                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2009

White v. Phila Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2916




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"White v. Phila Sch Dist" (2009). 2009 Decisions. Paper 1393.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1393


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 08-2916
                                        ___________

                                       TYRONE WHITE,
                                                            Appellant

                                             v.

                       SCHOOL DISTRICT OF PHILADELPHIA
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 05-cv-00092)
                      District Judge: Honorable Gene E.K. Pratter
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 11, 2009
               Before: MCKEE, HARDIMAN and ROTH, Circuit Judges

                              (Opinion filed : May 07, 2009)
                                      ___________

                                         OPINION
                                        ___________

PER CURIAM

       Tyrone White appeals from the order of the United States District Court for the

Eastern District of Pennsylvania granting the defendant’s motion for summary judgment

in his civil action. We will affirm.

       Because the parties are familiar with the history and facts of the case, and because
the District Court’s memorandum contains a detailed account, we will recount the

background in summary fashion. White initiated a civil action naming the School District

of Philadelphia as the defendant.1 The lawsuit stems from the School District’s refusal to

reinstate White to his job following his absence from work for work-related injuries. The

School District hired White in 1997 as a general cleaner. His last active day of work was

on July 20, 2000, when he developed a work-related skin rash. White filed a workers’

compensation claim the next day and was represented by counsel for his claim. Several

months later, he was diagnosed with depression, which allegedly developed as a result

from White’s anxiety regarding the change in skin pigmentation from his contact

dermatitis. He was declared unfit for work. Eventually, in 2004, the parties resolved the

workers’ compensation claim, stipulating that his only compensable work-related injury

was the contact dermatitis, and that he was disabled from working from July 20, 2000

until March 12, 2001.

       Meanwhile, in January 2001, the School District notified White that his family

medical leave period had expired and warned him that he would lose his job if he did not

return to work. On March 12, 2001, White appeared at the School District’s offices with

two doctors’ notes, each declaring that he was fully recovered and able to return to work



   1
    White initially proceeded pro se and named other defendants, but in later amended
complaints filed himself and on his behalf by appointed counsel, the lone defendant
named in the action was the School District. Appointed counsel was later granted leave
to withdraw representation, and White again proceeded pro se. White proceeds pro se on
appeal.

                                            2
without restriction. He arrived without an appointment and believed that he could

recommence his job duties that same afternoon, but School District personnel advised him

that he first would need to submit to testing for tuberculosis and drugs. He was told that

he no longer had a job with the School District.

       On May 14, 2001, White filed a formal charge of employment discrimination with

the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human

Relations Commission (“PHRC”), alleging that he had been subjected to discrimination

based on his race and his “disability or perceived disability.” On September 12, 2001, the

EEOC issued a notice that it was dismissing his EEOC charge and informed him that he

had a right to file a lawsuit within ninety days from his receipt of the letter. Thereafter,

the PHRC also closed its investigation and issued a notice of his right to sue.

       In connection with White’s then-pending workers’ compensation claim, White was

examined by two physicians in February and March 2003, relating to his skin rash and its

resolution, as well as his psychological concerns. In a report dated March 19, 2003, and

received by the School District’s workers’ compensation carrier on March 25, 2003, Dr.

Wolfram Rieger concluded that White did not suffer from depression or any psychiatric

condition and was fully fit for work, without restriction. Dr. Rieger also stated that he did

not believe that White sustained any psychological injury as a result of his contact

dermatitis.

       On March 24, 2004, White filed a second charge with the EEOC and the PHRC.



                                              3
He alleged that the School District’s failure to return him to work was due to

discrimination based on a “perceived” disability and was in retaliation for his prior EEOC

filing in 2001. On December 3, 2004, the EEOC issued to White notice of its dismissal of

the charge and advised him of the ninety-day deadline for filing suit on his claims. The

PHRC closed its companion state file on May 2, 2005.

       White initiated his lawsuit in District Court on January 10, 2005. White asserted

claims under sections 504 and 505 of the Rehabilitation Act (29 U.S.C. § 793 et seq.), the

Pennsylvania Human Relations Act (“PHRA”) (43 P.S. § 955(a)), and federal civil rights

statutes (42 U.S.C. §§ 1981 and 1983). He requested injunctive and damages relief. The

matter proceeded to discovery. The School District filed a motion for summary judgment,

and White filed a response. The District Court granted the motion. The District Court

concluded that all of White’s claims under the Rehabilitation Act, the PHRA, and

sections 1981 and 1983, stemming from the School District’s failure to reinstate him on

March 12, 2001, were barred by the applicable two-year statute of limitations.

Concerning the claims under the Rehabilitation Act and the PHRA stemming from the

School District’s failure to reinstate him in March 2003, the District Court concluded that

they were barred due to White’s failure to timely exhaust his federal and state

administrative remedies, within 300 days and 180 days, respectively. Regarding the

retaliation claim under sections 1981 and 1983, as well as the claim of discrimination in

violation of the Equal Protection Clause, the District Court found that White made



                                             4
insufficient showings to defeat summary judgment. White appeals.

       We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s decision to grant summary judgment. McGreevey v.

Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when 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.” Fed. R. Civ. P. 56(c). A court reviewing a summary

judgment motion must evaluate the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil

Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing summary

judgment “must present more than just ‘bare assertions, conclusory allegations or

suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv.,

409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)).

       Upon review of the record, for substantially the same reasons given in the District

Court’s memorandum opinion, we conclude that the District Court correctly granted the

School District’s motion for summary judgment. White does not contest the District

Court’s conclusions regarding the barring of claims under the statute of limitations, and

we deem these issues waived, as they are not raised in the opening brief. See F.D.I.C. v.




                                              5
Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000).2 White does argue that, for exhaustion

purposes concerning his retaliation claims under the Rehabilitation Act and the PHRA, he

attempted to file his March 24, 2004 EEOC charge on March 4, 2004. Ordinarily, we

would decline to address this new argument, as he did not present this argument before

the District Court. See Ziccardi v. City of Philadelphia, 288 F.3d 57, 65 (3d Cir. 2002).

We note, however, that this new argument appears to provide no basis to disturb the

District Court’s judgment, as a March 4, 2004 filing date still would be beyond 300 days

of the alleged unlawful employment action, the longer of the two time frames for

administrative filing. See Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.

2000). White’s attempt to obtain relief still would be barred.

       Concerning the retaliation claim that was not time-barred, White raises an

argument relating to false accusations by the School District that he stole paychecks

issued to him by his supervisor. However, White points to no evidence in the record that

shows the existence of a genuine issue and that would support his bare allegation that the

School District wrongly accused him of stealing. Rather, White testified at his deposition

that the paychecks were issued during a several month period while he was out on

workers’ compensation leave, that they were probably issued in error, and that the issue

had since been resolved because the School District was reimbursed. As for the surviving



   2
    White raises an argument regarding tuberculosis testing, presumably referencing the
comment made to him by a School District employee when he attempted to return to work
in March 2001. This argument is irrelevant to the statute of limitations issue.

                                             6
Equal Protection claim, we note that White does not contest the District Court’s

conclusion that he failed to identify any similarly situated individual treated differently by

the School District. We discern no reason to disturb the District Court’s conclusion with

respect to these claims.

       We will affirm the District Court’s judgment.




                                           7
