     Case: 09-10164     Document: 0051998883        Page: 1     Date Filed: 01/07/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        January 7, 2010

                                    No. 09-10164                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk



TERRY L. MILLER,

                                                 Plaintiff–Appellant

v.

JOHN E. POTTER, Postmaster General, United States Postal Service,

                                                 Defendant–Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:07-CV-1040


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant Terry L. Miller, an African-American woman, was an employee
of the United States Postal Service (“USPS”). In 2005, Miller applied to the
succession lists for two positions via the Corporate Succession Planning (“CSP”)
program, which is the USPS’s executive promotion program.




       *
        Pursuant to Fifth Circuit Rule 47.5, we have determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.
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      In February 2006, Miller filed an Equal Employment Opportunity (“EEO”)
complaint (the “February Complaint”) alleging that she had been discriminated
against on the basis of race, due to a separate event. In April 2006, Miller and
the USPS settled the February Complaint.
      On July 7, 2006, Miller received an email notifying her that she had not
been selected for the succession list for either of the CSP positions. Miller made
several attempts to meet with her manager, Peter Sgro, to ask why she had not
been selected.   Finally, on September 6, 2006, Sgro told her that her non-
selection was due to her “conflict” with management. Miller understood this to
mean that her non-selection stemmed from her filing of the February Complaint.
      On October 16, 2006, Miller initiated an EEO complaint, alleging that her
non-selection was due to retaliation for the February Complaint. After the
USPS dismissed Miller’s EEO complaint for failure to make timely contact with
a counselor, Miller filed a complaint in federal district court. The district court
granted the USPS’s motion for summary judgment, and Miller appealed.
      We have jurisdiction over the district court’s final judgment under 28
U.S.C. § 1291. We review the district court’s grant of summary judgment de
novo. Henrickson v. Potter, 327 F.3d 444, 446 (5th Cir. 2003).
      Title VII prohibits an employer from making an adverse employment
decision that is motivated in part by discrimination on the basis of sex, race,
color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). Title VII also prohibits
retaliation by an employer against an employee who has filed a charge of
discrimination. 42 U.S.C. § 2000e-3(a); Bryant v. Compass Group USA Inc., 413
F.3d 471, 475 (5th Cir. 2005).
      Before seeking judicial relief for a Title VII violation, employees “must
exhaust their administrative remedies by filing a charge of discrimination with
the EEO division of their agency.” Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.

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                                        No. 09-10164

2006). As part of the charge-filing process, an employee “must initiate contact
with a Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. § 1614.105(a)(1).
       It is undisputed that Miller learned of the allegedly discriminatory act by
June 7, 2006. However, Miller did not contact an EEO counselor until October
16, 2006, more than four months later. Miller argues that the limitations period
should begin on September 6, 2009 because she did not become suspicious of the
USPS’s motives until she met with Sgro.
       In this Circuit, it is clearly established that “the limitations period starts
running when the plaintiff knows of the discriminatory act, not when the
plaintiff perceives a discriminatory motive behind the act.” Christopher v. Mobil
Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992) (emphasis in original) (citing
Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir.1986)); see also Pacheco
v. Rice, 966 F.2d 904, 906 (5th Cir. 1992) (“To allow plaintiffs to raise
employment discrimination claims whenever they begin to suspect that their
employers had illicit motives would effectively eviscerate the time limits
prescribed for filing such complaints.”). Thus, it is immaterial when Miller
became suspicious of the reasons behind her non-selection. Because more than
forty-five days passed between the allegedly discriminatory act and Miller’s
contact with a counselor, Miller’s claim falls outside the limitations period.
       Miller also argues that she is entitled to equitable tolling of the limitations
period. 1   In Title VII cases, we “have identified three potential bases for


       1
        There is some dispute in this Circuit regarding whether exhaustion implicates subject
matter jurisdiction, or whether it is a prerequisite subject to equitable doctrines. Compare
Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) (holding that a plaintiff’s failure to
exhaust his administrative remedies “wholly deprives the district court of jurisdiction over the
case”) with Young v. City of Houston, Tex., 906 F.2d 177, 180 (5th Cir. 1990) (“A failure of the
EEOC prerequisite does not rob a court of jurisdiction.”). Because Miller’s equitable tolling
argument fails, we need not resolve this disagreement.

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                                  No. 09-10164

equitable tolling: (1) the pendency of a suit between the same parties in the
wrong forum; (2) the plaintiff’s lack of awareness of the facts supporting his
claim because of the defendant’s intentional concealment of them; and (3) the
EEOC’s misleading the plaintiff about his rights.” Manning v. Chevron Chem.
Co., 332 F.3d 874, 880 (5th Cir. 2003) (citing Blumberg v. HCA Mgmt. Co., 848
F.2d 642, 644 (5th Cir. 1988)).    Miller argues that the USPS intentionally
concealed the facts supporting her claim because Sgro avoided discussing her
non-selection until after the limitations period had run.        However, “[w]e
equitably toll a limitations period only when the employer’s affirmative acts
mislead the employee and induce him not to act within the limitations period.”
Id. (emphasis in original). There is no indication that such an affirmative act
occurred here. Cf. Tucker v. UPS, 657 F.2d 724, 725–26 (5th Cir. 1981) (applying
equitable tolling when the company told seasonal employees they would not be
recalled, and then recalled almost exclusively white and not black seasonal
workers); Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 930–31 (5th Cir.
1975) (applying equitable tolling when the plaintiff was falsely informed that her
job had been terminated because of inadequate funds).
      We AFFIRM the district court’s grant of summary judgment.




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