                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-3245
                                     ___________

                     JOHNNIEMAE GREEN; NORMAN GREEN

                                           v.

   POSTMASTER GENERAL OF THE UNITED STATES (Eastern Area); BRIAN
   STEWART, Individually and in his capacity as Plant Manager of the Philadelphia
     Logistics and Distribution Center for the U.S. Postal Service (Eastern Area)
                                                      Johnniemae Green, Appellant
                    ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. Civil No. 08-0597)
                    District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 13, 2011
               Before: SLOVITER, FISHER and WEIS, Circuit Judges
                        Opinion filed July 18, 2011
                                    _________

                                      OPINION
                                      _________

PER CURIAM.

             Pro se appellant Johnniemae Green appeals the District Court’s orders

granting defendant John E. Potter’s motion for partial dismissal and motion for summary

                                           1
judgment. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard

of review. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.

2009); State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.

2009). For the reasons discussed below, we will affirm the District Court’s judgment.

              Green, an African-American woman, is a longtime employee of the United

States Postal Service. In December 2005, a Postal Service directive required Brian

Stewart, the acting plant manager, to restructure the staffing at Green’s facility. As

relevant to Green, four management-level positions — managers of distribution

operations, or “MDOs” — would be available, and all current managers (including

Green) would be required to apply for these positions. The most-coveted position was

the “Lead MDO.”

              Green applied for all four positions, and was selected for one that she later

described as her third choice. The Lead MDO went to Thomas Bissell, a white male.

After obtaining a right-to-sue letter from the Postal Service’s Equal Employment

Opportunity (EEO) Office, Green instituted this action against Potter, the Postmaster

General, claiming that she had been discriminated against on account of her race and

gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. She

also claimed that she had been subjected to a hostile work environment.1


1
 Green initially also included her husband as a plaintiff and the Postal Service and Brian
Stewart as defendants, but she voluntarily dismissed those parties from the action. She
also voluntarily dismissed claims that she had raised under 42 U.S.C. § 1981. Finally,
                                             2
              After Green filed her complaint in the District Court, the Postal Service

informed her that she would be transferred to another facility. According to the Postal

Service, the transfer was necessary because the proximity of Green and her daughter,

who worked in the same facility, created a “problematic arrangement.” Green then

amended her complaint to allege that this transfer was the result of race and gender

discrimination.

              The District Court granted Potter’s motion to dismiss Green’s claims

concerning her transfer, and subsequently granted summary judgment to Potter on the

remaining claims. Green then filed a timely notice of appeal to this Court.

              In her appellate brief, Green has not meaningfully challenged the District

Court’s analysis or conclusions. On our own independent review, we are satisfied that

the Court did not err in granting judgment to Potter. First, we agree that Potter was

entitled to summary judgment on Green’s failure-to-promote claims. Because Green did

not provide direct evidence of discrimination, her claims are analyzed under the burden-

shifting framework set forth by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

05 (1973). See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.

2000). The parties agree that Green made a prima facie showing of discrimination



she included some allegations in her complaint concerning age discrimination, but did not
develop those contentions before the District Court. Insofar as Green sought to present
an age-discrimination claim, we will affirm the District Court’s order granting summary
judgment to Potter on that claim.

                                             3
because Bissell, a white male, was selected for the Lead MDO position that Green

sought. The burden thus shifts to Potter to “articulate some legitimate, nondiscriminatory

reason for the employee’s rejection.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)

(internal quotation marks omitted). Potter has carried this burden. Stewart, who was

responsible for filling the Lead MDO position, explained that he selected Bissell for the

position because he vastly outperformed Green during the interview stage of the hiring

process. In the interview, Stewart asked 25 questions that he believed the candidates

should have been able to answer based on their experience at the Postal Service facility.

Bissell answered 24 of those questions correctly; Green was able to provide correct

answers to only 12. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 526

(3d Cir. 1992).

              The burden thus shifts back to Green to present sufficient evidence for a

reasonable factfinder to disbelieve this explanation. Fuentes, 32 F.3d at 764. Green

argued that Stewart’s explanations were inconsistent — sometimes Stewart said he

considered the candidates’ interview performance and their experience, and other times

he focused only on the former. Viewed in context, however, Stewart’s accounts are

entirely consistent: he said that he considered both factors in evaluating the candidates,

and that in comparing Green and Bissell, it was the interview that made the difference.

Green’s only other argument is that Stewart intentionally designed the interview to

include questions that she could not answer. This contention, however, is based solely on

                                             4
Green’s own speculation and thus cannot sustain her burden. See, e.g., Ridgewood Bd.

of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999).2

              We also agree with the District Court that Green failed to exhaust her

claims that she was transferred due to the Postal Service’s racial or gender animus. To

exhaust the claims under Title VII, Green was required to contact an EEO counselor

within 45 days of the alleged discriminatory action, see 29 C.F.R. § 1614.105(a)(1), and

then file a formal complaint within 15 days of receiving notice of her right to file a

complaint, see 29 C.F.R. § 1614.106(b). Green was notified of the transfer on June 11,

2007. On June 20, 2007, she filed a pre-complaint form with the EEO challenging the

transfer, but then did not file a formal complaint. On September 4, 2007, she filed

another pre-complaint form, and ultimately did file a formal complaint, but this complaint

was untimely. Green thus failed to exhaust her administrative remedies, which is

typically fatal to a civil claim. See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.

1997).

              Before the District Court, Green proffered two defenses. First, she argued


2
  It is unclear whether Green intended to challenge Stewart’s selection of Theresa
Bonhage, a white female, to fill another MDO position that Green sought. As with her
possible age-discrimination claim, she presented some stray allegations concerning
Bonhage in her complaint, but did not develop any such claim before the District Court.
To the extent that she did attempt to argue that the Postal Service’s choice of Bonhage
was motivated by race discrimination, her claim fails for the same reason discussed above
— that is, Stewart said that he picked Bonhage because she performed better than Green
during their interviews, and Green has presented no basis for a reasonable juror to
disbelieve that explanation.
                                              5
that her claims concerning her transfer were within the scope of the (fully adequate) EEO

complaint that she had previously filed concerning her failure-to-promote claims. While

we have recognized that a complainant need not file a new EEO complaint as to “new

acts that occur during the pendency of the case which are fairly within the scope of an

[EEO] complaint or the investigation growing out of that complaint,” Waiters v. Parsons,

729 F.2d 233, 237 (3d Cir. 1984), the transfer does not qualify under this rule because it

was a discrete act that occurred after Green had received her right-to-sue letter from the

EEO on her earlier claim, see Parisi v. Boeing Co., 400 F.3d 583, 586 (8th Cir. 2005).

Second, Green claimed that she was entitled to equitable tolling because during the

period for initiating an action with the EEO, she was severely depressed. Equitable

tolling is available in Title VII cases. See Zipes v. TWA, 455 U.S. 385, 393 (1982).

However, Green is not entitled to tolling here. In another context, we have explained that

for tolling to be appropriate, “the alleged mental incompetence must somehow have

affected the petitioner’s ability to file” a timely action. Nara v. Frank, 264 F.3d 310, 320

(3d Cir. 2001). As noted above, Green was able to file a pre-complaint form on June 20,

2007, and again on September 4, 2007, and pursued the latter complaint to completion;

she has presented no evidence that suggests that her impairment drastically worsened

after June 20 and then meaningfully improved by September 4. Thus, she has failed to

present evidence that her condition prevented her from filing a timely administrative

complaint.

                                             6
             Green also failed to exhaust her hostile-work-environment claim. In her

EEO complaint, she raised only a failure-to-promote claim, which does not encompass

her separate claim of hostile work environment. See Dorsey v. Pinnacle Automation Co.,

278 F.3d 830, 838-39 (8th Cir. 2002). She thus did not adequately put the EEO “on

notice” that she was attempting to raise this claim. Antol v. Perry, 82 F.3d 1291, 1296

(3d Cir. 1996).

             Accordingly, we will affirm the District Court’s orders dismissing Green’s

amended complaint in part and granting summary judgment to Potter.




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