Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2009

Killingsworth v. Postmaster Gen
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2266




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 07-2266


           DEBRA A. KILLINGSWORTH; DAVID KILLINGSWORTH

                                        v.

                JOHN E. POTTER, POSTMASTER GENERAL,
          UNITED STATES POSTAL SERVICE; ROLAND RAGSDALE,
   U.S. POSTAL EMPLOYEE; GLENN SULLIVAN, U.S. POSTAL EMPLOYEE;
                LOUIS SPADARO, U.S. POSTAL EMPLOYEE

                               Debra A. Killingsworth,
                                                         Appellant


             Appeal from the Order of the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civ. No. 05-cv-04271)
                   District Judge: Honorable Harvey Bartle, III

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                               on January 8, 2009
                                 ____________

            Before: FUENTES, FISHER, and ALDISERT, Circuit Judges

                            (Filed : January 26, 2009)




                                    OPINION


FUENTES, Circuit Judge:
       Debra Killingsworth appeals from the District Court’s grant of summary judgment

in favor of John E. Potter, the Postmaster General of the United States, on her claim of

sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII”). She argues that the District Court erred when it failed to equitably

toll Title VII’s 45-day filing requirement because she was prevented from contacting an

Equal Employment Opportunity (“EEO”) counselor. For the reasons stated below, we

will affirm.1

       Because we write exclusively for the parties, we only discuss the facts and

proceedings to the extent necessary for resolution of this case. Killingsworth was

employed by the United States Postal Service as a mail processor and supervisor at the

Philadelphia Processing and Distribution Center beginning in 1994. She claims that

between late 2003 and November 2004, multiple coworkers harassed her on several

occasions. In July 2004, Killingsworth reported the problems to a supervisor, as well as

the Employee Assistance Program Supervisor. She did not initiate a complaint or pre-

complaint counseling with the EEO office. Following a nervous breakdown that required

hospitalization in September 2004, Killingsworth gave a postal supervisor a full statement

regarding her allegations.

       Killingsworth did not file a formal Title VII complaint with the EEO office until




   1
      The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291.

                                              2
March 31, 2005, which the EEO office dismissed as untimely because it was not filed

within 45 days of the last discriminatory incident, which allegedly occurred on November

3, 2004. Killingsworth filed a complaint in District Court on August 10, 2005.2

Defendants moved to dismiss based on Killingsworth’s failure to exhaust administrative

remedies. In response, Killingsworth submitted a declaration in which she explained that

she provided a statement to a postal supervisor regarding her allegations of sexual

harassment following her hospitalization in September 2004. As a result, the District

Court denied Defendants’ motion to dismiss. The parties then engaged in discovery,

including a deposition of Killingsworth in which she gave testimony consistent with her

previous declaration. In her deposition testimony, Killingsworth specifically noted that

the postal supervisor taking her statement in September 2004 did not mention

Killingsworth’s rights under the EEO.3 Defendants then moved for summary judgment

based on Killingsworth’s failure to exhaust administrative remedies. Killingsworth

responded with a new declaration which contained a different account of the September

2004 meeting with the postal supervisor. In this declaration, Killingsworth described, in

detail, filling out EEO forms to initiate a formal EEO complaint. This testimony directly



   2
        The defendants listed in the complaint are the Postmaster General of the United
States, Roland Ragsdale, Glenn Sullivan, and Louis Spadaro. We refer to them
collectively as “Defendants.”
   3
       However, there is evidence in the record that demonstrates that Killingsworth
received ample training regarding human resources policies, including the administrative
requirements of Title VII.

                                             3
contradicted her previous declaration and deposition testimony. The District Court

concluded that Killingsworth’s second declaration was a “sham affidavit,” submitted to

create a genuine issue of material fact to defeat Defendants’ motion for summary

judgment. Therefore, the District Court disregarded the second declaration and granted

Defendants’ motion. On appeal, Killingsworth does not dispute that she ran afoul of the

45-day time limit to initiate an EEO complaint, but she claims that she is entitled to

equitable tolling because postal officials “misled” her into thinking that they were acting

on behalf of the EEO office.4

       Title VII allows an aggrieved employee to bring a claim against his or her

employer in federal court, but only if the employee first exhausts administrative remedies.

42 U.S.C. § 2000e-16(c). One of those requirements is that an aggrieved employee must

consult with an EEO counselor prior to filing a complaint in an effort to informally

resolve the matter. 29 C.F.R. § 1614.105(a). The aggrieved employee must initiate

contact with an EEO counselor within 45 days of the allegedly discriminatory act. 29

C.F.R. § 1614.105(a)(1). Because the 45-day time limit is not jurisdictional, courts can

permit equitable tolling of the time limit under extraordinary circumstances, such as

where a defendant has “actively misled” a plaintiff regarding her rights; where a plaintiff

“in some extraordinary way has been prevented from asserting” her rights; or where a




   4
     We exercise plenary review over a district court’s summary judgment ruling.
Township of Piscataway v. Duke Energy, 

, 208 (3d Cir. 2007).

                                              4
plaintiff has timely asserted her rights mistakenly in the wrong forum. Robinson v.

Dalton, 

, 1021-22 (3d Cir. 1997).

       Neither of Killingsworth’s arguments for equitable tolling have merit. She first

contends that her mental condition effectively disabled her, and prevented her from filing

an EEO complaint. However, she offers no evidence to support this argument. Her

second contention is that she was misled into believing that she filed a formal complaint

with the EEO at her September 2004 meeting with a postal supervisor. The only evidence

that supports this contention is Killingsworth’s second declaration, which she submitted

in response to Defendants’ motion for summary judgment, and which directly contradicts

her prior testimony.

       We have previously endorsed the “sham affidavit” doctrine, in which courts may

disregard an affidavit submitted in opposition to a motion for summary judgment “when

the affidavit contradicts the affiant’s prior deposition testimony.” In re CitX Corp., 

, 679 (3d Cir. 2006) (quoting Baer v. Chase, 

, 624 (3d Cir. 2004)).

Killingsworth’s conflicting affidavit falls squarely within the “sham affidavit” doctrine.

In her first declaration, and in her deposition testimony given under oath, Killingsworth

stated that there was no mention of an EEO complaint during her September 2004

meeting with the postal supervisor following her hospitalization. However, when

Defendants moved for summary judgment, Killingsworth submitted a declaration that

contradicted her prior testimony, and in which she recalled with great clarity, including



                                             5
form numbers, filling out a formal EEO complaint. It appears that Killingsworth’s

second declaration contained statements inconsistent with her deposition testimony in an

effort to create a genuine issue of material fact to defeat summary judgment.

Accordingly, the District Court did not err when it discounted her second declaration.

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment for Defendants.




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