Noel v. Boeing Co., 622 F.3d 266, 272–75 (3d Cir.2010); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C.Cir.2010); Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 Fed.Appx. 346, 350 n. 2 (5th Cir.2010); Russell v. County of Nassau, 696 F.Supp.2d 213, 226–29 (E.D.N.Y.2010); Tryals v. Altairstrickland, LP, No. H–08–3653, 2010 WL 743917, at *7 (S.D.Tex. Feb. 26, 2010); Rehman v. State Univ. of N.Y. at Stony Brook, 596 F.Supp.2d 643, 651 (E.D.N.Y.2009); Speer v. Mountaineer Gas Co., No. 5:06CV41, 2009 WL 2255512, at *7 (N.D.W.Va. July 28, 2009).

Under the FPA, a claim accrues with each paycheck that stems from a discriminatory decision irrespective of when the decision was made. See Noel, 622 F.3d at 272 ("[P]ursuant to the FPA, each paycheck that stems from a discriminatory compensation decision or pay structure is a tainted, independent employment-action that commences the administrative statute of limitations."); Almond v. Unified Sch. Dist., No. 07-4064, 2010 WL 4384206, *8 (D. Kan. 2010) (explaining the history and scope of the FPA). The Lilly Ledbetter Fair Pay Act of 2009, applies to "all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973" that are "pending on or after May 28, 2007."

"In determining whether a particular claim has been exhausted, . . . the court's inquiry is limited to the scope of the allegations raised in the administrative charge because `[a] plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.'" Almond v. Unified Sch. Dist. No. 501, ___ F. Supp. 2d ___, 2010 WL 4384206, at *5 (D. Kan. Oct. 28, 2010) (citing Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007)). "In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim; this follows from the rule that each discrete incident of alleged discrimination or retaliation constitutes its own unlawful employment practice for which administrative remedies must be exhausted."