Laber v. Geren , 316 F. App'x 266 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1946
STAN LABER,
Plaintiff - Appellant,
v.
PETE GEREN, Secretary of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:03-cv-00732-GBL)
Argued: January 29, 2009 Decided: March 12, 2009
Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Howard Greger, LAW OFFICE OF JEFFREY H. GREGER,
P.C., Alexandria, Virginia, for Appellant. Leslie Bonner
McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, United
States Attorney, Ralph Andrew Price, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Rebecca Ausprung, Litigation Attorney,
U.S. ARMY LITIGATION DIVISION, Arlington, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stan Laber, a civilian Army employee, commenced this
Title VII action for religious discrimination against the U.S.
Army, challenging the sufficiency of the remedies ordered by the
Equal Employment Opportunity Commission’s Office of Federal
Operations (“OFO”). Laber also alleged retaliation and the
failure to accommodate. The district court granted summary
judgment to the Army, and, for the reasons herein, we affirm.
I
When this case was before us earlier, see Laber v. Harvey,
438 F.3d 404 (4th Cir. 2006) (en banc), we stated many of the
facts relevant to the present appeal:
Laber . . . was employed by the Army as an Operations
Research Analyst at Fort Sheridan, Illinois. In mid-
1990, motivated in part by his Jewish heritage, Laber
applied for a position as a[n] Industrial Specialist
in Tel Aviv, Israel. During the job interview, the
selecting officer, Leo Sleight, asked Laber if he
could be objective when dealing with Jewish
contractors. Laber answered affirmatively, but
Sleight offered the job to another applicant.
Laber filed a formal EEO complaint with the Army
alleging that Sleight discriminated against him on the
basis of religion in failing to select him for the
job. The Army accepted the complaint and, after
conducting an internal investigation, concluded that
Laber suffered no discrimination. Laber appealed to
the OFO.
On December 22, 1998, the OFO reversed and ordered the
Army, inter alia, to pay Laber any backpay and
benefits for which the Army determined he was eligible
and to appoint Laber as an Industrial Specialist in
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Israel or find a similar position for him. On January
25, 1999, Laber filed a motion for reconsideration,
which the OFO denied on April 11, 2000. In May 2000,
the Army determined that Laber was entitled to no
backpay because his pay at his current job was higher
than it would have been had he been working in Israel
and that he was entitled to no overseas benefits
because he had not actually been overseas. The Army
also offered Laber a position as an Industrial
Specialist in Germany, contending that it had no
similar positions open in Israel. Laber refused the
job in Germany and instead filed a petition for
enforcement with the OFO, claiming, inter alia, that
the Army's backpay and benefits calculations and its
job offer were insufficient. Soon thereafter, the
Army re-offered Laber the position in Germany, which
he accepted, and in doing so, he expressly waived any
claim that the Germany position was not compliant with
that portion of the OFO's remedial award. He
therefore withdrew that portion of his petition for
enforcement challenging the Army's Germany job offer.
On January 23, 2002, the OFO issued a decision on the
remainder of the petition for enforcement. In
relevant part, the OFO determined that the record was
unclear with respect to Laber's backpay and benefits
arguments, and it required the Army to redetermine
whether Laber was entitled to additional backpay and
benefits. On or about May 29, 2002, the Army did so
and concluded that Laber was entitled to over $9,000
in additional backpay, but that he was not entitled to
receive any overseas benefits. On March 4, 2002,
Laber filed a petition for clarification with the OFO,
asserting that the Army's benefits and backpay
calculations were still deficient. On March 10, 2003,
the OFO affirmed that the Army had fully complied with
the OFO's December 22, 1998 decision.
Id. at 411-12. In that appeal, we held inter alia that “Title
VII does not authorize a federal-sector employee to bring a
civil action alleging only that the OFO’s remedy was
insufficient. Rather, in order properly to claim entitlement to
a more favorable remedial award, the employee must place the
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employing agency’s discrimination at issue.” Id. at 423-24(footnotes omitted). In recognition of our holding, we remanded
the case to allow Laber to amend his complaint. Id. at 429,
432.
On remand, Laber amended his complaint to allege several
dozen counts as violations of Title VII. But the magistrate
judge allowed only three counts to proceed: Count I for
religious “discrimination in connection with the 1990 non-
selection” for the position in Israel; Count II for “retaliation
in connection with the 1990 non-selection”; and Count III for
the Army’s failure to make a religious accommodation in
furnishing his apartment in Germany. Laber did not object to
the magistrate judge’s disposition, and with respect to these
three counts, the district court granted summary judgment for
the Army. From the court’s judgment, Laber appeals. We review
the district court’s grant of summary judgment de novo,
construing the facts in the light most favorable to Laber. See
Holland v. Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir.
2007).
II
Count I alleges religious discrimination based on the
Army’s failure to select Laber for the Israel position in 1990.
The district court found these claims barred because Laber did
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not bring suit in district court within the requisite 90 days of
the OFO’s “final” decision. See 42 U.S.C. § 2000e-16(c).
Laber contends that the March 10, 2003 decision on his
petition for clarification of the Army’s compliance with the
enforcement order of January 23, 2002, was the relevant final
decision, and therefore the present action, filed on June 6,
2003, less than 90 days after the clarification decision, would
not be time-barred. The Army contends, on the other hand, that
the relevant “final” decision is the April 11, 2000 decision on
Laber’s request for reconsideration of an earlier final decision
dated December 22, 1998, which would make his claim time-barred.
The substance of Laber’s claim in Count I is to review the
entire OFO decision on his religious discrimination claim and to
obtain additional remedies. The relevant decision deciding the
merits of Laber’s discrimination claims and providing him with
remedies was rendered on December 22, 1998. Laber requested
reconsideration of that decision, and the decision denying
reconsideration was rendered on April 11, 2000. Even though the
request for reconsideration extended the date of final decision
for purposes of review, see 29 C.F.R. § 1614.407(c), the
December 1998 decision became the final relevant decision, and
the decision denying reconsideration so stated: “[The December
22, 1998] decision . . . remains the Commission’s final
decision.” Because Laber did not file this action within 90
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days of the December 1998 order, as extended to April 11, 2000,
by the request for reconsideration, it is now time-barred.
In an effort to avoid this conclusion, Laber argues that he
commenced this action to review the decision of March 10, 2003,
rendered by the OFO on Laber’s petition for clarification of the
Army’s compliance with the OFO’s enforcement order of January
23, 2002. But the present action does not seek to review the
March 10, 2003 decision on the petition for clarification but
rather for reconsideration of the merits and for additional
remedies. A petition for “clarification cannot change the
result of a prior decision or enlarge or diminish the relief
ordered.” 29 C.F.R. § 1614.503(c). Yet, in this suit Laber not
only seeks to ”enlarge . . . the relief ordered” but also to put
the result of the OFO’s December 22, 1998 decision at issue.
These two characteristics of the current suit are incompatible
with review of the petition for clarification, which only
related to the Army’s compliance with the OFO’s January 23,
2002, decision. Because Laber’s present action is not a suit to
review the OFO’s March 10, 2003 decision on his petition for
clarification, the March 10, 2003 decision is not the relevant
“final” decision.
Laber argues further that the EEOC’s Management Directive
110, Chapter 9, supports his position. That directive states,
“If the decision remands the complaint for further agency
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consideration, the parties retain the rights of appeal and
reconsideration with respect to any subsequent decision.” He
argues that because the OFO, in its enforcement decision of
January 23, 2002, directed the Army to take specified remedial
steps, he retained the right to appeal the entire case to the
federal courts. But this argument fails even if we were to
assume that the January 23, 2002 enforcement decision was a
“remand” and that a Management Directive could trump clear
regulations published in the Code of Federal Regulations. He
ignores the sentence directly preceding the one upon which he
relies, which reads “The Commission's decision on a request for
reconsideration is final, and there is no further right by
either party to request reconsideration.” (Emphasis added). We
conclude that the relevant “final” decision was the OFO’s
December 22, 1998 decision and the time period within which to
review that decision began on April 11, 2000, when the OFO
denied Laber’s request for reconsideration. Accordingly, this
suit is time-barred. See 42 U.S.C. § 2000e-16(c).
Laber argues alternatively that the doctrine of equitable
tolling saves his action from failure to file within 90 days,
relying largely upon the fact that in 2000, Army personnel took
78 days to calculate his backpay and other elements of his
remedy, whereas the OFO order had given the Army only 60 days.
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While we do not approve of the Army’s late response, it does not
support equitable tolling.
As the Supreme Court has noted, “Federal courts have
typically extended equitable relief only sparingly.” Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Only in rare
circumstances do we use equitable tolling, which “must be
guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes.”
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000); see
Gayle v. United Parcel Service, Inc., 401 F.3d 222, 226 (4th
Cir. 2005). For example, equitable tolling is appropriate
“where the claimant has actively pursued his judicial remedies
by filing a defective pleading during” the relevant limitations
period. Irwin, 498 U.S. at 96. No similar circumstance is
presented here.
Equitable tolling is also inappropriate in this case
because the OFO found for Laber and also found the Army in
complete compliance with its remedial order. Cf. Nealon v.
Stone, 958 F.2d 584, 587 (4th Cir. 1992). Laber received an
overseas appointment in Germany, attorney’s fees, and other
remedies. And in its March 10, 2003, order the OFO affirmed
that the Army “has fully complied with” the OFO’s December 22,
1998 decision.
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III
In Count II, Laber asserts that the Army retaliated against
him by providing him with insufficient remedies. This is simply
Count I restated under a different cause of action. Because the
90-day limitation bars Count I, we find that it also bars Count
II.
IV
Count III alleges, for the first time, that the Army failed
to accommodate Laber’s religion in not reimbursing him for his
purchase of a new oven for his kitchen in Germany. This claim
was not before us at the time of the en banc hearing, but rather
was added on remand. Even though it is a new claim, the
district court allowed Laber to add this count to his complaint
in the interest of judicial economy.
Count III stems from events in 2001 in Germany, where Laber
moved for his overseas posting with the Army. He lived off-base
and chose an apartment with a used but working oven that fit
into an odd-shaped space in the kitchen. The Army normally
ensures that its overseas civilian employees have access to a
functioning oven, albeit not necessarily a brand-new oven. But
Laber wrote the Army in an email:
Although the current oven and range provided by my
landlord is operable, my religion requires that I not
use it and instead only utilize an oven that has not
previously been used. . . . A housing office
representative [from the Army] inspected the kitchen
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on 2/28/01 and advised that the free standing oven
normally provided by his office (assuming it were a
new oven) cannot be installed because of the physical
and technical constraints of the kitchen.
On March 15, 2001, Laber requested that the Army purchase a
new oven for him that would fit into the odd-shaped space in his
kitchen, but an Army official denied his request, stating there
was no funding to do so. Laber “appealed” this lack-of-funding
finding to a Colonel. But before he heard back from the
Colonel, he went ahead and purchased a new oven, using his own
money. He then sought reimbursement for the purchase. The Army
denied the request because Laber did not obtain prior approval
for the purchase. Laber then filed the religious discrimination
claim in Count III.
To succeed on his claim, Laber must establish a prima facie
case:
To establish a prima facie religious accommodation
claim, a plaintiff must establish that: (1) he or she
has a bona fide religious belief that conflicts with
an employment requirement; (2) he or she informed the
employer of this belief; (3) he or she was disciplined
for failure to comply with the conflicting employment
requirement.
Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir.
1996) (quotation marks and citations omitted) (emphasis added).
Laber provides no evidence that his reimbursement was
denied because of his religious belief. The initial request for
an oven was denied for lack of funding, and his request for
reimbursement was denied because he failed to obtain approval
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for the purchase. Laber has cited no authority, nor have we
independently found any, that would suggest that the Army had
“disciplined” Laber for his religious beliefs by failing to
reimburse him, when he lacked prior approval. We conclude,
therefore, that Laber failed to make a prima facie case.
For the reasons given, the district court properly granted
summary judgment in favor of the Army, and its judgment is
AFFIRMED.
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