                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1937
                                  ___________

Julius E. Wright,                   *
                                    *
           Appellant,               *
                                    * Appeal from the United States
      v.                            * District Court for the Eastern
                                    * District of Arkansas.
                     1
Tommy G. Thompson, Secretary of the *
Department of Health and Human      *   [UNPUBLISHED]
Services                            *
                                    *
           Appellees.               *
                               ___________

                         Submitted: February 21, 2003
                             Filed: March 10, 2003
                                  ___________

Before HANSEN, Chief Judge, MELLOY, and SMITH, Circuit Judges.
                             ___________

PER CURIAM.

       Julius Wright, an African American, brought this employment-discrimination
suit against the Secretary of the Department of Health and Human Services (HHS),
alleging that he was denied employment at the Food and Drug Administration’s
National Center for Toxicological Research (NCTR) because of his race. The district


      1
       Tommy G. Thompson has been appointed to serve as Secretary of the
Department of Health and Human Services, and is substituted as appellee pursuant
to Federal Rule of Appellate Procedure 43(c).
court2 granted HHS’s motion to dismiss or for summary judgment. The court also
denied Wright’s motion for reconsideration. Wright appeals. Having carefully
reviewed the record de novo, we affirm. See 8th Cir. R. 47B.

       We agree with the district court that it lacked subject matter jurisdiction over
this case because Wright failed to exhaust his administrative remedies: he waited
three years to file a discrimination complaint with the FDA’s Equal Employment
Opportunity Office, see 29 C.F.R. § 1614.105(a)(1) (2002) (employment
discrimination complaints against federal agencies must be brought within 45 days
of discriminatory personnel action), and we agree with the district court that there was
no basis to equitably toll the deadline for filing a complaint, see Shempert v. Harwick
Chem. Corp., 151 F.3d 793, 797-98 (8th Cir. 1998) (equitable tolling is inappropriate
when plaintiff fails to exercise reasonable diligence), cert. denied, 525 U.S. 1139
(1999).

       Even if Wright had filed a timely charge, we would agree with the district
court’s alternative conclusion that summary judgment was proper because Wright did
not produce any admissible evidence establishing that NCTR’s legitimate, non-
discriminatory reason for not hiring Wright--the Office of Personnel Management,
not NCTR, reviewed all of the applications and determined Wright did not qualify for
the position--was a pretext for racial discrimination. See Luciano v. Monfort, Inc.,
259 F.3d 906, 910 (8th Cir. 2001) (affirming grant of summary judgment where
plaintiff offered no probative evidence that reason for termination was pretext for race
discrimination).

      Accordingly, we affirm.



      2
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
                                          -2-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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