Dissent in 9th Circuit Insists Majority Erroneously Perpetuates a Split Re Credit for Pre-PDA Pregnancy Leave

Per Hulteen v. AT&T Corp., --- F.3d ----, 2007 WL 2332071 (9th Cir.(Cal.) Aug 17, 2007) (NO. 04-16087):

By concluding that Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 916, 116 L.Ed.2d 815 (1992) , remains good law, the majority erroneously perpetuates a circuit split with the Sixth and the Seventh Circuits. FN1 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, 121 S.Ct. 883, 148 L.Ed.2d 791 (2000) , I must respectfully dissent from the majority's conclusion that the sex discrimination claims in this case are timely. FN2

. . .

As Judge Dumbauld lamented in his dissent to Pallas, we consider " 'a melancholy tale [o]f things done long ago, and ill-done.' " 940 F.2d at 1327 (Dumbauld, J., dissenting) (quoting John Ford, The Lover's Melancholy). Because Pallas invented a timely Title VII violation where the determination of benefits simply gave present effect to past, unchallenged acts, contrary to Supreme Court authority, it must be overruled. Because the majority today erroneously embraces Pallas and perpetuates a circuit split with the Sixth and Seventh Circuits, I must respectfully dissent.

FN1. Compare Pallas, 940 F.2d at 1327, with Ameritech Benefit Plan Comm. v. Commc'n Workers of Am., 220 F.3d 814 (7th Cir.2000), and Leffman v. Sprint Corp., 481 F.3d 428, 433 (6th Cir.2007). No circuit has followed our decision in Pallas.

FN2. The majority devotes considerable attention to whether intervening Supreme Court authority is "clearly irreconcilable" with our prior decision in Pallas. Ante, at 10037-43. That standard governs whether a three-judge panel of our court is free to reexamine the holding of prior circuit precedent. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Here, of course, we sit as an en banc court. If Pallas is wrongly decided, we are free to overrule it even if subsequent authorities are not "clearly irreconcilable." See id. at 902 (O'Scannlain, J., concurring in part) ("The en banc court, however, is unencumbered by any obligation to follow the decision of a three-judge panel, and therefore is free to do what ... [a] panel could not."); see also Robbins v. Carey, 481 F.3d 1143, 1149 n. 3 (9th Cir.2007) ( "Ordinarily, panels cannot overrule a circuit precedent; that power is reserved to the circuit court sitting en banc."). I turn directly to that inquiry.