                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3679
                                       ___________


                                 PETER J. FENTON, III,
                                                  Appellant

                                             v.

    THE PORT AUTHORITY OF NY & NJ; PORT AUTHORITY TRANS-HUDSON
                            CORPORATION
                 ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 2-16-cv-05047)
                      District Judge: Honorable Susan D. Wigenton
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 26, 2019
               Before: MCKEE, COWEN and RENDELL, Circuit Judges

                              (Opinion filed: July 12, 2019)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Peter J. Fenton appeals the District Court’s grant of summary judgment in favor of

the Port Authority of New York and New Jersey and the Port Authority Trans-Hudson

Corporation (collectively, Appellees). The District Court determined that Fenton’s

claims of race-based discrimination and retaliation were time-barred. We will affirm.

                                            I.

       Fenton worked for Appellees in various capacities beginning in 1978. In 1996,

Fenton became a Sanitation Supervisor, which is the position he held until his retirement

in 2016. His current claims are based on three separate instances. On January 1, 2015,

Fenton did not receive a merit increase for his 2014 performance because, according to

company policy, he received a 3 out of 5 on his job rating and his salary was above the

market reference range for the position he occupied. As per policy, employees who were

above their market reference range and received a 3 out of 5 rating did not get merit

increases in 2015.

       Later that year, the position of General Maintenance Supervisor-Sanitation

(“GMSS”) was posted on July 1, 2015, and Fenton applied for the position that same day.

Fenton and another candidate were interviewed; however, on August 3, 2015, Fenton was

notified that he did not receive the promotion to GMSS.

       On January 29, 2016, Fenton filed an internal complaint with the Port Authority’s

Office of EEO Compliance,1 alleging that he was not promoted to the GMSS position


1
 The Port Authority’s internal Office of EEO Compliance ensures that the agency
complies with federal equal employment opportunity laws and internal Port Authority
policies related to those laws. The Office of EEO Compliance internally investigates
employee complaints of discrimination and harassment, but it is not the federal agency
                                             2
because the interviewers based their decision solely on race. Dkt. #40-23. Fenton

testified that he spoke to Wayne Turner from the Port Authority’s Office of EEO

Compliance, who advised him “that perhaps [he] may want to contact the federal EEOC

people.” Dkt. #40-6 at 82, lines 9–15. The Office of EEO Compliance did not

investigate Fenton’s complaint because he told them that he was going to file an external

EEOC complaint.

       On February 3, 2016, Fenton went to the EEOC’s office in Newark, New Jersey,

and completed an EEOC Intake Questionnaire.2 The EEOC charge of discrimination is

dated February 22, 2016.

       Around this time, another position, World Trade Center General Maintenance

Supervisor (“WTC GMS”), was posted on January 15, 2016. Fenton applied for this

position, but the position was subsequently pulled and held in abeyance due to budgetary

reasons. Fenton retired on July 28, 2016. The WTC GMS position was reposted later in

November 2016, again because of reasons related to the budget, and ultimately filled.

       On August 15, 2016, Fenton commenced this action against Appellees, alleging

race-based discrimination and retaliation as it related to (1) his failure to be promoted to

GMSS on August 3, 2015; (2) his failure to receive a salary increase in January 2015; and

(3) the WTC GMS position that was withdrawn after he applied for it. The District Court


known as Equal Employment Opportunity Commission (EEOC).
2
 At oral argument on the motion for summary judgment, Fenton stated that he called the
Newark EEOC office on February 1, 2016, and spoke to someone who told him that they
were short-staffed and that the first available date for appointment would be February 3,
2016. Dkt. #48 at 12–13.
                                              3
ultimately granted Appellees’ motion for summary judgment because Fenton did not file

the required EEOC charge within the applicable 180 days.3 The District Court further

reasoned that equitable tolling was unavailable to cure this defect. Fenton timely

appealed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the District

Court’s grant of summary judgment de novo.” Jutrowski v. Twp. of Riverdale, 904 F.3d

280, 288 (3d Cir. 2018). Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmoving party and drawing all inferences in favor of that

party, there is no genuine dispute as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455

F.3d 418, 422–23 (3d Cir. 2006).

       On appeal, Fenton makes two arguments. First, he argues that the District Court

erred in holding that equitable tolling did not apply to his case.4 Second, he argues that


3
  See 42 U.S.C. § 2000e-5(e)(1) (A charge must be filed with EEOC within 180 days
from the date of the alleged violation in order to protect the charging party’s rights,
unless the charge is covered by a state or local anti-discrimination law); see also Dezaio
v. Port Auth. of N.Y. & N.J., 205 F.3d 62, 64–66 (2d Cir. 2000) (explaining why the 180-
day period applies, as the Port Authority lies outside of New York and New Jersey’s anti-
discrimination law); hip Heightened Indep. & Progress, Inc. v. Port Auth. of N.Y. & N.J.,
693 F.3d 345, 358 (3d Cir. 2012) (“[J]ust as the Dezaio Court found that New York
employment discrimination laws could not be applied to the [Port] Authority, so too is
New Jersey barred[.]”).
4
  Fenton does not challenge the District Court’s determination that his EEOC charge was
untimely. It is undisputed that (1) the day Fenton failed to be promoted, August 3, 2015,
acted as the triggering date that started the time to file an EEOC charge, and (2) that the
intake form submitted on February 3, 2016, would have been sufficient for filing
purposes. February 3, 2016, was 184 days after August 3, 2015.
                                             4
the District Court erred by not addressing his complaints related to his failure to receive a

raise and the retaliation claim related to the WTC GMS position.

       A. Applicability of equitable tolling.

       “Title 42 U.S.C. § 2000e–5(e)(1) is a charge filing provision that ‘specifies with

precision’ the prerequisites that a plaintiff must satisfy before filing suit.” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander v. Gardner–

Denver Co., 415 U.S. 36, 47 (1974)). A claim is time barred if it is not filed within the

time limits set forth in § 2000e–5(e)(1); in this case, that time limit is 180 days. Id.

However, this time period for filing a charge is subject to equitable tolling. Id. at 113–14.

“We have instructed that there are three principal, though not exclusive, situations in

which equitable tolling may be appropriate: (1) where the defendant has actively misled

the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some

extraordinary way has been prevented from asserting his or her rights; or (3) where the

plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Oshiver v.

Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994), abrogated on

other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018).

       On appeal, Fenton argues that the first and third Oshiver situations are present

here. As to the first situation, Fenton argues that Wayne Turner from the Port

Authority’s Office of EEO Compliance actively misled him when Mr. Turner advised

him that he “may want to contact the federal EEOC people.” He essentially argues that

Mr. Turner had an affirmative duty to correct his mistaken belief that filing with the Port

Authority’s Office of EEO Compliance was all he needed to do to preserve his claims.

                                              5
See Appellant’s Br. 7. We agree with the District Court’s assessment that this interaction

did not amount to a situation in which Fenton was actively misled. Indeed, it would

appear that Mr. Turner’s suggestion was actually helpful, as Fenton was required to file

with the EEOC. Moreover, Fenton fails to cite to any case law that would support his

contention that Mr. Turner owed him any sort of duty to correct his mistaken belief. See

Hedges v. United States, 404 F.3d 744, 752 (3d Cir. 2005) (noting that cases point in the

opposite direction of holding that an affirmative duty exists); see also Robinson v.

Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997) (“Running throughout the equitable estoppel

cases is the obligation of the plaintiff to exercise due diligence to preserve his or her

claim.” (emphasis added)).

       Fenton also maintains that he timely asserted his rights in the wrong forum. He

argues that he initially believed that his filing on January 29, 2016, was at an EEOC

office. He argues the name of the office “referred to by [Appellees’] employees as the

‘EEOC office’ or ‘EEO office’ made it appear that the office was affiliated with the

[EEOC].” Appellant’s Br. 6. Upon review, we disagree that equitable tolling is

appropriate, as the situation described amounts to a failure on Fenton’s part to exercise

due diligence.5 See Robinson, 107 F.3d at 1023; see also Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990) (noting that principles of equitable tolling do not extend

to “what is at best a garden variety claim of excusable neglect”). Consequently, we find


5
 It appears that Fenton merely failed to read the Port Authority’s EEO guide, which
details options for filing an internal complaint of discrimination or external charge of
discrimination and gives the contact information for both the New York and New Jersey
EEOC. Dkt. #43-3 at 8.
                                              6
no error in the District Court’s determination that equitable tolling was unavailable in the

situations presented here.

       B. Addressing the merits of Fenton’s other claims.

       Finally, Fenton argues the District Court erred by not addressing his complaints

related to his failure to receive a raise in 2015 and the retaliation claim related to the

WTC GMS position. However, as noted above, Fenton did not file a timely EEOC

charge and equitable tolling does not apply. Thus, the District Court was correct to not

address the merits of the failure to receive a raise claim, as it was procedurally barred

from consideration due to the untimeliness of Fenton’s EEOC charge. See Nat’l R.R.

Passenger Corp., 536 U.S. at 109.

       Furthermore, Fenton did not file a separate EEOC charge for his retaliation claim

related to the WTC GMS position; instead, he attempted to bootstrap this allegation to the

charge he had already filed. Although this Circuit has recognized a plaintiff’s ability to

do this, when a claim is bootstrapped to a prior EEOC charge that is untimely—as is the

case here—neither claim is properly before the court. See Waiters v. Parsons, 729 F.2d

233, 235 (3d Cir. 1984) (“A victim of discrimination is not required to exhaust

administrative remedies with respect to a claim concerning an incident which falls within

the scope of a prior EEOC complaint or the investigation which arose out of it, provided

that the victim can still bring suit on the earlier complaint.” (emphasis added)); see also

Franceschi v. U.S. Dep’t of Veterans Affairs, 514 F.3d 81, 86–87 (1st Cir. 2008) (noting

a claim of retaliation may ordinarily be bootstrapped onto another prior Title VII claim

arising out of the administrative charge, but where “administrative remedies have not

                                               7
been exhausted with respect to any of the other Title VII claims in the civil action, there

is nothing properly before the court to which the retaliation claim may be bootstrapped”);

Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir. 1991) (where ADEA age-

discrimination claims had been dismissed as untimely and therefore “were not ‘properly’

before the district court,” bootstrapped retaliation claim likewise had to be dismissed, as

it had “no charge on which to attach itself”). Consequently, the District Court did not err

by declining to address the merits of either claim.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                             8
