HULTEEN v. AT&T CORPORATION
The Ninth Circuit Court of Appeals today released an opinion in HULTEEN v. AT&T CORPORATION, No. 04-16087, a federal appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Stephen Reinhardt, Diarmuid F. O’Scannlain, Pamela Ann Rymer, Michael Daly Hawkins, Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges.
WARDLAW, Circuit Judge, with whom Chief Judge SCHROEDER, Judges REINHARDT, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, GOULD, PAEZ, BERZON join, and with whom Judge RYMER joins as to Part II-B:
This appeal presents an issue previously decided on virtually identical facts sixteen years ago in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992). There, we held that Pacific Bell violated Title VII in calculating retirement benefits after the effective date of the Pregnancy Discrimination Act of 1978 (”PDA”), 42 U.S.C. § 2000e(k), when it gave service credit in those calculations for all pre-PDA temporary disability leave taken by employees except leave by reason of pregnancy. Pallas, 940 F.2d at 1326-27. Here, a three-judge panel of our court, in a nowwithdrawn opinion, held that AT&T Corporation (”AT&T”), successor in interest to Pacific Bell and Pacific Telephone and Telegraph (”PT&T”), did not violate Title VII by engaging in identical conduct. The panel reasoned that Pallas no longer controlled because it was inconsistent with intervening Supreme Court authority governing retroactivity principles. Hulteen v. AT&T Corp., 441 F.3d 653, 664 (9th Cir. 2006) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). Because we conclude that Pallas is not “clearly irreconcilable” with intervening authority, see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), we affirm the district court’s application of Pallas to the undisputed facts presented . . .
WARDLAW, Circuit Judge, with whom Chief Judge SCHROEDER, Judges REINHARDT, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, GOULD, PAEZ, BERZON join, and with whom Judge RYMER joins as to Part II-B:
This appeal presents an issue previously decided on virtually identical facts sixteen years ago in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992). There, we held that Pacific Bell violated Title VII in calculating retirement benefits after the effective date of the Pregnancy Discrimination Act of 1978 (”PDA”), 42 U.S.C. § 2000e(k), when it gave service credit in those calculations for all pre-PDA temporary disability leave taken by employees except leave by reason of pregnancy. Pallas, 940 F.2d at 1326-27. Here, a three-judge panel of our court, in a nowwithdrawn opinion, held that AT&T Corporation (”AT&T”), successor in interest to Pacific Bell and Pacific Telephone and Telegraph (”PT&T”), did not violate Title VII by engaging in identical conduct. The panel reasoned that Pallas no longer controlled because it was inconsistent with intervening Supreme Court authority governing retroactivity principles. Hulteen v. AT&T Corp., 441 F.3d 653, 664 (9th Cir. 2006) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). Because we conclude that Pallas is not “clearly irreconcilable” with intervening authority, see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), we affirm the district court’s application of Pallas to the undisputed facts presented . . .
O’SCANNLAIN, Circuit Judge, with whom Judges RYMER, BYBEE, and CALLAHAN join, dissenting:
By concluding that Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992), remains good law, the majority erroneously perpetuates a circuit split with the Sixth and the Seventh Circuits. I believe that Pallas was wrong then and is wrong now. Because this en banc court can and should overrule Pallas and follow the Seventh Circuit’s well-reasoned decision in Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814 (7th Cir.), cert. denied, 531 U.S. 1127 (2000), I must respectfully dissent from the majority’s conclusion that the sex discrimination claims in this case are timely. . . .