                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2008

Thomas v. Wheeler
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3173




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                       No. 06-3173
                       ___________

                   CLAUDE THOMAS,

                                                 Appellant

                             v.

             STEVEN R. WHEELER;
  PENNSYLVANIA OFFICE OF ATTORNEY GENERAL;
      JAMES CAGGIANO; CHARLES WARNER;
       LARRY CHERBA; MICHAEL AHWESH,

                       ___________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
               (D.C. Civil No. 05-cv-01447)
       District Judge: Honorable Legrome D. Davis
                       ___________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                   September 11, 2008

Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges.

              (Opinion Filed: October 8, 2008)




                             1
FUENTES, Circuit Judge:

       Claude Thomas, an African American male, appeals from the dismissal of

employment discrimination claims he brought against his employer, the Pennsylvania

Office of Attorney General, and several individual defendants. In particular, Thomas

argues that the District Court erred in finding that certain of his claims were barred by the

applicable statutes of limitation, and that Thomas had failed to present sufficient evidence

to support his remaining claims.1

                                              I.

                                        Background

       Because we write exclusively for the parties, we only discuss the facts and

proceedings necessary for resolution of this case. In 1992, pursuant to his contract,

Thomas was promoted to the position of Narcotics Agent II. A year later, Thomas filed a

pro se federal action under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq. (“Title VII”). That action was settled and, pursuant to the

settlement agreement, Thomas was reassigned to the U.S. Customs Service in

Philadelphia. In 1998, his position with the Customs Service was terminated and he

returned to the Office of Attorney General.

       In 2005, Thomas filed this action alleging violations of Title VII, 42 U.S.C. §§



       1
        We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s summary judgment ruling. Township of Piscataway
v. Duke Energy, 488 F.3d 203, 208 (3d Cir. 2007).

                                              2
1981 and 1983, the First, Thirteenth, and Fourteenth Amendments to the United States

Constitution, the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann.

§ 951 et seq., and various state tort law causes of action. Thomas alleged that, beginning

in 1998, he applied for and was denied eight promotions because of racial discrimination

and retaliation for his previous suit. Thomas also asserted that he received excessive

discipline and was denied training and favorable work-related assignments because of

discriminatory and retaliatory animus.

       In a series of rulings, the District Court dismissed all of Thomas’s claims. The

District Court determined that many of Thomas’s claims were time-barred because he

failed to file a timely complaint with the EEOC or in federal court. The District Court

also concluded that Thomas failed to meet his burden of producing evidence to suggest

that the employment decisions concerning him were prompted by racial discrimination.

                                             II.

                                          Discussion

       “Summary judgment is appropriate if there are no genuine issues of material fact

and the movant is entitled to judgment as a matter of law. In reviewing the District

Court’s grant of . . . the motions for summary judgment, we view the facts in the light

most favorable to the nonmoving party.” Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290,

293 (3d Cir. 2008) (citations omitted).

       A.     Timeliness of Thomas’s Claims



                                              3
       Thomas argues that the District Court should have applied the “continuing

violation” doctrine to his otherwise time-barred failure to promote, excessive discipline,

and reassignment claims. We concur with the District Court that these claims constitute

discrete incidents to which the continuing violation analysis is inapplicable. See Rush v.

Scott Speciality Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997). Accordingly, we find

that the District Court properly dismissed all Title VII claims that occurred more than 300

days prior to the filing of Thomas’s EEOC complaint, all § 1981 claims that occurred

before March 29, 2001, and all § 1983 claims that occurred before March 29, 2003.

However, evidence of discriminatory or retaliatory intent from this period may still be

relevant to analyzing claims that are not time-barred.

       B.     Merits of Thomas’s Remaining Claims

              1.     Title VII, 42 U.S.C. § 1981, First Amendment, and PHRA Claims

       The District Court concluded that Thomas had failed to present evidence to

support his claim that he was subjected to a hostile work environment. Thomas alleges

that Office of Attorney General staff made derogatory comments about the abilities of

African-American and Latino officers, but admits that he is unable to identify who made

these comments and cannot “specifically state what comments were made.” (App. 161.)

We agree with the District Court that these vague allegations are not sufficient to meet

Thomas’s burden at the summary judgment stage. Accordingly, we will affirm the

District Court’s grant of summary judgment on Thomas’s hostile work environment



                                             4
claim, and will not discuss these alleged comments in evaluating Thomas’s other claims.

       The District Court applied the familiar McDonnell Douglas burden-shifting

framework to analyze Thomas’s disparate treatment claims. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). The District Court found that Thomas had failed to

present a prima facie case of discrimination as to his July 2004 failure to promote claims

and his unfavorable assignment claim. As to the unfavorable assignment claim, the

District Court determined that Thomas had presented no evidence that he was denied

favorable assignments. The District Court also found that the defendants had presented

evidence of a legitimate non-discriminatory reason for not promoting Thomas to

Narcotics Officer III in July 2004: the open position was reclassified to a higher ranking

position for which Thomas was not eligible.

       The District Court assumed that Thomas had met his initial burden of presenting a

prima facie case of discrimination as to his claim of failure to train and his July 2002 and

March 2004 failure to promote claims. The District Court found that Thomas was denied

training because of the application of legitimate non-discriminatory Office of Attorney

General policies. Thomas was denied training to become “B certified” in wiretap

investigations because the training was expensive and the Office of Attorney General

only needed one B certified agent in each regional office. Thomas was denied polygraph

training because his division of the Office of Attorney General did not use polygraph

testing. In sum, Thomas failed to present evidence that these policy justifications were

untrue or that the real reason for applying the policies to him was discriminatory animus.

                                              5
We concur with the District Court and adopt its reasoning as to these claims.

       The District Court also determined that the defendants presented evidence of a

legitimate reason for declining to promote Thomas in July 2002 and March 2004: other

candidates were better qualified. Thomas argues that the District Court erred in granting

summary judgment as to these claims because he would have been well-qualified but for

the Office of Attorney General’s failure to provide him with the training and experience

needed to meet its promotion criteria. As noted above, we concur with the District

Court’s reasoning that Thomas did not present adequate evidence to suggest that he was

denied training or favorable assignments because of discrimination. Accordingly, we will

also affirm the District Court’s decision to grant summary judgment as to Thomas’s

March 2004 failure to promote claim.

       As to Thomas’s retaliation claims, we agree that Thomas failed to present evidence

suggesting a causal nexus between any employment actions and his earlier suit. The

District Court found that Thomas had failed to raise a genuine issue of material fact as to

his First Amendment claim for the same reason. Thomas’s only evidence suggesting a

causal nexus is that in 1998, James Caggiano made comments indicating retaliatory

animus. Caggiano participated in the final phase of the selection process for the March

2004 promotion. However, Thomas was eliminated from consideration prior to this

phase, and Thomas has presented no evidence that Caggiano influenced the selection of

candidates during the initial levels of review. In light of the many years’ gap between

Thomas’s first discrimination claim, Caggiano’s 1998 comments, and the 2004 promotion

                                             6
process, more was needed to suggest a causal nexus. Further, Thomas has not presented

evidence linking Caggiano to any other non-time barred employment actions. Thus, we

will also affirm the District Court’s decision as to these claims.

              2.      Fourteenth Amendment Claims

       On appeal, Thomas claims that his rights to substantive and procedural due

process, and equal protection were violated. In his complaint, Thomas claimed violations

of his “right under the . . . 14th Amendment . . . to be gainfully employed and thereby

contribute as a taxpayer and support himself and his family free of a hostile work

environment inflicted upon him based upon his race” and his “right under the 14th

Amendment . . . to work and be employed in the stream of American commerce and enjoy

the benefits and emoluments of employment so that he can participate in supporting the

American nation through the payment of taxes and to support his family free of unlawful

discrimination on account of his race, national origin and color.” (Compl. ¶¶ 13-14, app.

69.) The District Court granted summary judgment on Thomas’s Fourteenth Amendment

claim noting that he had failed to “define the legal or factual basis” for this claim and

introduced “no factual evidence on this particular claim.” Accordingly, the District Court

concluded that the defendants were entitled to “judgment on the alleged Fourteenth

Amendment violation as a matter of law.” Thomas v. Wheeler, 05-cv-1447, Dkt. # 26 at

35 (Apr. 10, 2005).

       Thomas did not raise his procedural or substantive due process claims in his

complaint, or otherwise, before the District Court and may not amend his complaint

                                              7
through his arguments on appeal. Accordingly, we will not consider these claims.2

       We find that the District Court properly granted summary judgment on Thomas’s

equal protection claim for the same reasons that his statutory employment discrimination

claims fail.

                                           III.

                                       Conclusion

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be affirmed.




       2
        Further, even if a claim for violation of Thomas’s substantive or procedural due
process rights were properly before this Court, we would find that Thomas did not raise a
genuine issue of material fact that these rights were violated.

                                            8
