Webster v. Johnson , 126 F. App'x 583 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1022
MARC W. WEBSTER,
Plaintiff - Appellant,
versus
HANSFORD T. JOHNSON, Acting Secretary of the
Navy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-03-327-A)
Argued: December 3, 2004 Decided: February 18, 2005
Before WIDENER and WILKINSON, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Aaron David Frishberg, New York, New York, for Appellant.
Dennis Edward Szybala, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Sara S. Brown, Law
Student, Alexandria, Virginia; Scott Garner, OFFICE OF COUNSEL FOR
THE MILITARY SEALIFT COMMAND, Virginia Beach, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Marc Webster was a Second Officer aboard the USNS PECOS, an
oiler operated by civilian mariners. The oiler supports U.S. Navy
ships. Webster is African American, and he served under a white
First Officer, who in turn served under a white Captain. Webster
unsuccessfully applied for promotion to First Officer in 1999. He
alleges racial discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000). More
specifically, he alleges that his failure to be promoted was the
product of a racially hostile environment which in turn produced
performance evaluations motivated by racial animus. Second, he
alleges that the Promotion Board itself was racially biased. For
the reasons that follow, we affirm the district court’s rejection
of these claims.
I.
Included in the Navy Department's Military Sealift Command
(“MSC”), whose vessels support combatant Navy ships worldwide, are
some 35 civilian auxiliary ships. The ship relevant to this case,
the PECOS, was an oiler in the MSC. In ships like the PECOS, the
“deck department” handles both cargo operations and navigation.
Under the First Officer of that department are two Second
Officers -- one for cargo and one for navigation -- and two third
mates. Appellant Marc Webster, an African American, has served in
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the MSC since starting as a seaman in 1980. He served aboard the
PECOS as Second Officer in charge of cargo in 1998 and 1999.
According to Webster, his service on the PECOS was compromised
by the hostility directed at him by First Officer Keller, a
Caucasian. Webster claims that he had “never been treated with
such disrespect.” Webster lists a number of events to demonstrate
the racially hostile work environment created by Keller. For
instance, Keller found Webster “deficient for not filling out
reports monthly, which were made on a quarterly basis under the
last First Officer.” Keller criticized Webster for “leaving keys
to the gun locker in an unsecured area,” even though that was the
place that “an authorized person would know where to locate them if
necessary.” Keller wrote up Webster as AWOL even though Webster
had called with an excuse -- that he was rained in at the San
Francisco airport -- and promised to catch the next standby flight.
Especially relevant to this case, Keller wrote two promotion
performance evaluations that Webster found unfair. The first came
in November 1998. Keller rated Webster excellent in 5 areas, good
in 4, and adequate in 3. He also wrote the following comment:
Mr. Webster is an effective Officer who performs his
duties satisfactory. His significant weakness are that
on least two occasions he failed to carry out the Masters
orders in a timely manner, tends to acts very
independently without keeping his supervisor informed.
Capt. Watson then revised these ratings downward, and wrote:
Mr. Webster was presented this eval a month ago and has
refused to sign. He does not respond well to changing
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circumstances and conditions. Mr. Webster is spending at
least 2 hr a week in my office receiving guidance.
The Navy observes that Webster’s numerical evaluations are
comparable to those he received on other ships before boarding the
PECOS. The Navy also produced written comments, similar to those
quoted above, from Webster’s superiors on other ships.
Keller acknowledged that after receiving criticism, Webster's
performance did improve. Keller even noted that in August 2002,
when Webster relieved him for 30 days as First Officer, he found
everything in perfect order upon returning and that Webster “did a
real good job.” In his December 1998 evaluation, Keller recognized
improvement in Webster’s performance. In one area he ranked
Webster as outstanding, in three as excellent, in five as good, and
in three as adequate. He wrote:
Mr. Webster is an effective Officer who performs his duty
satisfactory. Notable weakness are that he continues his
failure to communicate with his immediate
supervisor . . . .
Capt. Watson again downgraded this -- two “excellents,” seven
“goods,” and three “adequates.” He wrote:
Mr. Webster frequently focuses his energy and time in the
wrong place. He was given this evaluation but failed to
sign it or return it prior to his departure from the
vessel. He needs to decide if he wants to be a “Seaman”
or something else then move in that direction only.
Webster transferred from the PECOS on January 3, 1999.
Webster said that he went to the captain complaining of the
negative comments in the two promotion evaluations. The captain
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allegedly responded that if Webster did not sign the evaluations
and the captain did not forward them, Webster could “forget about
them.” Webster claims to have understood this to mean that the
evaluations would not become a part of his record. Based on this
understanding, Webster believed that he did not need to pursue any
further his attempt to rectify the critical remarks set forth by
Keller in the evaluations. Thus, Webster did not utilize the
Equal Employment Opportunity (“EEO”) process.
Webster first learned that the Promotion Evaluations had been
placed in his file in April 1999, when the First Officer Promotion
Board met. Webster alleges that there was no correlation between
the candidates’ scores on their performance evaluations and the
Board’s ratings. He alleges that Board members colluded to promote
only those whom they wanted, without regard to qualification, by
naming them “best qualified.” The bases for the decisions that
were made, he alleges, were merely pretextual.
The Navy, by contrast, emphasizes that the categories of
evaluation were clearly announced beforehand. Webster scored 61
out of a maximum 120; he was ranked 20th out of 26 candidates. The
top twelve were ranked “best qualified,” eligible for immediate
promotion. The lowest score among them was 91. The remaining
applicants were ranked “qualified,” eligible for temporary but not
permanent promotion as the need arose. The Navy also shows that
Webster had the lowest average of performance evaluations, yet was
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still ranked 20th rather than 26th. Members of the Board later
testified in depositions that Webster performed well on deck, but
was weak in the administrative components of the job. One noted
that “Chief Mate’s a very -- it’s an administratively heavy
position . . . .”
When, in late April 1999, he learned that the negative
evaluations had been placed in his file, Webster spoke to the
Afloat Personnel Management Center (“APMC”) employee preparing his
promotion package to become a First Officer. He was directed to
the Merit Systems Promotion Board, and from there to the EEO
Office. The EEO official, Ms. Wilson, acknowledged his complaint
about the biased evaluations. She says that she investigated the
denial of a “best qualified” rating. On the other hand, she noted
that Webster had “not clearly defined [the] bases” of his
allegations, so she requested that he clarify the complaint.
Webster never responded to this request. However, the Navy EEO
office dismissed the charges on the grounds that they had not been
brought in a timely fashion. He appealed the dismissal to the EEOC
on June 1, 2001. On March 6, 2002, the EEOC affirmed the agency's
dismissal of Webster’s complaint. This was not Webster’s first
experience with the EEO system. In 1985, he had filed an EEO
complaint based on his service in another vessel.
Webster filed his federal claims in the U.S. District Court
for the District of Columbia in October 2002; in March 2003, they
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were transferred to the Eastern District of Virginia. Webster
sought expungement of the evaluations and a permanent promotion.
In November 2003, the district court granted the Navy’s motion
for summary judgment on all claims. Webster appealed. We review
grants of summary judgment under a de novo standard of review,
Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988), and we now affirm on all points.
II.
Webster first argues that he presented a colorable claim of a
racially-motivated hostile work environment that should have been
tried to a jury. Because Capt. Watson misled him into believing
that the promotion evaluations by Keller would not go into his
personnel file, he argues that the Navy is estopped from asserting
that the initial EEO charge was untimely. Assuming his claim can
proceed, Webster believes he has made a sufficient showing of a
racially hostile work environment to reach a jury.
A.
Webster’s administrative remedies were not timely initiated,
and his claim is therefore barred. The district court noted that
Title VII requires a federal employee to exhaust administrative
remedies before coming to federal court. 42 U.S.C. § 2000e-16(c)
(2000); 29 C.F.R. § 1614.407 (2004). The employee must contact an
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EEO counselor with his complaint within 45 days of the alleged
discriminatory event. 29 C.F.R. §§ 1614.105(a)(1) (2004).
Webster received the allegedly improper evaluations in
November and December 1998, but did not contact the EEO counselor
until late April 1999 -- some 120 days afterward rather than the
required 45. The claim was therefore untimely. Webster argued
that, because Capt. Watson allegedly told him that he could “forget
about” the evaluations, the limitations period should be seen to
run from April 1999, when Webster saw that the evaluations were
part of his record. Failing that, the limitations period should be
equitably tolled. We agree with the district court that the 45-day
period began upon receipt of the evaluations, and that equitable
tolling is not available here.
To avoid contravening the 45-day rule, Webster argues that he
discovered the inclusion of the evaluations in his file only in
April 1999, and so the 45 days should begin then. The limitations
period begins to run from “the effective date” of the allegedly
discriminatory personnel action. Jakubiak v. Perry, 101 F.3d 23,
26-27 (4th Cir. 1996). Here, that was when the evaluations were
issued. Arguing that it should instead run from Webster’s
discovery of them in his record is nothing more than a request that
equity toll the limitations period because Webster was misled.
Equitable tolling is not available here. The district court
stressed that Webster had previously filed an EEO complaint (in
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1985) and was therefore familiar with how the process worked and
what it demanded of claimants. Webster, in other words, cannot
claim that he did not understand how to pursue his rights, much
less that extraordinary circumstance prevented his doing so.
Nor can Webster complain that his superiors tricked him into
sleeping on his rights. Capt. Watson had no reason to suspect that
Webster considered himself a victim of racial discrimination. The
district court noted that Webster’s only complaint to the captain
was that Keller’s evaluations were “unfair, negative, and
inaccurate,” not that they were discriminatory. A superior can
hardly intend to delay a complaint that he has no reason to believe
even exists. Under such circumstances, no equitable relief is
forthcoming. See Zografov v. V.A. Med. Ctr., 779 F.2d 967, 970
(4th Cir. 1985) (when claimant does not explain to supervisor that
he is raising a discrimination complaint, equitable tolling not
available if supervisor recommends a course of action other than
initiating the EEO process).
Rules for bringing claims are specific for good reason -- most
importantly to bring prompt resolution to both parties to a claim.
We are not authorized to suspend those rules absent efforts by the
adverse party to undermine them. English v. Pabst Brewing Co., 828
F.2d 1047, 1049 (4th Cir. 1987). If we invoked equitable tolling
for Webster, with his evident knowledge and experience in
protecting his rights, we could hardly apply the rules to others.
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Such consequences would, of course, fatally undermine the rules,
and erode their utility in ensuring efficient claims resolution.
B.
We note also that Webster presents no evidence of a racially
hostile work environment. Keller may well have been a strict
supervisor, but the evidence does not demonstrate any racial
animus. It may be that he literally ran a tighter ship than
previous First Officers, and it is possible that Webster’s
experiences on other ships led him to expect a more flexible
approach to regulations. But this is not enough to suggest racial
motivation. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998) (“Title VII does not prohibit all verbal or physical
harassment in the workplace; it is directed only at
‘disciminat[ion] . . . because of . . . [race].’”). We cannot jump
from the mere existence of criticism to the conclusion that the
criticism was racially motivated.
Indeed, Capt. Watson -- whom Webster has identified as an
honest broker -- consistently reduced the scores that Keller
assigned to Webster, basing that reduction on his own observation.
Moreover, the evidence shows that when Webster responded to
Keller’s high expectations, Keller rewarded him with praise and
better evaluations. These interactions cannot justify an inference
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that his criticisms were pretextual and aimed at Webster because of
his race.
III.
As to the Promotion Board’s decision, we similarly agree with
the district court. Webster alleges that his failure to be named
among the “best qualified” stemmed from racial discrimination
against him by the Board. The district court concluded that
Webster established a prima facie case of discriminatory refusal to
promote, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir. 1994),
because those who were given the “best qualified” rating were
white. But it also found a “legitimate, nondiscriminatory reason”
for the challenged action, Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981), sufficient to rebut the prima
facie case. See Dugan v. Albemarle County Sch. Bd., 293 F.3d 716,
721 (4th Cir. 2002). That reason was that Webster’s score in the
Board’s review process was substantially lower than that necessary
to be rated as “best qualified.”
The district court found that Webster failed to offer, in
response to the rebuttal of his prima facie case, any “evidence
from which a reasonable juror could conclude that the Board’s
decision was mere pretext” for unlawful discrimination. Indeed,
the very basis on which Webster asserts that the Board was
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arbitrary and discriminatory works to his detriment. Webster
created an “average of averages by ranking” all candidates before
the Board. But Webster’s score, under his own method, was the
lowest of all 26 candidates. The district court correctly observed
that the Board’s rankings cannot therefore establish an inference
of discrimination because, in ranking him higher than last, they
aided rather than prejudiced him. Lacking any evidence of racial
discrimination, Webster’s claim must fail.
IV.
The judgment of the district court is in all respects
AFFIRMED.
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