Who is primarily responsible for cheating Lilly Ledbetter, the Alabama resident at the heart of one of the most notorious discrimination cases in modern American history?
Many Americans probably would lay the blame mostly at the feet of the U.S. Supreme Court, which overturned a $3.8-million jury verdict for Ledbetter and found she failed to meet the statutory deadline for filing her claim. Among these Americans would be Supreme Court Justice Ruth Bader Ginsburg, who issued a stinging dissent in Ledbetter v. Goodyear Tire and Rubber Co. Also in that group would be members of Congress and President Barack Obama, who signed the Lilly Ledbetter Fair Pay Act of 2009 into law as a means of reversing the effects of the high court's ruling.
But Ledbetter's own lawyers, from the Birmingham firm of Wiggins Childs Quinn and Pantazis (WCQP), have largely escaped scrutiny. Our review of court documents in the case indicate that should change. In fact, Ledbetter's lawyers apparently made some key strategic decisions that proved to be costly to their client.
Jon Goldfarb, Ledbetter's lead attorney, has said all the right things in the wake of the Supreme Court decision. In a statement after passage of the Lilly Ledbetter Fair Pay Act, Goldfarb said U.S. District Judge U.W. Clemon (now retired) got it right at the trial stage:
I would also like to thank Judge Clemon for getting the law right on this case the first time. Had the Appeals Court and the U.S. Supreme Court agreed with Judge Clemon’s interpretation of the law, none of this legislation would have been necessary and Mrs. Ledbetter would have been able to keep the money that the Alabama jury awarded her.
Please understand that what the Ledbetter Fair Pay Act does is put the law back the way it was two years ago when Judge Clemon sent this case to that Jury and the Jury found in Mrs. Ledbetter’s favor.
That statement, however, does nothing to achieve justice for Lilly Ledbetter, and Goldfarb went on to make that clear:
The one question I am most often asked is will Mrs. Ledbetter finally be able to receive any of the 3.8 million dollars the jury awarded her six years ago.
Unfortunately, although Congress and the President can fix the law, they can’t give that Jury award back to Mrs. Ledbetter that the Appeals Courts took away. However, by not giving up and taking her cause to Washington, Mrs. Ledbetter has made sure that others can take action to fight pay discrimination – and Mrs. Ledbetter will tell you that is an even a richer reward.
Lilly Ledbetter has become famous, and news reports indicate she might wind up with a book and/or movie deal. But in terms of justice at the courthouse steps, she was left holding the bag. And public documents indicate her own lawyers had something to do with that.
How might the lawyers from Wiggins Childs have screwed up the Ledbetter case? Our research points to three possible areas:
* They failed to question the sufficiency of evidence on two paychecks that fell within the 180-day statutory deadline--The U.S. Eleventh Circuit Court of Appeals found that most of Ledbetter's paychecks fell outside the statutory deadline, even though she did not know for years that she was receiving discriminatory pay compared to her male counterparts. The U.S. Supreme Court agreed with the Eleventh Circuit's finding, forming the crux of a heated debate on the Ledbetter case. Aside from that debate, the high courts acknowledged that two paychecks did fall within the 180-day period, and Ledbetter's lawyers could have questioned the sufficiency of the evidence on those--but they failed to do it. From the U.S. Supreme Court's ruling:
The Court of Appeals then concluded that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions that occurred within that time span, namely, a decision made in 1997 to deny Ledbetter a raise and a similar decision made in 1998. Id., at 1186–1187.
Ledbetter filed a petition for a writ of certiorari but did not seek review of the Court of Appeals’ holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question:
“Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” Pet. for Cert.
Could Ledbetter's lawyers have saved her case by focusing on the two paychecks that fell within the 180-day period? The Supreme Court's ruling suggests the answer is yes.
* They failed to follow through on pursing the Equal Pay Act--Ledbetter's original lawsuit included a claim under the Equal Pay Act (EPA), which features a longer statute of limitations than the one for claims under Title VII. The district court dismissed the EPA claim, and Ledbetter's lawyers failed to raise the issue on appeal. From the U.S. Supreme Court ruling:
Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII. Petitioner also contends that discrimination in pay is different from other types of employment discrimination and thus should be governed by a different rule. But because a pay-setting decision is a discrete act that occurs at a particular point in time, these arguments must be rejected. We therefore affirm the judgment of the Court of Appeals. . . .
The simple answer to this argument is that the EPA and Title VII are not the same. In particular, the EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination. See §206(d)(1) (asking only whether the alleged inequality resulted from “any other factor other than sex”). Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.
Did Ledbetter's lawyers screw up by failing to follow through on the EPA claim? Sure sounds like it.
* They failed to focus on the timing and Ledbetter's awareness of the unequal pay--These are called "equitable considerations," under the law, and it's hard to figure how the Wiggins Childs lawyers could not properly raise these issues on appeal. But the Eleventh Circuit's ruling indicates they did not:
We note that neither party has argued that equitable considerations require deviation from straight-forward application of the 180-day filing period. See Morgan, 536 U.S. at 121-22, 122 S. Ct. at 2076-77 (reaffirming that the timely-filing requirement is subject to waiver, estoppel, and equitable tolling, and holding that defendants may avail themselves of the defense of laches). We therefore have no occasion to consider, for example, the timing and extent of Ledbetter's awareness of the disparity between her salary and those of her co-workers.
The central point of Ledbetter's case seems to be that years went by before she was aware of the pay disparity, and equitable considerations would demand that the 180-day filing period not be strictly applied. But the Eleventh Circuit opinion indicates Ledbetter's lawyers did not properly present that argument on appeal. How could that happen? We have no idea.
Actually, we do have one idea. As regular readers know, we have spotlighted the dubious work of numerous federal judges, showing that it is not unusual for them to flat-out misstate the facts or the law in their rulings. This applies to both district judges at the trial level and circuit judges at the appellate level--and we have exposed judicial butchery at multiple levels in the Don Siegelman case in Alabama and the Paul Minor case in Mississippi. The U.S. Supreme Court is not immune from screw ups and shenanigans, as anyone who has followed Bush v. Gore (2000) knows.
Did the appellate courts essentially throw Lilly Ledbetter's lawyers "under the bus" in an effort to support a finding that cannot be supported, based on the law? We certainly think it's possible.
In fact, we think a whole lot of seedy events are possible in today's toxic legal environment. On the surface, Lilly Ledbetter's lawyers had every incentive to put forth their best effort. Most discrimination cases are taken on a contingency basis, and when Ledbetter's $3.8 million judgment went out the window, so did her lawyers' cut of that award (probably in the range of 40 percent).
In the "pro business" environment of Alabama in the Bush years, was WCQP under extraordinary pressure to make sure a "bad precedent" wasn't set for pay-discrimination cases? Did someone provide under-the-table financial incentives to make sure that other victims of unequal pay did not get the idea they could win a multimillion-dollar judgment in court?
We don't have the answers to those questions. But it seems clear that Lilly Ledbetter got screwed for years in the workplace and wound up getting screwed again in court. If I were her, I would closely review those appellate documents and direct some serious questions toward my lawyers.
A number of advocacy groups have stood up for Ledbetter in the aftermath of the Supreme Court reversal. Those groups also should take a close look at the actions of the lawyers from Wiggins Childs. The conventional wisdom has been that Ledbetter's lawyers acted in a noble fashion, putting forth their best effort in a fight against injustice. But court documents indicate that might not have been the case--that they either were grossly incompetent or intentionally sold one of their most high-profile clients down the river.