Noel v. The Boeing Co., 2010 WL 3817090 (3d Cir., October 1, 2010) – In a case of first impression, the Third Circuit Court of Appeals ruled that a failure to promote does not, in itself, constitute discrimination in compensation, and that the Lilly Ledbetter Fair Pay Act of 2009 (FPA) therefore does not apply to toll the statute of limitations with respect to such a claim. The plaintiff alleged failure to promote based upon race, but failed to file a timely EEOC charge before bringing suit under Title VII. He argued that because he was not promoted, he received lower compensation than his coworkers who were promoted, and that under the FPA the statute of limitations began to run anew with each paycheck. The Third Circuit rejected this argument because the plaintiff had not pled a nexus between the failure to promote and the resulting lower salary. A mere failure to promote, the court said, is not covered under the FPA.

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