Schuler v. Pricewaterhousecoopers, Llp

595 F.3d 370

Harold SCHULER, Appellant v. PRICEWATERHOUSECOOPERS, LLP, et al., Appellees.

No. 08-7115.

No. 08-7116.

No. 08-7120.

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2009.

Decided February 16, 2010.

Appeals from the United States District Court for the District of Columbia (No. 1:02-cv-00982-RJL).

Richard A. Salzman argued the cause for appellant C. Westbrook Murphy. Joshua N. Rose argued the cause for appellant Harold Schuler. With them on the briefs were Douglas B. Huron and David L. Rose. Tammany M. Kramer entered an appearance.

Howard M. Shapiro argued the cause for appellee. With him on the brief were Juanita A. Crowley, Edward C. DuMont, Eric M. Nelson, and Stephen L. Sheinfeld.

Before: GINSBURG and HENDERSON, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The appellants, Harold Schuler and C. Westbrook Murphy, sued PricewaterhouseCoopers, LLP (PwC) alleging the firm refused to make them partners because of their ages, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the District of Columbia Human Rights Act (DCHRA), D.C.Code § 2-1401.01 et seq., and the New York Human Rights Law (N.Y.HRL), N.Y. Exec. Law § 290 et seq. The district court (1) dismissed as untimely Schuler's claims under the ADEA for 1999 and 2000, (2) granted summary judgment for PwC on Schuler's claims under the ADEA and DCHRA for 2001 and on Murphy's claims under those laws for 2000, 2001, and 2004, and (3) dismissed all counts under the NYHRL for failure to state a claim.

We reverse the judgment of the district court insofar as it dismissed the claims brought under the NYHRL. In all other respects we affirm the judgment of the district court.

I. Background

PwC is a partnership headquartered in New York that provides accounting, auditing, and other services to clients worldwide. It has more than 20,000 employees and more than 2,000 partners in the United States. The partnership agreement provides each partner shall retire upon reaching age 60 but in extraordinary circumstances a partner may delay retirement until he reaches age 62. The structure of the compensation and benefits package provided to a new partner makes it financially undesirable for most employees over the age of 55 to become partners.

During the years relevant to this case, PwC was organized into several divisions, which were subdivided into practices, each comprising multiple practice groups. The firm hired Schuler in 1988, when he was 44 years old, and Murphy in 1989, when he was 49, to work in the Regulatory and Advisory Services (RAS) practice group in Washington, D.C. The RAS was part of the banking practice, which was in turn a part of the Audit and Business Advisory Services division. The RAS had four or five partners and about two-dozen other employees.

The process for selecting a new partner at PwC began at the practice group level. Each year the managing partner or a group of partners in each practice group could propose one or more employees to be considered for partner. Current partners were then asked to submit their reviews of that employee—called "soundings" —to an evaluation committee. An employee who received sufficiently numerous and favorable soundings proceeded through further stages of review and could be made a partner as of July of the following year.

In 1998 the RAS proposed Schuler, then 55, for partner. Only 12 partners submitted "soundings" about Schuler (six favorable, two unfavorable, and four reporting insufficient information), and he was not made a partner in 1999.

In 1999 the head of the RAS proposed another employee, then 37 years old, for partner. He also wanted to propose Schuler again but the head of the banking practice was not amenable because, as he later explained, he believed there had been "no significant change in circumstances or views" about Schuler since the previous year. Twenty-two partners submitted soundings about the other candidate (17 favorable, none unfavorable, and five reporting insufficient information) and he became a partner in 2000.

In 2001, a year in which the RAS proposed no one for partner, Schuler and Murphy each filed an administrative charge with the District of Columbia Office of Human Rights and cross-filed the charge with the Equal Employment Opportunity Commission (EEOC). Each alleged PwC had refused to consider him for promotion to partner because of his age— Schuler in 1999, 2000, and 2001 and Murphy in 2000 and 2001.

In 2002 Schuler and Murphy sued PwC, alleging, among other things, the firm had "denied [them] promotion to partner in 1999, 2000, and 2001 . . . in violation of the ADEA, the DCHRA, and the [NYHRL]." PwC moved to dismiss Schuler's 1999 and 2000 and Murphy's 1999 claim under the ADEA because "the plaintiffs failed to file a timely administrative charge." Murphy v. PricewaterhouseCoopers, LLP, 357 F.Supp.2d 230, 237 (D.D.C.2004). The ADEA required each appellant, before suing, to have filed an administrative charge with the EEOC within 300 days of the alleged discriminatory action, see 29 U.S.C. § 626(d)(1), but Schuler filed his charge on June 29, 2001, more than 300 days after he did not become a partner in July 2000 (let alone July 1999), and Murphy filed his charge on March 14, 2001, more than 300 days after he did not become a partner in 1999. PwC also moved to dismiss all counts under the NYHRL for failure to state a claim upon which relief could be granted because they did not allege a discriminatory act had occurred in New York. Finally, PwC moved to dismiss all claims under the DCHRA on the ground that the "exercise of . . . supplemental jurisdiction [was] not appropriate" because those claims "predominate[d] over the remaining federal claims." Murphy, 357 F.Supp.2d. at 237, 245. The district court granted PwC's motion, to the extent relevant here, by dismissing as untimely Schuler's claims under the ADEA for 1999 and 2000 and dismissing all counts under the NYHRL for failure to state a claim upon which relief could be granted. See id., 357 F.Supp.2d at 239-40, 244. The district court also dismissed as untimely Murphy's 1999 claim under the ADEA, which ruling Murphy has not appealed.

In 2003, the RAS proposed another employee for partner. He received 18 soundings (16 favorable, none unfavorable, and two reporting insufficient information) and became a partner in 2004, when he was 39.

In 2005 the appellants each filed a new lawsuit. Murphy alleged PwC did not make him a partner in 2004 because of his age, in violation of the ADEA and the DCHRA. The district court consolidated Murphy's new suit with the one he and Schuler had filed in 2002; it is these consolidated cases that are now before us on appeal. Schuler's 2005 lawsuit alleged "PwC has engaged in a pattern and practice of age discrimination in making decisions regarding assignments and promotions in violation" of the same two statutes, see Schuler v. Pricewaterhouse-Coopers, LLP, 514 F.3d 1365, 1369 (D.C.Cir.2008) (quoting complaint); that suit is pending in the district court (No. Civ. 05cv2355 (RJL)).

That same year the district court denied PwC's motion for summary judgment on the appellants' remaining claims under the ADEA and DCHRA. In 2008, however, after the close of discovery PwC again moved for summary judgment, which the district court granted as to Murphy's claims under the ADEA and DCHRA for 2000, 2001, and 2004 and as to Schuler's claims under those statutes for 2001. The court concluded each had "failed to rebut PwC's legitimate, nondiscriminatory explanations" for not making him a partner and had "not presented sufficient evidence to support a finding . . . of intentional discrimination based on age." Murphy v. PricewaterhouseCoopers, LLP, 580 F.Supp.2d 4, 12 (2008) (Murphy); Murphy v. PricewaterhouseCoopers, LLP, 580 F.Supp.2d 16, 28 (2008) (Schuler). The court also dismissed Schuler's claims under the DCHRA for 1999 and 2000 as untimely because they "rel[ied] on discriminatory acts occurring more than one year before the filing of Schuler's initial administrative complaint." Murphy, 580 F.Supp.2d. at 25-26.

II. Analysis

Schuler and Murphy challenge the district court's 2004 dismissal of their claims under the NYHRL and of Schuler's claims under the ADEA for 1999 and 2000. They also challenge respectively the court's grant of summary judgment in 2008 on Schuler's claims under the ADEA and DCHRA for 2001 and on Murphy's claims under those statutes for 2000, 2001, and 2004.

A. Schuler's 1999 and 2000 claims under the ADEA

Schuler does not dispute that in 2004 the district court correctly dismissed as untimely his ADEA claims for 1999 and 2000. Schuler maintains, however, that the Lilly Ledbetter Fair Pay Act of 2009(LLA), Pub.L. No. 111-2, 123 Stat. 5, which applies by its terms to claims of "discrimination in compensation" pending on or after May 28, 2007, § 6, 123 Stat. at 7, made his claims timely. Section 4 of the LLA provides, in relevant part:

[A]n unlawful practice occurs, with respect to discrimination in compensation in violation of [the ADEA], when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice. . . .

Misquoting the statute, Schuler argues the decision not to promote him was an "`other act' . . . intertwined with a discriminatory compensation decision" because as a result of that decision he received significantly less remuneration than he would have done as a partner. In support of this position he refers us to the decisions of two district courts interpreting the LLA, see Gentry v. Jackson State Univ., 610 F.Supp.2d 564, 566 (S.D.Miss.2009); Rehman v. State Univ. of N.Y., 596 F.Supp.2d...