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


7-24-2003

Montefusco v. Dept of Army
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3841




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Recommended Citation
"Montefusco v. Dept of Army" (2003). 2003 Decisions. Paper 346.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/346


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                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No: 02-3841

                                GARY J. MONTEFUSCO,

                                              Appellant


                                               v.

                 DEPARTMENT OF THE ARMY; LOUIS CALDERA,
                          Secretary of the Army, as an agent of
                   Department of the Army; EDWARD G. ELGART,
                       Director of Acquistions Center, individually
                       and as an agent of Department of the Army;
                    WENDY M CCUTCHEON, individually and as an
                agent of Department of the Army; ANDREW DELLOMO,
                 individually and as an agent of Department of the Army


                     On Appeal from the United States District Court
                             for the District of New Jersey
                              D.C. Civil No. 00-cv-05647
                         District Judge: Hon. William H. Walls

                     Submitted pursuant to Third Circuit LAR 34.1(a)
                                      July 14, 2003
                     Before: McKee, Barry & Rosenn, Circuit Judges
                                  (Filed: July 24, 2003)

                               OPINION OF THE COURT

McKee, Circuit Judge.

       Gary J. Montefusco appeals the district court’s grant of summary judgment in

favor of the defendants and against plaintiff Montefusco in this civil rights action
Montefusco brought against the defendants alleging a violation of Title VII of the Civil

Rights Act of 1964. We will affirm.

       Inasmuch as we write only for the parties who are familiar with the factual and

procedural background of this dispute, we need not reiterate the circumstances or rulings

leading to this appeal. The district court filed its opinion on September 3, 2002

explaining why summary judgment in favor of defendants and against plaintiff was

appropriate. We have reviewed that opinion and conclude that we can add little to the

legal analysis that Judge Walls set forth therein. However, we do not completely agree

with the District Court’s analysis of the equitable tolling issue. Equitable tolling permits

the filing of an otherwise untimely claim when a defendant deliberately conceals

information relevant to a plaintiff’s legal claim, making it impossible for the plaintiff to

realize the existence of the claim until after the limitations period has expired (unless the

plaintiff should have known about the claim otherwise through due diligence).

       In this case, Montefusco argues that he could not have known of the Government’s

alleged discriminatory motive until scoring sheets for the promotion exam were provided

to him in 1999, after having repeatedly requested the scores from the Government since

1997. He alleges that the scores for some questions on his exam were erased and

modified downward, while the scores of some African-American women were modified

upward, thus providing evidence of discriminatory purpose.

       The District Court, however, held that Montefusco should have inferred



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discriminatory intent based solely on his nonselection for promotion in 1997 and the

selection of several minority women candidates, irrespective of the withheld scoring

sheets. According to the District Court, the limitations period thus began at the moment

his nonselection was announced. We disagree that the mere selection of African-

American women candidates over a white male candidate could, standing alone,

reasonably give rise to an inference of racial discrimination. Rather, we hold that there is

no evidence that the test sheets, containing the alleged suspicious erasures, were withheld

willfully, and we will affirm on that basis.

       In this connection, we observe that Montefusco has produced naught but his own

lay analysis of the erasures and their import. We are constrained to resolve motions for

summary judgment on reliable evidence. Here, there is ample evidence that scores were

periodically erased and modified for innocent purposes after the initial scoring, based on

re-evaluation by the scorers. Nonetheless, trustworthy evidence that these erasures

systematically boosted the scores of one group and diminished the scores of another

might present statistical proof of discriminatory motive. However, we are unwilling to

allow this case to proceed to trial based exclusively on a plaintiff’s own personal

assessment that the erasures favored minority applications over his application, without

any expert testimony – or for that matter, any objective assessment whatsoever – to

ascertain the nature of the erasures, which applicants had scores erased, whether the

scores were changed up or down, or the statistical significance of these alterations.



                                               3
       Absent any trustworthy evidence to show that there was a disproportionate number

of erasures on the score sheets of Montefusco and two African-American women

applicants, or that the scores were altered to Montefusco’s detriment and to the two

women’s benefit, we cannot ascribe any nefarious purpose to the Government’s

withholding of the sheets. Equitable tolling, therefore, does not apply. Accordingly, the

order of the district court dated September 4, 2002, dismissing “all counts against

defendants” is hereby affirmed.

TO THE COURT:

       Please file the foregoing opinion.

                                                 By the Court,




                                                  /s/ Theodore A. McKee

                                                 Circuit Judge




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