Pursuant to Fifth Circuit Rule 47.5, we have determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10164

Summary Calendar

TERRY L. MILLER,

Plaintiff–Appellant

v.

JOHN E. POTTER, Postmaster General, United States Postal Service,

Defendant–Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:07-CV-1040

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Appellant Terry L. Miller, an African-American woman, was an employee

of the United States Postal Service (“USPS”). In 2005, Miller applied to the

succession lists for two positions via the Corporate Succession Planning (“CSP”)

program, which is the USPS’s executive promotion program. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2010

Charles R. Fulbruge III

Clerk

Case: 09-10164 Document: 0051998883 Page: 1 Date Filed: 01/07/2010
No. 09-10164

2

In February 2006, Miller filed an Equal Employment Opportunity (“EEO”)

complaint (the “February Complaint”) alleging that she had been discriminated

against on the basis of race, due to a separate event. In April 2006, Miller and

the USPS settled the February Complaint. 

On July 7, 2006, Miller received an email notifying her that she had not

been selected for the succession list for either of the CSP positions. Miller made

several attempts to meet with her manager, Peter Sgro, to ask why she had not

been selected. Finally, on September 6, 2006, Sgro told her that her nonselection was due to her “conflict” with management. Miller understood this to

mean that her non-selection stemmed from her filing of the February Complaint.

On October 16, 2006, Miller initiated an EEO complaint, alleging that her

non-selection was due to retaliation for the February Complaint. After the

USPS dismissed Miller’s EEO complaint for failure to make timely contact with

a counselor, Miller filed a complaint in federal district court. The district court

granted the USPS’s motion for summary judgment, and Miller appealed. 

We have jurisdiction over the district court’s final judgment under 28

U.S.C. § 1291. We review the district court’s grant of summary judgment de

novo. Henrickson v. Potter, 327 F.3d 444, 446 (5th Cir. 2003). 

Title VII prohibits an employer from making an adverse employment

decision that is motivated in part by discrimination on the basis of sex, race,

color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.

Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). Title VII also prohibits

retaliation by an employer against an employee who has filed a charge of

discrimination. 42 U.S.C. § 2000e-3(a); Bryant v. Compass Group USA Inc., 413

F.3d 471, 475 (5th Cir. 2005). 

Before seeking judicial relief for a Title VII violation, employees “must

exhaust their administrative remedies by filing a charge of discrimination with

the EEO division of their agency.” Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.

Case: 09-10164 Document: 0051998883 Page: 2 Date Filed: 01/07/2010
No. 09-10164

 There is some dispute in this Circuit regarding whether exhaustion implicates subject 1

matter jurisdiction, or whether it is a prerequisite subject to equitable doctrines. Compare

Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) (holding that a plaintiff’s failure to

exhaust his administrative remedies “wholly deprives the district court of jurisdiction over the

case”) with Young v. City of Houston, Tex., 906 F.2d 177, 180 (5th Cir. 1990) (“A failure of the

EEOC prerequisite does not rob a court of jurisdiction.”). Because Miller’s equitable tolling

argument fails, we need not resolve this disagreement.

3

2006). As part of the charge-filing process, an employee “must initiate contact

with a Counselor within 45 days of the date of the matter alleged to be

discriminatory or, in the case of personnel action, within 45 days of the effective

date of the action.” 29 C.F.R. § 1614.105(a)(1). 

It is undisputed that Miller learned of the allegedly discriminatory act by

June 7, 2006. However, Miller did not contact an EEO counselor until October

16, 2006, more than four months later. Miller argues that the limitations period

should begin on September 6, 2009 because she did not become suspicious of the

USPS’s motives until she met with Sgro. 

In this Circuit, it is clearly established that “the limitations period starts

running when the plaintiff knows of the discriminatory act, not when the

plaintiff perceives a discriminatory motive behind the act.” Christopher v. Mobil

Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992) (emphasis in original) (citing

Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir.1986)); see also Pacheco

v. Rice, 966 F.2d 904, 906 (5th Cir. 1992) (“To allow plaintiffs to raise

employment discrimination claims whenever they begin to suspect that their

employers had illicit motives would effectively eviscerate the time limits

prescribed for filing such complaints.”). Thus, it is immaterial when Miller

became suspicious of the reasons behind her non-selection. Because more than

forty-five days passed between the allegedly discriminatory act and Miller’s

contact with a counselor, Miller’s claim falls outside the limitations period.

Miller also argues that she is entitled to equitable tolling of the limitations

period. In Title VII cases, we “have identified three potential bases for 1

Case: 09-10164 Document: 0051998883 Page: 3 Date Filed: 01/07/2010
No. 09-10164

4

equitable tolling: (1) the pendency of a suit between the same parties in the

wrong forum; (2) the plaintiff’s lack of awareness of the facts supporting his

claim because of the defendant’s intentional concealment of them; and (3) the

EEOC’s misleading the plaintiff about his rights.” Manning v. Chevron Chem.

Co., 332 F.3d 874, 880 (5th Cir. 2003) (citing Blumberg v. HCA Mgmt. Co., 848

F.2d 642, 644 (5th Cir. 1988)). Miller argues that the USPS intentionally

concealed the facts supporting her claim because Sgro avoided discussing her

non-selection until after the limitations period had run. However, “[w]e

equitably toll a limitations period only when the employer’s affirmative acts

mislead the employee and induce him not to act within the limitations period.”

Id. (emphasis in original). There is no indication that such an affirmative act

occurred here. Cf. Tucker v. UPS, 657 F.2d 724, 725–26 (5th Cir. 1981) (applying

equitable tolling when the company told seasonal employees they would not be

recalled, and then recalled almost exclusively white and not black seasonal

workers); Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 930–31 (5th Cir.

1975) (applying equitable tolling when the plaintiff was falsely informed that her

job had been terminated because of inadequate funds).

We AFFIRM the district court’s grant of summary judgment. 

Case: 09-10164 Document: 0051998883 Page: 4 Date Filed: 01/07/2010