Employer Religious Accomodations

challenged 1996 and 1997 promotions." Id. at 1108. The Lyons court concluded that the admissibility of background evidence is governed by Rule 401 of the Federal Rules of Evidence, with the trial court assessing the probative value of the untimely acts. The court then addressed how these time barred claims can come into play at the summary judgment stage: At the initial stage of a case of disparate treatment, appropriate background evidence will be evidence, either direct or circumstantial, that, when combined with evidence of the employer's present conduct, 'give[s] rise to an inference of unlawful discrimination.' [citing Burdine ]. Once the employer has proffered a legitimate, nondiscriminatory reason to rebut the plaintiff's prima facie case, appropriate background evidence will be Id. at 1110-11. In assessing the merits of the plaintiffs' timely claims of non-promotions in 1996 and 1997, the court relied upon evidence of denied promotions and exclusions from detail assignments that were otherwise time barred. While acknowledging that these claims were not actionable, the court found this evidence sufficient to raise triable issues of fact about the timely 1996 and 1997 non-selection decisions that affected the plaintiffs. Id. at 1111-12. Similarly, in Raad v. Fairbanks North Star Borough School District , 323 F.3d 1185 (9th Cir. 2003), the Ninth Circuit again found it appropriate, after Morgan , to "look to the [defendant's] past treatment of [plaintiff's] candidacy for full-time positions as background evidence of intent to discriminate." Id. at 1195. As in Lyons , the evidence of a time-barred act against Raad was one fact used to defeat summary judgment. After Lyons , a defendant with a meritorious timeliness argument as to a discrete act may win the battle but lose the war. While a defendant may succeed in dismissing discrete acts outside the forty-five day limitation period, a plaintiff will likely reassert those acts in opposition to the remaining summary judgment arguments that challenge timely claims, insisting that the time barred acts are admissible evidence of pretext and discriminatory intent. Accordingly, a government defendant may be successful in dismissing stale claims, only to have them reappear as grounds for denying a Rule 56 motion on the merits. any evidence that tends to prove the employer's discriminatory intent or otherwise to disprove the proffered legitimate reason.

of individuals where the alleged acts reflect an intent to discriminate against all persons in the class"). Interestingly, given the overwhelming evidence of the shipyard's policies, the Ninth Circuit in Lyons suggested that on remand the district court consider allowing the plaintiffs to amend their case as a class action. 307 F.3d at 1107 n.8. In all likelihood, the full impact of footnote 9 in Morgan will not be considered until a timeliness issue is raised by a class action case that challenges a discriminatory policy. IV. The use of time-barred evidence after Morgan The holding in Morgan that "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act," id. at 113, benefits an agency defendant faced with an EEO complaint that challenges several adverse personnel actions. Each of those discrete acts must be timely brought to the attention of an EEO counselor, and the continuing violation doctrine no longer operates to salvage the untimely claims on the grounds that they are somehow interrelated. However, the Court then observed that Title VII does not "bar an employee from using the prior acts as background evidence in support of a timely claim." Id. This evidentiary use of time-barred acts not only provides a plaintiff with potential ammunition to defeat a motion for summary judgment, but it also raises concerns over the type of evidence that can be wrapped into a timely hostile workplace claim. A. Time-barred evidence and disparate treatment claims The first court to undertake an in-depth discussion of the admissibility of time-barred "background evidence" was Lyons , 307 F.3d 1092, where the plaintiffs initiated EEO contact in 1996 and then sought to recover for a pattern of discrimination back to 1991. Citing Morgan , the court dismissed all of the adverse employment actions outside of the forty-five day contact period. As discussed above, the court rejected the pattern-or-practice theory, finding that the plaintiffs were challenging a series of discrete discriminatory acts, each of which was actionable and required a separate EEO contact. Id. at 1105 08. This finding of untimeliness, however, did not end the inquiry. As the court continued, "[w]e must now determine whether and to what extent [plaintiffs] can make use of evidence of discrimination occurring before the limitations period in order to prove that the [Navy] discriminated against them in awarding the

UNITED STATES ATTORNEYS ' B ULLETIN

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