                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 12-3610
                                   ____________

                              CYNTHIA R. WINDER,
                                              Appellant
                                      v.

               POSTMASTER GENERAL OF THE UNITED STATES
                             ____________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 11-cv-00878)
                   District Judge: Honorable Mary A. McLaughlin
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 13, 2013

           Before: SCIRICA, HARDIMAN and ALDISERT, Circuit Judges.

                                (Filed: June 14, 2013)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      Cynthia Winder appeals the District Court’s summary judgment dismissing her

employment discrimination claim as time-barred. We will affirm.



                                          I
       In November 2007, the United States Postal Service’s Philadelphia District Office

issued both internal and external vacancy announcements for the position of Employee

Assistance Program (EAP) Clinical Supervisor. Winder, an African-American female

and one of the EAP Assistant Counselors, applied for the position. In February 2008,

Lisa Jordan, an African-American female and Manager of Human Resources for the

Philadelphia District Office, interviewed Winder.

       On April 1, 2008, Jordan met with Winder to tell her that she was not selecting

Winder for the position. Jordan’s and Winder’s version of the events of the meeting

differ slightly. According to Jordan, she did not select Winder because she believed that

Winder needed to develop her ―supervisory and leadership skills.‖ App. 145. Winder, by

contrast, maintains that Jordan told her that she did not have enough ―supervisory

experience.‖ App. 44–45. After consideration of the external applications, Jordan hired

Ronald Erenhouse, a white male, as the EAP Clinical Supervisor on October 25, 2008.

       On November 5, 2008, Winder contacted an EEO counselor to complain about

alleged discrimination. A formal complaint was filed on December 12, 2008. Winder

alleged that Jordan wanted to select a white male over a black female for the EAP

supervisor position, despite the qualifications of the candidates. The Postal Service

dismissed the EEO complaint in January 2009 as untimely. However, the Equal

Employment Opportunity Commission reversed the dismissal in May 2009, finding that

Winder did not have reasonable suspicion that she had been discriminated against until

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Erenhouse was hired in October 2008.

       On February 4, 2011, Winder filed a civil complaint in the United States District

Court for the Eastern District of Pennsylvania alleging discrimination on the basis of sex

and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq.1 On April 30, 2012, the Postal Service filed a motion for summary judgment,

arguing: (1) Winder’s claim was untimely; (2) Winder could not make out a prima facie

case of discrimination; and (3) Winder could not establish that the Postal Service’s

justification for not selecting her for the supervisor position was pretext for

discrimination. Winder filed a response to the summary judgment motion and the District

Court heard oral argument. On August 17, 2012, the District Court granted the motion,

concluding that Winder had not timely contacted an EEO counselor about her

discrimination claim. The Court did not address any of the Postal Service’s other

arguments. This appeal followed.

                                              II2

       Winder makes two arguments on appeal. First, she argues that the District Court

erred in determining that her claim accrued on April 1, 2008, instead of on October 25,

2008. Second, she claims that even if April 1, 2008, is the operative date, the time


       1
         Winder also filed a discrimination claim under 42 U.S.C. § 1981, but the parties
stipulated to its dismissal on May 9, 2011.
       2
        The District Court exercised subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.
                                              3
limitation should be equitably tolled. We exercise plenary review over a district court’s

summary judgment, applying the same standard as the district court. Ruehl v. Viacom,

Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007); see also Fed. R. Civ. P. 56(a). Our review of a

district court’s choice and interpretation of applicable tolling principles is plenary as well.

Ruehl, 500 F.3d at 380 n.6.

                                              A

       Before bringing a Title VII suit in federal court, a federal employee must initiate

contact with an EEO counselor ―within 45 days of the date of the matter alleged to be

discriminatory or, in the case of personnel action, within 45 days of the effective date of

the action.‖ 29 C.F.R. § 1614.105(a)(1). This 45-day time limit operates akin to a statute

of limitations: a claim brought more than 45 days after the date it accrued will be barred.

See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997).

       Here, the 45-day limitations period began to run on April 1, 2008, the date Winder

discovered that Jordan was not going to promote her to the EAP Clinical Supervisor

position. On that date, Winder knew she had been injured (by her non-selection) and that

her injury had been caused by the conduct of another party (the Postal Service). See

Oshiver v. Levin, Fishbein, Sedran, & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994)

(limitations period begins to run when ―the plaintiff has discovered or, by exercising

reasonable diligence, should have discovered (1) that he or she has been injured, and

(2) that this injury has been caused by another party’s conduct‖ (citing Bohus v. Beloff,

                                               4
950 F.2d 919, 925 (3d Cir. 1991)).

       Although Winder argues that her injury was not complete until October 25, 2008,

the date Erenhouse was hired, it is well-settled that ―a claim accrues in a federal cause of

action upon awareness of actual injury, not upon awareness that this injury constitutes a

legal wrong.‖ Id. (citation omitted); see also id. at 1385, 1391 (holding that the statute of

limitations began to run on the date of the plaintiff’s termination, not on the date she

discovered that a male was hired in her place); Wastak v. Lehigh Valley Health Network,

342 F.3d 281, 287 (3d Cir. 2003) (holding that plaintiff’s injury was complete and

discovered when he was terminated, not when he learned that he was replaced by a

younger worker). Furthermore, Winder’s belief that the position could have been re-

posted—thereby giving her an opportunity to reapply—does not change the fact that the

actual injury occurred on April 1, 2008, when Winder was informed that she would not be

selected.

       Winder contacted an EEO counselor on November 5, 2008, long after the 45-day

limitations period beginning April 1, 2008, had run. Accordingly, Winder’s claim is

time-barred unless the limitations period may be equitably tolled.

                                              B

       Although the doctrine of equitable tolling allows a court to stop the limitations

period from running after a claim has accrued, both the Supreme Court and our Court

have recognized that the doctrine should be applied ―only sparingly.‖ Irwin v. Dep’t of

                                              5
Veterans Affairs, 498 U.S. 89, 96 (1990); see also Podobnik v. U.S. Postal Serv., 409 F.3d

584, 591 (3d Cir. 2005). One situation in which equitable tolling may be appropriate is

―where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of

action, and that deception causes non-compliance with an applicable limitations

provision.‖ Podobnik, 409 F.3d at 591. A plaintiff seeking to invoke this basis for

equitable tolling must show that ―he or she could not, by the exercise of reasonable

diligence, have discovered essential information bearing on his or her claim.‖ Ruehl, 500

F.3d at 384 (quoting In re Mushroom Transp. Co., 382 F.3d 325, 339 (3d Cir. 2004)).

Winder has the burden of establishing that the equitable tolling doctrine applies.

Podobnik, 409 F.3d at 591 (citing Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir.

1997)).

       Winder argues that the limitations period should be equitably tolled because Jordan

actively misled her by ―provid[ing] her with a false and misleading reason for her non-

hire‖—that she lacked ―supervisory experience.‖ Appellant’s Br. 16, 18. She claims that

she had no way of knowing that Jordan had discriminated against her until she spoke with

Erenhouse in October 2008 and discovered that Jordan had hired ―an external candidate

who had no prior EAP supervisory experience.‖ Id. at 19.

       Winder’s claims are belied by the record. Winder testified in her deposition in this

case that she began to suspect that Jordan was discriminating against her as early as 2005,

when she was not chosen to be Acting EAP Clinical Supervisor after the previous

                                             6
supervisor’s resignation. Furthermore, Winder admitted that by April 2008, it became

apparent that she was discriminated against on the basis of her race and sex even though

she ―didn’t want to see it.‖ She also acknowledged that in April 2008, she complained to

a friend that she had been discriminated against when she was not selected for the

supervisor position. Finally, Winder was aware in April 2008 that Jordan was reviewing

external applications, and in August 2008 she was aware that Erenhouse was being

interviewed. Given her beliefs that she had been discriminated against, she did not act

like a ―person with a reasonably prudent regard for his or her rights.‖ Oshiver, 38 F.3d at

1389. Winder made no effort to inquire into the hiring process or ask Jordan for a fuller

explanation of her decision. See Ruehl, 500 F.3d at 384–85; Podobnik, 409 F.3d at 591–

92; Hart v. J.T. Baker Chem. Co., 598 F.2d 829, 834 (3d Cir. 1979). Accordingly,

Winder cannot show that, by acting with reasonable diligence, she could not have

discovered essential information bearing on her claim. Equitable tolling is thus

inappropriate in this case.

                                             III

       For the foregoing reasons, we hold that Winder’s claim is time-barred and that she

is not entitled to equitable tolling. We will therefore affirm.




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