                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2003

Johnson v. Secretary Veterans
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1423




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                                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 03-1423


                                  LEWIS JOHNSON,
                                              Appellant
                                         v.

          HERSHEL W. GOBER, Acting Secretary of Veterans Affairs;
          RODNEY KISCADDEN; ALICE FIDLER; PEG WINTERS;
                  IRVIN ERICKSON; RAYMER KENT;
     AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; Local 1966


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 00-cv-01873)
                        District Judge: Hon. John E. Jones, III


                               Argued December 5, 2003

    Before: SLOVITER, ALITO Circuit Judges and OBERDORFER, District Judge*

                               (Filed: December 18, 2003)


Andrew J. Ostrowski (Argued)
Bailey, Stretton & Ostrowski
Harrisburg, PA l7ll0

      Attorney for Appellant


*     Hon. Louis F. Oberdorfer, United States District Court for the District of
      Columbia, sitting by designation.
Thomas A. Marino
       United States Attorney
Kate L. Mershimer (Argued)
       Assistant United States Attorney
Office of United States Attorney
       Middle District of Pennsylvania
Harrisburg, PA l7l08

      Attorneys for Appellees


                               OPINION OF THE COURT


SLOVITER, Circuit Judge.

      Lewis Johnson, a former employee of the Department of Veterans Affairs (“VA”)

at its Lebanon Medical Center (“Lebanon”), filed suit against the Secretary of the

Veteran’s Administration, employees of Lebanon and the employees’ union, complaining

about his non-selection for a Housekeeping Aid position in 1998, the creation of a hostile

work environment, the VA’s contest of his claim for Worker’s Compensation benefits,

and the VA’s termination of his employment. He appeals from the District Court’s order

granting summary judgment for the defendants. We have jurisdiction pursuant to 28

U.S.C. § 1291. Our review of the grant of summary judgment is plenary. Curley v.

Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).

                                             I.

      Johnson, had been employed as a Housekeeping Aid and applied for another

Housekeeping Aid position in the “extended care” section of the hospital. Under the


                                             2
applicable union agreement, positions designated as entry-level because of their high

turn-over rate or the specific requirements of the job are placed on the “Open and

Continuous” list and filled through a competitive selection process for which seniority

was not the determining factor for selection.

       In the spring of 1998, the VA changed its employment selection process to a new

approach in which the units within the VA were viewed as “teams” and the employment

decisions were to be made by a product line manager who would seek employees to foster

a team environment. The Housekeeping Aid vacancy for which Johnson applied was

posted on the “Open and Continuous” list in June 1998. Johnson (who is African-

American), Ronald Hull, and other VA employees applied for the position. Only Johnson

and Hull were then employed as Housekeeping Aids; the other applicants were from the

Food Service department.

       The applications were referred to Alice Fidler, the Nurse Manager and team leader

of the extended care unit, who was designated as the decision maker for this vacancy.

Fidler in turn sought the assistance of Barbara Kohr, a Nurse Manager in the Hospice

Unit. Fidler and Kohr focused their decision on Hull and Johnson because of their

previous housekeeping experience. Fidler did not consider the applicants’ seniority, and,

instead, focused on selecting the applicant she believed was most qualified for the

position.

       Fidler testified that she selected Hull because of his experience, initiative, and


                                                3
understanding of patients’ needs. Fidler thought Hull possessed a better ability to get

along with difficult patients as well as staff members. Because the “product line”

approach was to build teams on the VA staff, Fidler thought that Hull was not only more

qualified but that also he would fit in better with the team than Johnson. Both Kohr and

Fidler testified in their depositions that race played no role in the decisionmaking process.

Nevertheless, Johnson believed that Fidler did not select him for the position because of

his race.

       In October 1999, a fellow Housekeeping Aid, Irv Erickson, made a racially

disparaging remark to Johnson. Erickson admitted making the remark, but contended he

was kidding with Johnson. A few days after the incident, Erickson heard that Johnson

was going to file an Equal Employment Opportunity (“EEO”) department complaint

against him. In attempting to talk with Johnson about this complaint, Erickson allegedly

bumped and pushed Johnson. Johnson submitted a “Report of Contact” to an EEO

counselor on October 18, 1999, and on October 20, Erickson’s supervisors informed him

to refrain from future contact with Johnson or he would be subject to disciplinary actions.

Johnson subsequently filed a complaint with the EEO claiming that Erickson’s conduct

constituted a hostile work environment.

       On May 9, 2000, the VA sent a letter to Johnson informing him that his claim was

dismissed. The VA advised Johnson that he had a right to appeal this decision to the

EEOC within 30 days, or file a civil action in a District Court within 90 days. Johnson


                                             4
received the VA’s decision on M ay 10, 2000 , but did not file an EEOC appeal. Rather,

Johnson filed a Title VII complaint on October 24, 2000, over two months after the

deadline.

       Shortly after the October 1999 incident with Erickson, Johnson went on sick leave

and sought Worker’s Compensation Benefits. While there was some confusion as to the

filing of the paperwork because of the guidance Johnson received from the VA, the

Department of Labor ultimately denied Johnson’s claim. Johnson complained to an EEO

counselor on February 5, 2000 that the VA failed to follow the appropriate guidelines in

processing his paper work for the Worker’s Compensation claim. On April 13, 2000,

Johnson filed a formal complaint with the EEO.

       On May 10, 2000, the VA dismissed Johnson’s claim because the authority to

grant Workers Compensation benefits was vested solely with the discretion of the

Department of Labor. Johnson was notified by letter that he had a right to appeal to the

EEOC within 30 days, or that he could file a civil action with 90 days. Johnson received

this letter on or about May 11, 2000, but did not file an EEOC appeal. As noted above,

he filed the lawsuit on October 24, 2000, more than five months after he received the

final decision.

       Johnson did not return to work after he left for sick leave subsequent to the

Erickson incident, and on November 25, 1999, his sick leave ran out. On August 4, 2000,

Johnson was advised by letter that he could receive a maximum of one year leave without


                                             5
pay, and that year would conclude on November 24, 2000. Johnson’s physician

responded by letter dated August 16, 2000 that Johnson could not return to work. On

October 24, 2000, the VA proposed terminating Johnson from his Housekeeping Aid

position due to his medical problems, informed Johnson of this decision, and instructed

him that he had fourteen days to reply.

       On November 13, 2000, a Personnel Management Specialist contacted Johnson’s

attorney, who verified that Johnson had received the letter. On November 14, 2000,

Johnson requested permission to continue his leave without pay pending his Worker’s

Compensation claim, but on November 17, 2000, the VA advised him that he was being

removed from employment due to his medical condition and his inability to work.

Johnson received the letter on December 2, 2000. This letter advised Johnson that he

could appeal this decision to the Merit System Protection Board or under the negotiated

grievance procedure. Johnson took neither action, nor did he see an EEO counselor to

allege discrimination, retaliation, or improper termination.

                                             II.

A.     Johnson’s Non-Selection Claim

       The burden shifting analysis applicable to a discrimination claim as set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), provides that the claimant

bears the initial burden of establishing a prima facie case of discrimination by showing

that plaintiff is a member of a protected class, was qualified for and rejected for the


                                              6
position, and that non-members of the protected class were treated more favorably. See

Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1993).

       Once a claimant establishes a prima facie case, the burden shifts to the employer to

demonstrate a legitimate nondiscriminatory reason for the adverse employment decision.

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Once the

employer proffers a legitimate nondiscriminatory reason for its decision, the burden then

shifts to the plaintiff to demonstrate that the proffered reason was a mere pretext for

unlawful discrimination. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 143

(2000). Here, the District Court held that Johnson satisfied his burden of demonstrating a

prima facie case, that the VA articulated legitimate nondiscriminatory reasons for its

decision, and that Johnson failed to demonstrate that these reasons were a mere pretext

for discrimination.

       On appeal, Johnson appears to challenge the legitimacy of the VA’s articulated

reason for the adverse employment decision. He argues that he had more seniority than

Hull and that the VA failed to award the Housekeeping Aid position to the applicant who

had the most seniority. We have previously noted the limited inquiry that should be

performed in evaluating the reasons put forth by the defendant. We stated, “‘The

question is not whether the employer made the best, or even a sound, business decision;

[the ultimate inquiry] is whether the real reason is [discrimination].’” Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (quoting Keller v. Orix


                                              7
Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997)); see also Healy v. New York Life

Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (“our inquiry . . . is not an independent

assessment of how we might evaluate [an] employee”).

       Here, the VA presented sufficient evidence to satisfy its burden at this step of the

inquiry. Despite Johnson’s argument to the contrary, the VA appropriately decided that

the Housekeeping Aid position would not be awarded based entirely on seniority because

the Master Agreement with the union provided that a vacant Housekeeping Aid position

would be placed on the “Open and Continuous” list. Because of this designation, there

was nothing to preclude award of this position after considering a variety of criteria, not

only seniority.

       The decision on Johnson’s application was made in accord with the appropriate

procedures as provided in the Master Agreement. The two decision makers, Fidler and

Kohr, reviewed the applicants to determine which candidate was best for the position.

The selection of Hull was based on a number of criteria including Hull’s seventeen years

of experience in housekeeping, Hull’s demeanor with patients, and his general

commitment to providing a clean working environment. Thus, the District Court’s

conclusion that the VA satisfied its burden of demonstrating a legitimate

nondiscriminatory reason for Johnson’s non-selection was not erroneous.

       Johnson argues that the reasons put forth were a mere pretext for discrimination.

We have stated that


                                             8
             To survive summary judgment when the employer has
             articulated a legitimate nondiscriminatory reason for its
             action, the plaintiff must point to some evidence, direct or
             circumstantial, from which a factfinder could reasonably
             either (1) disbelieve the employer’s articulated legitimate
             reasons; or (2) believe that an invidious discriminatory reason
             was more likely than not a motivating or determinative cause
             of the employer’s action.

Simpson, 142 F.3d at 644 (quotations omitted) (citing Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994)).

      In support of Johnson’s allegation that Fidler considered race in reaching her

decision, Johnson contends that a number of years earlier Fidler made a disparaging racial

remark during another employment decision involving a black applicant. Johnson alleges

that Randal Houck, a former subordinate of Fidler, heard Fidler say that she did not want

any more of “them” on the floor. App. at 317. Houck apparently interpreted this

statement to mean that Fidler would not hire the applicant because he was African-

American, but Houck could not point to the specific time period when this statement was

made, but suggested the statement was made between three or four years prior to Houck’s

deposition which would put the statement at one and one-half to three years before

Johnson’s non-selection. In her deposition, Fidler denied ever making this remark.

Johnson admitted that he never saw or heard Fidler act in a racially discriminatory manner

towards him or other employees.

      As Justice O’Connor noted, a claimant fails to satisfy his or her burden to show

pretext by presenting evidence of an isolated inappropriate remark made by a decision

                                            9
maker, unrelated to the decisionmaking process. Price Waterhouse v. Hopkins, 490 U.S.

228, 277 (1989) (O’Connor, J., concurring). Furthermore, this court has noted that

“[s]tray remarks by non-decisionmakers or by decisionmakers related to the decision

process are rarely given great weight, particularly if they were made temporally remote

from the date of decision.” Ezold, 983 F.2d at 545.

       In light of the isolation of this alleged remark and its failure to have any

connection to Johnson’s non-selection, we agree that this evidence is insufficient to

establish that VA’s proffered reason was a mere pretext for discrimination. We have no

basis to reverse the District Court’s grant of summary judgment in favor of VA on

Johnson’s non-selection claim, and therefore will affirm.

B.     Johnson’s Hostile W ork Environment and Workers Compensation Claim

       This District Court properly concluded that Johnson waived his hostile work

environment claim as well as his W orkers Compensation claim by failing to file a timely

appeal. We have made clear that a plaintiff in a Title VII action must “exhaust all

required administrative remedies before bringing a claim for judicial relief.” Robinson v.

Dalton,107 F.3d 1018, 1020 (3d Cir. 1997). Thus, an employee bringing suit under Title

VII must adhere to the administrative requirements. Specifically, 42 U.S.C. § 2000e-

16(c) (2003) provides that a Title VII claimant must initiate an action in federal court

within 90 days of the receipt of the notice of a final agency action or after 180 days from

the date of filing the original cause of action when no agency decision has been reached.


                                             10
Johnson failed to do so.

       The EEO issued its decision on Johnson’s Worker’s Compensation claim on May

10, 2000. Johnson did not file an EEOC appeal, and filed his Title VII lawsuit on

October 24, 2000, more than five months after he received the final agency decision.

       The VA sent Johnson a letter on May 9, 2000 informing him that his hostile work

environment claim had been dismissed, and advised him that he had a right to appeal this

decision to the EEOC within 30 days, or file a civil action in the district court within 90

days. Johnson received the VA’s decision on May 10, 2000, but did not file an EEOC

appeal and rather filed the Title VII complaint on October 24, 2000, over two months

after the deadline passed. Therefore, these claims were untimely.

C.     Johnson’s Constructive Discharge Claim

       The District Court concluded that Johnson waived his discharge related claims by

failing to exhaust or even pursue his administrative remedies. An employee must seek

relief by contacting the EEO within 45 days of the alleged discriminatory event, 29 C.F.R.

§ 1614.105 (a)(1), and filing a formal EEO complaint within 15 days of the receipt of the

notice of the right to file such a complaint, 29 C.F.R. § 1614.106(b). Here, Johnson did

not contact the EEO at any point, and therefore never filed a formal complaint. Thus,

Johnson failed to exhaust his administrative remedies for his discharge claims, and his

Title VII claim based on this ground cannot be maintained.

D.     Absence of Any Basis to Excuse Untimeliness


                                             11
       Despite failing to exhaust his administrative remedies, Johnson argues that the

District Court should have excused the untimeliness of his claims. He contends first that

the time requirements should be waived because his other claims would have grown out

of his non-selection claim. He argues second that the District Court should have applied

equitable considerations and tolled the statutory requirements in relation to his claims.

We agree with the District Court that neither argument has merit. First, Johnson’s hostile

work environment claim and Worker’s Compensation claim involve distinct factual

circumstances unrelated to his non-selection claim. Second, it is also unlikely that

Johnson’s discharge claim would grow out of Johnson’s non-selection claim.

       In Rush v. Scott Speciality Gases Inc., 113 F.3d 476, 484-85 (3d Cir. 1997), we

noted that a failure to promote claim and a harassment claim involved distinct and

different types of conduct. Id. The same conclusion is applicable here. Johnson’s

discharge claim occurred nearly two years after Johnson’s application for the

Housekeeping Aid position, and would not, in any way, grow out of a consideration of his

non-selection claim. The District Court properly concluded that Johnson’s discharge

claim was untimely.

       Nor is equitable tolling appropriate. We have stated:

              [T]here are three principal, though not exclusive, situations in
              which equitable tolling 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

                                             12
               her rights mistakenly in the wrong forum.

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391-92 (3d Cir. 1994).

We have recognized that “[r]unning throughout the equitable [tolling] cases is the

obligation of the plaintiff to exercise due diligence to preserve his or her claim.”

Robinson, 107 F.3d at 1023.

       Here, Johnson argues that equitable tolling was appropriate because he requested

that his complaints be consolidated, and that even though the ALJ refused his request, he

proceeded as if the complaints were consolidated. The District Court noted that the ALJ

clearly articulated the denial of the consolidation request, and that Johnson provided no

evidence that he had mistakenly believed that the complaints had in fact been

consolidated. Additionally, the records from the administrative hearings on the non-

selection claim show that Johnson’s other claims were not under consideration. Because

the record is devoid of any reasonable basis for Johnson’s belief that his claims had been

consolidated, we conclude he did not exercise due diligence in preserving his claims.

Thus, the District Court did not err in concluding that equitable tolling was not

appropriate.

                                             III.

       Johnson not only failed to satisfy his burden of demonstrating that the VA’s

proffered reason for his adverse employment decision was pretext, but he also failed to

exhaust his administrative remedies as required. We will therefore affirm the District


                                             13
Court’s decision granting summary judgment for the defendants.




TO THE CLERK:

                                       Please file the foregoing opinion.


                                       /s/ Dolores K. Sloviter
                                       Circuit Judge




                                         14
