                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2000

Watson v. Eastman Kodak Co.
Precedential or Non-Precedential:

Docket 99-3520




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Recommended Citation
"Watson v. Eastman Kodak Co." (2000). 2000 Decisions. Paper 255.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/255


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Filed December 21, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3520

JOHNNY WATSON,
       Appellant,

v.

EASTMAN KODAK COMPANY.

On Appeal from the United States District Court
for the Western District of Pennsylvania

District Court Judge: Robert J. Cindrich
(D.C. Civ. No. 98-01330)

Argued October 24, 2000

Before: BECKER, Chief Judge, SCIRICA and FUENTES,
Circuit Judges.

(Filed: December 21, 2000)

       Neal A. Sanders (argued)
       Law Offices of Neal Alan Sanders
       1924 North Main Street Extension
       Butler, Pennsylvania 16001
       Attorneys for Appellant
       Michael A. Fitzhugh (argued)
       Fitzhugh & Associates
       155 Federal Street, Suite 1700
       Boston, Massachusetts 02110
       Attorneys for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant Johnny Watson alleges that he was r emoved
from his position of Account Executive at Eastman Kodak
Company ("Kodak") because of unlawful race and age
discrimination. Under federal law, a complainant has 300
days from the date of the adverse employment decision to
file a claim with the Equal Employment Opportunity
Commission ("EEOC"). In Delaware State College v. Ricks,
449 U.S. 250 (1980), the Supreme Court held that an
adverse employment action occurs, and the statute of
limitations therefore begins to run, at the time the
employee receives notice of that action and ter mination is
a delayed but inevitable result. Relying on Ricks, the
District Court measured the limitations period from the
date on which Watson was notified of his termination from
the Account Executive position, and dismissed W atson's
claim as untimely. Watson asserts that Ricks's date of
notification rule does not control the limitations period in
his case because Kodak left open the possibility of Watson's
continued employment with the company. We disagree.
Because we concur with the District Court that the r elevant
date from which to measure the timeliness of Watson's
discrimination claim is the date on which he was r emoved
from the Account Executive position, and because we
conclude that the mere speculative possibility of continued
employment does not alter Ricks's date of notification rule,
we will affirm.

I.

Johnny Watson began working for Kodak in 1979, and
was promoted in 1988 to the position of Account Executive.

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He alleges that in that capacity he consistently met his
sales quotas and received several employment awards,
including five 100% club awards and one master club
award for reaching 140% of his sales quota. He also
reportedly received favorable perfor mance evaluations and
was not subject to any disciplinary action.

In December 1994, Watson transferred to Kodak's office
in Pittsburgh, Pennsylvania, where he was the only African-
American Account Executive. Roger Gagnon was his
immediate supervisor. Watson alleges that, from the outset,
Gagnon interfered with his perfor mance by refusing to
provide support comparable to what he of fered younger,
white Account Executives. According to W atson, Gagnon's
interference prevented him fr om meeting his sales quotas
for 1995 and 1996.

In January 1997, Watson wrote a letter to Gagnon
complaining about these matters and contending that race
discrimination was the reason for that lack of support.
Gagnon responded in a letter dated February 4, 1997,
informing Watson that, due to poor per formance, he was
retroactively removed from his Account Executive
classification effective January 1, 1997. It also stated that
Watson would be allowed to remain with Kodak beyond
March 7, 1997 only if he was successful in obtaining
another position within the company, an effort with which
Gagnon professed he would help. Watson failed to find
another position. Consequently, Kodak terminated his
employment on March 7, 1997.

Thereafter, Watson was hospitalized briefly in
Pennsylvania. Upon his release, in June 1997, he traveled
to Florida where he stayed at his mother's r esidence. While
in Florida on December 31, 1997, realizing that the
administrative deadline for filing a discrimination charge
was about to expire, Watson filed a claim with the EEOC at
its Miami, Florida branch, alleging violations of T itle VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. SS 2000e
to 2000e-17, and the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. SS 621 to 634. When hefiled the
discrimination charge, Watson described the adverse action
taken against him as follows:

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       I was employed by Eastman Kodak Company for
       eighteen years. During that time there wer e several
       situations revolveing [sic] around pay, assignments to
       territory and like [sic] of understanding. I believe that
       my race and age at the time of my termination from
       [sic] played a roll [sic] in their decision to release me.

The EEOC investigator informed Watson that the claim
would be processed, then transferred back to Pennsylvania.
On May 7, 1998, after retaining counsel, W atson filed an
amended charge in which he added a pay discrimination
claim.

Relying upon Delaware State College v. Ricks, 449 U.S.
250 (1980), the District Court concluded that W atson's
unlawful termination claim accrued on February 4, 1997,
the date he received Gagnon's letter. Because Watson
submitted his EEOC charge 330 days later , on December
31, 1997, the Court determined his claim fell outside the
statutorily allotted 300 day filing deadline. Consequently,
the Court granted Kodak summary judgment.

On appeal, Watson argues that the District Court
misconstrued Ricks and that it erred in failing to conclude
that his termination claim accrued on Mar ch 7, 1997,
which is within 300 days of the date he filed his EEOC
discrimination charge in Florida. He also contends that,
even if we determine that the termination claim was
untimely, we should find that his discrimination in
compensation claim, based on a continuing violation
theory, was timely.

II.

This Court's review of a grant of summary judgment is
plenary, and the record is judged by the same standard
district courts use. Witkowski v. W elch, 173 F.3d 192, 198
(3d Cir. 1999). Federal Rule of Civil Pr ocedure 56 governs
summary judgment motions. Subsection 56(c) pr ovides, in
part, that:

       [t]he judgment sought shall be render ed forthwith if the
       pleadings, depositions, answers to interrogatories, and
       admissions on file, together with the affidavits, if any,

                                4
       show 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.

The moving party has the burden of demonstrating that
there is no genuine issue as to any material fact, and
summary judgment is to be entered if the evidence is such
that a reasonable fact finder could find only for the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Doherty v. Teamsters Pension T rust Fund, 16 F.3d
1386, 1389 (3d Cir. 1994).

III.

Under Title VII and the ADEA, plaintif fs residing in states
having an agency authorized to grant relief for federally
prohibited employment discrimination must r esort to that
state remedy before they will be allowed access to federal
judicial relief. See 42 U.S.C. S 2000e-5(c) (Title VII); 29
U.S.C. S 633(b) (ADEA); Oscar Mayer & Co. v. Evans, 441
U.S. 750, 754-58 (1979). Such states are ter med "deferral"
states. See Evans, 441 U.S. at 758. It is undisputed that
Pennsylvania is a deferral state. See 43 Pa. Cons. Stat.
SS 955(a), 959; Sharpe v. Pennsylvania Hous. Auth., 693
F.2d 24, 26 (3d Cir. 1982).

Title VII and ADEA plaintiffs such as W atson, who file in
deferral states, must submit their administrative
discrimination charge within 300 days of the challenged
employment action. See 42 U.S.C. S 2000e-5(e)(1) (Title VII);
29 U.S.C. S 626(d)(2) (ADEA); Colgan v. Fisher Scientific Co.,
935 F.2d 1407, 1413-15 (3d Cir. 1991) (en banc). Therefore,
Watson's attempt to obtain relief under federal law from
Kodak's alleged employment discrimination on the basis of
race and age may proceed only if he filed his administrative
charge of discrimination within 300 days of the unlawful
employment actions he challenges.

The crucial issue in this case is whether the actionable
adverse employment decision was the one to separate
Watson from the position of Account Executive or the one
to terminate his employment with Kodak entir ely. We begin
our analysis of the timeliness issue with the Supr eme
Court's decision in Delaware State College v. Ricks. In

                               5
Ricks, a professor at Delaware State College challenged the
college's decision not to grant him tenure as being
unlawfully based on national origin discrimination. Ricks,
449 U.S. at 252. The professor pursued inter nal grievance
procedures within the college to pr otest the tenure denial,
and in the meantime the college, as it customarily did,
entered into a one year "terminal" contract with him that
allowed the professor one extra year of employment before
his actual termination. Id. at 252-54.

Of primary importance in the case, due to the date the
professor filed his administrative discrimination charge,
was the date that his unlawful termination claim accrued.
See id. at 254-56. The professor ar gued that it accrued on
the date of his final day of employment under the one-year
terminal contract. See id. at 257. The Supreme Court
rejected his theory, ruling instead that his unlawful
termination claim accrued when he initially r eceived the
college's notice that he had been denied tenur e. Id. at 259,
261-62.

The Court emphasized that the key inquiry was
identifying the precise alleged unlawful employment
practice. Id. at 257. This was the central issue because the
relevant federal statute, Title VII, measured the
administrative charge's timeliness from the date " `the
alleged unlawful employment practice occurred.' " Id. at 256
(quoting 42 U.S.C. S 2000e-5(e)); accor d 29 U.S.C.
S 626(d)(2) (for ADEA claims, timeliness of administrative
charge is measured from date "the alleged unlawful practice
occurred"). The Supreme Court found it immaterial that the
professor's denial of tenure did not manifest itself until one
year later, when his terminal contract expired. See Ricks,
449 U.S. at 258. The Court instead approved the maxim
that " `[t]he proper focus is upon the time of the
discriminatory acts, not upon the time at which the
consequences of the acts became most painful.' " Id.
(quoting Abramson v. University of Hawaii, 594 F.2d 202,
209 (9th Cir. 1979)). Because the professor's allegations in
his complaint focused only on his denial of tenur e, the
Court concluded that the date he was notified of that
decision controlled. Id. at 257-58 & n.9, 261-62.

                               6
Watson contends that Ricks is inapplicable. He argues,
for example, that the unlawful discrimination he challenges
relates to the termination of his employment from Kodak
generally, rather than specifically to his dischar ge from the
position of Account Executive. This argument fails for two
reasons. First, Watson's amended EEOC charge explicitly
alleged that "I was discharged from the position of Account
Executive, from [Kodak]," and it stated in support that he
"was the only black Account Executive in [his] area, and
[he] was not receiving support." Second, and more
importantly, the only evidence of either race or age
discrimination in the record, found in the various verified
statements to which Watson attested and that served
largely to verify his complaint and the allegations in his
EEOC charges, relates solely to Gagnon's supervision of
Watson.

In light of these facts, the record does not support
Watson's argument that he was challenging his termination
from employment in a general sense, as opposed to his
termination from the Account Executive position. Just as
the professor's allegations in Ricks made it clear that he
was challenging the more specific decision to deny him
tenure, see 449 U.S. at 257-58, the r ecord in Watson's case
demonstrates that he was challenging the specific decision
to remove him from the position of Account Executive. See
also Chardon v. Fernandez, 454 U.S. 6, 6-8 (1981)
(rejecting termination date as the r elevant event since no
allegations of discrimination existed between the date of
notice of termination and the date of ter mination).

Watson further argues that the date his claim accrued
cannot be February 4, 1997 because Gagnon's letter left
open the possibility of continued employment in another
position with Kodak and therefore it was an equivocal
notice of termination. Cf. Smith v. United Parcel Serv. of
Am., Inc., 65 F.3d 266, 268 (2d Cir . 1995) ("the limitation
period begins to run on the date when the employee
receives a definite notice of the ter mination. Moreover, for
the notice to be effective, it must be made apparent to the
employee that the notice states the official position of the
employer.") (internal quotations and citations omitted).

                               7
However, Gagnon's letter cannot be deemed equivocal
merely because it preserved the possibility of continued
employment. In Ricks, the professor pursued an internal
grievance process that might have resulted in his having
obtained tenure. Ricks, 449 U.S. at 252-54 & n.2, 261-62.
Despite this action, the Court rejected an ar gument that
the notice of termination was render ed ambiguous by the
mere potential for continued employment. See id. at 260-
61. Therefore, the District Court corr ectly determined that
Watson's unlawful termination claim r elates specifically to
his removal from the Account Executive position, and that
Gagnon's letter of February 4, 1997 unequivocally informed
Watson of that decision.

At oral argument, Watson claimed that, despite Gagnon's
letter, he effectively remained in the Account Executive
position until March 7, 1997, which we must accept as the
date on which he suffered the adverse employment action.
However, the last day of employment is not necessarily the
date of the adverse employment action. For example, in
Ricks, even though the professor's employment continued
for one year after he was denied tenure, the Court
nevertheless refused to equate the last day of his
employment with the date on which the adverse
employment action occurred. Id. at 259, 261-62.

Moreover, even if Watson's last day as an Account
Executive was March 7, 1997, that cannot serve as the date
of the adverse employment action since Gagnon's letter
quite clearly informed Watson that, as of February 4, 1997,
he was terminated from the Account Executive position.
This is true because it does not matter that W atson was
notified of his termination several weeks before his ultimate
discharge. As a matter of law, notice of an"operative
decision" of termination is not equivocal merely because it
was "given . . . in advance of a designated date on which
employment terminated." See Char don, 454 U.S. at 8.

Finally, Watson incorrectly relies on the Ninth Circuit's
decision in the case of Bouman v. Block, 940 F.2d 1211 (9th
Cir. 1991). In Bouman, the plaintif f, a female police officer,
instituted a Title VII action against Los Angeles County and
the county's sheriff's department, alleging inter alia that the
department engaged in gender discrimination by

                                8
intentionally failing to promote her. Id. at 1221. Under
department procedures, eligibility for pr omotion was
determined by the results of a ser geant's examination.
Exam scores were used to develop a pr omotion list, which
then served as the basis for promotion within the
department for two years. Id. at 1217. After failing to
receive a promotion during the list's two-year term, the
plaintiff instituted employment discrimination proceedings.
She filed an administrative charge within 300 days of the
expiration of the promotion list, but well beyond 300 days
from the date of the examination and the establishment of
the list. In assessing the timeliness of the claimfiled, the
Ninth Circuit held that the claim accrued when the
promotion list expired, not when the pr omotion list was
established or the promotion exam was given. Id. at 1221.
The Bouman Court distinguished Ricks because there, the
professor's "termination . . . was a delayed but inevitable
result of being denied tenure." Id. In Bouman's case, by
contrast, it was not certain that the petitioner would not be
promoted until the list had expired. She did not know until
that date that she had suffered an injury.

Watson argues that Bouman, rather than Ricks, controls
because when he received Gagnon's February 4, 1997
letter, his termination from the Account Executive position
was not a delayed but inevitable result since he might have
remained in that position in another part of the company.
Consequently, Watson argues that his termination claim
must be deemed to have accrued on March 7, 1997.
However, Watson ignores that in Bouman, the plaintiff's
failure to be promoted had not been inevitable because
(1) she was on the promotion list, (2) she was at the top of
the list when it expired, and (3) vacancies had occurred
before the list expired to which she could have been
promoted. Id. at 1217. Thus, in Bouman, the plaintiff's
potential promotion was not based on mer e speculation. By
contrast, Watson's contention that his r emoval from the
Account Executive position was not an inevitable r esult of
Gagnon's letter rests on pure speculation. Under these
circumstances, Watson's case is mor e analogous to Ricks
than Bouman, since the professor in Ricks relied on mere
speculation that his internal grievance concer ning the
tenure decision would be successful. See also Bronze

                               9
Shields Inc. v. New Jersey Dep't Civil Serv., 667 F.2d 1074,
1080-84 (3d Cir. 1981) (when plaintif fs challenged legality
of hiring examination, claim accrued when they r eceived
notice that they had failed the examination and wer e not on
the hiring roster, not when roster expired).

Therefore, we agree with the District Court that Watson's
claim centered on his termination fr om the Account
Executive position, and that Gagnon's February 1997 letter
clearly informed Watson of his dischar ge from that position.
The letter stated that "as of January 1, 1997 you are no
longer in the Account Executive position." Consequently,
pursuant to Ricks, the District Court corr ectly held that
Watson's termination claim accrued on February 4, 1997,
the date he received Gagnon's letter. As a result, Watson's
discrimination discharge claim is untimely.

IV.

Watson also seeks review of his claim that Kodak
unlawfully compensated him at a lower rate than similarly
situated white employees. The District Court did not
discuss this issue in its initial summary judgment decision.
However, the Court did address the issue in ruling on
Watson's motion for reconsideration. First, it declared that
"all of Watson's claims related to any Kodak decision about
which he was notified on February 4, 1997 ar e time-
barred." Second, the Court held that "[a] reasonable reading
of" his December 31, 1997 EEOC discrimination charge
"does not lead to a conclusion that he was complaining
about race discrimination in his rate of pay." The Court
also concluded that its prior grant of summary judgment in
favor of Kodak on this issue was proper because Watson
"presented no evidence on summary judgment that
suggests that Kodak engaged in some conduct that might
qualify as a continuing violation."

Even assuming that Watson presented a timely unlawful
compensation claim to the EEOC, the District Court's
ruling on this issue must be affirmed because Watson failed
to identify any evidence that he was compensated at a
lower rate than similarly situated employees, or that this
alleged disparate compensation continued long enough to

                               10
have rendered his December 31, 1997 EEOC charge timely.
For example, he failed to identify through extrinsic evidence
his pay rate, or those of comparable employees, and he
provided no evidence of the last date he r eceived a
paycheck. Although Watson filed an affidavit to support his
opposition to Kodak's summary judgment motion, he
makes no reference to an unlawful compensation claim nor
does he aver any facts to support it. Therefor e, since
Watson failed to make the requir ed evidentiary showing to
sustain his unlawful compensation claim, the District Court
properly entered summary judgment. See Fed. R. Civ. P.
56(e). A party's failure to make a showing that is "sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden
of proof at trial" mandates the entry of summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531
(3d Cir. 1990).

V.

For all the reasons set forth above, we will affirm the
District Court's order.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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