Footnote – Limitation of Compensatory Damages

The damages recoverable by the Complainant, should she prevail, might be temporally limited, but the indicated claim is being accepted as timely in accordance with the Lilly Ledbetter Fair Pay Act of 2009 (“the Ledbetter Act”). With respect to discrimination claims alleged under Title VII of the Civil Rights Act of 1964 (Title VII), Section 3 of the Ledbetter Act amends Section 706(e) of Title VII to add, inter alia, in subpart (3)(A), “…an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, 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 part from such a decision or other practice.” As for claims of age discrimination, Section 4 of the Ledbetter Act amends Section 7(d) of the Age Discrimination in Employment Act of 1967 by adding, in Section 7(d)(3), functionally equivalent language.
All references to days refer to calendar days unless specified otherwise

Footnote – Discriminatory Compensation

This claim raises timeliness concerns. If the investigation reveals that this claim is more appropriately characterized as a failure to promote claim, as opposed to a discriminatory compensation claim, and it accrued more than 45 days before the Complainant initiated EEO counseling, it may be dismissed as untimely at the adjudicatory stage. See 29 C.F.R. §§ 1614.105(a)(1)-(2), 1614.107(a)(2); Kannaby v. Department of the Army, EEOC Appeal No. 0120122346 at *2 (Oct. 23, 2012) (timeframe for challenging denial of nonpromotion “not affected by the Lilly Ledbetter Fair Pay Act”), citing Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) and Schuler v. Pricewaterhouse Coopers, 595 F.3d 370, 374 (D.C. Cir. 2010); Brantley v. Department of Commerce, EEOC Appeal No. 0120100187 at *2 (Apr. 26, 2012) (complainant’s claim more properly characterized as failure to upgrade to GS-15, not Fair Pay Act claim of discriminatory compensation); Rand v. Secretary of the Treasury, 816 F.Supp.2d 70, 76 (D.D.C. 2011) (untimely claim that plaintiff denied “accretion of duties promotion” not saved by Fair Pay Act); cf. Gillotte v. Department of Veterans Affairs, EEOC Appeal No. 0120111987 at *1, *3 (Aug. 17, 2011) (complainant did state discriminatory compensation claim where undisputed that her position was upgraded after desk audit).