08-2466-cv
Miller v. Kempthorne
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21 st day of December, two thousand nine.

PRESENT:               ROGER J. MINER,
                       REENA RAGGI,
                       PETER W. HALL,
                                          Circuit Judges.
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WILLIAM R. MILLER,

                                         Plaintiff-Appellant,
                            v.                                               No. 08-2466-cv

DIRK KEMPTHORNE, SECRETARY OF THE U.S.
DEPARTMENT OF THE INTERIOR,

                                          Defendant-Appellee.
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FOR APPELLANT:                                    WILLIAM R. MILLER, pro se, Brooklyn, New
                                                  York.

APPEARING FOR APPELLEE:                           MARGARET KOLBE, Assistant United States
                                                  Attorney (Seth D. Eichenholtz, Assistant United
                                                  States Attorney, on the brief), for Benton J.
                                                  Campbell, United States Attorney for the Eastern
                                                  District of New York, Brooklyn, New York.
       Appeal from the United States District Court for the Eastern District of New York

(Carol B. Amon, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s March 31, 2008 judgment and its April 28, 2008 order

are AFFIRMED.

       Plaintiff William Miller, pro se, appeals from a March 31, 2008 judgment of the

district court granting defendant’s motion for summary judgment on Miller’s claims alleging

race, disability, and age discrimination in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Rehabilitation Act of 1973, 29 U.S.C.

§ 701 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.

§ 621 et seq., respectively. Miller also appeals from an April 28, 2008 order denying his

subsequent motion for reconsideration. We review a district court’s grant of summary

judgment de novo, see Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007), and its denial of

a motion for reconsideration for abuse of discretion, see Barcia v. Sitkin, 367 F.3d 87, 99 (2d

Cir. 2004). In doing so, we assume the parties’ familiarity with the facts and the record of

prior proceedings, which we reference only to the extent necessary to explain our decision

to affirm.

       1.     Motion for Summary Judgment

       We affirm the district court’s grant of summary judgment in defendant’s favor

substantially for the reasons stated in the district court’s thorough and well-reasoned opinion.

We write only to consider the impact of the Lilly Ledbetter Fair Pay Act of 2009 (the

                                               2
“Ledbetter Act”), Pub. L. No. 111-2 § 3(A), 123 Stat. 5, on the district court’s dismissal on

timeliness grounds of Miller’s claims that (1) “he was not originally hired by the [United

States Department of the Interior (“DOI”)] as a permanent employee in 1994”; (2) “he was

not converted to a permanent employee until 1999”; (3) “when he was converted to

permanent employee status in 1999, he was improperly made Wage Grade 2 instead of Wage

Grade 5”; and (4) deducting an improper amount from his paychecks “to account for his

annuity was discriminatory since the administrative error that caused subsequent deductions

occurred on December 29, 1999.” Miller v. Norton, No. 04 Civ. 3223, 2008 WL 905830, at

*4,[8] (E.D.N.Y. Mar. 31, 2008). Although the Ledbetter Act now renders plaintiff’s third

dismissed claim timely, defendant is nevertheless entitled to summary judgment.

       Prior to bringing an action in the district court under Title VII, the Rehabilitation Act,

or the ADEA, Smith was required to exhaust his claims in accordance with the regulations

promulgated by the Equal Employment Opportunity Commission (“EEOC”).1 See Bruce v.

United States Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002); Briones v. Runyon, 101 F.3d

287, 289-90 (2d Cir. 1996); Wrenn v. Sec’y, Dep’t of Veterans Affairs, 918 F.2d 1073, 1078

(2d Cir. 1990). Those regulations require aggrieved persons to “initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R.

§ 1614.105(a). Although Miller argued in the district court that “each paycheck [he] received


       1
        While an aggrieved employee may proceed directly to federal court on an ADEA
claim, Miller became obligated to exhaust his administrative remedies when he decided to
commence proceedings with the EEOC. See Wrenn v. Sec’y, Dep’t of Veterans Affairs, 918
F.2d 1073, 1078 (2d Cir. 1990).

                                               3
within the statute of limitations period [was] actionable, even if it stem[med] from the fact

that his pay was improperly set at a time occurring outside of the statute of limitations,”

Miller v. Norton, 2008 WL 905830, at *3 (internal quotation marks omitted), the district

court concluded that this argument was foreclosed by the Supreme Court’s decision in

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

       It is beyond cavil that the district court properly applied Ledbetter at the time of its

decision. Congress’s passage of the Ledbetter Act, however, subsequently altered the

timeliness requirements governing employment discrimination claims under Title VII, the

Rehabilitation Act, and the ADEA. Under the Ledbetter Act, which applies retroactively to

discrimination claims pending on or after May 28, 2007, and thus covers Miller’s claims, see

123 Stat. at 7, an unlawful employment practice occurs, inter alia, “when an individual 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,” id. at 5-6. Even with the benefit of the Ledbetter Act,

neither the claim that DOI failed to hire Miller as a permanent employee, nor the claim that

DOI failed to convert him to a permanent employee until December 4, 1999, is timely. The

only claim rendered timely by the Act is Miller’s claim that he was classified and paid as a

Wage Grade 2, rather than a Wage Grade 5, employee at the time he became a permanent

employee.2 We nevertheless conclude that defendant is entitled to summary judgment even


       2
        We need not consider whether Miller’s claim regarding inappropriate deductions
from his pay would be timely. There is no dispute that the errors cited by Miller were

                                              4
on such a timely claim.

       Reading Miller’s arguments broadly, we discern two bases for discrimination

regarding his wage classification and pay. First, Miller alleges wage discrimination as

retaliation for his assistance to another employee in filing her sexual harassment EEOC

complaint around 1998.3 Second, he alleges wage discrimination on the basis of his age and

disability. Both of Miller’s claims, however, ultimately fail because there is no evidence in

the record indicating that the alleged wage discrimination has any connection either to

Miller’s having assisted his fellow employee in asserting her complaint or to his own age or

disability.

       “The causal connection needed for proof of a retaliation claim can be established

indirectly by showing that the protected activity was closely followed in time by the adverse

action.” Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation marks

omitted). However, the basis for retaliation here, which allegedly occurred over a year

before Miller’s date of hire, is too remote to support an inference of discrimination. Though

this Court has never established a temporal bright line beyond which an adverse employment

action cannot qualify as retaliatory, Gorman-Bakos v. Cornell Co-op Extension of

Schenectady, 252 F.3d 545, 554 (2d Cir. 2001), the one-year time frame here falls well




corrected and that any funds improperly withheld were refunded. For this reason, the claim
is moot.
       3
          Although the district court concluded that Miller waived his right to pursue a
retaliation claim because his counsel stated at oral argument that “no Title VII race
discrimination or retaliation claim was being asserted,” Miller v. Norton, 2008 WL 905830,
at *7, we assume arguendo that Miller has not waived this claim.

                                             5
beyond that contemplated by this Court as giving rise to such an inference, see, e.g.,

Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (holding that the “lack

of evidence demonstrating a causal nexus between Hollander’s age discrimination complaint

and any subsequent action taken towards him” precluded his claim where the only evidence

of causation was a three-and-a-half-month lapse between complaint and adverse action). The

claim for retaliatory wage discrimination thus fails to show any causal connection between

the protected activity and the adverse employment action.

       Miller’s allegation of wage discrimination as a result of his membership in a protected

class – i.e., one based on age or disability – fails because he has not made a showing that

could give rise to an inference of discrimination on the basis of his age or health. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Graham v. Long Island R.R.,

230 F.3d 34, 38 (2d Cir. 2000). Miller alleges that his supervisor made a discriminatory

remark, telling him that he “should quit [his] [j]ob [i]f [he didn’t] like it” in response to his

inquiries regarding the erroneous deductions from his salary in early 2000 that were

subsequently corrected. Letter from William R. Miller to the EEOC, at 1 (Mar. 30, 2000).

This comment is insufficient to show a causal connection between Miller’s age or health and

the alleged adverse employment action. The record simply contains no facts to support any

allegations tying the asserted wage discrepancies to Miller’s age or health. Accordingly, we

affirm the district court’s judgment granting defendant’s motion for summary judgment on

these claims. See Reid v. Senkowski, 961 F.2d 374, 378 (2d Cir. 1992) (“[W]e are free to

affirm an appealed decision on any ground which finds support in the record, regardless of



                                               6
the ground upon which the trial court relied.” (alteration in original; internal quotation marks

omitted)).

       2.     Rule 60(b) Motion for Reconsideration

       Miller also submits that the district court erred in denying his motion for

reconsideration filed pursuant to Fed. R. Civ. P. 60(b). We disagree. “A [Rule 60(b)] motion

. . . is generally not favored and is properly granted only upon a showing of exceptional

circumstances.” United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001).

Having thoroughly reviewed the record, we conclude that the district court did not adopt an

“erroneous view of the law or . . . clearly erroneous assessment of the evidence” sufficient

to support the conclusion that it abused its discretion in determining that Miller’s

circumstances were not exceptional. In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal

quotation marks omitted). Nor can we conclude that the district court’s decision falls outside

of “the range of permissible decisions.” Id. (internal quotation marks omitted). The district

court’s denial of the motion for reconsideration was therefore not an abuse of discretion.

       3.     Conclusion

       We have considered Miller’s remaining arguments and conclude that they are without

merit. For the forgoing reasons, the district court’s March 31, 2008 judgment and its April

28, 2008 order are AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court


                                    By:



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