                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2005

Word v. Postmaster General
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3892




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 04-3892


                               HERMAN A. WORD,
                                           Appellant

                                         v.

                 JOHN E. POTTER, POSTMASTER GENERAL;
                    UNITED STATES POSTAL SERVICE


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civil 02-cv-06043)
               District Judge: The Honorable Freda L. Wolfson


                   Submitted Under Third Circuit LAR 34.1(a)
                              September 13, 2005


             Before: SLOVITER, BARRY, and SMITH, Circuit Judges


                         (Opinion Filed: September 20, 2005)


                                     OPINION




BARRY, Circuit Judge

     Plaintiff Herman A. Word (“Word”) commenced this employment discrimination
action against Postmaster General John E. Potter, in his official capacity, pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. On September 9, 2004, the

District Court granted defendant’s motion for summary judgment, concluding that Word

had failed to timely exhaust his administrative remedies. The District Court had

jurisdiction pursuant to 28 U.S.C. § 1331; our jurisdiction arises from 28 U.S.C. § 1291.

For the reasons set forth below, we will affirm.

                                             I.

       Because we write primarily for the parties, our discussion of the factual and

procedural background will be limited to those issues central to our disposition. At all

relevant times, Word was employed by the United States Postal Service (“USPS”) in

Trenton, New Jersey. Word suffered an employment-related injury in 1987 and, after

undergoing surgery and related therapy, accepted the position of “rehabilitated modified

senior carrier” in June 1995. The duties associated with this new position were tailored to

conform to Word’s medical limitations.

       Word avers that in December 1995 his supervisor, Charles Johnson (“Johnson”),

informed Word that, due to his limited duty status, he was ineligible to receive certain

overtime assignments. Although Word received notice of the alleged discriminatory

practice at that time, he did not request an appointment with an Equal Employment

Opportunity (“EEO”) counselor until March 2, 1998. Word attributes this delay to a

“verbal trust agreement” which he claims existed between himself and Johnson. As Word



                                             2
described it, the agreement was intended “to allow time for clerical grievances to be

concluded, and at that time I could start getting overtime opportunities again.” (A. 58)

(Letter from Word to Sharon R. Dove, Appeals Review Examiner, EEO Compliance and

Appeals, 8/31/98) (hereinafter “Dove letter”). At that time, there was in fact a pending

clerical grievance relating to overtime opportunities, which had been initiated by the

American Postal Workers Union (“APWU”).

       In September 1996, having determined that clerical grievances “were never going

to conclude,” (A. 58) (Dove letter), Word filed a series of discrimination-based

grievances through his own union, the National Association of Letter Carriers (“NALC”);

these grievances were based on Word’s claim that he was being discriminated against as

to overtime opportunities. On March 2, 1998, a Union Management Pairs team

(“UMPS”) issued a decision in connection with one of Word’s NALC grievances,

remanding the issue of Word’s overtime opportunities in the first two quarters of 1997.

That same day, apparently motivated by the “incompetent reasoning” of the UMPS

decision and the fact that management had not, in Word’s estimation, lived up to the

verbal trust agreement, Word “felt it was time to file the EEO complaint” and contacted

the EEO counselor for the first time. (A. 59) (Dove Letter).

       Word filed his EEO complaint on June 5, 1998. On October 27, 1998, the USPS

issued a final agency determination, dismissing Word’s complaint as untimely. Word

appealed this decision to the Equal Employment Opportunity Commission/Office of



                                             3
Federal Operations (“EEOC/OFO”). On June 2, 1999, the USPS and the NALC reached

a settlement resolving Word’s grievances pertaining to the last two quarters of 1997 and

the first two quarters of 1998.1 The EEOC/OFO notified the parties that it was closing

Word’s appeal on the basis of this settlement. Word sought reconsideration of that

decision, explaining that the settlement did not address overtime opportunities denied to

Word between 1995 and June 1997. On September 19, 2000, the EEOC/OFO denied

Word’s Request for Reconsideration.

       Word commenced this Title VII action on December 23, 2002. Defendant moved

for summary judgment on July 8, 2004, arguing that Word had failed to timely exhaust his

administrative remedies. After rejecting Word’s contention that the timing requirement

should be equitably tolled in light of the alleged verbal trust agreement, the District Court

granted the motion. This appeal followed.

                                             II.

       When a review of the record demonstrates “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,”

summary judgment is appropriate. Fed. R. Civ. P. 56(c). We are required to view the

facts in the light most favorable to Word, the non-moving party, and accept his

allegations as true, provided that they find support in the factual record. Kopec v. Tate,



   1
    Word’s grievance pertaining to the first two quarters of 1997, which had been the
subject of the March 2, 1998 UMPS decision, ultimately proceeded to arbitration; an
award was issued on December 26, 1998.

                                              4
361 F.3d 772, 775 (3d Cir. 2004).

       Title VII establishes the exclusive remedy for federal employees alleging

discrimination in the workplace. Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir.

1997). As a precondition to suit, plaintiffs in Title VII cases are required to exhaust their

administrative remedies, and the failure to do so “is an affirmative defense in the nature

of statute of limitations.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997).

       Pursuant to EEOC regulations, a federal employee who intends to file an

administrative charge of discrimination on the basis of disability must contact an EEO

counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29

C.F.R. § 1614.105(a)(1). Word acknowledges, as he must, that he failed to satisfy this

timing requirement by waiting until March 2, 1998—more than two years after Word first

became aware of the allegedly discriminatory overtime policy at the USPS—to contact an

EEO counselor. He argues, however, that this deadline should be equitably tolled in this

case to account for Word’s reliance on the verbal trust agreement.

       Word is correct that, because the exhaustion requirement is not jurisdictional in

nature, administrative timing requirements are subject to the doctrine of equitable tolling.

Robinson, 107 F.3d at 1021-22. Specifically, Title VII’s administrative timing

requirements may be equitably tolled where: (1) the defendant has actively misled the

plaintiff as to the cause of action; (2) the plaintiff has “in some extraordinary way” been

prevented from timely asserting his rights; or (3) the plaintiff has timely but mistakenly



                                              5
asserted his rights in the wrong forum. Id. at 1022. We agree with the District Court,

however, that none of the recognized bases for tolling the administrative timing

requirements are implicated in this case.

       Word’s central argument in favor of tolling is his alleged reliance on the verbal

trust agreement which supposedly arose during his December 1995 conversation with

Johnson.2 The precise contours of this agreement are far from clear. In an August 1998

letter to the EEO Examiner assigned to his complaint, Word wrote, as we noted above,

that “[t]he agreement was to allow time for clerical grievances to be concluded, and at

that time I could start getting overtime opportunities again.” (A. 58) (Dove letter). More

recently, however, Word added a material detail to his story, alleging for the first time in

an affidavit presented to the District Court that Johnson had “specifically told me not to

file an EEO Complaint since there [was a] pending grievance which would resolve the

problem.” (A. 107) (Word Affidavit). In granting defendant’s motion for summary

judgment, the District Court refused to consider the additional details averred in Word’s

affidavit, finding them to be wholly unsupported by the previously developed factual

record. See Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) (“Self-

serving affidavits without factual support in the record will not defeat a motion for

summary judgment.”). We need not reach that issue, however, because we conclude that




   2
     This argument appears to target the second of the enumerated bases for equitable
tolling set forth above.

                                              6
equitable tolling would be inappropriate even under the circumstances alleged in Word’s

affidavit.

       Elsewhere in his affidavit, Word claims that “I did not immediately contact the

EEO about the discrimination . . . because the defendant promised me that it would be

solved by a grievance then pending.” (A. 108) (Word Affidavit) (emphasis added).

Assuming, arguendo, that such a verbal trust agreement existed, Word violated its terms

by filing additional, discrimination-based grievances with his own union, rather than

waiting for the APWU grievance (the only grievance pending in December 1995) to be

resolved. In short, Word’s commencement of additional grievances in September 1996

effectively terminated any verbal trust agreement which may have existed, vitiating any

possible grounds for tolling.3

       Accordingly, even assuming that the 45-day timing requirement did not begin to

run until September 1996, it would have expired long before Word contacted an EEO

counselor in March 1998.4 As such, Word failed to properly exhaust his administrative


   3
     To the extent that Word advances an alternative theory of estoppel in his brief to us,
we observe the statement in his August 1998 letter that he commenced the NALC
grievances on the basis of his determination that the APWU grievance “[was] never going
to conclude.” Accordingly, we conclude that Word had, by his own admission, ceased to
rely on Johnson’s supposed representations as to the efficacy of the APWU grievances by
September 1996.
   4
     Although Word does not press this issue on appeal, we note that his commencement
of grievance procedures pursuant to anti-discrimination provisions of the operative
collective bargaining agreement does not fall within the purview of our third basis for
equitably tolling an administrative timing requirement—i.e. the timely assertion of rights
in a mistaken forum. See Int’l Union of Elec., Radio & Mach. Workers v. Robbins &

                                            7
remedies and is barred from maintaining this action under Title VII.

                                           III.

      For the foregoing reasons, the September 9, 2004 order of the District Court will

be affirmed.




Myers, Inc., 429 U.S. 229, 236 (observing that “contractual rights under a collective-
bargaining agreement and the statutory right provided by Congress under Title VII have
legally independent origins and are equally available to the aggrieved employee” (internal
quotation marks omitted)) (1976).

                                            8
