                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1419
                                      _____________

                                    JODY SCHULTZ,
                                             Appellant

                                             v.

                           GOLDBELT GLACIER HEALTH;
                  DEPARTMENT OF UNITED STATES AIR FORCE,
                   Air Force Personnel Center, National Guard Bureau
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                              (W.D. Pa. No. 2-15-cv-00848)
             District Judge: Hon. Maureen P. Kelly, Chief Magistrate Judge
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 26, 2017
                                  ______________

 Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, District Judge.*

                            (Opinion Filed: November 1, 2017)

                                     ______________

                                       OPINION**
                                     ______________



       *
         The Honorable John R. Padova, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       **
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Appellant Jody Schultz alleges that Appellee, the Department of the United States

Air Force (“Air Force”), refused to hire her on account of her age, in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Schultz appeals

from the District Court’s Order granting the Air Force’s motion for summary judgment.

For the reasons set forth below, we will affirm.

                                   I. BACKGROUND

       Schultz is a 63-year-old licensed professional counselor. From 2011 to 2013, she

was employed by Optimization Consulting, a private contractor that provided counseling

and mental health services for the Air National Guard, 171st Air Refueling Wing (“171st

Air Refueling Wing,” or “171st”) in Coraopolis, Pennsylvania. During this time, Schultz

was the Director of Psychological Health, a position that required her to provide

counseling services to Airmen at the 171st Air Refueling Wing and act as a consultant to

command leadership. In March 2013, Goldbelt Glacier Health Services (“Goldbelt”)

took over Optimization Consulting’s contract at the 171st. Schultz, however, remained

the Director of Psychological Health, but now as an employee of Goldbelt.

       Sometime in 2014, Schultz learned that the Air Force was considering terminating

the Goldbelt contract and providing counseling services itself. Schultz subsequently

began to seek other employment and submitted online applications for several jobs listed

on the USAJOBS website, including a Social Worker position with the Air Force. That

Social Worker job announcement indicated that there were vacancies throughout the
                                             2
country, including the Greater Pittsburgh Airport. The announcement also had an “open

period” from April 1, 2014 to September 30, 2014, and it advised applicants that “[t]he

length of time [their] application[s] [would] remain active [would] vary based on the

closing date of this Public Notice.” App. 254. The announcement further explained that

the requirements for the position included a “master’s degree in social work [from] a

school accredited by the Council on Social Work Education,” as well as a “Clinical

Social Work license to practice independently from a U.S. jurisdiction.” App. 248–49.

       Schultz possessed neither the required master’s degree nor the required Clinical

Social Work license, but she nonetheless submitted an application for the Social Worker

position on September 28, 2014. The Air Force, however, did not hire any social workers

from this job announcement. All applications submitted under the announcement were

terminated and not carried over to subsequent job listings.

       After the open period for the first Social Worker announcement ended, the Air

Force posted a second USAJOBS announcement for a Social Worker position, this one

with an open period of October 1, 2014 to March 31, 2015. Again, the posting explained

that applications would remain active “based on the closing date of this Public Notice.”

App. 285. And again, the announcement indicated that the requirements for the position

included a master’s degree in social work from a school accredited by the Council on

Social Work Education and a Clinical Social Work license to practice independently.

Like the first posting, the second announcement also listed vacancies at locations

throughout the country, including both Coraopolis and the Greater Pittsburgh Airport.
                                             3
       Schultz did not submit an application for this second USAJOBS announcement.

She testified that she thought the application for the previous social worker

announcement would be considered for this vacancy as well. Instead of completing an

application, Schultz sent a letter, dated December 23, 2014, to Colonel Darrick

Cunningham, who she believed was the selecting official for the social worker position.1

In the letter, Schultz wrote that she “wish[ed] to retain [her] position as Wing Director of

Psychological Health” for the 171st Air Refueling Wing. App. 417.

       On January 7, 2015, Schultz received a letter from Goldbelt notifying her that

Goldbelt’s contract with the Air Force would be ending on January 31, 2015 and that her

employment would be terminated at that time. Schultz subsequently sent an email on

January 29 to all members of the 171st Air Refueling Wing, notifying them of her

departure. In that email, Schultz wrote, “I’m not leaving because I want to and I’m not

being fired. The position is changing and I don’t have the correct credentials to change

with it.” App. 204. Schultz later explained that she was referring to the fact that she

could not keep her position because she was not a licensed social worker.

       One week later, on February 5, 2015, Schultz, through her attorney, faxed a letter

to the National Guard requesting Equal Employment Opportunity (“EEO”) counseling

“leading to a formal complaint for age discrimination – failure to be hired by Air

National Guard/US Air Force as of Feb 1, 2015.” App. 305. Then on February 9,


       1
         According to an Air Force human resource specialist, the selecting official for
the position was actually Colonel Gregg A. Perez.
                                             4
Schultz wrote an email to Colonel Cunningham and other military officials (copying her

attorney), in which she wrote, “I am interested in a position with the Air Force/Air Force

National Guard in my capacity as [a licensed professional counselor] effective

immediately.” App. 352.

       On February 19, Schultz submitted a “Charge of Discrimination” alleging that she

applied for a position for which she was qualified, but that she had not been hired

because of her age—which at the time was 60. Schultz’s request for EEO counseling was

routed to Kenneth Vybiral, the Equal Employment Manager and Equal Opportunity

Advisor for the Pennsylvania National Guard. On March 13, 2015, Vybiral sent an email

to Schultz’s attorney attaching forms to be completed prior to scheduling EEO

counseling. Schultz’s attorney returned the completed forms to Vybiral on March 19.

According to Vybiral, he then attempted to schedule Schultz’s EEO counseling session,

but Schultz’s attorney did not allow anyone to speak with Schultz and requested that all

documentation in the case be addressed to him. Schultz’s attorney later submitted an

affidavit stating that his “standard procedure is to ask that the interview be done by

written interrogatories which should be routed through [his] office.” App. 435. Schultz’s

attorney added that “Mr. Vybiral did not indicate that this procedure was unacceptable.”

App. 436. Interrogatories were never sent, though, and Schultz’s case was never

assigned a case number. According to Vybiral, case numbers generally are not assigned

until after initial counseling, and because Schultz did not participate in counseling, her

case was not further processed.
                                              5
       Eventually, the Air Force hired Matthew Dalrymple for the social worker position

at the 171st Air Refueling Wing. Dalrymple, who is approximately twenty years younger

than Schultz, was selected after he submitted an application for the second USAJOBS

announcement. He holds a master’s degree in social work, is a licensed clinical social

worker, and was previously a social worker with the Department of Veterans Affairs.

Dalrymple also invoked his status as a U.S. Army veteran during the application process.

He started working at the 171st on April 5, 2015.

       On June 29, 2015, Schultz filed suit against Goldbelt for wrongful termination and

the Air Force for failure to hire, both in violation of the ADEA. Goldbelt was dismissed

from the case after a successful alternative dispute resolution session resolved the

wrongful termination claim. But the claim against the Air Force remained, and following

the close of discovery, the Air Force filed a motion for summary judgment, which the

District Court granted.2 The court concluded that Schultz had failed to exhaust

administrative remedies and was unable to establish a prima facie case of discrimination

because she never submitted an application for the job announcement from which

Dalrymple was actually selected and because she did not have the requisite master’s

degree in social work or clinical social work license. The court accordingly entered

judgment in favor of the Air Force. Schultz then filed this timely appeal.




       2
        By the consent of the parties, Chief Magistrate Judge Maureen Kelly exercised
the authority of the District Court. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
                                             6
                    II. JURISDICTION & STANDARD OF REVIEW

         The District Court had jurisdiction over this case under 28 U.S.C. § 1331. This

Court has jurisdiction pursuant to 28 U.S.C. § 1291.

         We exercise plenary review over a district court’s grant of summary judgment.

Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 665 (3d Cir. 2016). Thus, we will

affirm “if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).3 We view

“the facts in the light most favorable to the nonmoving party and draw all inferences in

that party’s favor.” Steele v. Cicchi, 855 F.3d 494, 500 (3d Cir. 2017) (quoting Burns v.

Pa. Dep’t of Corrections, 642 F.3d 163, 170 (3d Cir. 2011)). To avoid summary

judgment, however, the non-movant cannot “rely merely upon bare assertions” or

“conclusory allegations.” Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.

1982).

                                      III. ANALYSIS

         Schultz challenges both of the District Court’s grounds for granting summary

judgment. She first argues that the Court erred in ruling that she had failed to exhaust

administrative remedies, because, according to her, she filed an EEO charge, but the Air



         3
         The District Court mistakenly cited an out-of-date version of Rule 56, under
which summary judgment was appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” App. 8; Fed. R. Civ.
P. 56(c)(2) (amended 2010). This error does not affect the result here, however.
                                              7
Force refused to act on the charge. And second, Schultz contends that she has in fact

made out a prima facie case of age discrimination because the evidence shows she

applied and was qualified for the Social Worker position. Neither of these arguments are

availing.

A. Exhaustion of Administrative Remedies

       An ADEA plaintiff has “two alternative routes for pursuing a claim of age

discrimination.” Stevens v. Dep’t of Treasury, 500 U.S. 1, 5 (1991). She “may invoke

the [Equal Employment Opportunity Commission’s (EEOC)] administrative process and

then file a civil action in federal district court” if she is not satisfied with the outcome.

Id. Or, she “can decide to present the merits of [her] claim to a federal court in the first

instance,” after giving the EEOC thirty days’ notice of her intent to do so. Id. at 6. Once

the plaintiff has chosen to initiate the administrative process, however, she must see it

through before filing a lawsuit. See Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981).4



       4
         The soundness of this holding from Purtill is in doubt in light of a 1992 revision
to the ADEA’s implementing regulations. But even if those regulations have superseded
Purtill, Schultz has still failed to comply with the ADEA’s exhaustion requirement,
because her suit was untimely under the regulations. Specifically, 29 C.F.R.
§ 1614.407(b) now authorizes ADEA complainants to file suit in federal court 180 days
after the filing of their complaint with the EEOC, if the agency has yet to take a final
action on the complaint and an administrative appeal has not been filed. Schultz argues
that she complied with that regulation, which was provided to her on a rights advisement
form that she signed and returned to Vybiral. The problem with Schultz’s contention,
though, is that she has severely miscounted the number of days between initiating her
administrative complaint and filing suit. She first contacted the Air Force about filing an
age discrimination complaint on February 5, 2015, and she filed this lawsuit on June 29,
2015. Accordingly, Schultz waited, at most, 145 days before filing suit. And therefore,
                                               8
       Here, the parties agree that Schultz invoked the administrative process by filing an

informal complaint, completing the required forms, and filing a charge of discrimination.

Accordingly, she was required to wait for an agency decision before filing suit. See

Purtill, 658 F.2d at 134. But Schultz failed to wait for the EEOC to act on her charge

and, after less than five months, proceeded instead to file this lawsuit. Under Purtill,

Schultz’s abandonment of the administrative process is fatal. She has failed to meet the

ADEA’s exhaustion requirement.

       Schultz argues that summary judgment on the exhaustion issue is inappropriate

because “there is at least a genuine issue of material fact as to whether the EEO[C] failed

to perform its statutory duty by conducting the initial counseling via written

interrogatories,” as Schultz’s counsel had requested. Appellant’s Br. at 24. We disagree.

Nothing in the governing regulations contemplates the use of written interrogatories in

lieu of in-person counseling. Indeed, those regulations expressly envision an “initial

counseling session.” 29 C.F.R. § 1614.105(b)(1). Further, the EEOC Management

Directives, with which EEO Counselors must comply, see id. § 1614.105(c), instruct that

the “EEO process begins when a person who believes s/he has been aggrieved meets with

an EEO Counselor.” U.S. Equal Emp. Opportunity Comm’n, Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 614 (EEO-MD-11), at 2-1 (2015)

(emphasis added). Thus, there is no basis to conclude that the EEOC had a “statutory



even if we were to hold that Purtill is no longer good law, we would still conclude that
Schultz has failed to comply with 29 C.F.R. § 1614.407(b).
                                              9
duty” to conduct the initial counseling using interrogatories. If anything, an EEO

counselor may have been required to insist on meeting with Schultz in person.

       Nor is Schultz entitled to equitable estoppel on the issue of exhaustion. Such

relief should be granted only “in extraordinary situations.” Robinson v. Dalton, 107 F.3d

1018, 1023 (3d Cir. 1997). And “[r]unning throughout the equitable estoppel cases is the

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

Here, even if we accept Schultz’s contention that Vybiral suggested interrogatories would

be acceptable, Schultz has still failed to present evidence showing that she meaningfully

pursued the administrative process any further. She does not allege, for instance, that her

attorney even once followed up with Vybiral after the interrogatories did not arrive

promptly. Nor does she claim that she or her attorney contacted anyone else about her

age discrimination charge. Thus, viewing the evidence in the light most favorable to

Schultz, we find that over the course of several months, she did nothing to pursue her

administrative claim. Under such circumstances, we have no hesitation concluding that

Schultz has failed to exhaust her administrative remedies. We therefore affirm the

District Court’s granting of summary judgment in favor of the Air Force.

B. Schultz’s Prima Facie Age Discrimination Case

       Even if Schultz had complied with the ADEA’s exhaustion requirement, we would

nevertheless affirm the District Court because Schultz has failed to make out a prima

facie case of age discrimination. To establish such a case a plaintiff must show 1) that

she is forty years of age or older; 2) that she applied for and was qualified for the job; 3)
                                              10
that she was rejected despite her qualifications; and 4) that the Air Force ultimately hired

someone for the position who was sufficiently younger to permit an inference of age

discrimination. Fowle v. C & C Cola, a Div. of ITT-Cont’l Baking Co., 868 F.2d 59, 61

(3d Cir. 1989); 29 U.S.C. § 631. Only once the plaintiff makes out a prima facie case

does the burden shift to the defendant “‘to articulate some legitimate, nondiscriminatory

reason’ for the failure to hire.” Fowle, 868 F.2d at 61 (quoting McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). If the defendant provides such a reason, then

the burden shifts back to the plaintiff to prove that the proffered reason was in fact

pretext. Fowle, 868 F.2d at 62.

         In this case, Schultz is unable to make out a prima facie case because she failed to

apply for the job at issue. We have previously held in the Title VII context that failure to

formally apply for a job opening does not bar a plaintiff from establishing a prima facie

case of discriminatory hiring, “as long as the plaintiff made every reasonable attempt to

convey his interest in the job to the employer,” EEOC v. Metal Service Co., 892 F.2d

341, 348 (3d Cir. 1990). Alternatively, a plaintiff need not formally apply if he was

deterred from applying due to the employer’s discriminatory practices, or “had a real and

genuine interest” in the job “but reasonably believed that a formal application would be

futile.” Newark Branch, NAACP v. Town of Harrison, 907 F.2d 1408, 1415 (3d Cir.

1990).

         Schultz concedes the fact that she did not submit a formal application for the

second USAJOBS announcement—the announcement from which Matthew Dalrymple
                                              11
was hired as the Social Worker for the 171st Air Refueling Wing. Instead, she argues

that she “made every reasonable effort to convey her interest in the position” to the Air

Force. Appellant’s Br. at 14. In support of this contention, she stresses that she

submitted a formal application for the first Social Worker job announcement during its

open period in September 2014,5 submitted various letters of recommendation, sent a

letter to Colonel Cunningham in December saying she wished to retain her position, and

then sent an email in February 2015 to Colonel Cunningham and other military officials

saying she was interested in a positon with the Air Force in her capacity as a licensed

professional counselor.

       These actions are not sufficient to show that Schultz made a reasonable effort to

convey her interest in the Social Worker position. None of the actions adequately explain

why Schultz failed to submit a second USAJOBS application. Indeed, that Schultz

submitted an application for the first USAJOBS announcement shows she knew or should

have known how the application process worked. The first announcement made clear

that applications would only remain active until the closing date, September 30, 2014,

and nothing in either the first or second announcement suggested that applications would


       5
          It bears emphasis that Schultz does not bring a failure to hire claim regarding the
first USAJOBS announcement, for which she did submit a formal application. Schultz
filed a Motion to Amend Complaint in the District Court, seeking permission to add a
failure to hire claim regarding that first USAJOBS announcement, but the District Court
denied the motion. Schultz does not challenge that order in this appeal. Thus, for our
purposes, Schultz’s application to the first announcement is relevant only to the extent
that it shows she made a reasonable effort to convey her interest in the second
announcement—the announcement from which Dalrymple was actually hired.
                                             12
be transferred to other announcements. On the contrary, both announcements expressly

stated that it was “the applicant’s responsibility to verify that the information entered,

uploaded, or faxed . . . is received, accurate and submitted by the closing date.” App.

253, 284. Thus, Schultz knew or should have known to submit an application for the

second USAJOBS announcement, and her application for the first announcement does

not constitute a reasonable attempt to convey her interest in the second.

       Nor do Schultz’s December 2014 letter and February 2015 email to Colonel

Cunningham convey such an interest, because neither actually referenced the open Social

Worker position. Rather, Schultz said in the letter that she wanted to retain her position

as Director of Psychological Health. And she said in the email that she was interested in

a position with the Air Force in her capacity as a licensed professional counselor. As

other circuits have held, “[a] general interest in being rehired without submitting an

application is not enough to establish a prima facie case of age discrimination when the

defendant-employer has publicized an open position.” Smith v. J. Smith Lanier & Co.,

352 F.3d 1342, 1345 (11th Cir. 2003); see also Williams v. Giant Food Co., 370 F.3d

423, 430 (4th Cir. 2004); Wanger v. G.A. Gray Co., 872 F.2d 142, 146 (6th Cir. 1989);

Box v. A & P Tea Co., 772 F.2d 1372, 1376–77 (7th Cir. 1985). Viewing the evidence in

the light most favorable to Schultz, at best, she did no more than communicate an interest

in continuing to work for the 171st Air Refueling Wing in some capacity. The District

Court was correct to conclude that Schultz did not adequately express a specific interest

in the Social Worker position at the 171st.
                                              13
       Moreover, even if Schultz had applied for the Social Worker job, she still would

not be able to establish a prima facie case of age discrimination because she lacked the

requisite qualifications for the position. The second USAJOBS announcement stated that

a “master’s degree in social work [from] a school accredited by the Council on Social

Work education” was a “Basic Requirement[]” for the job. App. 280. Schultz concedes

that she does not have such a degree. The announcement also said that applicants must

have “a Clinical Social Work license to practice independently from a U.S. jurisdiction”

and must submit a copy of the license with their application. App. 281. Schultz

concedes that she does not have such a license.

       She instead contends that she was nonetheless qualified for the Social Worker

position because she had performed the duties of the position for four years and was

commended for her performance during that time period. The Air Force responds that it

made the determination to include the degree and license requirements because the newly

hired in-house social workers would be working independently and without the ability to

consult other personnel within their unit. Schultz does not rebut that explanation, and

without any evidence that the Air Force’s proffered rationale is pretextual, we think it

inappropriate to second-guess its determination of what the appropriate qualifications for

the position are. See Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 765 (7th Cir.

2001) (“What the qualifications for a position are, even if those qualifications change, is a

business decision, one courts should not interfere with.”).

       Schultz also claims that the Air Force hired a number of people for Social Worker
                                             14
positions elsewhere in the country who, like her, are licensed professional counselors

rather than licensed social workers. She argues that those hires show that the degree and

license were not actually essential requirements. The Air Force, however, provided

evidence to the trial court that the individuals Schultz identified were hired not as Social

Workers, but as Psychological Health Program Specialists, a lower-paying position with

different job requirements. Schultz has no response to the Air Force’s evidence and is

thus unable to establish a genuine dispute as to a material fact regarding whether the

requirements for the Social Worker position were any different than advertised in the

USAJOBS announcement. We agree with the District Court’s conclusion that Schultz

has failed to make out a prima facie case of age discrimination.

                                   IV. CONCLUSION

       For the reasons set forth above, Schultz has not complied with the ADEA’s

exhaustion requirement and has failed to establish a prima facie case of age

discrimination. We will therefore affirm the District Court’s granting of summary

judgment in favor of the Air Force.




                                             15
