Mary Lou Mikula v. ALLEGHENY COUNTY OF PENNSYLVANIA On Appeal from the United States District Court…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4023
___________
MARY LOU MIKULA,
Appellant
v.
ALLEGHENY COUNTY OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 06-cv-1630)
District Judge: Honorable Arthur J. Schwab
____________________________________
Initially Submitted Pursuant to Third Circuit LAR 34.1 on
Panel Rehearing Granted and Opinion Vacated May 15, 2009
Submitted Pursuant to Third Circuit LAR 34.1(a) after Panel
Rehearing
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: September 10, 2009)

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Dina R. Lassow, Esq.
National Women’s Law Center
11 DuPont Circle, N.W., Suite 800
Washington, D.C., 20036-0000
Counsel for Appellant
Caroline P. Liebenguth, Esq.
Office of Allegheny County Law Department
445 Fort Pitt Boulevard
300 Fort Pitt Commons Building
Pittsburgh, PA 15219-0000
Counsel for Appellee
Mary Catherine Roper, Esq.
American Civil Liberties Union of Pennsylvania
P.O. Box 4008
Philadelphia, PA 19106-0000
Counsel for Amici-Appellants
American Civil Liberties Union, American Civil
Liberties Union of Pennsylvania, National Partnership
for Women & Families, and Women’s Law Project
Witold J. Walczak, Esq.
American Civil Liberties Union
31 Atwood Street
Pittsburgh, PA 15213-0000
Counsel for Amici-Appellants

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American Civil Liberties Union, American Civil
Liberties Union of Pennsylvania, National Partnership
for Women & Families, and Women’s Law Project
Katherine Y. Cheung, Esq.
Norris, Tysse, Lampley & Lakis
1501 M Street, N.W., Suite 400
Washington, D.C. 20005
Counsel for Amici-Appellees
Equal Employment Advisory Counsel and Chamber of
Commerce of the United States of America
__________
OPINION
________
PER CURIAM
We granted rehearing in this case to determine the effect
of the Lilly Ledbetter Fair Pay Act of 2009 on the timeliness of
appellant Mary Lou Mikula’s Title VII compensation claim.
For the following reasons, we will reverse the District Court’s
decision that the claim is untimely as to the paychecks that
Mikula received after June 20, 2006, and remand the matter for
further proceedings. In addition, we will reinstate our March
24, 2009 decision as to Mikula’s Equal Pay Act claim.
I.
Mikula brought this lawsuit against her employer,
Allegheny County, Pennsylvania (“the County”), alleging that

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Mikula had argued that our non-precedential1
opinion included a finding that she, Mikula, had set forth a
prima facie Equal Pay Act claim. Rather, our opinion held that
the District Court improperly relied on a case that held that a
plaintiff’s additional duties necessarily made her work “not
substantially equal” to the comparator’s. See Pajic v. CIGNA
Corp., Civ. A. No. 89-2404, 1990 WL 127797 (E.D. Pa. 1990).
Accordingly, we remanded the case for further proceedings.
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it discriminated against her on the basis of gender by failing to
give her a pay raise in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-5(b) (“Title VII”), and by
paying her less than a male employee who performed
substantially equal work in violation of the Equal Pay Act of
1963, 29 U.S.C. § 206(d) (“EPA”).1
Mikula was hired as the grants coordinator for the
Allegheny County Police Department on March 19, 2001. On
September 10, 2004, Mikula drafted a memorandum to Police
Superintendent Charles Moffatt, requesting that her job title be
changed to “Grants and Project Manager” and that her salary be
increased “to be equal or greater than [] Fiscal Manager [Ed
Przbyla].” At that time, Przbyla’s salary was approximately
$7,000 per year higher than was Mikula’s. Although Moffatt
forwarded the request to the Human Resources department,
Mikula never received a response.
Mikula again lobbied for a salary increase and a change
in job title in October 2005, and soon thereafter told a Human
Resources staff member that “she was not paid enough for what
she did.” Then, in March 2006, she filed a complaint with the

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5
County’s Human Resources department complaining of gender
and age discrimination. The complaint asserted, among other
things, that a comparative male employee was paid $7,000 more
than she was paid and that the discrimination started at the time
she was hired. In March 2006, Mikula also filed the current
cause of action, which, at that time, included only an EPA claim.
On August 23, 2006, Mikula received a letter from the
County’s Human Resources department informing her that it had
concluded that her allegations of discrimination were unfounded
and that her “current title and rate of pay are fair when
compared with similar jobs.” Thereafter, on April 17, 2007,
Mikula filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) claiming that the County violated Title
VII by paying her less than a male in her position would receive.
After she received a right-to-sue letter, Mikula amended her
District Court complaint to include a Title VII claim. The
amended complaint alleged that since being hired in 2001, she
was “paid substantially less compensation for equal work”
performed by similarly situated male employees.
Title VII requires a claimant in Pennsylvania to file a
charge with the EEOC within 300 days of an unlawful
employment practice. 42 U.S.C. § 2000e-5(e)(1); Watson v.
Eastman Kodak Co., 235 F.3d 851, 854-55 (3d Cir. 2000).
Accordingly, because Mikula filed her EEOC charge on April
17, 2007, any claims based on challenged acts that occurred
before June 20, 2006 are time-barred. Before the parties filed
their summary judgment briefs, the Supreme Court issued its
decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
U.S. 618 (2007). In Ledbetter, the Court held that a claimant

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alleging discrimination based on a pay-setting decision must file
a charge with the EEOC within 300 days after the discriminatory
decision was made, and, in a shift from prior decisions,
determined that the continuing effects of past employment
decisions adopted with discriminatory intent do not transform a
subsequent neutral employment act (such as a paycheck) into a
present violation. Id. at 628-30.
In its summary judgment brief, the County therefore
argued that Mikula’s Title VII pay disparity claim was untimely
under Ledbetter because the allegedly discriminatory pay
decision was made in 2001—when Mikula was hired at lower
salary than that of Przbyla. Moreover, although Mikula
discovered the pay disparity in 2004 at the latest, she did not file
her EEOC charge until 2007—long after the 300-day charging
period had expired. Mikula responded by distinguishing her
case from Ledbetter, stating that “unlike Ms. Ledbetter,” she
alleged that the County’s August 2006 investigation report was
a discrete discriminatory pay decision made within the 300-day
charging period.
The District Court granted summary judgment in favor of
the County. It held that under the discovery rule, Mikula’s Title
VII claim accrued in September 2004 when she discovered the
allegedly discriminatory pay discrepancy between herself and
Przbyla. Because she did not file her EEOC charge until 2007,
the claim was untimely, and to find that the statute of limitation
was tolled each time she sought a pay raise would run counter
to the Ledbetter decision. The District Court also found that the
August 2006 investigation report did not constitute a pay
decision.

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7
Mikula appealed pro se from the District Court’s order.
She argued that the District Court erred in determining that the
August 2006 investigation report was not a discriminatory pay
decision, stating that it was the first time that the County had
addressed her complaints of disparate pay or her requests for a
raise.
After the parties filed their appellate briefs, Congress
passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.
111-2 (codified as amended at 42 U.S.C. § 2000e-5(e)(3)
(2009)) (“the Act”). Its purpose was to reinstate the law
regarding the timeliness of pay compensation claims as it was
prior to the Ledbetter decision, which Congress believed
undermined statutory protections against compensation
discrimination by unduly restricting the time period in which
victims could challenge and recover for discriminatory
compensation decisions. Accordingly, 42 U.S.C. § 2000e-
5(e)(3)(A) was amended to state:
For purposes of this section, an unlawful
employment practice occurs, with respect to
discrimination in compensation . . . when a
discriminatory compensation decision or other
practice is adopted, when an individual becomes
subject to a discriminatory compensation decision
or other practice, or 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.

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The Act is retroactive and applies to all cases pending on or
after May 28, 2007—the date when the Supreme Court issued
the Ledbetter decision. Pub. L. No. 111-2, § 6, 123 Stat. 5.
In this Court’s March 24, 2009 non-precedential opinion,
we affirmed the District Court’s dismissal of Mikula’s Title VII
claim as untimely, stating that the August 2006 letter was not a
pay decision or “other practice” because it merely provided
Mikula with the results of its investigation of her internal
discrimination complaint. The opinion continued by stating that
to the extent Mikula was claiming that the refusals for requests
for a raise were discriminatory acts, they were time-barred
because they occurred more than 300 days before she filed her
EEOC charge. We acknowledged the passage of the Act and
explained that it did not change the result because it required the
adoption of a discriminatory compensation decision rather than,
as in this case, a request for a raise that was never answered.
On May 15, 2009, we granted Mikula’s counseled
Petition for Rehearing on the issue of whether her Title VII
claim is timely under the Act. For the first time, Mikula defines
her claim as a “classic paycheck accrual” case, which, she
asserts, is exactly the type of claim that the Act was passed to
protect. She claims that the County’s lack of response to her
raise requests qualify as discriminatory pay decisions or “other
practices,” as does the County’s August 2006 investigation
report. Under this rationale, each paycheck that Mikula has
received is discriminatory and constitutes a new violation that
renews the statute of limitation.
The American Civil Liberties Union, the American Civil

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Liberties Union of Pennsylvania, the National Partnership for
Women and Families, and the Women’s Law Project filed a
joint amicus brief urging us to find that Mikula’s Title VII claim
is timely under the Act as a paycheck accrual case. Echoing
Mikula, the amici argue that the rejection of Mikula’s requests
for pay raises affected her compensation and thus should be
considered compensation decisions, and that the August 2006
investigation report constitutes a discriminatory pay decision or
practice. Because Mikula filed her EEOC charge within 300
days of receiving a discriminatory paycheck, the amici assert
that her Title VII claim is timely.
On the other hand, the Equal Employment Advisory
Counsel and the Chamber of Commerce of the United States of
America filed a joint amicus brief asserting that our March
decision appropriately found that Mikula’s Title VII claim is
untimely. The amici assert that periodic requests for money are
not compensation decisions that trigger the Act’s expanded
filing period. Determining otherwise, the amici argue, would
erode the limitation period for pay discrimination claims as
employees could avoid untimely claims by periodically asking
for a pay increase, thereby forcing employers to defend stale
claims. The amici also ask the Court to consider Mikula’s claim
as a “comparable worth” claim, which is essentially a claim that
a male employee was paid more money for doing a comparable
job, and which is not covered by Title VII.
II.
We have jurisdiction under 28 U.S.C. § 1291, and our
review of the District Court’s grant of summary judgment is
plenary. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.

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10
2001). Summary judgment is appropriate only when no genuine
issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). We resolve all factual doubts and draw all
reasonable inferences in favor of the nonmoving party. DL
Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 216 (3d
Cir. 2007).
Title VII makes it an “unlawful employment practice” to
discriminate “against any individual with respect to his
compensation . . . because of such individual’s . . . sex.” 42
U.S.C. § 2000e-2(a)(1). Under the Act, one instance in which
an actionable unlawful employment practice occurs is “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.” 42
U.S.C. § 2000e-5(e)(3)(A). Under Title VII, a claimant in
Pennsylvania must file a discrimination charge with the EEOC
within 300 days of an unlawful employment practice. 42 U.S.C.
§ 2000e-5(e)(1); Watson, 235 F.3d at 854. As stated above, the
Act was passed to restore the law that was in place prior to the
Ledbetter decision. Thus, determining whether Mikula’s claim
is timely under the Act requires an understanding of pre-
Ledbetter law.
The seminal case providing guidance as to the limitations
period in Title VII cases is National Railroad Passenger Corp.

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Mikula’s counsel attempts to diminish the2
importance of Morgan by noting that it did not involve a
compensation claim. However, Morgan considered “whether,
and under what circumstances, a Title VII plaintiff may file suit
on events that fall outside the [180- or 300-day] statutory time
period.” 536 U.S. at 105. Further, Morgan spoke to the
applicability of the continuing violation doctrine to discrete acts,
specifically considering equal pay violations by reaffirming the
statement that the Court made in Bazemore v. Friday, 478 U.S.
385 (1986)—that each discriminatory paycheck was a separate
discriminatory act that could give rise to a Title VII action. 536
U.S. at 112.
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v. Morgan, 536 U.S. 101 (2002). Morgan explained that:2
[D]iscrete discriminatory acts are not actionable
if time barred, even when they are related to acts
alleged in timely filed charges. Each discrete
discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore,
must be filed within the 180- or 300-day time
period after the discrete discriminatory act
occurred. The existence of past acts and the
employee’s prior knowledge of their occurrence,
however, does not bar employees from filing
charges about related discrete acts so long as the
acts are independently discriminatory and charges
addressing those acts are themselves timely filed.

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Mikula’s counsel seems to argue that the3
continuing violation doctrine should apply to Mikula’s Title VII
claim. Under this doctrine, if a plaintiff has filed a charge of
discrimination “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 v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.
1993). As determined by Morgan, the doctrine does not apply
to discrete, completed employment actions.
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536 U.S. at 113. As the Seventh Circuit stated in Hildebrandt v.
Illinois Department of Natural Resources, “Morgan foreclosed
the use of the continuing violation doctrine to incorporate
untimely claims for discrete discriminatory actions even though
they may be related to a timely claim.” 347 F.3d 1014, 10273
(7th Cir. 2003) (internal citation and quotation omitted). The
Seventh Circuit concluded that the Hildebrandt plaintiff could
“only recover for the discriminatory pay received within the
statute of limitations period. . . . She filed her charge 300 days
after July 10, 1997 . . . [therefore] she cannot reach any
paycheck prior to” that date. Id. at 1028. Hildebrandt further
explained that because the paychecks that the plaintiff received
after July 10, 1997 reflected an out-of-time discriminatory raise,
those paychecks gave rise to a new claim of an unlawful
employment practice even though they were “simply a periodic
implementation of an adverse decision previously made.” Id. at
1029 (citing Elmeneyer v. ABF Freight Sys., Inc., 318 F.3d 130,
134 (2d Cir. 2003)).
Based on this framework, Mikula’s Title VII pay

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discrimination claim is timely as to paychecks that she received
after June 20, 2006 (300 days before she filed her EEOC charge)
if they reflect a “periodic implementation” of a previously made
intentionally discriminatory employment decision or “other
practice.” See id.; 42 U.S.C. § 2000e-5(3)(A). Mikula contends
that the August 2006 investigation report and the County’s
failure to respond to her raise requests constitute compensation
decisions or other practices.
Despite our earlier decision, we now hold that the failure
to answer a request for a raise qualifies as a compensation
decision because the result is the same as if the request had been
explicitly denied. See Reese v. Ice Cream Specialties, Inc., 347
F.3d 1007, 1013 (7th Cir. 2003) (allowing a claim to proceed
where the employer gave raises only to similarly situated white
employees). We reaffirm, however, our earlier conclusion that
the August 2006 investigation report does not constitute a
compensation decision or other practice. While, in the abstract,
the result of the investigation affected Mikula’s compensation,
finding that an employer can be liable under Title VII for
investigating an internal discrimination complaint and
communicating its findings to the employee would have the
unfortunate effect of encouraging employers to ignore such
complaints.
For the foregoing reasons, we will reverse the District
Court’s decision that the Title VII claim is untimely as to
paychecks that Mikula received after June 20, 2006, and remand
for further proceedings.

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