                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 29, 2011
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 DWIGHT L. ALMOND, III and
 KEVIN C. WEEMS,

       Plaintiffs-Appellants,

 v.                                                     No. 10-3315

 UNIFIED SCHOOL DISTRICT #501,

       Defendant-Appellee.


                 Appeal from the United States District Court
                          for the District of Kansas
                    (D.C. No. 5:07-CV-04064-JAR-KGS)


Pantaleon Florez, Jr., Topeka, Kansas, for Plaintiffs-Appellants.

Patricia E. Riley, of Weathers, Riley & Sheppeard, LLP, Topeka, Kansas, for
Defendant-Appellee.


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


GORSUCH, Circuit Judge.




      Enacted in 2009, the Lilly Ledbetter Fair Pay Act governs how long parties

have to file “discrimination in compensation” claims. This case requires us to
consider what that phrase means. As it turns out, the phrase refers to situations in

which a member of a protected class receives less pay than similarly situated

colleagues — that is, unequal pay for equal work. Because the plaintiffs in this

case don’t raise an unequal pay for equal work claim, they do not benefit from the

Act’s comparatively generous deadlines and preexisting accrual rules apply.

Under those rules, and as the district court observed, the plaintiffs’ claims are

untimely and must be dismissed.

      This case stretches us back to 2003 when Kansas Unified School District

#501 says it was facing serious budgetary straits. To help get back on course, the

District claims, it decided to eliminate three positions, one of which was Dwight

Almond’s maintenance job. Rather than fire him, however, the District told Mr.

Almond that he could transfer to a vacant custodial position at a lower pay grade.

If Mr. Almond accepted the new position, the District promised, he could retain

his current salary for two years before the lower pay associated with the new job

kicked in. To all this Mr. Almond agreed in writing, and two years later the

District reduced his salary just as it said it would.

      In 2004, Kevin Weems found himself in the same predicament. As part of

a putative effort to tighten its budget further, the District eliminated his position

and Mr. Weems accepted a written offer allowing him to assume a lower paying

job with the opportunity to keep his current salary for two years. Like Mr.




                                         -2-
Almond, Mr. Weems’s salary was to be (and two years later was) brought in line

with his lower pay grade.

      Eventually, Mr. Almond and Mr. Weems filed administrative charges

alleging that the District’s actions were motivated by unlawful age discrimination,

not budget necessity. But with this came a wrinkle. The men didn’t bring their

administrative charges until 2006, even though the discrimination they alleged

occurred in 2003 and 2004. And this fact posed a problem for the pair when they

sought to take their claims to court. The district court held that the men had

waited too long to seek administrative review — and that the delay had the effect

of barring their lawsuits altogether.

      While the plaintiffs’ appeal of the district court’s summary judgment

decision was pending in this court, the statutory topography shifted. Congress

passed the Ledbetter Act, a law specifically aimed at effecting changes to

limitations law in the employment discrimination field. To allow the district

court the opportunity to consider whether the Act rescued the plaintiffs’ claims,

rendering their otherwise untimely claims timely, the parties agreed to dismiss the

appeal. In the end, though, the district court concluded that the Act offered the

plaintiffs no help and now the case is back on appeal, requiring us to consider the

timeliness of the plaintiffs’ claims in light of both preexisting law and the

Ledbetter Act.




                                         -3-
      We start with the first question first, asking whether preexisting law

requires dismissal of the plaintiffs’ claims. The Age Discrimination Employment

Act (“ADEA”) provides that “no civil action may be commenced” in federal court

unless the would be plaintiff first files a grievance with the appropriate

administrative agency — and does so “within 300 days after the alleged unlawful

practice occurred” where (as here) a state administrative agency process exists to

remedy the alleged discrimination. 29 U.S.C. § 626(d)(1)(B). Compliance with

this administrative exhaustion requirement and its concomitant limitations period

is a condition precedent to bringing suit. Montes v. Vail Clinic, Inc., 497 F.3d

1160, 1167–68 (10th Cir. 2007).

      But determining when exactly an “unlawful practice occur[s]” — when an

ADEA claim accrues and the 300 day limitations clock starts running — isn’t as

simple as it might first appear. Does the clock start when the challenged

employment practice is decided internally? When the decision is first announced

to the plaintiff? When the plaintiff learns the decision was motivated by

discriminatory animus? Or perhaps each and every time the plaintiff experiences

some effect from the adverse decision?

      In the absence of contrary directives from Congress, the Supreme Court has

read into federal statutory limitations periods a relatively consistent rule. As

formulated by the Court, the clock starts running when the plaintiff first knew or

should have known of his injury, whether or not he realized the cause of his

                                         -4-
injury was unlawful. See, e.g., United States v. Kubrick, 444 U.S. 111, 122

(1979); Rotella v. Wood, 528 U.S. 549, 555–56 (2000).

      As applied to the employment discrimination context, the Court has

explained, this rule generally means that a claim accrues when the disputed

employment practice — the demotion, transfer, firing, refusal to hire, or the like

— is first announced to the plaintiff. See Del. State Coll. v. Ricks, 449 U.S. 250

(1980); Haynes v. Level 3 Commc’n, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006).

Sometimes, of course, an adverse employment decision isn’t announced and the

employee doesn’t learn of it until much later — and in those circumstances courts

revert to asking when the plaintiff did or a reasonable employee would have

known of the employer’s decision. See, e.g., Oshiver v. Levin, Fishbein, Sedran

& Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). But in all events, and consistent

with the general federal rule, an employee who discovers, or should have

discovered, the injury (the adverse employment decision) need not be aware of

the unlawful discriminatory intent behind that act for the limitations clock to start

ticking. (Whether and when the limitations clock, once it has started, might be

equitably tolled is, of course, another matter. See Hulsey v. Kmart, Inc., 43 F.3d

555, 557 (10th Cir. 1994); Cada v. Baxter Healthcare Corp., 920 F.2d 446,

450–51 (7th Cir. 1990)).

      With these principles in hand, the question for us becomes when Mr.

Almond and Mr. Weems first had or should have taken notice of the District’s

                                         -5-
allegedly discriminatory decision. The undisputed facts show that the answer is

2003 for Mr. Almond and 2004 for Mr. Weems. It was then that the District told

the plaintiffs their jobs were being eliminated, then that the District announced

the demotions, and then that the District revealed the future pay reduction

associated with those demotions. And all this poses a problem for the plaintiffs,

just as the district court held, because they filed their administrative charges in

2006, well past the 300 day deadline set by statute and much too late to be able to

pursue their claims in federal court.

      The plaintiffs respond by protesting that the most painful consequence of

the District’s transfer decision — the reduction in their pay — didn’t take place in

2003 and 2004 but two years later, in 2005 and 2006, and so well within the 300

day statutory period. Because of this, they say, they should be able — at the very

least — to contest their pay reduction in federal court.

      We cannot agree. Some adverse employment actions — such as demotion

to a lower position — can require more work of the employee for less pay on an

ongoing basis. Other adverse employment actions can involve entirely deferred

consequences — such as a delayed demotion, a deferred reduction in pay, or a

notice of termination with a grace period before actual firing occurs. But whether

the adverse consequences flowing from the challenged employment action hit the

employee straight away or only much later, the “limitations period[] normally

commence[s] when the employer’s decision is made” and “communicated” to the

                                         -6-
employee. Ricks, 449 U.S. at 258. Put differently, the “proper focus” is on the

time that the employee has notice of “the discriminatory acts,” not “the time at

which the consequences of the acts became most painful.” Id. at 258 (quotation

omitted); see also Chardon v. Fernandez, 454 U.S. 6, 8 (1981); Proctor v. United

Parcel Serv., 502 F.3d 1200, 1206 (10th Cir. 2007). And in this case there is no

question that the District’s actions, including the planned pay reductions, were

first announced to the plaintiffs in 2003 and 2004. The fact that some of those

actions weren’t implemented until later is immaterial.

      Our conclusion in this case parallels (and is compelled by) the Supreme

Court’s decision in Ricks. The plaintiff there was a college professor whose

employer denied him tenure but gave him a year to find new work. The Court

held the limitations period began to run at the time the employer announced the

adverse tenure decision, not when it ultimately terminated his employment a year

later. The Court did so explaining that the challenged unlawful employment

practice was the tenure decision and the plaintiff’s eventual but deferred

termination was only “a delayed . . . consequence of the denial of tenure.” 449

U.S. at 257–58. And as it was in Ricks so it must be here. The plaintiffs before

us seek to challenge (among other things) the District’s decision to reduce their

pay, a decision known to them well before it happened to take effect.




                                        -7-
      Shifting ground, the plaintiffs contend that, however the limitations clock

used to operate under Ricks, the Supreme Court’s decision in Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) reset it. As they read

Morgan, the § 626 limitations clock now doesn’t begin running until all acts

contributing to an adverse employment practice cease. And, the plaintiffs say,

this means their claims are timely because they continued to receive paychecks

reflecting the District’s alleged discrimination well into 2006.

      Morgan, however, didn’t so fundamentally rework how we measure time.

To be sure, Morgan held that hostile work environment claims accrue each time

acts contributing to that environment occur. See id. at 117–18. And to be sure,

this represents a deviation from the general Ricks accrual rule. But Morgan took

great pains to reaffirm the Ricks rule and to draw only a narrow distinction for

hostile work environment claims. Morgan began with an extended discussion

endorsing Ricks’s rule that “[d]iscrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire” trigger the statute of limitations

when announced to the claimant, and do so whether or not all of their adverse

effects or consequences are immediately felt. Id. at 114. Morgan then proceeded

to distinguish hostile work environment claims from this general rule only

because, unlike the mine run of employment discrimination claims, hostile work

environment claims “cannot be said to occur on any particular day,” and instead


                                          -8-
usually involve a pattern of acts that aren’t “actionable on [their] own” but give

rise to a legal violation only when assessed in their totality. Id. at 115–16. By its

own terms, then, Morgan, helps the plaintiffs in this case not at all. Mr. Almond

and Mr. Weems don’t seek to pursue a hostile work environment claim but wish

instead to challenge the District’s termination, transfer, and demotion decisions.

And Morgan expressly held that those sorts of decisions remain subject to Ricks’s

rule.

        Before invoking the Ledbetter Act, the plaintiffs say there’s still one more

reason why their claims, or at least some portion of them, are timely under

preexisting law. When the District announced its transfer decisions in 2003 and

2004, the plaintiffs submit, it wasn’t clear about the accompanying salary

reductions. As they describe the facts, the District said it would reduce their

salary in two years’ time only if its financial prospects didn’t improve. And this

temporizing about the pay cuts, the plaintiffs argue, means that their salary

reductions weren’t really a sure thing until 2005 and 2006 when they took effect.

And because of this, they say, their administrative filings were timely at least

when it comes to challenging their pay cuts.

        Whatever other problems may attend this tack, a factual one surely does.

Even straining to view the facts most favorably to the plaintiffs, the District in

2003 and 2004 didn’t say it might or could reduce the plaintiffs’ pay in the future.


                                          -9-
It said it would reduce their pay in two years’ time, subject only to the possibility

of later review or reconsideration. And the Supreme Court has instructed us in no

uncertain terms that, when a challenged employment decision is merely subject to

later review, reconsideration, or appeal, this does nothing to stop the clock from

running. The limitations period still accrues with the employer’s announcement

and “the pendency of a grievance, or some other method of collateral review of an

employment decision, does not toll the running of the limitations periods . . . .

[and neither does] [t]he existence of careful procedures to assure fairness.” Ricks,

449 U.S. at 261. See also Chardon, 454 U.S. at 9 (Brennan, J., dissenting)

(explaining that the “thrust” of the Court’s jurisprudence is to require a potential

plaintiff “to measure the time for filing his claim from the moment some form of

injunctive relief first becomes available”); Kessler v. Bd. of Regents, 738 F.2d

751, 754–55 (2d Cir. 1984); 4 Lex K. Larson, Employment Discrimination,

§ 72.07[3] (2d ed. 2011).

      Having concluded that the district court was right and preexisting accrual

doctrine renders the plaintiffs’ claims untimely, and without any suggestion from

the plaintiffs that equitable tolling doctrine might save their cause, our work is

still only half finished. We still have to consider whether the Ledbetter Act

changes the limitations equation in any way, whether it might save the plaintiffs’

otherwise lost federal claims.


                                        - 10 -
      The Ledbetter Act came in response to the Ledbetter case. Lilly Ledbetter

proved at trial that her supervisors gave her poor performance reviews because of

her sex — and that these reviews, in turn, caused her employer to pay her less

than similarly situated male workers. Ledbetter v. Goodyear Tire & Rubber Co.,

Inc., 550 U.S. 618, 622 (2007). The Supreme Court, however, reversed. It

explained that Ms. Ledbetter’s pay discrimination claim was untimely and the

jury’s verdict had to be overturned because Ms. Ledbetter filed her administrative

charge more than 300 days after the announcement of the employer’s relevant

pay-setting decision.

      Writing for herself and three others, Justice Ginsburg dissented. The

dissent argued that the Court should treat compensation discrimination claims like

it did hostile work environment claims in Morgan. The dissent emphasized that,

while most adverse employment actions (firings, failures to hire, demotions,

transfers) are communicated or quickly made obvious to employees,

compensation discrimination (or unequal pay for equal work) claims and hostile

work environment claims are different. In these two situations, the dissent

explained, employers don’t typically announce or communicate the injurious facts

to the employee. In the pay discrimination context, workers like Ms. Ledbetter of

course know their own salaries but they are rarely told what their co-workers

earn. And this means that an employee may have no reason to know of the fact of


                                       - 11 -
his or her injury — the very existence of a pay disparity — for a long time. For

this reason, Justice Ginsburg argued, pay discrimination claims shouldn’t accrue

when a particular pay decision is made and announced to an individual employee

but should arise anew with each pay check, much as a hostile work environment

claim accrues with each new act contributing to the unlawful environment. “Pay

disparities [claims] are . . . significantly different from adverse actions such as

‘termination, failure to promote . . . or refusal to hire,’” the dissent argued,

because those cases “all involv[e] fully communicated discrete acts,” while in pay

discrimination claims the communication to the individual employee is usually

incomplete. Ledbetter, 550 U.S. at 645 (quoting Morgan, 536 U.S. at 114).

      Enter the Ledbetter Act. In addition to modifying Title VII to overturn the

Supreme Court’s Ledbetter decision, the Act added new and parallel language to

the ADEA:

      [f]or purposes of this section, an unlawful practice occurs, with respect to
      discrimination in compensation in violation of this chapter, 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, including each time wages,
      benefits, or other compensation is paid, resulting in whole or in part from
      such a decision or other practice.

29 U.S.C. § 626(d)(3).




                                         - 12 -
      The plaintiffs would have us believe this language saves their claims. In

their view, an “unlawful practice” for purposes of § 626(d) occurs anytime the

employer adopts a “discriminatory compensation decision or other practice.”

And, in their view, the “other practice” language means the alleged act of

discrimination need only relate to compensation. Though not all discriminatory

employment decisions involve compensation decisions or practices, the plaintiffs

acknowledge many (perhaps most) do. So it is that, in their estimation, the

Ledbetter Act works a near total revolution in how we measure time, with a new

claim arising — and the limitations clock resetting anew — each time an

employer issues a new paycheck reflecting or effecting an act of discrimination.

As applied to their own case, the plaintiffs say, the District’s decision to transfer

the plaintiffs to lower-paid positions is the “unlawful practice” and, because that

decision eventually affected their compensation, a new cause of action arises for

limitations purposes each and every time they receive a smaller paycheck in their

new positions.

      The Ledbetter Act, however, didn’t go so far. By its express terms, the Act

applies only to claims alleging “discrimination in compensation” — or, put

another way, claims of unequal pay for equal work. The plaintiffs before us don’t

seek to bring such claims and so the Ledbetter Act offers them no help. Why all

this is so takes a bit of unpacking, but it is revealed by Congress’s particular


                                         - 13 -
choice of language in § 626(d)(3) and amply confirmed by the Act’s statutory

cross-references and history and by the circumstances surrounding its adoption.

      The first and core difficulty with the plaintiffs’ interpretation lies in the

language of the Act itself. Contrary to their view, the phrase “when a

discriminatory compensation decision or other practice is adopted” doesn’t do the

work of defining the class of discrimination cases to which the Act applies.

Linguistically, the portion of the Act doing that task is the preceding phrase

providing that “[f]or purposes of this section, an unlawful practice occurs, with

respect to discrimination in compensation in violation of this chapter . . . .” It is

there that Congress defined which “unlawful practices” are and are not affected

by the Act’s new accrual rules. And it is there that Congress made clear the Act’s

new accrual rules pertain only to “discrimination in compensation” claims “in

violation of this chapter.”

      Neither is the phrase “discrimination in compensation in violation of this

chapter” some Rorschach inkblot to which we may ascribe whatever meaning

springs to mind. It is instead a clear cross-reference to a specific term of art with

a settled legal meaning. “This chapter,” namely the ADEA, contains a particular

prohibition on compensation discrimination in § 623(a)(1). To prove such a

claim, it isn’t enough for an employee to show that a discriminatory practice

somehow affected his or her pay. Instead, the employee must show a


                                         - 14 -
discriminatory pay disparity between himself or herself and similarly situated but

younger employees. See, e.g., MacPherson v. Univ. of Montevallo, 922 F.2d 766,

774 (11th Cir.1991) (proof of “discrimination in compensation” under ADEA

requires showing “similarly situated persons outside the protected age group

received higher wages”); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370,

374–75 (D.C. Cir. 2010). In other words, “discrimination in compensation”

requires not just any effect on pay, but one of a particular kind: unequal pay for

equal work.

      Parallel language added to Title VII underscores the point. To address the

particular sex discrimination claim at issue in Ledbetter, the Act contains a new

accrual rule for claims of “discrimination in compensation in violation of” Title

VII. See 42 U.S.C. § 2000e-5(e)(3)(A). And like the ADEA, Title VII prohibits

employers from “discriminating against any individual with respect to his

compensation” because of membership in a protected class. 42 U.S.C.

§ 2000e-2(a)(1). We have already interpreted this prohibition to require proof of

unequal pay between the employee and co-workers outside the protected class

doing the same work. See, e.g., Johnson v. Weld Cnty., Colo., 594 F.3d 1202,

1215 (10th Cir. 2010) (“To establish a prima facie case of pay discrimination,

[plaintiff must] adduce evidence tending to show that she occupied a job similar

to that of a higher paid male” (quotation omitted)); see also 1 Larson,


                                        - 15 -
Employment Discrimination, § 13.01 (Title VII discrimination in compensation

claims involve unequal pay for the same work); 1 Barbara Lindemann and Paul

Grossman, Employment Discrimination Law § 18.I (4th ed. 2007) (similar). Of

course, if there are no similarly situated co-workers, the employee may be able to

make out a claim with evidence that a person outside the protected class would

have been paid more for doing the same job. See Washington Cnty. v. Gunther,

452 U.S. 161, 166, 178–79 (1981). But in any case the key to a successful claim

is a showing that the employer discriminatorily paid the employee too little for

the position he or she occupies.

      The plaintiffs’ competing reading — that the Ledbetter Act applies to any

“other practice” involving a discriminatory decision affecting pay — thus errs. It

errs by ignoring the statute’s first phrase expressly limiting the law’s coverage to

claims of “discrimination in compensation,” as well as its clear cross-reference,

“in violation of this chapter,” directing us to a class of claims with a settled and

statutorily precise meaning. And, in this way, the plaintiffs’ proposed

interpretation commits not one but two statutory interpretation sins — first by

rendering a statutory phrase superfluous and then by failing to give effect to

Congress’s reference to a preexisting legal term with a well settled meaning. See

Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 877 (1991); Morissette v.

United States, 342 U.S. 246, 250 (1952).


                                        - 16 -
      Having said that, the question remains what work does the second statutory

phrase on which the plaintiffs seek to rely do? The answer has nothing to do with

which claims the Act covers but with when those claims accrue. After the first

phrase of the Act defines which claims it affects (discrimination in compensation

claims), the second phrase goes on to tell us when those claims accrue for

limitations purposes. As a matter of plain linguistic direction, the second phrase

tells us compensation discrimination claims accrue for limitations purposes “when

a discrimination in compensation decision or other practice” is “adopted,” or

“when” someone becomes “subject to” or “affected by” its application. Of

course, the word “discriminatory” must modify both “compensation decision” and

“other practice” because the Supreme Court tells us that the Act doesn’t permit a

plaintiff to challenge a decision unless it involves unlawful discrimination. AT&T

Corp. v. Hulteen, 129 S. Ct. 1962, 1973 (2009). But the “other practice” phrase

does real and important work of its own by making clear that the accrual period

for covered compensation discrimination claims is triggered not only when the

pay setting decision takes place (the “discriminatory compensation decision”) but

also when other discriminatory employment practices (“other practice[s]”) that

result in compensation discrimination are “adopted.” So it is that the first

statutory phrase tells us which claims are covered by the Act (those alleging




                                        - 17 -
unequal pay for equal work) and the second phrase, including the “other practice”

language, tells us when those claims accrue for limitations purposes.

      The Act’s history erases any possible lingering questions. The Act’s

findings tell us that Congress’s target was the Ledbetter majority and its purpose

to undo the Court’s treatment of “discrimination in compensation” claims. See

Pub. L. No. 111-2 § 2, 123 Stat. 5 (2009). But while Justice Ginsburg in dissent

in Ledbetter expressly advocated just such a statutory change, she never

advocated a limitations revolution for any claim somehow touching on pay. To

the contrary, Justice Ginsburg reaffirmed that hiring, firing, promotion, demotion,

and transfer decisions, though often touching on pay, should and do accrue as

soon as they are announced. Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting).

She sought to distinguish only compensation discrimination (or equal-pay-for-

equal-work) claims from this rule. And it is hardly surprising that Congress

would (and did) follow her lead.

      Justice Ginsburg’s dissent also helps confirm the (limited) significance of

the “other practice” language. As Justice Ginsburg observed, the act of

discrimination against Ms. Ledbetter wasn’t in the pay-setting decision itself, but

in the poor performance reviews given to her because of her gender that were

later used to justify paying her less than her male colleagues. The Ledbetter

dissent repeatedly emphasized that the pay differential, the unequal pay for equal


                                       - 18 -
work, Ms. Ledbetter experienced was caused by these earlier discriminatory acts.

See Ledbetter, 550 U.S. at 644 (Ginsburg, J., dissenting) (discrimination rather

than performance inadequacies “accounted for the pay differential”); see also id.

at 659 (Ledbetter’s pay was “discriminatorily low due to a long series of

decisions reflecting Goodyear’s pervasive discrimination against women

managers”). The dissent argued that the law should take account of these other

practices when setting accrual rules for compensation discrimination claims. And

it is once again hardly surprising that Congress would include language to do just

that, to trigger the accrual of a compensation discrimination claim not only when

employers intentionally discriminate in pay-setting decisions, but also when they

discriminate in other ways that cause a discriminatory pay disparity.

      Beyond language of § 626(d)(3) itself, beyond its statutory references and

history, lies the realm of legislative history. And any effort to venture so far

would only serve to corroborate that the “other practice” phrase doesn’t covertly

convert the Ledbetter Act into a Leviathan swallowing Ricks’s ordinary accrual

rule. The House Committee Report tells us that the Act “is designed to be a

narrow reversal of the Ledbetter decision, without upsetting any other current

law.” H.R. Rep. No. 110-237, at 17 (2007). The report proceeds to emphasize

that the Act aims at compensation discrimination claims alone, emphasizing the

unique nature of those claims and distinguishing them from other discriminatory


                                        - 19 -
practices. See, e.g., id. at 6 (“While workers know immediately when they are

fired, refused employment or denied a promotion or transfer, the secrecy and

confidentiality associated with employees’ salaries make pay discrimination

difficult to detect.”); id. at 7 (“Unlike hiring, firing, promotion, and demotion

decisions where an individual immediately knows that she has suffered an adverse

employment action, there is often no clearly adverse employment event that

occurs with a discriminatory pay decision.”). And in explaining why the

committee rejected an amendment that sought to strike “other practice” from the

legislation, the report tells us that the phrase was necessary to ensure the bill

addressed “the fact pattern in [Ledbetter], where sex-based performance

evaluations were used in conjunction with a performance-based pay system to

effectuate the discriminatory pay.” H.R. Rep. No. 110-237, at 5. The bill’s

sponsor, Senator Mikulski, made plain as well that the “other practice[s]” term

does not embrace any “discrete personnel decisions like promotions and

discharges,” as the plaintiffs before us imagine — and that it does not precisely

because, as we have explained, the use of the preceding phrase “discrimination in

compensation . . . means that [the Act] already covers only such claims —

nothing more, nothing less.” 155 Cong. Rec. S757 (daily ed. Jan. 22, 2009).

      In light of all this, we hold that § 626(d)(3) of the Ledbetter Act governs

the accrual only of discrimination in compensation (unequal pay for equal work)


                                         - 20 -
claims in violation of § 623(a)(1) — nothing more, nothing less. The language

does not affect the accrual of other cases alleging discrimination in hiring, firing,

demotions, transfers, or the like. And having reached that conclusion, it follows

ineluctably that the Act can’t save the plaintiffs’ claims in this case. That’s

because there’s no pay discrimination claim here. True, the plaintiffs were

transferred to lower paying positions. True, this had the knock on effect of

lowering their compensation. True, we must assume that the transfer decision

was discriminatory at this stage of the litigation. But none of this brings the

plaintiffs’ claim within the ambit of the Ledbetter Act because they don’t contend

they were ever paid less than others doing the same work. In fact, and though it

is inessential to our decision, the plaintiffs acknowledge they were paid more for

the first two years than their similarly situated co-workers, until their salaries

were brought in line with everyone else in their pay grade. Put differently, the

plaintiffs may have been discriminated against in the transfer decision but they

were not discriminated against in compensation. Accordingly, the general Ricks

accrual rule, not the Ledbetter Act’s discrimination in compensation rule, governs

this case and the plaintiffs’ claims remain untimely.

      Without endorsing all of the reasoning they employ, we note that the path

we’ve taken in interpreting the Ledbetter Act generally parallels the paths taken

by two of our sibling circuits, and we all reach the same result in the end.


                                         - 21 -
See Noel v. Boeing Co., 622 F.3d 266, 273–74 (3d Cir. 2010); Schuler, 595 F.3d

at 374–75. Our way has been made all the clearer as well thanks to the careful

work of the district judge who preceded us through this statutory thicket. The

district court’s judgment dismissing the case for failure to file timely

administrative charges is affirmed. Given this disposition, we have no need to

reach the district court’s alternative holding that Mr. Weems (but not Mr.

Almond) failed to exhaust his administrative remedies for other reasons.

                                                                             Affirmed.




                                        - 22 -
