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Laber v. Geren, 07-1946 (2009)

Court: Court of Appeals for the Fourth Circuit Number: 07-1946 Visitors: 23
Filed: Mar. 12, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1946 STAN LABER, Plaintiff - Appellant, v. PETE GEREN, Secretary of the Army, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:03-cv-00732-GBL) Argued: January 29, 2009 Decided: March 12, 2009 Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Jeffr
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                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1946


STAN LABER,

                Plaintiff - Appellant,

           v.

PETE GEREN, Secretary of the Army,

                Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:03-cv-00732-GBL)


Argued:   January 29, 2009                 Decided:   March 12, 2009


Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeffrey Howard Greger, LAW OFFICE OF JEFFREY H. GREGER,
P.C., Alexandria, Virginia, for Appellant.          Leslie Bonner
McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.       ON BRIEF: Chuck Rosenberg, United
States Attorney, Ralph Andrew Price, Jr., Assistant United
States   Attorney,   OFFICE   OF  THE  UNITED   STATES   ATTORNEY,
Alexandria, Virginia; Rebecca Ausprung, Litigation Attorney,
U.S.   ARMY   LITIGATION   DIVISION,  Arlington,   Virginia,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Stan Laber, a civilian Army employee, commenced this

Title VII action for religious discrimination against the U.S.

Army, challenging the sufficiency of the remedies ordered by the

Equal   Employment    Opportunity    Commission’s     Office   of   Federal

Operations     (“OFO”).   Laber     also   alleged   retaliation    and   the

failure   to   accommodate.    The    district   court   granted    summary

judgment to the Army, and, for the reasons herein, we affirm.


                                      I

     When this case was before us earlier, see Laber v. Harvey,

438 F.3d 404
(4th Cir. 2006) (en banc), we stated many of the

facts relevant to the present appeal:

     Laber . . . was employed by the Army as an Operations
     Research Analyst at Fort Sheridan, Illinois.   In mid-
     1990, motivated in part by his Jewish heritage, Laber
     applied for a position as a[n] Industrial Specialist
     in Tel Aviv, Israel.    During the job interview, the
     selecting officer, Leo Sleight, asked Laber if he
     could   be   objective   when   dealing   with   Jewish
     contractors.     Laber   answered  affirmatively,   but
     Sleight offered the job to another applicant.

     Laber filed a formal EEO complaint with the Army
     alleging that Sleight discriminated against him on the
     basis of religion in failing to select him for the
     job.    The Army accepted the complaint and, after
     conducting an internal investigation, concluded that
     Laber suffered no discrimination. Laber appealed to
     the OFO.

     On December 22, 1998, the OFO reversed and ordered the
     Army, inter alia, to pay Laber any backpay and
     benefits for which the Army determined he was eligible
     and to appoint Laber as an Industrial Specialist in

                                      2
      Israel or find a similar position for him. On January
      25, 1999, Laber filed a motion for reconsideration,
      which the OFO denied on April 11, 2000. In May 2000,
      the Army determined that Laber was entitled to no
      backpay because his pay at his current job was higher
      than it would have been had he been working in Israel
      and that he was entitled to no overseas benefits
      because he had not actually been overseas.     The Army
      also offered Laber a position as an Industrial
      Specialist in Germany, contending that it had no
      similar positions open in Israel.     Laber refused the
      job in Germany and instead filed a petition for
      enforcement with the OFO, claiming, inter alia, that
      the Army's backpay and benefits calculations and its
      job offer were insufficient.      Soon thereafter, the
      Army re-offered Laber the position in Germany, which
      he accepted, and in doing so, he expressly waived any
      claim that the Germany position was not compliant with
      that portion of the OFO's remedial award.             He
      therefore withdrew that portion of his petition for
      enforcement challenging the Army's Germany job offer.

      On January 23, 2002, the OFO issued a decision on the
      remainder of the petition for enforcement.          In
      relevant part, the OFO determined that the record was
      unclear with respect to Laber's backpay and benefits
      arguments, and it required the Army to redetermine
      whether Laber was entitled to additional backpay and
      benefits.   On or about May 29, 2002, the Army did so
      and concluded that Laber was entitled to over $9,000
      in additional backpay, but that he was not entitled to
      receive any overseas benefits.      On March 4, 2002,
      Laber filed a petition for clarification with the OFO,
      asserting   that  the   Army's  benefits  and  backpay
      calculations were still deficient. On March 10, 2003,
      the OFO affirmed that the Army had fully complied with
      the OFO's December 22, 1998 decision.

Id. at 411-12. In
that appeal, we held inter alia that “Title

VII   does   not   authorize   a    federal-sector         employee   to   bring   a

civil   action      alleging       only       that   the    OFO’s     remedy   was

insufficient.      Rather, in order properly to claim entitlement to

a more favorable remedial award, the employee must place the

                                          3
employing       agency’s       discrimination           at   issue.”     
Id. at 423-24 (footnotes
omitted).            In recognition of our holding, we remanded

the case to allow Laber to amend his complaint.                                
Id. at 429, 432.
       On remand, Laber amended his complaint to allege several

dozen counts as violations of Title VII.                            But the magistrate

judge    allowed       only     three    counts         to   proceed:      Count       I    for

religious       “discrimination          in    connection         with   the    1990       non-

selection” for the position in Israel; Count II for “retaliation

in connection with the 1990 non-selection”; and Count III for

the     Army’s       failure     to     make       a    religious      accommodation        in

furnishing his apartment in Germany.                         Laber did not object to

the magistrate judge’s disposition, and with respect to these

three counts, the district court granted summary judgment for

the Army.        From the court’s judgment, Laber appeals.                       We review

the     district       court’s     grant       of       summary    judgment      de     novo,

construing the facts in the light most favorable to Laber.                                  See

Holland v. Washington Homes, Inc., 
487 F.3d 208
, 213 (4th Cir.

2007).


                                               II

        Count    I    alleges     religious            discrimination     based       on    the

Army’s failure to select Laber for the Israel position in 1990.

The district court found these claims barred because Laber did


                                               4
not bring suit in district court within the requisite 90 days of

the OFO’s “final” decision. See 42 U.S.C. § 2000e-16(c).

      Laber   contends     that    the    March    10,   2003   decision   on   his

petition for clarification of the Army’s compliance with the

enforcement order of January 23, 2002, was the relevant final

decision, and therefore the present action, filed on June 6,

2003, less than 90 days after the clarification decision, would

not be time-barred.        The Army contends, on the other hand, that

the relevant “final” decision is the April 11, 2000 decision on

Laber’s request for reconsideration of an earlier final decision

dated December 22, 1998, which would make his claim time-barred.

      The substance of Laber’s claim in Count I is to review the

entire OFO decision on his religious discrimination claim and to

obtain additional remedies.           The relevant decision deciding the

merits of Laber’s discrimination claims and providing him with

remedies was rendered on December 22, 1998.                      Laber requested

reconsideration     of     that    decision,      and    the    decision   denying

reconsideration was rendered on April 11, 2000.                  Even though the

request for reconsideration extended the date of final decision

for   purposes    of     review,    see    29     C.F.R.   §    1614.407(c),    the

December 1998 decision became the final relevant decision, and

the decision denying reconsideration so stated:                   “[The December

22,   1998]      decision . . . remains            the     Commission’s        final

decision.”       Because Laber did not file this action within 90

                                          5
days of the December 1998 order, as extended to April 11, 2000,

by the request for reconsideration, it is now time-barred.

       In an effort to avoid this conclusion, Laber argues that he

commenced this action to review the decision of March 10, 2003,

rendered by the OFO on Laber’s petition for clarification of the

Army’s compliance with the OFO’s enforcement order of January

23, 2002.         But the present action does not seek to review the

March 10, 2003 decision on the petition for clarification but

rather    for      reconsideration           of    the    merits      and   for    additional

remedies.          A     petition      for    “clarification          cannot      change     the

result of a prior decision or enlarge or diminish the relief

ordered.”         29 C.F.R. § 1614.503(c).                Yet, in this suit Laber not

only seeks to ”enlarge . . . the relief ordered” but also to put

the result of the OFO’s December 22, 1998 decision at issue.

These two characteristics of the current suit are incompatible

with    review         of    the     petition      for     clarification,         which     only

related      to    the      Army’s    compliance         with   the    OFO’s      January    23,

2002, decision.             Because Laber’s present action is not a suit to

review the OFO’s March 10, 2003 decision on his petition for

clarification, the March 10, 2003 decision is not the relevant

“final” decision.

       Laber argues further that the EEOC’s Management Directive

110, Chapter 9, supports his position.                          That directive states,

“If    the    decision         remands       the       complaint   for      further    agency

                                                   6
consideration,      the      parties       retain         the      rights      of     appeal      and

reconsideration with respect to any subsequent decision.”                                           He

argues   that     because        the   OFO,       in    its     enforcement          decision       of

January 23, 2002, directed the Army to take specified remedial

steps, he retained the right to appeal the entire case to the

federal courts.          But this argument fails even if we were to

assume   that     the    January       23,      2002     enforcement          decision        was    a

“remand”    and    that      a    Management            Directive          could     trump    clear

regulations published in the Code of Federal Regulations.                                           He

ignores the sentence directly preceding the one upon which he

relies, which reads “The Commission's decision on a request for

reconsideration         is   final,       and         there   is      no    further       right     by

either party to request reconsideration.”                             (Emphasis added).             We

conclude    that    the      relevant         “final”         decision         was    the     OFO’s

December 22, 1998 decision and the time period within which to

review   that     decision        began      on       April     11,    2000,       when    the    OFO

denied Laber’s request for reconsideration.                                 Accordingly, this

suit is time-barred.             See 42 U.S.C. § 2000e-16(c).

      Laber argues alternatively that the doctrine of equitable

tolling saves his action from failure to file within 90 days,

relying largely upon the fact that in 2000, Army personnel took

78   days   to    calculate       his     backpay         and      other     elements        of   his

remedy, whereas the OFO order had given the Army only 60 days.



                                                  7
While we do not approve of the Army’s late response, it does not

support equitable tolling.

       As   the    Supreme       Court      has      noted,    “Federal        courts   have

typically extended equitable relief only sparingly.”                              Irwin v.

Dep’t of Veterans Affairs, 
498 U.S. 89
, 96 (1990).                             Only in rare

circumstances       do     we    use       equitable     tolling,       which     “must   be

guarded     and    infrequent,          lest   circumstances        of    individualized

hardship     supplant       the        rules    of    clearly     drafted        statutes.”

Harris v. Hutchinson, 
209 F.3d 325
, 330 (4th Cir. 2000); see

Gayle v. United Parcel Service, Inc., 
401 F.3d 222
, 226 (4th

Cir.   2005).        For    example,          equitable       tolling    is     appropriate

“where the claimant has actively pursued his judicial remedies

by filing a defective pleading during” the relevant limitations

period.      
Irwin, 498 U.S. at 96
.                    No similar circumstance is

presented here.

       Equitable     tolling          is    also     inappropriate        in    this    case

because the OFO found for Laber and also found the Army in

complete    compliance          with    its    remedial       order.      Cf.    Nealon   v.

Stone, 
958 F.2d 584
, 587 (4th Cir. 1992).                           Laber received an

overseas     appointment         in     Germany,      attorney’s        fees,    and    other

remedies.         And in its March 10, 2003, order the OFO affirmed

that the Army “has fully complied with” the OFO’s December 22,

1998 decision.



                                               8
                                    III

      In Count II, Laber asserts that the Army retaliated against

him by providing him with insufficient remedies.             This is simply

Count I restated under a different cause of action.               Because the

90-day limitation bars Count I, we find that it also bars Count

II.

                                    IV

      Count III alleges, for the first time, that the Army failed

to accommodate Laber’s religion in not reimbursing him for his

purchase of a new oven for his kitchen in Germany.                This claim

was not before us at the time of the en banc hearing, but rather

was   added   on   remand.   Even   though   it   is   a    new   claim,   the

district court allowed Laber to add this count to his complaint

in the interest of judicial economy.

      Count III stems from events in 2001 in Germany, where Laber

moved for his overseas posting with the Army.              He lived off-base

and chose an apartment with a used but working oven that fit

into an odd-shaped space in the kitchen.               The Army normally

ensures that its overseas civilian employees have access to a

functioning oven, albeit not necessarily a brand-new oven.                 But

Laber wrote the Army in an email:

      Although the current oven and range provided by my
      landlord is operable, my religion requires that I not
      use it and instead only utilize an oven that has not
      previously been used. . . . A housing office
      representative [from the Army] inspected the kitchen

                                     9
     on 2/28/01 and advised that the free standing oven
     normally provided by his office (assuming it were a
     new oven) cannot be installed because of the physical
     and technical constraints of the kitchen.

     On March 15, 2001, Laber requested that the Army purchase a

new oven for him that would fit into the odd-shaped space in his

kitchen, but an Army official denied his request, stating there

was no funding to do so.        Laber “appealed” this lack-of-funding

finding   to   a   Colonel.     But   before   he    heard   back   from   the

Colonel, he went ahead and purchased a new oven, using his own

money.    He then sought reimbursement for the purchase.            The Army

denied the request because Laber did not obtain prior approval

for the purchase.     Laber then filed the religious discrimination

claim in Count III.

     To succeed on his claim, Laber must establish a prima facie

case:

     To establish a prima facie religious accommodation
     claim, a plaintiff must establish that: (1) he or she
     has a bona fide religious belief that conflicts with
     an employment requirement; (2) he or she informed the
     employer of this belief; (3) he or she was disciplined
     for failure to comply with the conflicting employment
     requirement.

Chalmers v. Tulon Co. of Richmond, 
101 F.3d 1012
, 1019 (4th Cir.

1996) (quotation marks and citations omitted) (emphasis added).

     Laber     provides   no   evidence    that     his   reimbursement    was

denied because of his religious belief.           The initial request for

an oven was denied for lack of funding, and his request for

reimbursement was denied because he failed to obtain approval

                                      10
for the purchase.          Laber has cited no authority, nor have we

independently found any, that would suggest that the Army had

“disciplined”      Laber   for   his   religious    beliefs    by   failing   to

reimburse   him,    when    he   lacked   prior    approval.    We   conclude,

therefore, that Laber failed to make a prima facie case.

     For the reasons given, the district court properly granted

summary judgment in favor of the Army, and its judgment is


                                                                     AFFIRMED.




                                       11

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