Substituted pursuant to Fed. R. Civ. Proc. 25(d). *

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN McCANN : CIVIL ACTION

:

 v. :

:

MICHAEL J. ASTRUE* : No. 05-cv-962-JF

MEMORANDUM AND ORDER

Fullam, Sr. J. August 21, 2007

Plaintiff filed an amended complaint against his

employer, the Social Security Administration (“SSA”), asserting

claims of reverse racial discrimination and retaliation under

Title VII and 42 U.S.C. § 1981. I dismissed the § 1981 claim. 

Defendant has now filed a motion for summary judgment. The

parties have compiled a very complete evidentiary record. Oral

argument was held on the motion, and supplemental briefings

received. The motion for summary judgment will be granted. 

Plaintiff, a white male, was hired by the SSA in 1983,

at GS-14, and is still employed there today at the same grade. 

From 1988 to 2004, plaintiff applied to fourteen GS-15 positions

within the SSA, but was never selected. Ten of these positions

were filled by white candidates, three by blacks (the race of one

of the successful candidates is not available). GS-15 positions

are filled competitively, in accordance with Merit Systems

Protection rules. A selecting panel or a recommending official

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 1 of 10
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interviews the candidates and makes recommendations to the

selecting official. Candidates who believe they were not

selected due to favoritism, political affiliation, or other nonmerit factors may file a complaint with the Merit Systems

Protection Board (“MSPB”); if the unsuccessful candidates suspect

discrimination on an impermissible basis, they may file a

complaint with the EEO Office. Plaintiff never complained to the

MSPB about any of his unsuccessful applications. Plaintiff first

contacted the EEO Office in August 2000, after he was not

selected to become director of Area 1 (Philadelphia), a GS-15

position, and William Paige, a black man, was. Plaintiff alleged

racial and sexual discrimination, and a past pattern of

discrimination based on his non-selections for other GS-15

positions. In January 2001, after another unsuccessful

application for a GS-15 position, plaintiff amended his EEO

complaint to allege retaliation. The EEO Office accepted for

investigation the following charges:

1. You claim that based on your age (over

40), race (White), sex (male) and

reprisal, you were not selected for the

GS-15 Area 1 Director position, which

was announced under vacancy announcement

number (VAN) F-612.

2. You claim that based upon reprisal, you

were not selected for the GS-15 Deputy

Regional Commissioner for Management

Operations Support position, which was

announced under VAN F-641.

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 2 of 10
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You claim that your non-selections constitute

a pattern of discrimination.

The EEO Office conducted an investigation from March 2001 to

February 2002. The SSA issued its final decision in July 2003,

rejecting plaintiff’s claims. Plaintiff appealed the agency’s

decision to the EEOC Office of Federal Operations, and received a

right-to-sue letter on December 4, 2004.

On February 28, 2005, plaintiff filed this civil

action. Plaintiff alleges that he was not selected for the

numerous GS-15 positions he applied to either because he is

white, or because he had filed an EEO complaint. As evidence of

the workplace hostility towards white people which plaintiff

believes caused his non-promotion, plaintiff alleges the

following. In 1996, Larry Massanari, a white male, who was

Regional Commissioner from 1987 to January 2004 and thus the

recommending officer for GS-15 positions in Region III, agreed

with plaintiff that were he not a white male he would have been

promoted already. Also in 1996, when asked by plaintiff,

Massanari confirmed the rumour that the position of Assistant

Regional Commissioner for Management and Operating Systems, a GS15 position, was being reserved for Virginia Flowers, a black

woman. And at a meeting in 1996, Massanari said that “hiring

white males will never be a priority.” In 1999, Massanari

criticized plaintiff’s analysis of a case study where the best

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 3 of 10
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qualified candidate was a black woman. In February or March

2000, the SSA circulated a memo asking recruitment outreach

efforts be made to minority communities. In May 2002, the Area 1

Manager told plaintiff to fill a vacancy with a black male

applicant. In 2003, Massanari instituted a policy that all

hirings of white applicants under the Outstanding Scholar Program

(an entry-level hiring program) must be approved by him. 

Based on these allegations, plaintiff seeks to recover

on the theories that “[f]rom 1983 to 2005, Defendant engaged in a

continuous course of conduct of racial discrimination against

Plaintiff,” and that in retaliation for his complaints “Defendant

continued and intensified the discrimination and harassment of

Plaintiff” and “denied additional promotions to Plaintiff.” 

I address first the issue of exhaustion. Plaintiff

first contacted the EEO Office on August 29, 2000. The amended

EEO charge-acceptance letter lists two claims of failure to

promote in connection with vacancy positions in 2000 and 2001 and

a claim of pattern of discrimination. Thus, administrative

remedies have been exhausted only with respect to these claims. 

And since EEOC regulation requires federal employees to initiate

the EEO process within 45 days of the alleged unlawful act, 29

C.F.R. § 1614.105, it is now too late for plaintiff to invoke the

EEO process for alleged discrimination and retaliation from 1983

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 4 of 10
 And also assuming that the EEO case included a hostile 1

environment claim. The EEO charge-acceptance letter lists a

claim that plaintiff’s non-selections constituted a “pattern of

discrimination,” while plaintiff’s civil complaint speaks of “a

continuous course of conduct of racial discrimination against

Plaintiff” and “harassment of Plaintiff.” There is clearly no

“pattern-or-practice” claim here. But I shall construe the EEO

charge liberally to encompass a hostile environment claim. 

5

to 2005. However, both the exhaustion requirement and the 45-day

filing period are non-jurisdictional prerequisites, akin to

statutes of limitations and thus subject to equitable tolling in

certain limited circumstances. 

Plaintiff appears to argue that the continuing

violation doctrine should be applied to permit him to recover for

discriminatory acts that occurred outside of the limitations

period. It is clear, however, after National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002), that discrete

discriminatory acts, such as failure to promote, are not

actionable if time barred. Such acts may still be used as

background evidence to support timely claims.

In contrast, a plaintiff may recover on a hostile

environment theory for acts occurring before the limitations

period if they were part of the same hostile environment as an

act that falls within the filing period. Id. Assuming then that

plaintiff here is asserting a hostile environment claim, the 1 

evidence on the record is clearly insufficient to support such a

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 5 of 10
6

claim. No rational fact finder could conclude from the four

alleged statements by Massanari from 1996 to 1999 that plaintiff

was subject to a hostile working environment. 

The Morgan Court did not have occasion to address

discrete discriminatory and retaliatory acts that occurred after

an EEO complaint had already been filed. The Third Circuit has

at times permitted plaintiff to bring claims based on “new acts

that occur during the pendency of the case which are fairly

within the scope of an EEOC complaint or the investigation

growing out of that complaint.” Waiters v. Parsons, 729 F.2d

233, 237 (3d Cir. 1984) (citing, inter alia, Ostapowicz v.

Johnson, 541 F.2d 394, 399 (3d Cir. 1976), cert. denied, 429 U.S.

1041 (1977)). In her supplemental brief, plaintiff’s counsel

cites Ostapowicz in a desultory fashion, but fails to make any

argument that the circumstances of plaintiff’s case are such that

he should be permitted to bring claims based on alleged new acts

of retaliation from 2001 to 2004, which occurred after the EEO

complaint was filed. In any event, as the discussion below will

show, there is no evidence supporting plaintiff’s claim of

retaliation.

Having concluded for these reasons that plaintiff can

recover only for the two claims of failure to promote that were

presented to the EEO Office, I turn now to the merits. 

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 6 of 10
7

Plaintiff claims that in 2000 he was not selected for

the GS-15 position advertised under VAN F-612 because of racial

discrimination and retaliation. Plaintiff alleges that he was

more qualified than the successful candidate, William Paige, a

black man. But it is doubtful that plaintiff will be able to

demonstrate a prima facie case of reverse discrimination. White

candidates were selected to fill 10 of the 14 positions plaintiff

applied for. A majority of all GS-15 positions at the SSA were

held by white employees. Moreover, defendant had legitimate

reasons for not promoting plaintiff. Not only the Regional

Commissioner Massanari, but also the other senior managers

involved in the selection process, thought William Paige was the

best qualified candidate for the position because of his strong

leadership skills and excellent management ability. In

comparison, plaintiff was considered unsuitable because he had

weak leadership skills, exhibited poor judgment at times, and did

not maintain smooth working relationships with his subordinates

or the union representatives.

Plaintiff has failed to demonstrate that defendant’s

proffered reasons are pretextual. Plaintiff claims that in 1996

he said to Massanari that he would be promoted already if he were

not a white male, and Massanari agreed with him. However, this

is at most a stray remark by Massanari, made four years before

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 7 of 10
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the GS-15 position at issue and unconnected with the selection

process. Plaintiff also notes that Massanari recommended him for

top secret security clearance and assigned him to meet regularly

with attorneys to resolve a class action lawsuit against the SSA

— thus, plaintiff argues, belying Massanari’s claim that he

thought plaintiff had poor judgment. But Massanari describes in

his affidavit an incident that supports his opinion of plaintiff. 

Plaintiff once agreed to participate in a “sting” operation to

lure a fugitive felon into a SSA office during business hours to

allow special agents to make an arrest. Plaintiff did not,

however, alert any of the office staff or his superiors of this

operation, and absented himself from the office at the time of

the scheduled “sting.” Massanari’s description of this incident

is not disputed by plaintiff. Nor does plaintiff allege any

racial bias on the part of the other senior managers involved in

the selection process, all of whom generally share Massanari’s

opinion of plaintiff. On such an evidentiary record, no fact

finder can reasonably conclude that defendant’s proffered reasons

are pretextual.

Plaintiff also claims that he was not selected for the

VAN F-612 position because of retaliation, but plaintiff does not

appear to have engaged in any protected activity before this

unsuccessful candidacy.

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 8 of 10
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With respect to the VAN F-622 position — the second

failure-to-promote claim presented to the EEO Office — plaintiff

alleges that it was his initiation of the EEO process on August

29, 2000 that caused the selection of Robert Murphy (a white man)

instead of plaintiff on January 23, 2001. But plaintiff has

offered no evidence at all to support a causal link. Nor is the

timing of the selection, some five months after plaintiff first

contacted the EEO counselor and two months after the filing of

the formal complaint, so “unusually suggestive” that it can by

itself support a finding of causation. I note also that, in his

email to the EEO Office requesting the addition of this

retaliation claim, plaintiff stated that another of his

applications for a GS-15 position was rejected on the same day

(January 23, 2001), but he did not claim retaliation for that

rejection. Furthermore, defendant has produced evidence that

Robert Murphy was selected based on merit; plaintiff has offered

no counter-evidence.

For all of these reasons, the motion for summary

judgment will be granted.

An Order follows.

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 9 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN McCANN : CIVIL ACTION

:

 v. :

:

Michael J. Astrue : No. 05-cv-962-JF

 

 ORDER

 AND NOW, this 21 day of August 2007, upon st

consideration of defendant’s motion for summary judgment and

plaintiff’s response thereto, IT IS ORDERED:

1. Defendant’s motion for summary judgment is GRANTED.

2. Judgment is entered IN FAVOR OF Defendant and

AGAINST Plaintiff.

3. Pursuant to Fed. R. Civ. Proc. 25(d), the current

Commissioner of Social Security, Michael J. Astrue, is

substituted for Jo Anne B. Barnhart.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

Case 2:05-cv-00962-JF Document 45 Filed 08/21/07 Page 10 of 10