Opinion
Civil No. 02-4154 ADM/RLE, Civil No. 03-2991 ADM/RLE
August 18, 2003
Daniel W. Schermer, Esq., Minneapolis, MN, appeared for and on behalf of all Plaintiffs. Steven W. Wilson, Esq., Briggs and Morgan, P.A., Minneapolis, MN, appeared for and on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On May 8, 2003, the Motion to Dismiss [`4154 Docket No. 7] of Defendant ALLETE, Inc. d/b/a Minnesota Power, Individually and as Administrator of Minnesota Power and Affiliated Companies Retirement Plan ("ALLETE" or "Defendant"), was argued before the undersigned United States District Judge. On August 6, 2003, ALLETE's Motion to Dismiss [`2991 Docket No. 4] Ann M. Stenstrom's consolidated case was argued. Plaintiffs Noreen Maki, Lucille J. Johnston, and Dolly Hable assert claims under Title VII, the Equal Pay Act ("EPA") and the Employment Retirement Income Security Act ("ERISA"), and Plaintiff Ann M. Stenstrom (collectively, "Plaintiffs") asserts claims under the Minnesota Human Rights Act ("MHRA"), the EPA and ERISA. Plaintiffs challenge the diminution of their pensions due to ALLETE's abandoned policy of terminating employees who became married or pregnant in the 1960's. Defendant seeks dismissal of the claims under Federal Rule of Civil Procedure 12(b)(6), arguing they are time-barred. For the reasons set forth below, the Motions are granted.
On July 23, 2003, the Maki case (02-4154) and the Stenstrom case (03-2991) were consolidated for all purposes. [`2991 Docket No. 11.]
Stenstrom has yet to receive a right to sue letter enabling a Title VII claim. `2991 Pl.'s Mem. in Opp. at 1.
II. BACKGROUND
Plaintiffs were employed by Defendant in the 1960's and terminated pursuant to an antiquated policy of automatic termination for women who became pregnant or married. In 1963 Defendant's policy was changed to limit termination to married women who became pregnant. This termination policy was entirely abolished in 1970.
Following a career pattern typical of that era, the Plaintiffs returned to the work force when their children were grown. Each of the Plaintiffs were rehired by Defendant in the 1980's. All have now retired and are receiving pension benefit payments from Defendant. Plaintiffs argue their years of continuous service were disrupted by the discriminatory and abolished termination policy. They seek redress by claiming their pension benefit should be adjusted to reflect their prior employment with the Defendant in the 1960's.
Defendant's pension plan did not incorporate non-continuous prior service into benefits calculation until 1976, when a "bridging of service" provision was added. This provision stated that non-continuous prior employment would be included in determining pensions, as long as the period of that employment was longer than the intervening break. In 1987, the plan was amended to "bridge" prior employment only if the intervening break in employment was less than five years. In the early 1990's, the plan was again changed so that either of these methods of qualifying for "bridging" prior employment would suffice. Defendant has refused multiple requests to "bridge" the pre-termination employment of women who were rehired after their automatic termination for marriage or motherhood. None of the Plaintiffs' prior employment qualifies for "bridging" under the current plan due to the substantial duration of Plaintiffs' intervening breaks in employment, ranging from 15 to 22 years, which substantially exceeds the period of prior employment in each Plaintiff's situation.
Plaintiff Noreen Maki ("Maki") commenced work for Defendant in 1960 and was terminated in 1966 after she became pregnant. She reapplied in 1966 after giving birth and twice in 1967, but was not rehired. Maki was rehired in 1981 and worked for Defendant until her retirement on November 30, 2002, at which time she was credited with approximately 19 years of service and receives a monthly pension of $725.51.
Plaintiff Lucille Johnson ("Johnson") also started employment with Defendant in 1960 and was terminated in 1966 after her pregnancy. She applied to be rehired several times after 1979, and returned to Defendant's employment in 1988 and worked until April 30, 2003. Johnson was credited with 14.33 years of service and draws a monthly pension of $371.72.
Plaintiff Alverna (Dolly) Hable's ("Hable") employment with Defendant began in 1958 and continued until she was terminated in 1962, the year she was married. She was rehired the following year and was terminated again in 1964, after becoming pregnant. Upon learning Defendant was rehiring some of its previously terminated female employees, Hable applied and was again rehired in 1983, initially for part-time work, but later as a permanent employee. Hable retired on November 30, 1999, and receives a pension of $339.37 a month, based on 14.33 credited years of service.
Plaintiff Ann M. Stenstrom ("Stenstrom") was employed by Defendant on August 22, 1960 and terminated in 1961 when she was married. Stenstrom was re-hired 20 years later in 1981, and retired on April 30, 2001.
Following Defendant's repeated refusal to "bridge" their 1960's employment, Maki and Johnson, and later Hable, filed charges of discrimination with the EEOC and received right to sue letters. Plaintiffs claim that by not "bridging" their prior service, Defendant is committing a continuing violation of Title VII and the EPA apart from the violation that was coextensive with Defendant's 1960's automatic termination policies. Alternatively, Plaintiffs argue that Defendant is breaching its fiduciary duty under ERISA.
Defendant counters Plaintiffs' claim with a Motion to Dismiss, arguing that the discriminatory policies last affected Plaintiffs in the 1960's and have been abandoned since 1970, and because Plaintiffs' requests for credit for prior service were first denied over four and a half years ago, Plaintiffs' claims are time barred. Defendant argues that even if the refusal to "bridge" Plaintiffs' prior service gives present effect to a past discriminatory policy, that discriminatory act can have no present legal consequence because it was not made the basis of a timely charge.
III. DISCUSSION
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to dismiss claims for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most favorable to the non-moving party, and the facts alleged in the complaint must be taken as true. Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994); Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D.Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the non-moving party, and the court must draw all reasonable inferences in the non-moving party's favor. Ossman, 825 F. Supp. at 880; White Stone Partners, L.P. v. Piper Jaffray Cos., 978 F. Supp. 878, 879 (D.Minn. 1997). The court may consider extraneous material presented to the court outside of the complaint if such materials are "necessarily embraced" by the pleadings. Piper Jaffray Cos. v. Nat'l Union Fire Ins. Co., 967 F. Supp. 1148, 1152 (D.Minn. 1997).
A. Retroactivity
Defendant argues Stenstrom and Hable, who were terminated in 1961 and 1964 respectively, are prohibited by the Ex Post Facto clause of the Constitution of the United States and Landgraf v. USI Film Prods., 511 U.S. 244 (1994), from bringing a cause of action based on a statute enacted subsequent to their termination. All of the statutes relied on were enacted subsequent to Stenstrom and Hable's terminations, with the earliest enactment being the EPA in June 1964.
Sections 9 and 10 of Article I of the Constitution of the United States prohibit the enactment of federal and state ex post facto laws, respectively. U.S. Const. Art. I, § 9, cl. 3 (Congress); id. § 10, cl. 1 (states). The Constitution of the State of Minnesota follows suit. Minn. Const. Art. 1, § 11. In Landgraf, the Supreme Court held that retroactive imposition of punitive damages raises a serious constitutional question and is prohibited. Landgraf, 511 U.S. at 281, 84-86. The Court stated that "The extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored." Id. at 283-84 (emphasis in original). Essentially, the Court found that the legal disfavor for retroactive application of laws dictates that civil rights legislation expanding the potential liability of an employer cannot be applied retroactively without a clear expression of legislative intent. Id. Therefore, to punish ALLETE for the terminations of Stenstrom and Hable, which occurred prior to the enactment of the relevant statutes making such terminations based on marriage or pregnancy illegal, would be an ex post facto application of the statutes. See id. at 266-68 (stating that "statutory retroactivity has long been disfavored"). Accordingly, Defendant's Motion to Dismiss must be granted as to Stenstrom and Hable's claims. Even if Stenstrom and Hable's claims were not barred on this basis, however, they would nevertheless be barred by the statute of limitations.
B. Statute of Limitations
The parties rely on two related but distinct lines of cases. The determinative question for this Court is which line of cases governs the undisputed material facts of this case.
Defendant relies on United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), and its progeny, National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), Ameritech Benefit Plan Comm. v. Communication Workers of America, 220 F.3d 814 (7th Cir. 2000), and Inglis v. Buena Vista University, 235 F. Supp.2d 1009 (N.D.Iowa 2002). Plaintiffs primarily rely on Bazemore v. Friday, 478 U.S. 385 (1986), and its progeny, Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164 (8th Cir. 1995), and Tademe v. Saint Cloud State University, 328 F.3d 982 (8th Cir. 2003).
In Evans, the United States Supreme Court considered whether or not an employer commits a violation of Title VII by refusing to credit an employee with seniority for a period of time when the employee was unemployed as a result of a discriminatory termination. Evans, 431 U.S. at 554. Evans was forced to resign to comply with United's then-existing policy of refusing to allow its female flight attendants to be married. Id. Evans did not file a charge with the EEOC alleging that the forced resignation was a Title VII violation within the 90 days of the termination required by 42 U.S.C. § 2000e-5(e), therefore such a claim was deemed time-barred. Id. at 554-55. However, while Evans unsuccessfully sought reinstatement on several occasions, she was rehired four years later in 1972. Id. at 555. For seniority purposes she was treated as though she had no prior service with United. Id. Evans argued that United was guilty of a "present, continuing violation of Title VII" making her claim timely, and asserted that United's seniority system gave "present effect to the past illegal act and therefore perpetuat[ed] the consequences of forbidden discrimination." Id. at 557.
The Supreme Court held that the disparity in seniority calculation was "not a consequence of . . . [Evans'] sex" because male employees who resigned or were terminated for a non-discriminatory reason also received no seniority credit for prior service if re-employed. Id. The Court observed that "[n]othing alleged in the complaint indicat[ed] that United's seniority system treat[ed] existing female employees differently from existing male employees, or that the failure to credit prior service differentiate[d] in any way between prior service by males and prior service by females." Id. at 557-58. The Court made a distinction between timely charges related to the discriminatory act itself and charges related to present effects of a past act of discrimination:
[T]he seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed. . . . A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Evans, 431 U.S. 558. The critical question is "whether any present violation exists." Id. (emphasis in original). Even though United's seniority system had a continuing impact on Evans' pay and benefits, the system was "neutral in its operation." Id. Accordingly, Evans' claim was dismissed as untimely, even though her forced resignation in 1968 "might at one time have justified a valid claim against the employer," because "a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of [benefits]. . . ." Id. at 560.
Here, Plaintiffs' pension benefits have been impacted similarly to Evans' seniority benefits. Like United's system, ALLETE's current system is gender neutral. Continuous service credit for ALLETE's pension benefit determination is assessed on the basis of the duration of the employee's intervening breaks in employment, regardless of the reason for the intervening break. Male employees having intervening breaks like Plaintiffs' would be treated the same under ALLETE's system. Accordingly, no present violation exists in ALLETE's current system, which makes the continuing impact of the 1960's policy a legal paper tiger. In the words of the Supreme Court, Plaintiffs' termination under ALLETE's 1960's policy is "merely an unfortunate event in history which has no present legal consequences." Id. at 558. Accordingly, Plaintiffs' current claims are time-barred.
Interestingly, to bridge the gap in Plaintiffs' intervening breaks in employment would create a distinction based on sex by favoring female employees with breaks precipitated by pregnancy or marriage, where male employees with employment breaks for other reasons would not be credited under ALLETE's system.
As in Evans, the instant Plaintiffs did not file EEOC charges asserting their terminations in the 1960's were discriminatory within the statutory time frame, and there is no dispute that such claims are now time-barred.
Plaintiffs argue that Bazemore v. Friday, 478 U.S. 385 (1986), should control instead of Evans. In Bazemore, plaintiffs alleged a pattern or practice of racial discrimination on the basis of then-current salary disparities between black and white employees. Bazemore, 478 U.S. at 390-92. The disparities resulted from a state policy of paying blacks lower salaries than whites pre-dating the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(a). Id. at 393 n. 4. While some adjustments had been made "to try to get rid of the salary disparity resulting on account of pre-Act discrimination," not all the adjustments necessary to eliminate the disparity had been implemented. Id. at 394-95. The Supreme Court held that discrimination "with respect to salaries prior to . . . Title VII does not excuse perpetuating that discrimination after . . . Title VII." Id. at 395 (emphasis in original). The Court found:
A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.
Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.
Bazemore, 478 U.S. at 395.
In its analysis in Bazemore, the Court specifically addressed Evans and distinguished the two cases. The Court identified that the plaintiff in Evans "claimed that the seniority system gave present effect to past, illegal forced retirement and thereby perpetuated the consequences of forbidden discrimination," but "made no allegation that the seniority system itself was intentionally designed to discriminate." Id. at 396 n. 6. The same argument is proffered by Plaintiffs in this case. The Bazemore Court noted that the "critical question" was "whether any present violation exists," and that there "simply was no violation of Title VII" in Evans "[b]ecause the employer was not engaged in discriminatory practices at the time of suit." Id. (emphasis in original). The Court explained Bazemore was different:
Here, however, petitioners are alleging that in continuing to pay blacks less than similarly situated whites, respondents have not from the date of the Act forward `made all [their] employment decisions in a wholly nondiscriminatory way.' Our holding in no sense gives legal effect to the pre-1972 actions, but, consistent with Evans . . ., focuses on the present salary structure, which is illegal if it is a mere continuation of the pre-1965 discriminatory pay structure.
Bazemore, 478 U.S. at 396 (emphasis in original) (internal citation omitted).
Here, like the employer in Evans, Defendant is not engaged in discriminatory practices currently, but has a neutral system which it applies neutrally. That is, no "present violation" exists in Defendant's system. Unlike Bazemore, there is here no allegation of evidence of a pre-existing discrimination which is ongoing. Accordingly, Evans more appropriately matches the fact pattern of the instant suit than does Bazemore.
The Evans ruling was reaffirmed in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan, the respondent filed race discrimination and retaliation charges with the EEOC alleging discrete discriminatory acts as well as a racially hostile work environment. Morgan, 536 U.S. at 104. Some of the allegedly discriminatory acts at issue occurred within 300 days of the filing of Morgan's EEOC charge, and some occurred prior. Id. The Court observed that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of law." Morgan, 536 U.S. at 108 (citing Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). The Court applied the provision stating: "A charge . . . shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." Id. at 109 (citing § 2000e-5(e)(1)) (emphasis in original).
The Morgan Court distinguished between discrete acts and hostile environment claims. "A discrete retaliatory or discriminatory act `occurred' on the day that it `happened.'" Id. at 110. The Court held that reference to an employment "practice" in the statute does not convert related discrete acts into a single unlawful practice for purposes of timely filing. Id. at 111. "[D]iscrete acts that fall within the statutory time period do not make timely acts that fall outside the time period." Id. (citing Evans, 431 U.S. 553). The Court noted that Bazemore was a pattern-or-practice case considering a discriminatory salary structure. Id. at 112. It noted that Bazemore allowed claims even though salary discrimination began prior to the date the employer's acts were actionable under Title VII because each discriminatory paycheck was an independent wrong actionable under Title VII. Id.
The Court concluded:
We derive several principles from these cases. First, discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. . . . The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as these acts are independently discriminatory and charges addressing those acts are themselves timely filed.
Morgan, 536 U.S. at 113 (emphasis added).
The Court then held that "[h]ostile environment claims are different in kind from discrete acts." Id. at 115. Hostile environment claims "will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 122. Thus, in such cases, "[a] court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Id. at 120.
Here, Plaintiffs do not allege hostile work environment claims, nor are their pension benefit determinations a part of the same actionable scheme as the abolished 1960's policy. Consistent with Morgan, ALLETE's discrete act of determining Plaintiffs' respective pension benefit payments must be an "independently discriminatory" act to be actionable. Id. at 113. As discussed above, the neutral application of ALLETE's current gap-bridging policy is not an independently discriminatory act.
The Seventh Circuit applied the standards enunciated in Evans in a case involving computation of "continuous employment" time for pension plan benefits where "the reason for an approved absence from work was pregnancy rather than any other short-term disability." Ameritech Benefit Plan Comm. v. Communication Workers of America, 220 F.3d 814, 816 (7th Cir. 2000). The policy at issue in Ameritech treated a gap in service caused by pregnancy differently than employment gaps resulting from other disabilities. Id. at 817. Due to this policy distinction, "employees who had taken pregnancy or maternity leaves prior to April 29, 1979 had [different employment time calculations] than they would have had under a system that did not discriminate against pregnancy." Id. As a result, "some [employees] did not receive [certain] benefits even though they would have been eligible if they had been disabled in any other way." Id.
The Ameritech court analyzed both Evans and Bazemore, and stated that "[t]he Evans Court held that the employer's refusal after the rehiring to `correct' the effects of the past firing by affording [the plaintiff] additional seniority did not violate Title VII, because such a refusal was not a discriminatory action in itself." Id. at 822 (citing Evans, 431 U.S. at 557-58). The relevant distinction was that "[b]oth male and female employees who had been fired (whether for a nondiscriminatory reason or for an unchallenged discriminatory reason) and then re-hired were treated the same for purposes of seniority credit." Id. Because Ameritech computed time in service and then neutrally applied a benefits package, the court held Evans, not Bazemore, governed. The same distinction applies equally to the instant case.
Noting that "the Bazemore Court said nothing about overruling Evans." Ameritech, 220 F.3d at 823.
The Ameritech court also held that the case was "not a case like some continuing violations where the employees had no way of knowing that something bad had happened to them until much later." Id. at 823. The Ameritech employees "knew the minute they took their pregnancy or maternity leaves that they were not getting full credit for their time off," and "[t]he time for bringing a complaint was therefore long ago." Id. Here, Plaintiffs knew at the time of their 1960's terminations from ALLETE that an adverse employment event had occurred and, as in Ameritech, "these employees [have] sued too late." Id.
The Inglis case further expounds on the significance of the Morgan decision. In Inglis v. Buena Vista University, 235 F. Supp.2d 1009 (N.D.Iowa 2002), female professors sued the University alleging they were being paid less than male counterparts. Inglis, 235 F. Supp.2d at 1013. Plaintiffs challenged a previously eliminated University compensation system not in existence at the time of suit on a continuing violation theory, alleging a pattern and practice of discriminatory conduct reducing their paychecks and making timely their claims otherwise barred by the statute of limitations. Id. at 1015, 1019. The court considered the applicability of Morgan and Bazemore to such facts.
The Inglis court found that Morgan changed the landscape of such an analysis. The court noted that Bazemore, and its successor Ashley, stood for the proposition that when an employer is accused of an ongoing practice that began prior to the statute of limitations period, the claim may nonetheless be timely under the "continuing violations" doctrine, and that so long as a timely violation exists recovery would date back to (but be limited to) the beginning of the limitations period. Id. at 1020-21. Pre-Morgan, the general trend was "to interpret pay claims as continuing violations of Title VII, regardless of whether the plaintiff challenged a single act of wage discrimination or a discriminatory pay policy." Id. at 1021. However, "the Supreme Court . . . limited the applicability of the continuing violations theory in Morgan . . ." by distinguishing between discrete acts of discrimination and hostile work environment claims. Id. at 1022. That is, the "application of the continuing violation theory . . . is limited to claims such as claims for a hostile work environment where the nature of the claim is ongoing discrimination and one example of discrimination does not prove the charge." Id. at 1028 (quoting Krough v. Cessford Const. Co., 231 F. Supp.2d 914, 921 (S.D.Iowa 2002)).
The Inglis court noted that "Morgan did not overrule Bazemore, but . . . [provided] a basis upon which to distinguish Bazemore. . . ." Id. at 1023. The Morgan Court articulated the distinctive feature of Bazemore as being that:
because the discriminatory structure was still in place at the time the Bazemore plaintiffs challenged it, each paycheck represented a perpetuation of that discriminatory pay system. However once that discriminatory pay structure has been discontinued, instead of perpetuating a discriminatory system, each paycheck represents a non-actionable lingering effect of a prior discriminatory system.
Id. at 1023-24 (internal citations omitted). Accordingly, the Inglis court concluded that, on its facts, there was no pattern or practice of maintaining a discriminatory pay structure in existence during the limitations period, as there was in Bazemore, and thus the plaintiffs' claims were untimely. Id. at 1026-27 (relying on Evans, 431 U.S. at 558).
The remaining cases relied upon by Plaintiffs do not change this analysis. In Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), the plaintiff alleged that her employer calculated employee service time based on a method "that [did] not credit pregnancy leaves taken prior to 1979 but [which credited] disability leaves taken during the same period." Pallas, 940 F.2d at 1325 (emphasis added). Applying Bazemore, the Ninth Circuit held that the Pallas system "distinguishes between similarly situated employees" by singling out female employees taking leave "due to a pregnancy-related disability," as opposed to leave due to "other temporary disabilities." Id. at 1327; see also Carter v. Amer. Tel. and Tel. Co., 870 F. Supp. 1438, 1444-45 (S.D.Ohio 1994) (holding same). The policy at issue here does not treat leave time precipitated by different causes differently, and thus Pallas is inapposite.
In Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164 (8th Cir. 1995), the plaintiff brought a gender discrimination action against her employer under Title VII, the EPA and the Missouri Human Rights Act, alleging systematic gender discrimination in job assignment, pay, seniority and employee benefits. Ashley, 66 F.3d at 166. Ashley was hired to do work excluded from the collective bargaining agreement between the employer and the union. Therefore the employer "unilaterally determined" Ashley's rate of pay, seniority rights and employee benefits. Id. at 166. After being laid off, Ashley challenged, inter alia, her alleged discriminatory lay-off and subsequent failure to recall or rehire her. Id. at 167. The Eighth Circuit dismissed as time-barred Ashley's claims based on her initial assignment to a non-union position because it was not a continuing violation, but allowed her gender discrimination claims regarding her rate of pay because it was an ongoing practice. Id. The court held that an "ongoing practice that began prior to the statute of limitations period" was actionable under the continuing violation doctrine. Id. at 167-68. The court found that the defendant was engaged in a "present violation" because a similarly situated male would be treated differently. Id. at 168. In the instant case, however, a similarly situated male would not be treated differently, and therefore Ashley does not apply.
The court also noted that "laches is unavailable to bar claims for legal relief governed by a statute of limitations." Ashley, 66 F.3d at 169. As such, a laches defense here need not be analyzed, even though it would appear meritorious on first blush.
In Tademe v. Saint Cloud State University, 328 F.3d 982 (8th Cir. 2003), a recent Eighth Circuit decision, a Black Ethiopian assistant professor sued his employer, a university, alleging Title VII continuing violations of employment discrimination on the basis of race in tenure, promotion and salary, hostile work environment and retaliation. Tademe, 328 F.3d at 984-85. Plaintiff argued that "when a violation is of an ongoing and continuing nature, the statute of limitations begins to run from the date of the last discriminatory act." Id. at 987. The Eighth Circuit held:
Applying Morgan to the present case, we hold Tademe's claims of discrimination . . . were barred by the statute of limitations. . . . [T]he statute of limitations on Tademe's tenure claim began to run . . . when [the defendant] denied Tademe tenure.
Id. at 988. Tademe's promotion discrimination claim was also barred because the defendant's discrete act was "complete when Tademe received notice of his promotion," and that his attempted pattern-or-practice cause of action also failed because his evidence "at best show[ed] isolated discriminatory incidents." Id. at 988, 989 n. 4. Tademe relied on Bazemore for his salary discrimination claim, which was found to be "arguably" within the limitations period. Id. at 989. The court stated that Morgan did not overrule or expressly limit Bazemore to pattern-or-practice cases (because the Morgan court did not address the timely filing question with respect to pattern-or-practice claims). Id. at 989. The court therefore "assume[d] for the purpose of . . . analysis that Tademe's claim of salary discrimination was timely because his EEOC charge was filed within 300 days of receiving allegedly discriminatory paychecks." Id. Significantly, however, Tademe "failed to establish a genuine dispute regarding his claim of race-based salary discrimination" and the district court's grant of summary judgment against Tademe was affirmed. Id. at 990. The assumption that Tademe's claim was governed by Bazemore was dicta, and the court did not need to analyze the factors making Bazemore inapplicable to Plaintiffs' claims in this case. Plaintiffs' insistence that Tademe re-affirms Bazemore's status as "alive" post-Morgan does not negate the controlling role of Evans here.
The Evans, Morgan, Ameritech and Inglis line of cases are analogous to the facts presented in the case at bar. Plaintiffs allege no ongoing discriminatory system, and accordingly Bazemore and its progeny do not apply. Plaintiffs' argument that Defendant's current neutral system is a present violation of Title VII giving effect to its past discriminatory policy is precluded by the Evans line of precedent.
In conclusion, while "the line between continuing violations that arise with each new use of the discriminatory act (e.g., the Bazemore paychecks) and past violations with present effects (e.g., the Evans seniority system) is subtle at best," the line is palpable when applied to the instant facts and dictates that Defendant's Motion to Dismiss be granted.
As the Parties agree, because Plaintiffs' Title VII discrimination claims are time-barred, Plaintiffs' purported MHRA, ERISA and EPA claims are also time-barred. See `4154 Def.'s Reply at 10; `2991 Pl.'s Mem. in Opp. at 1.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Motions to Dismiss [`4154 Docket No. 7, '2991 Docket No. 4] are GRANTED and
2. Plaintiffs' Complaints [`4154 Docket No. 1, `2991 Docket No. 1] are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.