Becker v. Gannett Satellite Information Network, Inc. , 10 F. App'x 135 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DEBORAH L. BECKER, 
Plaintiff-Appellant,
v.
GANNETT SATELLITE INFORMATION  No. 00-2122
NETWORK, INCORPORATED, d/b/a USA
Today Newspaper,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-99-1773-A)
Argued: March 1, 2001
Decided: May 22, 2001
Before WIDENER and MICHAEL, Circuit Judges, and
Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Robert Charles Seldon, PROJECT ON LIBERTY AND
THE WORKPLACE, Washington, D.C., for Appellant. Robert
Charles Bernius, NIXON PEABODY, L.L.P., Washington, D.C., for
Appellee.
2 BECKER v. GANNETT SATELLITE INFORMATION NETWORK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Deborah Becker sued her employer, Gannett Satellite Information
Network, Inc. ("USA Today"), under the Equal Pay Act, 29 U.S.C.
§ 206(d), and Title VII, 42 U.S.C. § 2000e-2(a). She alleged that USA
Today paid her less than comparable male colleagues on account of
her sex. She also claimed that USA Today retaliated against her for
filing this lawsuit. The district court granted USA Today’s motion for
summary judgment. Becker now appeals, and we affirm.
I.
In 1982 USA today hired Becker as a news assistant in the sports
department. In February 1984 USA Today promoted her to the posi-
tion of reporter. Becker wrote about several different sports but pri-
marily covered women’s college basketball. Her long-term goal was
to cover the Olympics on a regular basis. She wrote some stories for
the 1988 and 1992 Olympics, but women’s college basketball
remained her primary beat. In 1994 Becker began to receive more
Olympic assignments. The following year she was assigned to cover
on a regular basis two of the more popular Olympic sports, figure
skating and gymnastics.
Stephen Woodward was hired along with Becker as a news assis-
tant in 1982. Woodward’s long-term goal, like Becker’s, was to cover
the Olympics on a regular basis. However, he achieved this goal
much quicker than Becker did. While Becker did not regularly cover
the Olympics until 1995, Woodward was assigned the Olympic beat
in 1986. Further, while Becker was assigned to cover only figure skat-
ing and gymnastics, Woodward covered all aspects of the Olympics.
Woodward’s broader assignment, for example, involved reporting
about the political and business side of the Olympics and included
stories on the International Olympic Committee and the organizing
BECKER v. GANNETT SATELLITE INFORMATION NETWORK 3
cities. In addition to his Olympic reporting, Woodward wrote regular
columns on sports television and the Olympics. Woodward also con-
tributed frequently to the horse racing beat. He resigned from USA
Today in 1994.
Becker has long complained that USA Today paid her less than
Woodward on account of her sex. When Woodward and Becker were
hired in 1982, Woodward was paid $1,000 more per year. Shortly
after she was hired, Becker filed a written complaint with the paper,
alleging that the pay disparity was based solely upon sex discrimina-
tion. She thereafter complained every year as part of her annual job
evaluation that she was not receiving fair pay.
In January 1999 Becker received a promotion from the position of
Olympic reporter to Assistant Golf and Tennis Editor. Because of the
demands of her new responsibilities, Becker’s Olympic gymnastics
beat was reassigned to a different reporter. Becker did, however,
retain coverage of Olympic figure skating. Shortly after she was pro-
moted, Becker filed a complaint with the Equal Employment Oppor-
tunity Commission (EEOC). Becker alleged that she had been
unfairly paid compared to Woodward because of sex discrimination.
The EEOC found no probable cause, and Becker filed this present
action in federal court. Becker sued USA Today under the Equal Pay
Act, 29 U.S.C. § 206(d), and Title VII, 42 U.S.C. § 2000e-2(a), alleg-
ing that she was unfairly paid compared to male colleagues on
account of sex. Becker claimed not only that she was unfairly paid
relative to Woodward, but also that she was unfairly paid relative to
her fellow male editors. After she filed suit, USA Today decided not
to send Becker to Sydney to cover the 2000 Summer Olympics.
Becker then amended her complaint, alleging that the decision not to
send her to the Olympics was in retaliation for filing this suit.
The district court granted USA Today’s motion for summary judg-
ment. The court held that the statutes of limitations for the Equal Pay
Act and Title VII only allowed the court to consider Becker’s more
recent allegations of pay disparity. To the extent her claims were not
time barred, the court held that Becker could not show any violation
because she actually earned more than Woodward did. In the alterna-
tive, the court held that Becker could not show that she and Wood-
ward held comparable jobs. The court, however, appeared to overlook
4 BECKER v. GANNETT SATELLITE INFORMATION NETWORK
Becker’s claim that she was unfairly paid relative to her fellow male
editors. Finally, the court granted USA Today’s summary judgment
motion on Becker’s retaliation claim. The court held that although
USA Today failed to send her to Sydney, Becker suffered no adverse
employment action. Becker appeals, and we review the district court’s
grant of summary judgment de novo, see, e.g., Kubicko v. Ogden
Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999).
II.
Becker challenges the district court’s conclusion that her Equal Pay
Act and Title VII pay disparity claims are largely time barred. Specif-
ically, Becker argues that she can show that USA Today committed
a continuing violation, which requires us to look at conduct beyond
the statutes of limitations. She also claims that the district court
should have equitably tolled the statutes of limitations. We disagree
with Becker.
The Equal Pay Act has a two-year statute of limitations unless the
plaintiff claims that the defendant’s conduct was willful, in which
case a three-year period applies. See 29 U.S.C. § 255(a). Because
Becker alleges that USA Today’s actions were willful, the court prop-
erly applied the three-year statute to Becker’s claims. This meant that
Becker had to show an Equal Pay Act violation within three years of
November 23, 1999, the date she filed her lawsuit. See Brinkley-Obu
v. Hughes Training, Inc., 36 F.3d 336, 346 n.20 (4th Cir. 1994).
Becker also claimed that the alleged pay disparity was in violation of
Title VII, which in this case has a three-hundred-day statute of limita-
tions. See 29 C.F.R. § 1601.13(a)(4)(ii)(A).
Becker claims that she can show a continuing violation that enables
her to complain about conduct beyond the statutes of limitations.
Under the Equal Pay Act and Title VII a plaintiff may rely upon con-
duct outside of the statute of limitations if she can show a continuing
violation. See, e.g., Tinsley v. First Union Nat’l Bank, 155 F.3d 435,
442 (4th Cir. 1998); Brinkley-Obu, 36 F.3d at 347. However, in order
to take advantage of the continuing violation principle, the plaintiff
must show an actual Title VII or Equal Pay Act violation within the
statutes of limitations. See, e.g., Tinsley, 155 F.3d at 442. As we will
discuss in part III, Becker cannot show a violation within the statutes
BECKER v. GANNETT SATELLITE INFORMATION NETWORK 5
of limitations. Accordingly, the court did not err in failing to consider,
under the continuing violation principle, conduct outside of the limita-
tions periods.
Becker also argues that the district court should have equitably
tolled the three-year and three-hundred-day statutes of limitations.
Equitable tolling is available only in the rare instances in which "the
defendant has wrongfully deceived or misled the plaintiff in order to
conceal the existence of a cause of action." C.M. English v. Pabst
Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). USA Today’s sal-
ary structure is confidential, and Becker claims that USA Today wil-
fully concealed the fact that Woodward and other comparable male
colleagues were paid more. However, Becker’s complaints of unfair
pay on account of her sex are longstanding. Only a few months after
she was hired, Becker filed a written complaint with the paper claim-
ing that she was being unfairly paid relative to Woodward on account
of her sex. Becker subsequently complained during each of her annual
evaluations that she was being unfairly paid. Therefore, Becker was
not deceived; she knew that she had a potential cause of action as far
back as 1982. Accordingly, the district court did not err in failing to
equitably toll the statutes of limitations.
III.
Becker challenges the district court’s conclusion that to the extent
her pay disparity claims are timely filed, she cannot show a violation
of the Equal Pay Act or Title VII. The court held that Becker cannot
show any actual pay disparity. In the alternative, the court held that
Woodward and Becker did not share comparable jobs. Becker chal-
lenges both conclusions. We need not reach the question of whether
there was an actual pay disparity because Becker cannot show that
she was unfairly paid relative to a comparable male employee.
"A plaintiff may assert claims based on unequal pay for equal work
under both the Equal Pay Act and Title VII." Brinkley-Obu, 36 F.3d
at 343. Under the Equal Pay Act a plaintiff must show that the
employer paid more to an employee of the opposite sex "for equal
work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working
conditions." 29 U.S.C. § 206(d)(1). Under Title VII a plaintiff’s bur-
6 BECKER v. GANNETT SATELLITE INFORMATION NETWORK
den of showing that she shared a comparable job with a male
employee is relaxed. See Brinkley-Obu, 36 F.3d at 343. She need only
show that "the job she occupied was similar to higher paying jobs
occupied by males." Id.We do not think that Becker can meet either the Equal Pay Act or
Title VII standard for showing that she was unfairly paid relative to
a comparable male employee. Becker claims that she was paid less
than her fellow male assistant editors when she was promoted to
Assistant Golf and Tennis Editor. Because Becker was promoted in
1999, this claim is within the Equal Pay Act and Title VII statutes of
limitations. When Becker was promoted, she was paid less than all
but one male editor. It appears that the district court overlooked this
claim. However, after reviewing the record, it is clear to us that
Becker has offered no evidence in support of this claim. Becker has
not presented any meaningful comparison of her job responsibilities
with any specific male editor.
Becker, however, primarily complains that she was unfairly paid
relative to Woodward when they were Olympic reporters. Woodward
was an Olympic reporter for USA Today from 1986 until his resigna-
tion in 1994. Becker was assigned the Olympics beat on a regular
basis from 1995 until 1999. This time frame includes the limitations
periods. Becker claims that she was paid less compared to Woodward
even though they were both Olympic reporters. However, Becker and
Woodward had quite different responsibilities as Olympic reporters.
Becker covered only gymnastics and figure skating. Woodward cov-
ered all aspects of the Olympics, including reporting on the political
and business side of the Games. Indeed, on average Woodward wrote
sixty-seven percent more Olympic articles per year than Becker did
for the period that they were Olympic reporters. Further, Woodward
regularly wrote columns on sports television and the Olympics.
Becker did not write a column for the paper. In light of these differ-
ences, we cannot conclude that Becker and Woodward had compara-
ble jobs under either the Equal Pay Act or Title VII standard.
Finally, Becker claims that she was unfairly paid compared to
Woodward when they were initially hired in 1982. However, this
period is well beyond the Equal Pay Act and Title VII statutes of limi-
tations. Because Becker cannot show a violation within the statutes
BECKER v. GANNETT SATELLITE INFORMATION NETWORK 7
of limitations, she cannot rely upon the continuing violation principle.
Therefore, Becker may not complain about her pay disparity in her
early days with the paper. In conclusion, Becker cannot show that she
was unfairly paid relative to any comparable male colleague within
the statutes of limitations. Accordingly, the district court did not err
in granting USA Today’s motion for summary judgment on her Equal
Pay Act and Title VII pay disparity claims.
IV.
Finally, Becker argues that the district court erred in granting sum-
mary judgment on her retaliation claim. Becker claims that USA
Today retaliated against her for filing this suit by failing to send her
to Sydney to cover the 2000 Summer Olympics. The district court
held that Becker did not suffer an adverse employment action. We
agree. To establish a prima facie claim of retaliation under Title VII,
a plaintiff in part must show that she suffered an adverse employment
action. See, e.g., EEOC v. R&R Ventures, 244 F.3d 334, 341 (4th Cir.
2001). The action must amount to more than a nondetrimental or
insignificant alteration of job responsibilities. See Von Gunten v.
Maryland, 243 F.3d 858, 866 (4th Cir. 2001) ("Adverse employment
action includes any retaliatory act or harassment if, but only if, that
act or harassment results in an adverse effect on the ‘terms, condi-
tions, or benefits’ of employment." (quoting 42 U.S.C. § 2000e-3)).
At the time USA Today made its decision on whom to send to Syd-
ney, Becker no longer covered any Summer Olympics sports due to
her promotion. Because she did not cover any Summer Olympics
sports, USA Today’s failure to send her to Sydney did not signifi-
cantly alter her job responsibilities in any detrimental or significant
way. Becker therefore did not suffer any adverse employment action.
Accordingly, the district court did not err in granting summary judg-
ment on Becker’s retaliation claim.
V.
For the foregoing reasons, the order granting USA Today’s motion
for summary judgment is affirmed.
AFFIRMED