NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                       No. 14-3389
                                    ________________

                                  DWAYNE T. DIXON,
                                                Appellant

                                             v.

                          SECRETARY UNITED STATES
                       DEPARTMENT OF VETERANS AFFAIRS

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 2-12-cv-03756)

                       District Judge: Honorable Cynthia M. Rufe
                                     _____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 19, 2015

       Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.

                              (Opinion filed: June 15, 2015)

                                ______________________

                                       OPINION
                                ______________________
SLOVITER, Circuit Judge.



  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Appellant Dwayne Dixon brought a claim of constructive discharge against the

Department of Veterans Affairs (the “VA”) under Title VII of the Civil Rights Act, 42

U.S.C. § 2000e-16 (“Title VII”), and the Age Discrimination in Employment Act, 29

U.S.C. § 621 (“ADEA”), claiming race and age discrimination. Under Title VII and

ADEA, a party complaining of adverse employment action must initiate contact with an

Equal Employment Opportunity (“EEO”) counselor within 45 days of the effective date

of the personnel action or face dismissal by the agency. 29 C.F.R. §§ 1614.105(a)(1),

1614.107(a)(2). Dixon concedes that he missed the 45-day deadline, but argues that the

timeframe should be equitably tolled. The District Court rejected this argument at

summary judgment. We will affirm.

                                            I

      Dixon is an African American male over the age of 40. He began working for the

VA on March 19, 2007. Sometime in 2010, Dixon missed four days of work in a six

month period because of periodontal (gum) disease and was disciplined. He complained

to the Equal Employment Officer about the discipline, but claims nothing was done. On

January 7, 2011, Dixon resigned from his position; he claims he was “constructively

discharged . . . because of his race and age.” App. at 31. He also was diagnosed as

having a major depressive disorder which he states was related to race and age

discrimination and the hostile work environment at the VA.

      Dixon did not contact an EEO counselor until November 25, 2011—over ten

months after his resignation—and did not file his discrimination complaint with the VA

until March 5, 2012. Dixon claims the reason he did not initiate contact earlier was
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because he was in “ill health, treating for various issues, to include major depressive

disorder.” App. at 42. Despite these alleged health issues, Dixon was able to file a claim

for unemployment compensation on January 9, 2011—two days after his resignation—

and appeared before the Unemployment Compensation Board of Review for a hearing on

March 9, 2011.

       The VA dismissed Dixon’s claims as untimely, stating, “As [Dixon] was able to

pursue his unemployment case, we believe he could have pursued the EEO process in a

timely manner. Therefore, we have determined his explanation insufficient to waive the

timelines.” App. at 43. The District Court granted summary judgment for the VA for the

same reason. Dixon also claimed that another reason he did not timely initiate contact

with an EEO counselor was that he feared violence from his former coworkers. The

District Court rejected this argument, stating that Dixon “fail[ed] to explain how, once he

no longer worked for the VA, such threats could act as a deterrent, especially as the

nature of threats as described by [Dixon] related only to his work.” App. at 8. The

District Court also noted, “Although [Dixon] alleged in his EEO Complaint that ‘[he] was

threatened with physical violence by VA employees who were connected to upper

management,’ he did not offer any evidence that the alleged threats extended to the

period after his constructive discharge.” 

District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment

is plenary. Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 

, 146
                                                3
(3d Cir. 1993). Equitable tolling may be invoked “(1) where the defendant has actively

misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in

some extraordinary way has been prevented from asserting his or her rights; or (3) where

the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”

Oshiver v. Levin, Fishbein, Sedran & Berman, 

, 1387 (3d Cir. 1994). Only

the second basis could arguably apply in this case. However, we agree with the District

Court that Dixon’s ability to pursue his claim for unemployment compensation negates

any argument that his health problems prevented him from timely contacting an EEO

counselor about his race and age discrimination claims. We also agree that Dixon’s

claimed fear of physical violence does not seem to have prevented Dixon “in some

extraordinary way” from initiating EEO contact. Therefore, we will affirm the District

Court’s order granting summary judgment for the Appellee.




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