Filed: Dec. 18, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-18-2003 Johnson v. Secretary Veterans Precedential or Non-Precedential: Non-Precedential Docket No. 03-1423 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Johnson v. Secretary Veterans" (2003). 2003 Decisions. Paper 46. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/46 This decision is brought to you for free and open access by th
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-18-2003 Johnson v. Secretary Veterans Precedential or Non-Precedential: Non-Precedential Docket No. 03-1423 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Johnson v. Secretary Veterans" (2003). 2003 Decisions. Paper 46. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/46 This decision is brought to you for free and open access by the..
More
Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-18-2003
Johnson v. Secretary Veterans
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1423
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Johnson v. Secretary Veterans" (2003). 2003 Decisions. Paper 46.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/46
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-1423
LEWIS JOHNSON,
Appellant
v.
HERSHEL W. GOBER, Acting Secretary of Veterans Affairs;
RODNEY KISCADDEN; ALICE FIDLER; PEG WINTERS;
IRVIN ERICKSON; RAYMER KENT;
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; Local 1966
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 00-cv-01873)
District Judge: Hon. John E. Jones, III
Argued December 5, 2003
Before: SLOVITER, ALITO Circuit Judges and OBERDORFER, District Judge*
(Filed: December 18, 2003)
Andrew J. Ostrowski (Argued)
Bailey, Stretton & Ostrowski
Harrisburg, PA l7ll0
Attorney for Appellant
* Hon. Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
Thomas A. Marino
United States Attorney
Kate L. Mershimer (Argued)
Assistant United States Attorney
Office of United States Attorney
Middle District of Pennsylvania
Harrisburg, PA l7l08
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Lewis Johnson, a former employee of the Department of Veterans Affairs (“VA”)
at its Lebanon Medical Center (“Lebanon”), filed suit against the Secretary of the
Veteran’s Administration, employees of Lebanon and the employees’ union, complaining
about his non-selection for a Housekeeping Aid position in 1998, the creation of a hostile
work environment, the VA’s contest of his claim for Worker’s Compensation benefits,
and the VA’s termination of his employment. He appeals from the District Court’s order
granting summary judgment for the defendants. We have jurisdiction pursuant to 28
U.S.C. § 1291. Our review of the grant of summary judgment is plenary. Curley v.
Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
I.
Johnson, had been employed as a Housekeeping Aid and applied for another
Housekeeping Aid position in the “extended care” section of the hospital. Under the
2
applicable union agreement, positions designated as entry-level because of their high
turn-over rate or the specific requirements of the job are placed on the “Open and
Continuous” list and filled through a competitive selection process for which seniority
was not the determining factor for selection.
In the spring of 1998, the VA changed its employment selection process to a new
approach in which the units within the VA were viewed as “teams” and the employment
decisions were to be made by a product line manager who would seek employees to foster
a team environment. The Housekeeping Aid vacancy for which Johnson applied was
posted on the “Open and Continuous” list in June 1998. Johnson (who is African-
American), Ronald Hull, and other VA employees applied for the position. Only Johnson
and Hull were then employed as Housekeeping Aids; the other applicants were from the
Food Service department.
The applications were referred to Alice Fidler, the Nurse Manager and team leader
of the extended care unit, who was designated as the decision maker for this vacancy.
Fidler in turn sought the assistance of Barbara Kohr, a Nurse Manager in the Hospice
Unit. Fidler and Kohr focused their decision on Hull and Johnson because of their
previous housekeeping experience. Fidler did not consider the applicants’ seniority, and,
instead, focused on selecting the applicant she believed was most qualified for the
position.
Fidler testified that she selected Hull because of his experience, initiative, and
3
understanding of patients’ needs. Fidler thought Hull possessed a better ability to get
along with difficult patients as well as staff members. Because the “product line”
approach was to build teams on the VA staff, Fidler thought that Hull was not only more
qualified but that also he would fit in better with the team than Johnson. Both Kohr and
Fidler testified in their depositions that race played no role in the decisionmaking process.
Nevertheless, Johnson believed that Fidler did not select him for the position because of
his race.
In October 1999, a fellow Housekeeping Aid, Irv Erickson, made a racially
disparaging remark to Johnson. Erickson admitted making the remark, but contended he
was kidding with Johnson. A few days after the incident, Erickson heard that Johnson
was going to file an Equal Employment Opportunity (“EEO”) department complaint
against him. In attempting to talk with Johnson about this complaint, Erickson allegedly
bumped and pushed Johnson. Johnson submitted a “Report of Contact” to an EEO
counselor on October 18, 1999, and on October 20, Erickson’s supervisors informed him
to refrain from future contact with Johnson or he would be subject to disciplinary actions.
Johnson subsequently filed a complaint with the EEO claiming that Erickson’s conduct
constituted a hostile work environment.
On May 9, 2000, the VA sent a letter to Johnson informing him that his claim was
dismissed. The VA advised Johnson that he had a right to appeal this decision to the
EEOC within 30 days, or file a civil action in a District Court within 90 days. Johnson
4
received the VA’s decision on M ay 10, 2000 , but did not file an EEOC appeal. Rather,
Johnson filed a Title VII complaint on October 24, 2000, over two months after the
deadline.
Shortly after the October 1999 incident with Erickson, Johnson went on sick leave
and sought Worker’s Compensation Benefits. While there was some confusion as to the
filing of the paperwork because of the guidance Johnson received from the VA, the
Department of Labor ultimately denied Johnson’s claim. Johnson complained to an EEO
counselor on February 5, 2000 that the VA failed to follow the appropriate guidelines in
processing his paper work for the Worker’s Compensation claim. On April 13, 2000,
Johnson filed a formal complaint with the EEO.
On May 10, 2000, the VA dismissed Johnson’s claim because the authority to
grant Workers Compensation benefits was vested solely with the discretion of the
Department of Labor. Johnson was notified by letter that he had a right to appeal to the
EEOC within 30 days, or that he could file a civil action with 90 days. Johnson received
this letter on or about May 11, 2000, but did not file an EEOC appeal. As noted above,
he filed the lawsuit on October 24, 2000, more than five months after he received the
final decision.
Johnson did not return to work after he left for sick leave subsequent to the
Erickson incident, and on November 25, 1999, his sick leave ran out. On August 4, 2000,
Johnson was advised by letter that he could receive a maximum of one year leave without
5
pay, and that year would conclude on November 24, 2000. Johnson’s physician
responded by letter dated August 16, 2000 that Johnson could not return to work. On
October 24, 2000, the VA proposed terminating Johnson from his Housekeeping Aid
position due to his medical problems, informed Johnson of this decision, and instructed
him that he had fourteen days to reply.
On November 13, 2000, a Personnel Management Specialist contacted Johnson’s
attorney, who verified that Johnson had received the letter. On November 14, 2000,
Johnson requested permission to continue his leave without pay pending his Worker’s
Compensation claim, but on November 17, 2000, the VA advised him that he was being
removed from employment due to his medical condition and his inability to work.
Johnson received the letter on December 2, 2000. This letter advised Johnson that he
could appeal this decision to the Merit System Protection Board or under the negotiated
grievance procedure. Johnson took neither action, nor did he see an EEO counselor to
allege discrimination, retaliation, or improper termination.
II.
A. Johnson’s Non-Selection Claim
The burden shifting analysis applicable to a discrimination claim as set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), provides that the claimant
bears the initial burden of establishing a prima facie case of discrimination by showing
that plaintiff is a member of a protected class, was qualified for and rejected for the
6
position, and that non-members of the protected class were treated more favorably. See
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1993).
Once a claimant establishes a prima facie case, the burden shifts to the employer to
demonstrate a legitimate nondiscriminatory reason for the adverse employment decision.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Once the
employer proffers a legitimate nondiscriminatory reason for its decision, the burden then
shifts to the plaintiff to demonstrate that the proffered reason was a mere pretext for
unlawful discrimination. Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 143
(2000). Here, the District Court held that Johnson satisfied his burden of demonstrating a
prima facie case, that the VA articulated legitimate nondiscriminatory reasons for its
decision, and that Johnson failed to demonstrate that these reasons were a mere pretext
for discrimination.
On appeal, Johnson appears to challenge the legitimacy of the VA’s articulated
reason for the adverse employment decision. He argues that he had more seniority than
Hull and that the VA failed to award the Housekeeping Aid position to the applicant who
had the most seniority. We have previously noted the limited inquiry that should be
performed in evaluating the reasons put forth by the defendant. We stated, “‘The
question is not whether the employer made the best, or even a sound, business decision;
[the ultimate inquiry] is whether the real reason is [discrimination].’” Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (quoting Keller v. Orix
7
Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997)); see also Healy v. New York Life
Ins. Co.,
860 F.2d 1209, 1216 (3d Cir. 1988) (“our inquiry . . . is not an independent
assessment of how we might evaluate [an] employee”).
Here, the VA presented sufficient evidence to satisfy its burden at this step of the
inquiry. Despite Johnson’s argument to the contrary, the VA appropriately decided that
the Housekeeping Aid position would not be awarded based entirely on seniority because
the Master Agreement with the union provided that a vacant Housekeeping Aid position
would be placed on the “Open and Continuous” list. Because of this designation, there
was nothing to preclude award of this position after considering a variety of criteria, not
only seniority.
The decision on Johnson’s application was made in accord with the appropriate
procedures as provided in the Master Agreement. The two decision makers, Fidler and
Kohr, reviewed the applicants to determine which candidate was best for the position.
The selection of Hull was based on a number of criteria including Hull’s seventeen years
of experience in housekeeping, Hull’s demeanor with patients, and his general
commitment to providing a clean working environment. Thus, the District Court’s
conclusion that the VA satisfied its burden of demonstrating a legitimate
nondiscriminatory reason for Johnson’s non-selection was not erroneous.
Johnson argues that the reasons put forth were a mere pretext for discrimination.
We have stated that
8
To survive summary judgment when the employer has
articulated a legitimate nondiscriminatory reason for its
action, the plaintiff must point to some evidence, direct or
circumstantial, from which a factfinder could reasonably
either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause
of the employer’s action.
Simpson, 142 F.3d at 644 (quotations omitted) (citing Fuentes v. Perskie,
32 F.3d 759,
764 (3d Cir. 1994)).
In support of Johnson’s allegation that Fidler considered race in reaching her
decision, Johnson contends that a number of years earlier Fidler made a disparaging racial
remark during another employment decision involving a black applicant. Johnson alleges
that Randal Houck, a former subordinate of Fidler, heard Fidler say that she did not want
any more of “them” on the floor. App. at 317. Houck apparently interpreted this
statement to mean that Fidler would not hire the applicant because he was African-
American, but Houck could not point to the specific time period when this statement was
made, but suggested the statement was made between three or four years prior to Houck’s
deposition which would put the statement at one and one-half to three years before
Johnson’s non-selection. In her deposition, Fidler denied ever making this remark.
Johnson admitted that he never saw or heard Fidler act in a racially discriminatory manner
towards him or other employees.
As Justice O’Connor noted, a claimant fails to satisfy his or her burden to show
pretext by presenting evidence of an isolated inappropriate remark made by a decision
9
maker, unrelated to the decisionmaking process. Price Waterhouse v. Hopkins, 490 U.S.
228, 277 (1989) (O’Connor, J., concurring). Furthermore, this court has noted that
“[s]tray remarks by non-decisionmakers or by decisionmakers related to the decision
process are rarely given great weight, particularly if they were made temporally remote
from the date of decision.”
Ezold, 983 F.2d at 545.
In light of the isolation of this alleged remark and its failure to have any
connection to Johnson’s non-selection, we agree that this evidence is insufficient to
establish that VA’s proffered reason was a mere pretext for discrimination. We have no
basis to reverse the District Court’s grant of summary judgment in favor of VA on
Johnson’s non-selection claim, and therefore will affirm.
B. Johnson’s Hostile W ork Environment and Workers Compensation Claim
This District Court properly concluded that Johnson waived his hostile work
environment claim as well as his W orkers Compensation claim by failing to file a timely
appeal. We have made clear that a plaintiff in a Title VII action must “exhaust all
required administrative remedies before bringing a claim for judicial relief.” Robinson v.
Dalton,107 F.3d 1018, 1020 (3d Cir. 1997). Thus, an employee bringing suit under Title
VII must adhere to the administrative requirements. Specifically, 42 U.S.C. § 2000e-
16(c) (2003) provides that a Title VII claimant must initiate an action in federal court
within 90 days of the receipt of the notice of a final agency action or after 180 days from
the date of filing the original cause of action when no agency decision has been reached.
10
Johnson failed to do so.
The EEO issued its decision on Johnson’s Worker’s Compensation claim on May
10, 2000. Johnson did not file an EEOC appeal, and filed his Title VII lawsuit on
October 24, 2000, more than five months after he received the final agency decision.
The VA sent Johnson a letter on May 9, 2000 informing him that his hostile work
environment claim had been dismissed, and advised him that he had a right to appeal this
decision to the EEOC within 30 days, or file a civil action in the district court within 90
days. Johnson received the VA’s decision on May 10, 2000, but did not file an EEOC
appeal and rather filed the Title VII complaint on October 24, 2000, over two months
after the deadline passed. Therefore, these claims were untimely.
C. Johnson’s Constructive Discharge Claim
The District Court concluded that Johnson waived his discharge related claims by
failing to exhaust or even pursue his administrative remedies. An employee must seek
relief by contacting the EEO within 45 days of the alleged discriminatory event, 29 C.F.R.
§ 1614.105 (a)(1), and filing a formal EEO complaint within 15 days of the receipt of the
notice of the right to file such a complaint, 29 C.F.R. § 1614.106(b). Here, Johnson did
not contact the EEO at any point, and therefore never filed a formal complaint. Thus,
Johnson failed to exhaust his administrative remedies for his discharge claims, and his
Title VII claim based on this ground cannot be maintained.
D. Absence of Any Basis to Excuse Untimeliness
11
Despite failing to exhaust his administrative remedies, Johnson argues that the
District Court should have excused the untimeliness of his claims. He contends first that
the time requirements should be waived because his other claims would have grown out
of his non-selection claim. He argues second that the District Court should have applied
equitable considerations and tolled the statutory requirements in relation to his claims.
We agree with the District Court that neither argument has merit. First, Johnson’s hostile
work environment claim and Worker’s Compensation claim involve distinct factual
circumstances unrelated to his non-selection claim. Second, it is also unlikely that
Johnson’s discharge claim would grow out of Johnson’s non-selection claim.
In Rush v. Scott Speciality Gases Inc., 113 F.3d 476, 484-85 (3d Cir. 1997), we
noted that a failure to promote claim and a harassment claim involved distinct and
different types of conduct.
Id. The same conclusion is applicable here. Johnson’s
discharge claim occurred nearly two years after Johnson’s application for the
Housekeeping Aid position, and would not, in any way, grow out of a consideration of his
non-selection claim. The District Court properly concluded that Johnson’s discharge
claim was untimely.
Nor is equitable tolling appropriate. We have stated:
[T]here are three principal, though not exclusive, situations in
which equitable tolling may be appropriate: (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
12
her rights mistakenly in the wrong forum.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391-92 (3d Cir. 1994).
We have recognized that “[r]unning throughout the equitable [tolling] cases is the
obligation of the plaintiff to exercise due diligence to preserve his or her claim.”
Robinson, 107 F.3d at 1023.
Here, Johnson argues that equitable tolling was appropriate because he requested
that his complaints be consolidated, and that even though the ALJ refused his request, he
proceeded as if the complaints were consolidated. The District Court noted that the ALJ
clearly articulated the denial of the consolidation request, and that Johnson provided no
evidence that he had mistakenly believed that the complaints had in fact been
consolidated. Additionally, the records from the administrative hearings on the non-
selection claim show that Johnson’s other claims were not under consideration. Because
the record is devoid of any reasonable basis for Johnson’s belief that his claims had been
consolidated, we conclude he did not exercise due diligence in preserving his claims.
Thus, the District Court did not err in concluding that equitable tolling was not
appropriate.
III.
Johnson not only failed to satisfy his burden of demonstrating that the VA’s
proffered reason for his adverse employment decision was pretext, but he also failed to
exhaust his administrative remedies as required. We will therefore affirm the District
13
Court’s decision granting summary judgment for the defendants.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge
14
