Sarah Freeman v. Steven Harris ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3126
___________
SARAH FREEMAN,
Appellant
v.
STEVEN HARRIS; SCOTT JANORA;
STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 3-16-cv-02327)
District Judge: Brian R. Martinotti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 22, 2018
Before: VANASKIE, COWEN and NYGAARD, Circuit Judges
(Opinion filed: March 23, 2018)
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OPINION*
___________
PER CURIAM
Plaintiff Sarah Freeman, proceeding pro se, appeals the District Court’s dismissal
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
of her complaint with prejudice. Freeman alleges race discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons that follow, we
will affirm the District Court’s decision.
Freeman is an African-American woman who is employed by the State of New
Jersey Department of the Treasury. She took a civil service exam in 2007 and received
the second-highest score on a promotional list of eligible employees. In 2008 and 2011,
Freeman’s employer filled several positions with eligible employees from the list; she
was not promoted. 1
On January 3, 2015, Freeman filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) based on her employer’s 2008 and
2011 employment decisions. The EEOC issued Freeman a dismissal and right to sue
notice on January 26, 2016. Freeman filed a complaint in April 2016 in the District Court
against her employer, as well as Steven Harris, who she labels an “Administrator,” and
Scott Janora, a “Supervisor.” The District Court dismissed her complaint with prejudice
on defendants’ motion. It determined that Freeman could not sue the individual
defendants under Title VII and that she could not pursue her remaining claim against her
employer because she had not exhausted her administrative remedies. Freeman timely
1
The factual allegations in Freeman’s complaint consist entirely of the following
statements: “I passed the Civil Service Exam ranking #2 and everyone on the list received
the promotion except for me. He promoted someone (Judy Falchek) provisional while
there was a[n] existing list. When I met with Mr[.] Harris to ask why I’m not being
considered he said he’s not interested in promoting me.” See Supp. App’x at 14.
2
appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court’s decision to grant a motion to dismiss. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).
The District Court correctly concluded that Freeman cannot pursue claims against
Harris or Janora individually because “Congress did not intend to hold individual
employees liable under Title VII.” See Sheridan v. E.I. DuPont de Nemours & Co., 100
F.3d 1061, 1078 (3d Cir. 1996).
The District Court also correctly dismissed her Title VII claims against her
employer based on her failure to timely exhaust her administrative remedies. A Title VII
plaintiff must exhaust her administrative remedies by complying with the procedural
requirements set forth in 42 U.S.C. § 2000e-5 before filing a federal complaint. As
relevant here, a plaintiff must file a charge of discrimination with the EEOC within 180
days of the alleged unlawful employment practice, or within 300 days after the alleged
unlawful employment practice if the plaintiff initially instituted proceedings with a state
or local agency. See 42 U.S.C. § 2000e-5(e)(1). These time periods “are treated as
statutes of limitations.” See Burgh v. Borough Council of Borough of Montrose, 251
F.3d 465, 470 (3d Cir. 2001).
3
Under either deadline, 2 Freeman’s 2015 EEOC complaint was untimely filed
several years after her employer’s 2008 and 2011 promotion decisions.3 Freeman has not
argued that she is entitled to equitable tolling of the statute of limitations in this case and
we can see no basis for it. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (“[A] timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling.”); Robinson v. Dalton, 107 F.3d 1018,
1022 (3d Cir. 1997) (“[E]quitable tolling of statutes of limitation may be appropriate: (1)
where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of
action; (2) where the plaintiff in some extraordinary way has been prevented from
asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights
mistakenly in the wrong forum.”) (internal quotation mark omitted).
Finally, even if Freeman had properly exhausted her administrative remedies, she
2
Freeman filed a complaint with the New Jersey Division on Civil Rights in 2012 based
on her present allegations.
3
Freeman argues in her appellate documents that the promotional list resulting from the
2007 civil service exam was still active when she filed her federal complaint, making her
EEOC charge timely. See Appellant’s Br. at ECF p. 5, 91. Even if we could consider
these allegations, which do not appear in her complaint, Freeman does not explain the
relevance of this list to the timeliness of her filing, as she does not allege that her
employer took any adverse employment action against her after 2011. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
4
has provided no factual allegations to support her race discrimination claim. 4 At no point
in the District Court or on appeal has Freeman explained why she believes her
employer’s 2008 or 2011 decisions occurred under circumstances that give rise to an
inference of unlawful discrimination, as she must to state a prima facie case. See Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The District Court properly dismissed her
complaint with prejudice, as amendment would be futile under these circumstances. See
Fed. R. Civ. P. 15(a)(2); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
4
Freeman checked off a box on her form complaint indicating that her employer had
retaliated against her. See Supp. App’x at 13. However, she has never made any factual
allegations to support a retaliation claim. Further, she does not appear to have raised a
retaliation claim when she filed her EEOC charge and the District Court did not discuss
it. As Freeman has not actually alleged retaliation, we have not addressed such a claim.
5