Defendant's argument in favor of a 1990 start date stems from a statute of limitations issue originally raised in its motion for summary judgment. Defendant had argued that Pollis could not recover damages for events occuring prior to May 14, 1990, because claims arising from those events are time-barred under the three-year statute of limitations applicable to willful violations of the EPA. Here, defendant renews this claim, and bases its argument for a 1990 start date on its view that claims prior to this date are time-barred.
Plaintiff resists defendant's motion for summary judgment as to her pre-1990 claims by arguing that they are part of a continuing violation. This argument raises two issues for consideration: (1) Does the "continuing violation" exception to certain statutes of limitations apply in the context of EPA claims?; and (2) If so, has plaintiff raised genuine factual issues as to whether a continuing violation exists in the present case? For reasons that follow, I answer both questions in the affirmative. Accordingly, I deny defendant's renewed motion for partial summary judgment
and request for a 1990 start date.
Under Fed. R. Civ. P. 56(c), a moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." On such a motion, "a court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991), (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)) (citation omitted).
Claims arising under the EPA are subject to a two-year statute of limitations. However, if the plaintiff alleges a willful violation, the applicable statute of limitations is three years. See 29 U.S.C. § 255(a). Both parties seem to agree that Pollis's claim sufficiently alleges a willful violation, and is therefore subject to section 255's three-year statute of limitations.
As a general rule, "Under the [EPA], a separate claim accrues each time the aggrieved employee receives a paycheck reflecting discriminatory wages." Erickson v. New York Law School, 585 F. Supp. 209, 213 (S.D.N.Y. 1984). See also Lacey v. Carroll McEntee & McGinley, Inc., 1994 U.S. Dist. LEXIS 15298, *9, 1994 WL 592158, 3 (S.D.N.Y. 1994); Soler v. G & U, Inc., 86 F.R.D. 524, 528 (S.D.N.Y. 1980); Franklin v. New York Law Publishing Company, 1995 U.S. Dist. LEXIS 9566, 1995 WL 408390, 1 (S.D.N.Y. 1995) (discussing application of section 255 in the context of claims accruing under the Fair Labor Standards Act). This means that a plaintiff who alleges a willful violation of the EPA can generally only recover damages for discriminatory wages paid within three years of the filing of the complaint. See Erickson, 585 F. Supp. at 213.
The Second Circuit has, however, developed a continuing violation exception in the context of Title VII claims, that would seem to apply equally to claims arising under the EPA. A Title VII plaintiff must file a charge with the EEOC within 180 days of the violation, or, where the plaintiff first files with a state or local agency, within 300 days of the violation. See 42 U.S.C. § 2000e-5(e). However, under the "continuous violation" tolling doctrine, "[a] continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurence of an instance of that policy." Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978) (emphasis in original). "Where an illegal policy is so maintained, relief for injuries sustained even before the beginning of the limitations period is appropriate." Id. Thus, "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert, 10 F.3d at 53. See also Gomes v. Avco Corp., 964 F.2d 1330 (2d. Cir. 1992) ("the commencemement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.") (quoting Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985), cert. denied 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985)).
Plaintiff argues, in effect, that the continuous violation doctrine applied to Title VII claims in Acha and Lambert applies equally to claims under the EPA. I agree. In Acha, the Second Circuit framed the doctrine in general terms, and did not limit it to claims arising under Title VII. Rather, the court referred to "a continuously maintained illegal employment policy" in defining the proper scope of the doctrine, language which would seem to apply to salary policies that violate the EPA as well as Title VII. My view that the language of Acha expands beyond the facts of that case is supported by the Second Circuit's recent decision in Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994), in which the court of appeals cited Acha and applied the "continuous violation" doctine in the context of a § 1983 discrimination claim. See Cornwell, 23 F.3d at 703-4.
Even setting aside the general language of Acha, I see no relevant distinction between Title VII and the EPA that would serve to justify applying the "continuous violation" doctrine to one but not the other. As noted above, a plaintiff who has established a prima facie violation of the EPA has also established a prima facie violation of Title VII. That plaintiff might also demonstrate a violation of Title VII by presenting evidence of discriminatory animus on the part of the employer. But the fact that Title VII provides a broader cause of action than the EPA has no bearing on the proper scope and applicability of the "continuing violation" doctrine.
In addition, there is no policy justification for this doctrine that would apply only in the context of Title VII. I can discern two such policy rationales. The first stems from the "equitable notion that the statute of limitations ought not to run until facts supportive of that cause of action are or reasonably should be apparent to a reasonably prudent person similarly situated to plaintiff." Franklin v. New York Law Publishing Company, 1995 U.S. Dist. LEXIS 9566, 1995 WL 408390, 3 (S.D.N.Y. 1995) (quoting Alldread v. City of Grenada, 988 F.2d 1425, 1432 (5th Cir. 1993)). Just as in the case of a disciminatory policy under Title VII, a plaintiff who is the victim of an employer's discriminatory pay policy may not discover this discrimination until years after her wage was set. The "continuous violation" doctrine also reflects an understanding that claims of discrimination stemming from an illegal employment policy are not stale as long as that policy is in effect. See Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (2d Cir. 1976). This justification also applies with equal force to discriminatory policies that violate the EPA.
Few courts in this circuit have directly answered whether the "continuous violation" doctrine applies to causes of action arising under the EPA. A few courts have stated the general rule discussed above, see supra pp. 25-6, and held that an EPA plaintiff's recovery is limited to discriminatory wages paid within the applicable limitations period. See Erickson, 585 F. Supp. at 213-14; Soler, 86 F.R.D. at 528. The New School cites these cases in support of its view. However, in both cases, the court did not consider the issue that has been raised here: whether the "continuous violation" doctrine applies in the context of the EPA. Therefore, their reiteration of the general rule does not persuade me to rule in defendant's favor.
I have found only one decision from this district that addresses the present issue, and it does so only implicitly. In Lacey v. Carroll McEntee & McGinley, Inc., supra, the plaintiff brought causes of action for wage discrimination under both Title VII and the EPA in December of 1993. The court held that the plaintiff could not recover for wages paid prior to December, 1991. See id. at 4. In so holding, the court found that the plaintiff had failed to allege a continuing violation, see id., implicitly assuming that the continuing violation doctrine applies equally to claims arising under the EPA and Title VII. Other circuits have more directly affirmed the applicability of the "continuing violation" doctrine in the context of the EPA. See, e.g., Miller v. Beneficial Management Corp., 977 F.2d 834, 843-44, 848 (3rd Cir. 1992).
There is however, one decision from this district that demands discussion. In Franklin v. New York Law Publishing Co., supra, the plaintiff brought claims under section 7 of the Fair Labor Standards Act ("FLSA") on July 11, 1995, alleging that her employer willfully failed to pay her overtime in accordance with that provision. See id. at 1. The court refused to allow recovery of overtime pay withheld prior to July 11, 1992, see id., and specifically held that the "continuing violation" doctrine does not apply to FLSA claims. See id. at 2. The court relied in part on the fact that the application of the exception to FLSA would be inconsistent with one of its purposes: to allow plaintiffs to recover on claims that could not have been discovered earlier. The court said:
In the present case, defendant's violation of plaintiff's rights were not of a kind that would have become clear only in retrospect, when several different events were viewed in conjunction by the plaintiff; rather, each deficient paycheck immediately put the plaintiff on notice that, for the particular pay period involved, she had not been paid all that she had earned.