Norman v. Rubin ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BENNIE NORMAN,
Plaintiff-Appellant,
v.
No. 99-1231
ROBERT RUBIN, in his capacity as
Secretary of the Treasury,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-98-994)
Submitted: August 31, 1999
Decided: September 22, 1999
Before HAMILTON, LUTTIG, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David A. Branch, LAW OFFICES OF DAVID A. BRANCH, Wash-
ington, D.C., for Appellant. Helen F. Fahey, United States Attorney,
Arthur E. Peabody, Jr., Assistant United States Attorney, Alexandria,
Virginia; Joseph Liberta, OFFICE OF THE ASSISTANT CHIEF
COUNSEL, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bennie Norman appeals from the district court's orders granting
summary judgment in favor of the Defendant in her employment dis-
crimination action and denying her motion for reconsideration. Nor-
man, a retired former Mail Administrator/Supervisor of the Mail
Division of the United States Customs Service, Dulles International
Airport, filed the underlying action alleging that the Secretary of the
Treasury, by his agents, had discriminated against her on the basis of
her race, age, and gender in personnel actions from 1990 through
1995, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp. 1999), and the
Age Discrimination in Employment Act, 29 U.S.C.A.§§ 621-634
(West 1998 & Supp. 1999). On appeal, Norman argues that the dis-
trict court erred in: (1) concluding that her complaint based on the
Agency's failure to upgrade her position was untimely; (2) finding
that Norman failed to state a claim for retaliation based on the Agen-
cy's refusal to upgrade her position or hire her for a position for
which Norman was determined to be the best qualified applicant; and
(3) refusing to apply the doctrine of equitable tolling as to a selection
challenged by Norman which was not opened under a vacancy
announcement, filled competitively, or announced until several
months after the selection was made. We affirm.
Norman first argues that the district court erred in determining that
her claim regarding the failure of the Agency to upgrade her position
following a desk audit* was untimely filed. Norman requested the
_________________________________________________________________
*"In a desk audit, a Personnel Specialist interviews the employee and
his/her supervisor and determines (1) whether the employee's job
description accurately depicts the work performed by the employee, and
(2) whether the job is classified at the proper GS level." Dollis v. Rubin,
77 F.3d 777, 779 (5th Cir. 1995).
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desk audit in December 1993. In June 1994, the desk auditor met with
Norman and her supervisor to conduct the desk audit. The auditor
suggested that Norman's position be upgraded to a GS-12 supervisory
customs inspector position. Norman's supervisor refused.
We find that the district court properly determined that Norman's
December 1995, EEO complaint was untimely as to the June 1994
statement by her supervisor that he would not upgrade her position.
As the district court determined, Norman knew of the alleged discrim-
inatory act or was at least "on notice" of the discriminatory act in June
1994, and it is from that date that she had forty-five days to consult
an EEO counselor. See 29 C.F.R. § 1614.105(a)(1) (1998).
Although Norman received official notification of the result of the
desk audit in March 1995, she took no further action. Notably, in her
second EEO complaint in April 1995, Norman did not mention the
desk audit. If March 1995 were the date on which Norman became
aware of the alleged discriminatory act concerning the failure to
upgrade her position following the desk audit, she had forty-five days
after then to consult an EEO counselor. See Young v. National Ctr.
for Health Servs. Research, 828 F.2d 235, 237 (4th Cir. 1987).
Because Norman did not challenge the decisions not to upgrade her
position within forty-five days of the alleged discriminatory action,
she failed to timely present her claims. Accordingly, we affirm the
district court's decision that the claims were time-barred. See
Saunders v. Stone, 758 F. Supp. 1143, 1145 (E.D. Va.), aff'd, 948
F.2d 1282 (4th Cir. 1991); Woodard v. Lehman, 717 F.2d 909, 913-
16 (4th Cir. 1983).
Norman next argues that the district court erred in granting sum-
mary judgment for the Defendant on her retaliation claims. To prove
a prima facie case of retaliation, Norman was required to show that:
(1) she engaged in a protected activity; (2) the employer took an
adverse employment action against her; and (3) there is a causal con-
nection between the protected activity and the adverse employment
action. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.
1989).
Norman engaged in protected activity--the filing of an EEO
complaint--in January 1995. She was subjected to an adverse
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employment decision--the refusal to upgrade her position following
the desk audit. However, as to the third element of proof of a case of
retaliation--that there be a causal connection--we find that the dis-
trict court properly found this lacking. Norman's supervisor refused
to upgrade her position in June 1994-- before she filed her EEO com-
plaint. The fact that she later received official notification does not
support a causal relationship between the denial of an upgrade and
Norman's January filing of the complaint. See Dowe v. Total Action
Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (mere proximity
in time of filing of complaint and adverse decision does not provide
a prima facie case); see also Johnson v. Town of Elizabethtown, 800
F.2d 404, 406-07 (4th Cir. 1986) (conjecture insufficient to support
causation).
Norman also asserts that the district court improperly granted sum-
mary judgment on her claim that her non-selection for the supervisor
of fines and penalties position was in retaliation for her having filed
the EEO complaints. The Agency announced a vacancy in April 1996.
Norman and one other person applied for the position. Norman asserts
that she was the "best qualified." The Agency later canceled the
vacancy, determining that neither applicant was suitable for the posi-
tion. The Agency subsequently filled the position non-competitively
with a white female.
We agree with the district court's determination that Norman met
her burden of establishing a prima facie case of discrimination under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Thus,
the burden shifted to the Defendant to advance a legitimate, non-
discriminatory reason for its decision. Defendant's affidavits asserting
that Norman did not have the supervisory skills or communication
skills required for the job is such a non-discriminatory reason. Nor-
man therefore had the burden of proving that the Defendant's asserted
reason was pretext and that the action was motivated by discrimina-
tion. See id. at 802-04; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
507-08 (1993). Norman presented no evidence to show that Defen-
dant's reasons for withdrawing the vacancy announcement were other
than those stated. While she alleged other incidents in which she and
other African Americans were not promoted for positions and several
incidents in which positions were filled without announcing the
vacancy, Norman failed to show that she or the other applicants were
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qualified for the positions or that the reasons they were not hired were
discriminatory. See Holmes v. Bevilacqua, 794 F.2d 142, 147 (4th Cir.
1986) (plaintiff must show "some evidence that race was a determin-
ing factor in the employer's decision"). Her mere speculation is insuf-
ficient, see Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.
1988), and the district court properly granted summary judgment on
this issue.
The final claim of retaliation that Norman asserts in her brief is that
she was required to permanently supervise an employee at the same
grade level as she. However, she failed to present any argument on
this issue. The issue is therefore waived. See Fed. R. App. P.
28(a)(9)(A); Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996);
Cades v. H & R Block, Inc., 43 F.3d 869, 876 (4th Cir. 1994).
Lastly, Norman contends that the district court should have applied
the doctrine of equitable tolling to her claim concerning the selection
of Harold Zagar for the supervisory customs inspector position. Equi-
table tolling may excuse a plaintiff's untimely filing of an EEOC
charge if the employer engaged in some misconduct or"wrongfully
deceived or misled the plaintiff in order to conceal the existence of
a cause of action." English v. Pabst Brewing Co., 828 F.2d 1047,
1049 (4th Cir. 1987); see Irwin v. Department of Veterans Affairs,
498 U.S. 89, 96 (1990).
Norman asserts that she applied for a supervisory customs inspec-
tor position through a rating system which ranked candidates for such
positions. A position became available and, without announcing the
vacancy or conducting interviews, the Agency filled the position in
September 1994, with Zagar, a white male. Further, Norman asserts
that she did not learn that Zagar had been hired for the position until
January 1995, because she had been excused from staff meetings
because of the Christmas mail rush.
In a footnote, the district court stated that Norman had the burden
of proving that she was absent from the meetings, and that "her affi-
davit alone is insufficient to withstand a summary judgment challenge
on this issue." (J.A. at 39 n.6 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986))). This is an incorrect statement. A party's
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affidavit may be sufficient to prove existence of genuine issue of
material fact. See Fed. R. Civ. P. 56.
The district court's refusal to apply equitable tolling in this case
was not based on the fact that Norman presented only her affidavit to
show that she first became aware of Zagar's position in January 1995.
Rather, the court found that Norman's allegations were insufficient to
state a claim of discrimination; therefore, application of the doctrine
of equitable tolling was not justified. Norman's claim was that the
Defendant failed to post the vacancy and failed to hire her or another
African-American female for the position. However, Norman failed
to show that she was qualified for the position or that these facts con-
stitute discrimination.
Moreover, the Agency presented the deposition testimony of Wil-
liam Green, who stated that Zagar's selection for the position was the
result of a hardship transfer request by which Zagar transferred from
a GS-12 supervisory position in Miami to the Dulles area to enable
him to obtain better educational services for his autistic son. Such
hardship transfers are frequently accomplished without announcement
of the vacancies or a competitive process.
Because Norman failed to show that the Defendant engaged in
some misconduct or "wrongfully deceived or misled the plaintiff in
order to conceal the existence of a cause of action," with respect to
the transfer of Zagar to the supervisory customs inspector position at
Dulles, we find that the district court properly refused to apply equita-
ble tolling to Norman's claim of discrimination in this selection. See
English, 828 F.2d at 1049.
In conclusion, we affirm the district court's orders granting sum-
mary judgment for Defendant and denying Norman's motion for
reconsideration. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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