Word v. Postmaster General

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-20-2005
Word v. Postmaster General
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3892
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3892
HERMAN A. WORD,
Appellant
v.
JOHN E. POTTER, POSTMASTER GENERAL;
UNITED STATES POSTAL SERVICE
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil 02-cv-06043)
District Judge: The Honorable Freda L. Wolfson
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Opinion Filed: September 20, 2005)
OPINION
BARRY, Circuit Judge
Plaintiff Herman A. Word (“Word”) commenced this employment discrimination
action against Postmaster General John E. Potter, in his official capacity, pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. On September 9, 2004, the
District Court granted defendant’s motion for summary judgment, concluding that Word
had failed to timely exhaust his administrative remedies. The District Court had
jurisdiction pursuant to 28 U.S.C. § 1331; our jurisdiction arises from 28 U.S.C. § 1291.
For the reasons set forth below, we will affirm.
I.
Because we write primarily for the parties, our discussion of the factual and
procedural background will be limited to those issues central to our disposition. At all
relevant times, Word was employed by the United States Postal Service (“USPS”) in
Trenton, New Jersey. Word suffered an employment-related injury in 1987 and, after
undergoing surgery and related therapy, accepted the position of “rehabilitated modified
senior carrier” in June 1995. The duties associated with this new position were tailored to
conform to Word’s medical limitations.
Word avers that in December 1995 his supervisor, Charles Johnson (“Johnson”),
informed Word that, due to his limited duty status, he was ineligible to receive certain
overtime assignments. Although Word received notice of the alleged discriminatory
practice at that time, he did not request an appointment with an Equal Employment
Opportunity (“EEO”) counselor until March 2, 1998. Word attributes this delay to a
“verbal trust agreement” which he claims existed between himself and Johnson. As Word
2
described it, the agreement was intended “to allow time for clerical grievances to be
concluded, and at that time I could start getting overtime opportunities again.” (A. 58)
(Letter from Word to Sharon R. Dove, Appeals Review Examiner, EEO Compliance and
Appeals, 8/31/98) (hereinafter “Dove letter”). At that time, there was in fact a pending
clerical grievance relating to overtime opportunities, which had been initiated by the
American Postal Workers Union (“APWU”).
In September 1996, having determined that clerical grievances “were never going
to conclude,” (A. 58) (Dove letter), Word filed a series of discrimination-based
grievances through his own union, the National Association of Letter Carriers (“NALC”);
these grievances were based on Word’s claim that he was being discriminated against as
to overtime opportunities. On March 2, 1998, a Union Management Pairs team
(“UMPS”) issued a decision in connection with one of Word’s NALC grievances,
remanding the issue of Word’s overtime opportunities in the first two quarters of 1997.
That same day, apparently motivated by the “incompetent reasoning” of the UMPS
decision and the fact that management had not, in Word’s estimation, lived up to the
verbal trust agreement, Word “felt it was time to file the EEO complaint” and contacted
the EEO counselor for the first time. (A. 59) (Dove Letter).
Word filed his EEO complaint on June 5, 1998. On October 27, 1998, the USPS
issued a final agency determination, dismissing Word’s complaint as untimely. Word
appealed this decision to the Equal Employment Opportunity Commission/Office of
3
Federal Operations (“EEOC/OFO”). On June 2, 1999, the USPS and the NALC reached
a settlement resolving Word’s grievances pertaining to the last two quarters of 1997 and
the first two quarters of 1998.1 The EEOC/OFO notified the parties that it was closing
Word’s appeal on the basis of this settlement. Word sought reconsideration of that
decision, explaining that the settlement did not address overtime opportunities denied to
Word between 1995 and June 1997. On September 19, 2000, the EEOC/OFO denied
Word’s Request for Reconsideration.
Word commenced this Title VII action on December 23, 2002. Defendant moved
for summary judgment on July 8, 2004, arguing that Word had failed to timely exhaust his
administrative remedies. After rejecting Word’s contention that the timing requirement
should be equitably tolled in light of the alleged verbal trust agreement, the District Court
granted the motion. This appeal followed.
II.
When a review of the record demonstrates “that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law,”
summary judgment is appropriate. Fed. R. Civ. P. 56(c). We are required to view the
facts in the light most favorable to Word, the non-moving party, and accept his
allegations as true, provided that they find support in the factual record. Kopec v. Tate,
1
Word’s grievance pertaining to the first two quarters of 1997, which had been the
subject of the March 2, 1998 UMPS decision, ultimately proceeded to arbitration; an
award was issued on December 26, 1998.
4
361 F.3d 772, 775 (3d Cir. 2004).
Title VII establishes the exclusive remedy for federal employees alleging
discrimination in the workplace. Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir.
1997). As a precondition to suit, plaintiffs in Title VII cases are required to exhaust their
administrative remedies, and the failure to do so “is an affirmative defense in the nature
of statute of limitations.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997).
Pursuant to EEOC regulations, a federal employee who intends to file an
administrative charge of discrimination on the basis of disability must contact an EEO
counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29
C.F.R. § 1614.105(a)(1). Word acknowledges, as he must, that he failed to satisfy this
timing requirement by waiting until March 2, 1998—more than two years after Word first
became aware of the allegedly discriminatory overtime policy at the USPS—to contact an
EEO counselor. He argues, however, that this deadline should be equitably tolled in this
case to account for Word’s reliance on the verbal trust agreement.
Word is correct that, because the exhaustion requirement is not jurisdictional in
nature, administrative timing requirements are subject to the doctrine of equitable tolling.
Robinson, 107 F.3d at 1021-22. Specifically, Title VII’s administrative timing
requirements may be equitably tolled where: (1) the defendant has actively misled the
plaintiff as to the cause of action; (2) the plaintiff has “in some extraordinary way” been
prevented from timely asserting his rights; or (3) the plaintiff has timely but mistakenly
5
asserted his rights in the wrong forum. Id. at 1022. We agree with the District Court,
however, that none of the recognized bases for tolling the administrative timing
requirements are implicated in this case.
Word’s central argument in favor of tolling is his alleged reliance on the verbal
trust agreement which supposedly arose during his December 1995 conversation with
Johnson.2 The precise contours of this agreement are far from clear. In an August 1998
letter to the EEO Examiner assigned to his complaint, Word wrote, as we noted above,
that “[t]he agreement was to allow time for clerical grievances to be concluded, and at
that time I could start getting overtime opportunities again.” (A. 58) (Dove letter). More
recently, however, Word added a material detail to his story, alleging for the first time in
an affidavit presented to the District Court that Johnson had “specifically told me not to
file an EEO Complaint since there [was a] pending grievance which would resolve the
problem.” (A. 107) (Word Affidavit). In granting defendant’s motion for summary
judgment, the District Court refused to consider the additional details averred in Word’s
affidavit, finding them to be wholly unsupported by the previously developed factual
record. See Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) (“Self-
serving affidavits without factual support in the record will not defeat a motion for
summary judgment.”). We need not reach that issue, however, because we conclude that
2
This argument appears to target the second of the enumerated bases for equitable
tolling set forth above.
6
equitable tolling would be inappropriate even under the circumstances alleged in Word’s
affidavit.
Elsewhere in his affidavit, Word claims that “I did not immediately contact the
EEO about the discrimination . . . because the defendant promised me that it would be
solved by a grievance then pending.” (A. 108) (Word Affidavit) (emphasis added).
Assuming, arguendo, that such a verbal trust agreement existed, Word violated its terms
by filing additional, discrimination-based grievances with his own union, rather than
waiting for the APWU grievance (the only grievance pending in December 1995) to be
resolved. In short, Word’s commencement of additional grievances in September 1996
effectively terminated any verbal trust agreement which may have existed, vitiating any
possible grounds for tolling.3
Accordingly, even assuming that the 45-day timing requirement did not begin to
run until September 1996, it would have expired long before Word contacted an EEO
counselor in March 1998.4 As such, Word failed to properly exhaust his administrative
3
To the extent that Word advances an alternative theory of estoppel in his brief to us,
we observe the statement in his August 1998 letter that he commenced the NALC
grievances on the basis of his determination that the APWU grievance “[was] never going
to conclude.” Accordingly, we conclude that Word had, by his own admission, ceased to
rely on Johnson’s supposed representations as to the efficacy of the APWU grievances by
September 1996.
4
Although Word does not press this issue on appeal, we note that his commencement
of grievance procedures pursuant to anti-discrimination provisions of the operative
collective bargaining agreement does not fall within the purview of our third basis for
equitably tolling an administrative timing requirement—i.e. the timely assertion of rights
in a mistaken forum. See Int’l Union of Elec., Radio & Mach. Workers v. Robbins &
7
remedies and is barred from maintaining this action under Title VII.
III.
For the foregoing reasons, the September 9, 2004 order of the District Court will
be affirmed.
Myers, Inc., 429 U.S. 229, 236 (observing that “contractual rights under a collective-
bargaining agreement and the statutory right provided by Congress under Title VII have
legally independent origins and are equally available to the aggrieved employee” (internal
quotation marks omitted)) (1976).
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