* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-31298

Summary Calendar

BARBARA DESDUNES,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF THE ARMY,

Togo G. West, Secretary of the Army,

Defendant-Appellee.

____________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 96-3625-C

_____________________________________

September 25, 1998

Before JOLLY, SMITH, and STEWART, Circuit Judges.

PER CURIAM: *

Barbara Desdunes, plaint iff in an employment discrimination lawsuit brought pursuant to 42

U.S.C. § 2 0 00e (1994) (“Title VII”), appeals a grant of summary judgment in favor of the

Department of the Army (“the Department”) under Federal Rule of Civil Procedure 56. The District

Court for the Eastern District of Louisiana found that Desdunes had failed to exhaust her

administrative remedies with respect to one of the elements of her complaint; even assuming that the

other claims were appropriately before the court, the judge below held that Desdunes had failed to1 The District Court also held that Desdunes failed to state a claim under the Civil Service

Reform Act, 5 U.S.C. §§ 7501 et seq. (1994), and consequently dismissed her Fifth Amendment

claims pursuant to Fed. R. Civ. P. 12(b)(6).

2 put forth any set of facts to establish a legal basis for her claims of race discrimination, retaliation, and

hostile work environment. 1

Des d unes argues that the district court should not have granted summary judgment on her

Title VII claim, contending that the Equal Employment Opportunity Commission (“EEOC”)

erroneously dismissed her appeal because equitable principles entitled her to a tolling of the 45-day

time limit after the alleged violation within which she was required to consult an EEOC counselor

prior to filing a complaint. S ee 29 C.F.R. § 1614.105(a)(1) (1996). Desdunes also urges this court,

in the most general of terms, that her failure to consult the counselor within the timeframe prescribed

by statute is not fatal to her claims of Title VII violations since the alleged actions by her supervisor

were part of a continuing spate of harassing activities based on Desdunes’ race.

We exercise de novo review of the grant of a summary judgment. S ee Guillory v. Domtar

Indus. Inc.

, 95 F.3d 1320, 1326 (5th Cir. 1996). Summary judgment shall be entered in favor of the

moving party if the record, taken as a whole, “show[s] that there is no genu ine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

Desdunes argues that the EEOC incorrectly decided that her charge was filed too late. We

have previously held, however, that “[i]f an EEOC charge is untimely filed, a suit based upon the

untimely charge should be dismissed.” Barrow v. New Orleans S.S. Ass’n

, 932 F.2d 473, 476-77

(5th Cir. 1991); see also Brown v. General Servs. Admin. , 425 U.S. 820, 835 (1976) (establishing

that government employees can sue t he go vernment under Title VII only where they have first

exhausted their administrative remedies); National Ass’n of Gov’t Employees v. City Pub. Serv.

, 40

F.3d 698, 711 (5th Cir. 1994) (“[C]ourts have no jurisdiction to consider Title VII claims as to which

the aggrieved party has not exhausted administrative remedies.”).2 Desdunes does not frame the issue using these terms, but we do indeed review an agency’s

interpretation of its own regulations under an arbitrary and capricious standard. See Wilson v.

Secretary, Dep’t of Veterans Affairs , 65 F.3d 402, 404 (5th Cir. 1995); see also Motor Vehicles

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 42 (1983) (defining the arbitrary and

capricious standard as narrow and requiring a court to refrain from substituting its own judgment

for that of the agency).

3 As support for her claim that the EEOC acted arbitrarily and capriciously, 2 Desdunes asserts,

in conclusory terms, that the question whether her complaint to the EEOC was t imely should have

been decided by a jury. As her inability to cite a single case holding t hat a st at ut o ry limitation on

fili ng an action is anything other than a question of law proves, when the date of the filing of a

complaint with the EEOC is undisputed (as is the case here), whether the suit may proceed in the face

of that fact is purely a question of law. Desdunes’ inapposite citation of a case from the Eighth

Circuit, Oldham v. West

, 47 F.3d 985 (8th Cir. 1995), stands only for the proposition that the district

court should consider the administrative record, rather than simply rely on the EEOC’s findings, when

making a summary judgment decision. See id. at 989. Desdunes provides no evidence whatsoever

that the District Court in this case did anything other than review the administrative record and reach

its own conclusions.

Although Desdunes does not bother to contend in the alternative that EE OC regulations

ent it le her t o a tolling of the forty-five-day time limit on consulting an EEOC counselor, the

Department makes the argument for her and correctly refutes it. EEOC regulations provide that the

“t ime limit s in t his part are subject to waiver, estoppel and equitable tolling.” 29 C.F.R. §

1614.604(c) (1996). Our previous decisions demonstrate, however, that a Title VII plaintiff bears

the burden of providing the justification for application of equitable tolling. S ee Nowlin v. Resolution

Trust Corp. , 33 F.3d 498, 503 (5th Cir. 1994).

Desdunes, however, has not offered any explanation as to why she failed to file her complaint

with the EEOC in the applicab le t ime period. She does not suggest that the EEOC misled her

regarding the filing deadline, nor does she claim that the Department failed to provide he r wi th

adequate notice of the method by which to file a complaint. See Baldwin County Welcome Center

v. Brown

, 466 U.S. 147, 151 (1984) (enumerating types of sit uat io ns in which a plaintiff could3 Again, Desdunes misconstrues a decision, in this instance a holding by this court. She cites

Long v. Eastfield College , 88 F.3d 300 (5th Cir. 1996), as support for her claim that the

Department retaliated against her in response to the protected activity of filing an EEOC

complaint. The passage that Desdunes cites from Long , however, simply articulates the standard

for finding that an employer has retaliated. See 88 F.3d at 304. Indeed, applying the Long test to Desdunes’s case only serves to demonstrate that Desdunes has no colorable claim that should

have survived summary judgment.

In Long , we held that a “causal link” must exist “between the protected activity and the

adverse employment action.” Id. The plaintiffs in Long presented sufficient questions of fact

regarding the defendant’s motivations in terminating them to survive summary judgment, see id.

at 306-08; Desdunes on the other hand, while demonstrating that she engaged in the protected

activity of filing an EEOC grievance, claims that the adverse employment action directed against

her in retaliation was that her career aspirations were hampered by the Department.

Taking Desdunes’s assertions in this regard as true, as we must, these facts do not

constitute the “causal link” we referenced in Long because even if the Department’s reasons for

failing to give her the top evaluation score were proscribable, as Desdunes claims, this decision

4 demonstrate a right to equitable tolling of a limitations period). Consequently, this court is left to

conclude that Desdunes failed to exercise due diligence with respect to the filing of the complaint.

In cases where the plaint iff’s inaction is directly traceable to her own failure to preserve her legal

rights, courts “have generally been much less forgiving in receiving late filings.” I rwin v. Department

of Veterans Affairs

, 498 U.S. 89, 96 (1990); Baldwin County

, 466 U.S. at 151 (“One who fails to

act diligently cannot invoke e quit able principles to excuse that lack of diligence.”); W ilson v.

Secretary, Dep’t of Veterans Affairs , 65 F.3d 402, 404-05 (5th Cir. 1995).

Even if Desdunes’s equitable tolling argument is read as a “continuing violation” argument,

that is, that the statute of limitations did not apply to her because her complaint was one of continuing

violations, her reasoning is again not sound. The actions of which she complained involved discrete,

isolated incidents, not the continuing, frequent, or permanent types of actions that we have previously

hel d wo uld warrant treatment as continuing violations of a plaintiff’s rights under Title VII. S ee

Berry v. Board of Supervisors

, 715 F.2d 971 (5th Cir. 1983); see also Abrams v. Bailey College of

Medicine

, 805 F.2d 528, 532 (5th Cir. 1986) (requiring the manifestation of unlawful discrimination

“over time” in order to qualify as a “continuing violation”).

Finally, Desdunes failed to offer any evidence to show that, even if this complaint had been

accepted by the EEOC, she could have proven discrimination, retaliation, or the existence of a hostile

wo rk environment. 3 Under the federal sector portion of Title VII, 42 U.S.C. § 2000e-could never amount to an adverse employment action. She was not discharged, denied leave,

demoted, or reduced in pay. Cf. Dollis v. Rubin , 77 F.3d 777, 782 (5th Cir. 1995) (defining

adverse actions); DeAngelis v. El Paso Mun. Police Officers Ass’n , 51 F.3d 591, 597 (5th Cir.),

cert. denied , 516 U.S. 974 (1995) (same). In short, Desdunes does not claim, let alone prove,

that an ultimate employment decision resulted from the Department’s attempt to retaliate against

her.

5 16, a complainant must show that discrimination occurred with respect to a “personnel action.” I d.

The matters of which Desdunes complained, even the ones t o which the EEOC refused to apply

equitable tolling principles, did not comprise an adverse “personnel action.”

We addressed the subject of covered personnel actions in Dollis v. Rubin , 77 F.3d 777 (5th

Cir. 1995). Desdunes’s complaints closely track the plaintiff’s complaints in D o llis

, where we found

no adverse personnel action to exist. In D o llis

, the plaint iff complained that she was retaliated against

because of her involvement in the EEO process; that she was denied a desk audit which restricted her

promotional opportunities; that she was denied attendance at a conference; that she was given false

information with respect to self-nomination for an award; that her supervisor insisted on approving

all of her handwritten work; and that each of these incidents resulted from discrimination based on

her race and/or her sex. See Dollis , 77 F.3d at 779-80. Desdunes, similarly, contends that she did

not receive the highest level of performance review; that she was retal iated against due to her

involvement in the EEO process; that she was forced to take a course in which she performed badly;

that she was slandered by her supervisor; and that each of these incidents resulted from discrimination

based on her race. It is clearly established, however, that Title VII does not exist “to address every

decision made by employers that arguably might have some tangential effect upon [] u ltimate

[employment] decisions.” I d. at 781-82. The instances cited by Desdunes—even assuming that they

resulted from discriminatory animus—do not rise to the level of ultimate, adve rse employment

decisions required by Title VII, see id. at 782, because no employment action was ever taken against

her.

We hold that the Department was entitled to judgment as a matter of law on the question of

the filing’s t imeliness and AFFIRM the district court’s entry of summary judgment on this point. We

also find that the district court appropriately granted summary judgment in favor of the Department6

on each of Desdunes’ other claims and therefore AFFIRM the judgment of the District Court in all

respects.