2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-18-2003 

# J ohnson v . S ecr et a r y V

et e r a ns P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1423

F o l lo w thi s a nd a dd it ion al w ork s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2003

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion
" J o hn s on v . S e cr e t a r y V

e t e r a n s " (2003). 2003 D e cisio n s . P ape r 46. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2003/46NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT
No. 03-1423
LEWI S J OHNSON,

Appellant v. HER SHE L W . GOB ER, Acting Secretary of Veterans Affairs; RODN EY KISCAD DEN; ALICE FIDLER; PEG W INTERS;

IRVIN ERI CKSON; RAYMER K ENT; AM ERICAN FEDER ATION OF GO VERN MEN T EM PLOY EES; Local 1966

On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. Civi l No. 00-cv- 01873) District Judge: H on. John E . Jones, III Argued December 5, 2003 Bef or e: SLOVI TER, ALI TO Circuit Judges and OB ER DO RF ER , Distri ct Judge * (Fil ed: December 18, 2003) Andrew J. Ostrowski ( Argued) Bailey , Str etton & Ostrowski Ha rrisburg , PA l7ll0 Attorneyfor Appella nt

* Hon. Louis F. Oberdorfer, United State s District Court for the Dis tri ct of Columbia, s itting by designation.2

Thomas A. Marino United States Attorney Kate L . Mersh imer (A rgued) Assist ant Unite d States Attorney Office of United St ates Att orney M iddle D istrict of P enns ylvania Harrisburg, PA l7l08 Attorney s for Appell ees
OPINI ON OF THE COURT
SL OV ITE R, Circu it Judge
. Lewis Johnson, a former employ ee of the Department of Veterans Affairs ( “VA”) at it s Lebanon Medical Center (“Lebanon”), file d suit against the Secre taryof the Veteran’s Administr ation, employe es of Lebanon and the e mployee s’ union, complaini ng abou t his no n-sele ction f or a H ouse keep ing A id po sition in 1 998 , the cre ation o f a ho stile work environm ent, the VA’s contest of his clai m for W orker’s Compensation benefits, and the VA’s terminati on of his employment. He appeal s from the Dis tri ct Court’ s order granti ng summary j udgment for the defendants . We have juri sdiction pursuant to 28 U.S .C. § 129 1. O ur re view of th e gr ant o f su mm ary jud gm ent is plen ary. Curleyv. Klem , 298 F.3d 271, 276 -77 (3d C ir. 2002). I. Johnson, ha d been employ ed as a Housekeepi ng Aid and appli ed for another Housekeeping Aid posi tion i n the “ext ended care” s ecti on of the hospi tal. Under the3

applic able uni on agreement, positions desi gnated as e ntry -levelbecause of their hi gh turn- over rate or the s pecifi c requirements of the job are placed on the “Open and Co ntinuo us” list an d filled throu gh a c om petitive s election proc ess fo r wh ich sen iority was not the determining f actor f or sel ecti on. In the s pring of 1998, the VA changed its employment select ion proces s to a new approach i n which the uni ts within the VA were viewed as “teams” and the empl oyment decisi ons were to be made bya product l ine manager who would seek empl oyees to fost er a team environment. The Housekeepi ng Aid vacancy for which Johnson applied was posted on t

he “Open and Continuous” l ist in June 1998. Johnson (who is Afri canAmerican), Ronald Hull, and other VA employ ees appli ed for the position. Only Johnson and Hull were then employ ed as Housekeeping Aids ; the ot her appli cants were from the Foo d Se rvice d epartm ent. The applications were referred to Alic e Fidler , the Nurse Manager and team le ader of th e ex tend ed c are u nit, w ho w as d esig nate d as the d ecis ion ma ker for this v aca ncy. Fidler in turn sought the assi stance of Barbara Kohr, a

Nurse Manager in the Hospice Un it. Fidler an d K ohr f ocus ed the ir decisio n on Hu ll and Jo hnso n bec ause of the ir previous housekeeping e xperienc e. Fidl er did not consider the appl icant s’ seni ority, and, inst ead, focus ed on selec ting t he appli cant she be lieve d was most quali fied for t he position. Fidler testifie d that s he selec ted Hull be cause of hi s experi ence, i niti ative , and4

underst anding of patients ’ needs. Fidler thought Hullpossesse d a bett er abil ity to get along with di fficul t pati ents as well as s taff members. Because the “pr oduct li ne” approac h wa s to build team s on the V A staff, F idler thought that H ull was no t only more qualif ied but t hat al so he would fit

in better with t

he team than J ohnson. Both Kohr and Fidler testified in thei r depositions that race play ed no role in the decisionmaking process. Neverthel ess, Johnson beli eved that Fidler did not s elect

him for the position because of his ra ce. In O ctobe r 199 9, a fe llow Ho usek eepin g A id, Irv E rickso n, ma de a ra cially dispar aging remark to Johnson. Erickson admi tted maki ng the remark, but c ontended he was kidding wit

h Johnson. A few day s after the inc ident, Erickson heard that Johnson was going to fi le an Equal Employ ment Opportunit y ( “EEO”) department compl aint again st him . In attem pting to talk w ith Joh nson abou t this com plaint, E rickso n alleg edly bumpe d and push ed J ohns on. John son s ubmi tt ed a “ Report of Cont act ” t o an EEO
coun selor o n O ctobe r 18, 1 999 , and o n O ctobe r 20, E rickso n’s su perv isors inf orm ed him to re frai n fr om futu re co ntac t wi th Jo hns on o r he wo uld be s ubj ect to disc iplin ary ac tion s. Johnson subseque ntly

file d a complaint

with the EEO clai ming that Erickson’ s conduct
con stitute d a h ostile wo rk e nvi ron me nt. On M ay 9, 2000, the VA sent a letter to J ohnson informing him that his cl aim was dismis sed. The VA advised Johns on that he had a right to appealthis decisi on to the EEOC within 30 day s, or file a civi l action in a Dis tri ct Court wit hin 90 day s. Johns on5

received the V A’s de cision on M ay 10, 2000 , bu t did not file an E EO C app eal. Rather, Johnson fil ed a Titl e VII complai nt on October 24, 2000, over two months after t he deadli ne. Shortl y after the Oct ober 1999 inci dent with Erickson, Johnson went on si ck leave and sought Worker’ s Compensation Benefi ts. While there was some confusion as to the fili ng of the paperwork because of the guidance Johns on recei ved from the VA, the Departmen t of

Labor ult imatel y d eni ed J ohns on’ s cl ai m. J ohns on co mpla ine d to an EEO
coun selor o n Fe brua ry 5, 200 0 that th e V A f ailed to follow the ap prop riate gu ideline s in processi ng his paper

work for the Worker’ s Compensation cl aim. On April 13, 2000, Joh nso n file d a f orm al co mp laint wit h th e E EO
. On M ay 10, 20 00, the VA dism issed Jo hnso n’s cla im be caus e the a utho rity to grant Workers Compensation benefi ts was vested solel y with the dis creti on of the Department of Labor . Johnson was notifie d by l ette r that he had a ri ght to appe al to t he EEOC within 30 day s, or that he could fi le a ci vil ac tion wit h 90 days . Johnson received this letter on or about

May 11, 2000, but did not file an EEOC appeal. As noted above, he fil ed the l awsuit on October 24, 2000, more than fi ve months aft er he rec eived the final decisi on. Johnson did not

return to work afte r he lef t for s ick le ave subsequent to the Erickson i ncident , and on November 25, 1999, his si ck leave r an out. On August 4, 2000, Johnson was advis ed by l ette r that he could re ceive a maxi mum of one year l eave without6

pay, and that

year would conclude on November 24, 2000. Johnson’s phy sici an
re sp ond ed by le tterda te d Au gus t 1 6, 200 0 tha t J ohn so n c oul d no t retur n t o wo rk . O n Oc tober 2 4, 200 0, the V A p ropo sed ter mina ting Jo hnso n fro m h is Ho usek eepin g A id position due to hi s medical problems, informed Johns on of this decisi on, and i nstruc ted hi m th at h e h ad fo ur tee n d ays to re pl y. On N ovem ber 13, 20 00, a Perso nnel M anagem ent Spec ialist contacted John son’s attorney, who verifie d that J ohnson had recei ved the l ette r. On November 14, 2000, Johnso n requested permission to continue h is leave witho ut pay pending his Wo rker’s Compensation cl aim, but on November 17, 2000, t he VA advised him that he was being
rem ove d fr om em plo ymen t du e to h is m edic al co ndi tion and his in abili ty to w ork
. Johnson rece ived the letter on December 2, 2000. This let ter advi sed Johnson t

hat he could appealthis decisi on to the Meri t Sy stem Prot ecti on Board or under t he negoti ated grieva nce p roced ure. Jo hnso n too k neith er actio n, nor did h e see a n EE O c oun selor to alle ge discrimination, retal iati on, or i mproper terminati on. II. A. Joh nson ’s No n-Se lection Cla im The burden shif

ting ana ly sis appl icabl e to a di scri minati on clai m as set forth in McD onnell Dougla s Corp. v. Green , 411 U.S. 792, 802 (1973), provides that t he clai mant bears the init

ial burden of establis hing a pri ma facie cas e of discrimination by showing that pl ainti ff is a member of a protect ed class , was quali fied for and rejec ted for t he7

pos ition , and that n on- me mb ers o f the pro tecte d cla ss w ere tr eate d m ore fav ora bly. See Ezold v. Wolf, Block, Schorr and Soli s-Cohen , 983 F.2d 509, 522 (3d Cir. 199 3). On ce a c laima nt estab lishes a prima facie case, th e bur den s hifts to th e em ployer to dem ons trate a leg itima te no ndi scrim inato ry reas on f or th e ad ver se e mp loym ent d ecis ion
. Texas Dep’t of Cmty . Affair s v. Burdi ne , 450 U.S. 248, 254-56 (1981). Once the employe r proffer s a legi timat e nondiscriminat ory reason for its decisi on, the burden then shift s to the plai ntiff

to demonstr ate that the proffered reason was a mere pre text f or unl aw ful d iscrim inati on. Reeves v. Sander son Plumbing Prods . Inc. , 530 U.S. 133, 143 (2000). Here, the Distri ct Court he ld that Johnson satisfi ed his bur den of demonstrating a prima facie case, th at the V A a rticulated legitima te non discrim inatory rea sons for its decisi on, and that Johnson f aile d to demonstr ate that the se reas ons were a mere pre text for dis crimination. On appeal, Johns on appears t o chall enge the l egiti macy of the VA’s arti culat ed reason for

the adver se employ ment decis ion. He argue s that he had more seni ority than Hull and that the VA fail ed to award the Housekeeping Aid posi tion to the appl icant who had the most s eniori ty . We have previous ly noted the limi ted inquiry that s hould be performed i n evaluating the reasons put forth bythe defendant . We stat ed, “‘The questi on is not

whether the employe r made the bes t, or even a sound, bus iness de cisi on; [the ul timat e inquir

y] is whether

the rea l reas on is [di scri minati on].’ ” Simpson v. Kay Jewelers , Div. of

Sterl ing, I nc. , 142 F.3d 639, 647 (3d Cir. 1998) (quoting Ke ller v. O rix8

Credit All iance , 130 F .3d 11 01, 11 09 (3 d C ir. 1997 )); see also Healy v. New Y ork Life Ins. Co. , 860 F.2d 1209, 1216 (3d Cir. 1988) (“our inquiry . . . i s not an i ndependent
assessme nt of how we m ight evaluate [a n] emp loyee”). Here, the VA presented suffi cient evidence t o sati sfy its burden at t his step of the inquiry. Despite J ohnson’s ar gument to the contrary , the VA appropriatel y deci ded that the Housekeeping A id position would not be awarded based entirely on seniori ty because the Master Agree ment with the union provi ded that a vacant Housekeepi ng Aid position
wou ld be placed on the “O pen an d Co ntinuous” list. Bec ause of th is designation, there was nothing t o preclude award of thi s position aft er consi dering a variety of criteria, not
on ly se ni or ity. The decisio n on John son’s applic ation w as m ade in acco rd w ith the a ppro priate procedures as provi ded in the Master Agreement. The two decisi on makers, Fi dler and Ko hr, re view ed th e ap plica nts to dete rmin e w hich can did ate w as b est f or th e po sition
. The se lection of H ull was ba sed on a num ber of criteria including Hull’s seve nteen years of experi ence in house keeping, Hull’s de meanor with patients , and hi s general
comm itment to prov iding a clean w orking en vironme nt. Thus, the D istrict Court’s
conc lusion that the VA satisfied its burd en of dem onstra ting a le gitima te nondiscriminatoryreason for Johnson’s non-selection was not erroneous. Joh nso n ar gue s tha t the r eas ons put for th w ere a me re p retex t for disc rimi natio n. We have stated t

hat9 To survive s ummary judgment when the employ er has articulate d a leg itimate n ond iscrimin atory reaso n fo r its acti on, the plaint

iff must poi nt to s ome evidence, direct or circum stantial, fro m w hich a factf inder c ould reaso nably either (1 ) disbe lieve th e em ployer’s a rticulated legitima te reasons; or (2) be lieve that an invidi ous discriminat ory reason was mo re likely

than not a motivating or determinati ve cause of the employ er’s a ction. Simpson , 142 F.3d at

644 (quotations omitted) ( citi ng Fue ntes v . Persk ie , 32 F.3d 759, 764 (3d Cir. 1994 )). In support

of Johnson’s alle gation t hat Fidl er consi dered rac e in rea ching her decisi on, Johnson c ontends t hat a number of y ears earlier Fidler made a dispar aging rac ial remark duri ng another e mployment decisi on involvi ng a black appl icant . Johnson a llege s that RandalHouck, a former subordinate of Fidler , heard Fi dler s ay t hat she di d not want any mo re of “ them ” on th e floo r. Ap p. at 31 7. H ouck appa rently interp reted th is stat ement to mean that Fidl er would not hi re the applicant because he was AfricanAmerican, but

Houck could not poi nt to t he specif ic ti me period when thi s statement was made, but suggested the statement was made betw een three or four years prior to Houck’s deposition w hich w ould pu t the statement at on e and o ne-half to three years be fore Joh nso n’s n on- sele ction . In h er d epo sition , Fid ler d enie d ev er m akin g th is rem ark
. Johnson admitted that he never saw or heard Fi dler ac t in a r acial ly discriminat ory manner tow ard s him or o ther em plo yees. As Justi ce O’Connor noted, a clai mant fail s to sat isfyhis or he r burden t o show pretext by pr esenti ng evidence of an i solat ed inappropriate remark made by a decisi on10

ma ker , unr elate d to the d ecis ion ma kin g pr oce ss. Price Water house v. Hopkins , 490 U. S. 228, 277 (1989) (O’Connor, J. , concurr ing). Furthermore, this court has not ed that “[s]t ray remarks bynon-decis ionmakers or by deci sionmakers related to the decisi on proc ess are rarely give n gre at we ight, pa rticularly if the y were mad e tem pora lly remote from the dat e of decis ion.” Ezo ld , 983 F.2d at 545. In li ght of the isol ation of this alle ged remark and i ts fai lure t o have any
conn ection to Joh nson ’s non -selectio n, w e agre e that th is evide nce is in suff icient to establ ish that VA’s proffer ed reason was a mere pretext for dis crimination. We have no basis to revers e the Dist rict Court’s gr ant of summaryjudgment i n favor of VA on Joh nso n’ s no n- se le ct io n cl ai m, a nd ther efo re wil l a ffi rm. B. Joh nson ’s H ostile W ork En viron me nt an d W ork ers C om pen sation Cla im This D istrict Court properly conclud ed that John son w aived his ho stile work enviro nm ent cla im as w ell as his W orke rs Co mp ensa tion cla im by fa iling to f ile a time ly appe al. W e hav e ma de cle ar that a plaintiff in a T itle VII a ction m ust “ex haus t all requir ed administ

rati ve remedies before bri nging a cl aim for j udicia l rel ief. ” Robinson v. Dalton ,107 F .3d 10 18, 10 20 (3 d C ir. 1997 ). Thu s, an em ployee b ringing suit un der T itle VII must adher e to the administ rati ve requirements. Specifi call y, 42 U.S.C. § 2000e16(c) (200 3) provide s that a Title VII claim ant must initiate an ac tion in federal co urt within 90 day s of the r eceipt of the notice of a fi nal agencyacti on or afte r 180 day s from the d ate o f filin g th e or igin al ca use of a ction wh en n o ag enc y dec ision has bee n re ach ed.11

Johnson fai led to do s o. The EEO issued its decisi on on Johnson’s Worker ’s Compensati on clai m on M ay 10, 2000. J ohnson did not file an EEOC appeal, and fil ed his Title VII l awsuit on Oc tob er 2 4, 20 00, m ore than five mo nth s af ter h e rec eive d th e fin al ag enc y dec ision
. The V A sen t Johnson a letter on M ay 9, 2000 info rming him that his hostile wo rk enviro nm ent cla im ha d bee n dism issed, an d adv ised h im tha t he ha d a righ t to app eal this decisi on to the EEOC within 30 day s, or file a civi l action in t

he dist rict court wit

hin 90 da y s. Jo hns on rec ei ve d the VA’s de ci si on o n May10, 200 0, but di d no t f il e a n EE OC appeal and r ather f

iled t he Titl e VII complai nt on October 24, 2000, over two months af ter th e d ea dl in e p as se d. T he re fo re , th es e c lai m s w er e u nt im ely. C. Joh nson ’s Co nstru ctive D ischa rge C laim The Distri ct Court c oncluded that Johnson wai ved his di scharge r elat ed clai ms by fail ing to exhaust or e ven pursue hi s adminis trative remedi es. An employ ee must seek
re li ef b y con ta ct in g t he EE O withi n 45 day s of th e al le ged di sc ri min at or y eve nt , 2 9 C. F. R. § 1614.105 (a) (1), and fil ing a formalEEO com plaint within 15 day s of the r eceipt of the notice of the right to f ile such a com plaint, 2 9 C .F.R. § 161 4.106 (b). H ere, Joh nson did not contact the EEO at any point, and therefore never fil ed a formal complaint. Thus, John son f ailed to exha ust his a dm inistrative reme dies fo r his disc harg e claim s, and his Titl e VII clai m based on this ground cannot be maintai ned. D. Absence o f Any B asis to Excuse U ntimeliness12

Despite fa ili ng to exhaust his admini strative remedies, Johnson argues that t he Distri ct Court s hould have excus ed the untimeli ness of hi s clai ms. He contends first t hat the ti me require ments shoul d be waived because hi s other clai ms would have grown out of his non- select

ion claim. He argues second that the Dist rict Court shoul d have appli ed equ itabl e co nsid erati ons and tolle d th e sta tuto ry requ irem ents in re latio n to his c laim s. We agree with the D istrict Co urt that n either a rgum ent ha s me rit. First, Joh nson ’s hos tile work environment c laim and Worker’ s Compensation cl aim invol ve distinct f actual circumst ances unrel ated t o his non-s election claim. Second, it i s also unl ikely that Joh nso n’ s di sc har ge c la im wo ul d gr ow ou t o f J ohn son ’s non -s el ect io n cl ai m. In Rush v. Scott

Special ity

Gases Inc. , 1 13 F .3 d 47 6, 484 -8 5 ( 3d C ir . 1 997 ), we noted that a fai lure t o promote cl aim and a haras sment claim invol ved distinct and diff eren t types o f co ndu ct. Id. The sa me co nclusion is app licable here. John son’s dischar ge clai m occurred nearly two year s after Johnson’s application for the Ho usek eepin g A id po sition, an d w ould not, in a ny wa y, grow out o f a co nside ration o f his non-sel ecti on clai m. The District Court properl y concluded that Johnson’s di scharge cla im w as un tim ely. Nor is equi table toll ing appropriate . We have stated: [T]h ere are three p rincipa l, thoug h no t exclu sive, situa tions in which equit able t olli ng may be appr opriate: (1) where the defendant has acti velymisled t he plai ntiff

respecting the pl ai nt if f’ s c aus e of

act io n; (2 ) whe re th e pl ai nt if f i n so me extraordinaryway has been prevented fr om asserting his or her ri ghts; or (3) where the plainti ff has ti mely a sserted his or13 her righ ts m istak enly in the w ron g fo rum . Oshiver v. Levin, Fi shbein, Sedran & Berman , 38 F .3d 1 380 , 139 1-9 2 (3 d C ir. 19 94)
. We have recognized t

hat “[r ]unning t

hroughout t

he equit able [t olli ng] cases is the obligat ion of the plaint

iff t o exerci se due dil igence t o preserve his or her cla im.” Robinson , 107 F.3d at

1023. Here, Johnson argues that equi table toll ing was appropriate because he r equested that hi s complaint s be consol idate d, and that even though the ALJ refused hi s request , he pro cee ded a s i f th e comp la int s wer e con sol idate d. Th e Dis tric t Cou rt not ed that

the ALJ clearly arti culat ed the deni al of the consoli dation request, and that Johnson provi ded no evidence t

hat he had mis takenl y bel ieved that the complaint s had in fac t been consoli dated. Additional ly , the records from the admini strative he arings on the nonselection cl aim show that Johnson’s other claims were not under consideration. Because the rec ord is de void of anyreasonabl e basis for Johnson’ s beli ef that his cl aims had been
con solid ated , we con clud e he did not exe rcise due dilig enc e in p rese rvin g hi s cla ims
. Thus, the Distri ct Court di d not err in concl uding that

equitable tol ling was not appropri ate. III. Johnso n not on ly failed to satisfy his burden of de mon strating that the VA ’s prof fered reaso n fo r his ad verse emp loymen t decisio n w as pre text, bu t he also failed to exhaust hi s adminis trative remedi es as re quired. We will therefore affi rm the Dist rict14

Court’s decision granting summary judgment for the defendants.

TO THE C LERK: Please fi le the foregoing opi nion.
/s/ Dolores K . Sloviter Circuit Judge