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A Hearing Without Being Heard
As Justices Take Case, Plaintiff Finds It Has Little to Do With Her Anymore

By Robert Barnes
Washington Post Staff Writer
Tuesday, February 20, 2007

JACKSONVILLE, Ala. -- Lilly M. Ledbetter says she almost stopped breathing when she heard her name called that day, her eight-year battle over alleged pay discrimination finally reaching the ultimate legal forum, the U.S. Supreme Court.

"We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company," Chief Justice John G. Roberts Jr. announced.

The odds are akin to being struck by lightning, having your case plucked from the thousands of others who have vowed, like you, to take the fight all the way to the Supreme Court. And then you find it's not so much about you anymore.

It was the only time that November morning that any of the nine justices spoke Lilly Ledbetter's name.

When she thought back last week on the arguments before the court, she remembered them as not being much about her complaints about Goodyear, or Goodyear's complaints about her. "Except when my lawyer got up, it [seemed to be] based on changing the law somewhere down the line," she said. "That's what it boils down to, I guess. It tends to leave the person out."

At a forum late last year, Justices Antonin Scalia and Stephen G. Breyer, usually the court's yin and yang on matters of constitutional interpretation, agreed that that is how it should be. They were asked whether their duty was to provide justice for those who came before the court or simply to interpret the law.

"The point of the law is to satisfy a human desire for justice," Breyer explained, but he added: "You don't necessarily get to that end by simply trying to look for what is the intuitively nicer result in each case."

Scalia was blunter. "By the time you get up to an appellate court -- and lawyers ought to learn this -- I don't much care about your particular case," he said. "I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases."

A specific Supreme Court decision may contain obvious benefits for the winner -- see George W. Bush, circa 2000. But it can often be an inconclusive way station for the plaintiff, sometimes leading only to additional years of litigation.

Jose Antonio Lopez, for instance, has already won his case at the Supreme Court this term. The justices ruled 8 to 1 that the Bush administration cannot automatically deport legal immigrants convicted of minor drug crimes.

But the decision came a little late for Lopez, who had returned to Mexico rather than remain in jail to see if the Supreme Court would take his case. His lawyer is trying to get him a new hearing in this country. But the more lasting impact of Lopez v. Gonzales is that thousands of immigrants may now contest the government's deportation plans.

Supreme Court cases outlive the individuals who give them a name, and give rise to legal precedents beyond the specific cases. That explains why Ledbetter finds herself supported by a large contingent of women's groups and civil rights organizations that she had never given much thought to -- "The ACLU is supporting me; I don't know how we picked them up" -- and opposed by the U.S. Chamber of Commerce and the Bush administration.

She knows it's not personal.

The Law's Fine Print

What justices find interesting in Ledbetter's case, according to the language of the Supreme Court, is this:

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.

What Ledbetter and Goodyear have been fighting over since 1998 when, at the company's urging, she took the early-retirement offer is this:

Whether she was paid less than the men she worked with because of discrimination or because she wasn't a very good worker.

There's no dispute that after nearly 20 years at the Goodyear plant in Gadsden, Ala., most of them in a salaried managerial position, Ledbetter, 68, was paid less than any of the men she worked with, even those with less seniority.

Ledbetter had always thought that was the case -- some of her bosses had even told her so. But it was spelled out clearly in an anonymous letter she received after she stopped working for Goodyear that contained the rankings and salaries of everyone she worked with.

Her lawyers showed it to the jury on a huge board.

But Goodyear contended that the salaries must be looked at with the rankings. The company said Ledbetter's lower pay was the result of a merit pay plan meant to even the field, and reward supervisors for good work rather than longevity. Ledbetter was typically at the bottom of the rankings, the company argued, and even then she received raises, albeit smaller than those of the men ranked above her.

The jury sided with Ledbetter, saying it was "more likely than not" that she had been paid "an unequal salary because of her sex." Jurors awarded her $3,514,417.

Which was reduced to $360,000 by the judge, who said that was the maximum the law allowed.

Which was reduced to $0 by the U.S. Court of Appeals for the 11th Circuit, which said Goodyear may have discriminated against Ledbetter at some point, but not in the 180 days before she filed her complaint, as the Title VII law prescribes.

Which is what has the justices interested.

Ledbetter's lawyers, backed by the Equal Employment Opportunity Commission, said that the 11th Circuit's decision is contrary to law the Supreme Court itself has established, and that many other lower courts have followed. They argue, in effect, that pay decisions tainted by discrimination become new violations of Title VII each time that employee receives a paycheck. So the discriminatory action fell within the time guidelines in the law, they say.

But Goodyear's lawyers said that the 11th Circuit had gotten the standard right, and that the law is intended to stop ongoing discrimination. Ledbetter could not show that the company had discriminated against her the last time it decided to approve or withhold a pay raise. The solicitor general -- the lawyer who represents the official position of the government before the court -- agreed, and in a notable break, said the EEOC was misreading the Supreme Court's earlier decisions.

Awaiting a Decision

Ledbetter flew up from Alabama for the oral arguments, scheduled for the Monday after Thanksgiving. From her spot in the second row, she watched for signs. She knew that it takes at least four justices to agree to hear a case, and although those sessions are secret, she assumed they were for her. But she didn't know who they were, nor whose vote could be the fifth one she needed.

She didn't think it would be Roberts. Genial in public appearances, he's a sharp-edged questioner, and she recalled his comments being all about whether a finding for Ledbetter would undo the statute of limitations and open employers to decades-old discrimination complaints, she said.

Ledbetter was intrigued by Justice Clarence Thomas, who she'd been told might not automatically be on her side. As is his custom, Thomas did not ask a question during the hour-long argument, but Ledbetter thought he seemed unusually interested.

"He kept sending out for law books -- he had that poor guy running -- and by the end he had a stack of books up to there," she said.

And Ledbetter had a good feeling about the only woman behind that long mahogany bench; Justice Ruth Bader Ginsburg's questions sounded most supportive, she said. Out on the court plaza later that day, after the reporters had gone, a Georgetown professor introduced herself to Ledbetter and told her that Ginsburg had been discriminated against early in her legal career.

But sympathies are one thing, as Breyer and Scalia indicated in that December forum, and the law is another.

"If you're incapable of producing a policy result that you don't like simply because the statute requires it," Scalia told his audience, then look for another line of work. "Run for Congress or something."

Waiting in Jacksonville for a decision that could come anytime before the court finishes its term at the end of June, Ledbetter said she thinks it could go either way.

"I think it's moved on to the law," she said. "Strictly the law."

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