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


9-16-2008

McCann v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3804




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                    No. 07-3804


                                  JOHN MCCANN,

                                          Appellant

                                          v.

                              MICHAEL J. ASTRUE,
                           COMMISSIONER, U.S. SOCIAL
                           SECURITY ADMINISTRATION
                                   AGENCY


                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (District Court No. 05-cv-00962)
                    District Judge: The Honorable John P. Fullam


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

                             Before: MCKEE, SMITH,
                             and WEIS, Circuit Judges

                             (Filed: 16 September 2008)


                                      OPINION


SMITH, Circuit Judge.

      John McCann, a white male, began his career with the Social Security
Administration (SSA) in 1983 as a GS-14. Over the next twenty-three years, McCann

filled approximately nine GS-14 positions with the SSA. Beginning in 1988, he applied

for at least thirteen promotions to GS-15 positions with the SSA in Philadelphia,

Baltimore, New York, and Boston. None of his applications resulted in a promotion,1 and

in August of 2000 McCann filed an EEO complaint alleging that he was not selected for

the GS-15 position of Area I Director in Philadelphia because of his race, sex and veteran

status. He also alleged a past pattern of discrimination. In February of 2001, McCann

amended his complaint to allege that his non-selection for the GS-15 position of Deputy

Regional Commissioner for Management Operations Support (“DARC-MOS”) was in

retaliation for filing the EEO complaint against the Agency. McCann did not file an EEO

complaint as to any of the other GS-15 positions for which he was previously not


   1
     The SSA maintains that these positions were filled competitively under Merit System
Protection rules. The record indicates that vacant positions are posted with the
qualifications and requirements of the position, along with the deadline for applications.
Timely applications are then reviewed by Human Relations Specialists (HR Specialists).
HR Specialists then apply the Office of Personnel Management’s Qualifications
Standards to determine which applicants are minimally qualified for the position at issue.
After scoring the applications, they prepare a Best Qualified List that is forwarded to the
selecting official. Any candidate on the List may be selected for the position. It is then
within the discretion of the selecting official to interview any or all of the candidates.
The selecting official may ask the recommending official or a selection panel to review
the applications, conduct interviews, and make recommendations. The selecting official
makes the final decision to select a candidate. If an unsuccessful candidate believes that
his non-selection was based on non-merit factors like favoritism, political affiliation, etc.,
he may file a complaint with the Merit Systems Protection Board. An unsuccessful
candidate who believes his non-selection was based on legally impermissible factors such
as race, sex, religion, etc., may initiate the EEO process within 45 days of learning of the
non-selection.


                                              2
selected. The Equal Employment Opportunity Commission (EEOC) issued a Right to

Sue notice on December 2, 2004, and McCann filed a complaint against the SSA in the

Eastern District of Pennsylvania in May of 2005. The District Court granted summary

judgment in favor of the SSA on August 21, 2007. McCann timely appealed from that

decision.2

       McCann seeks to recover for race discrimination and retaliation on the theories

that, “[f]rom 1983 to 2005, Defendant engaged in a continuous course of conduct or racial

discrimination against [him]” and that in retaliation for his complaints “Defendant

continued and intensified the discrimination and harassment” and “denied additional

promotions to [him].” The District Court correctly determined that McCann can recover

only for the two claims of failure to promote that he presented to the EEOC, because he

failed to exhaust his administrative remedies with respect to the other previous instances

of non-selection.

       EEOC regulation requires federal employees to initiate the EEO process within 45

days of the alleged unlawful act. As such, it is clearly too late for McCann to invoke the

EEO process for any former instance of alleged discrimination and retaliation arising out

of a failure to promote. Because the exhaustion requirement is a non-jurisdictional

prerequisite, however, McCann attempts to employ the continuing violation doctrine to

permit him to aggregate the acts between 1983 and 2005 and allow recovery on that basis.


   2
     The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             3
That doctrine, however, only applies when the alleged discriminatory acts are not

individually actionable, but when aggregated may make out a hostile work environment

claim. The law makes clear that discrete discriminatory acts that are actionable on their

own may not be aggregated under a continuing violation theory.3 See Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“[D]iscrete discriminatory acts

are not actionable if time barred, even when they are related to acts alleged in timely filed

charges. Each discriminatory act starts a new clock for filing charges alleging that act.”).

The Supreme Court has made clear that an instance of failure to promote is a discrete act

that is individually actionable. O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.

2006) (citing Nat’l R.R. Passenger Corp., 536 U.S. at 114). As such, we examine only

the two claims of failure to promote that were timely presented to the EEO Office.

        McCann claims that the reason he was not promoted to the GS-15 Area I Director

position was because he is white. We are satisfied that McCann established a prima facie

case of disparate treatment on the basis of race. In cases of “reverse discrimination,” all

that is required to establish a prima facie case “is for the plaintiff to present sufficient

evidence to allow a fact finder to conclude that the employer is treating some people less

favorably than others based upon a trait that is protected under Title VII.” Iadimarco v.

Runyon, 190 F.3d 151, 161 (3d Cir. 1999). Here, McCann was not selected for the



   3
     They may, however, be used as background evidence to support timely claims. We
are also satisfied that McCann has not otherwise established a prima facie case of hostile
work environment.
                                               4
position and it was filled by an African-American male. Further, according to McCann,

Larry Massanari, the decisionmaker, told McCann that given his extensive experience and

high performance, were he anything other than a white male, he would have been

promoted long ago. While “[s]tray remarks by non-decisionmakers or by decisionmakers

unrelated to the decision process are rarely given great weight, particularly if they were

made temporally remote from the date of decision,” Ezold v. Wolf, Block, Schorr and

Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992), this comment is still relevant evidence

that the employer is treating some people less favorably than others based upon race. The

record also includes testimony from Ronald Roseman, a field office manager with hiring

and firing responsibilities, that the SSA makes an exception to the normal merit system

selection practice for individuals who are on an “outstanding scholar” list. Roseman

testified that he, and others with hiring capacity, were told that if they were going to use

the outstanding scholar program, it could only be used to hire black candidates. On one

occasion, Roseman wanted to hire a white candidate from the list, and was told that he

could not select her; he further testified that a fellow field director was also told he could

not select a white male he had wanted to hire. See Brown v. Muhlenberg Twp., 269 F.3d

205, 212 n.5 (3d Cir. 2001) (allowing the court to consider sworn testimony as the

equivalent of an affidavit). See also id. (citing Williams v. Borough of West Chester Pa.,

891 F.2d 458 (3d Cir. 1989) (holding, on the authority of Celotex v. Catrett, 477 U.S. 317

(1986), that “hearsay evidence produced in an affidavit opposing summary judgment may

be considered if the out-of-court declarant could later present that evidence through direct

                                              5
testimony, i.e., ‘in a form that would be admissible at trial.’”) (citation omitted)).

Accordingly, we hold that the District Court erred in ruling that McCann failed to

establish a prima facie case of illegal race discrimination under Title VII.

       At this point, the burden shifts to the SSA to articulate some legitimate, non-

discriminatory reason for its failure to promote McCann to the Area I Director position.

See id. at 157. The record demonstrates that the SSA has fully satisfied this burden. The

SSA asserts that it did not hire McCann because he lacked leadership skills and frequently

exhibited poor judgment. In addition, McCann recently had applied and been interviewed

for the Area II Director position and the panel that interviewed him reported that he had

performed very poorly. They indicated that he was “arrogant, cynical and completely

unprepared.” Not only did the interview panel not recommend McCann for further

consideration, they ranked him among the lowest of all the applicants. Another white

male was ultimately recommended and selected for that position. Further, not one of the

senior managers recommended McCann for the Area I Director job. The record

demonstrates that the candidate who was ultimately chosen as the Area I Director was

selected, in part, because of his outstanding leadership ability. As such, we are well-

satisfied that the SSA has articulated a legitimate, non-discriminatory reason for

McCann’s non-selection.

       To defeat summary judgment, McCann must point to “‘some evidence, direct or

circumstantial, from which a fact finder could reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory

                                               6
reason was more likely than not a motivating or determinative cause of the employer’s

action.’” Iadimarco, 190 F.3d at 166 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994) (emphasis added)). We conclude that McCann has failed to meet this burden,

and agree with the District Court that the SSA is entitled to judgment on this claim as a

matter of law. The stray remark by Massanari used to support the prima facie case is not

sufficient to defeat summary judgment. In addition, McCann does not allege any racial

bias on the part of the other senior managers involved in the selection process who, the

record reflects, shared Massanari’s opinion of McCann. McCann also does not dispute

any specific example of demonstrated lack of leadership that Massanari has proffered.

On this evidentiary record, no fact finder could reasonably conclude that SSA’s reasons

for not promoting McCann are pretextual.

       McCann also alleges that his non-selection for the GS-15 DARC-MOS position

was in retaliation for filing the EEO complaint against the SSA. The record evinces no

evidence whatsoever to establish a causal link between his protected activity of filing an

EEO complaint on August 29, 2000, and his January 23, 2001 non-selection. This Court

has made clear that the mere fact that an adverse employment action occurs after a

plaintiff engages in protected activity is insufficient to establish a causal link. See

Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (“‘Even if timing alone

could ever be sufficient to establish a causal link, . . . the timing of the alleged retaliatory

action must be unusually suggestive of retaliatory motive before a causal link will be

inferred.’”) (citation omitted). Here, the alleged retaliatory act occurred five months after

                                               7
McCann filed his EEO complaint. Without more, we conclude that McCann has failed to

adduce evidence sufficient to make a prima facie case of retaliation.

       Accordingly, we will affirm the District Court’s grant of summary judgment in

favor of the Appellees.




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