Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-8-2008
Thomas v. Wheeler
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3173
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-3173
___________
CLAUDE THOMAS,
Appellant
v.
STEVEN R. WHEELER;
PENNSYLVANIA OFFICE OF ATTORNEY GENERAL;
JAMES CAGGIANO; CHARLES WARNER;
LARRY CHERBA; MICHAEL AHWESH,
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 05-cv-01447)
District Judge: Honorable Legrome D. Davis
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2008
Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges.
(Opinion Filed: October 8, 2008)
1
FUENTES, Circuit Judge:
Claude Thomas, an African American male, appeals from the dismissal of
employment discrimination claims he brought against his employer, the Pennsylvania
Office of Attorney General, and several individual defendants. In particular, Thomas
argues that the District Court erred in finding that certain of his claims were barred by the
applicable statutes of limitation, and that Thomas had failed to present sufficient evidence
to support his remaining claims.1
I.
Background
Because we write exclusively for the parties, we only discuss the facts and
proceedings necessary for resolution of this case. In 1992, pursuant to his contract,
Thomas was promoted to the position of Narcotics Agent II. A year later, Thomas filed a
pro se federal action under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. (“Title VII”). That action was settled and, pursuant to the
settlement agreement, Thomas was reassigned to the U.S. Customs Service in
Philadelphia. In 1998, his position with the Customs Service was terminated and he
returned to the Office of Attorney General.
In 2005, Thomas filed this action alleging violations of Title VII, 42 U.S.C. §§
1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s summary judgment ruling. Township of Piscataway
v. Duke Energy, 488 F.3d 203, 208 (3d Cir. 2007).
2
1981 and 1983, the First, Thirteenth, and Fourteenth Amendments to the United States
Constitution, the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann.
§ 951 et seq., and various state tort law causes of action. Thomas alleged that, beginning
in 1998, he applied for and was denied eight promotions because of racial discrimination
and retaliation for his previous suit. Thomas also asserted that he received excessive
discipline and was denied training and favorable work-related assignments because of
discriminatory and retaliatory animus.
In a series of rulings, the District Court dismissed all of Thomas’s claims. The
District Court determined that many of Thomas’s claims were time-barred because he
failed to file a timely complaint with the EEOC or in federal court. The District Court
also concluded that Thomas failed to meet his burden of producing evidence to suggest
that the employment decisions concerning him were prompted by racial discrimination.
II.
Discussion
“Summary judgment is appropriate if there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. In reviewing the District
Court’s grant of . . . the motions for summary judgment, we view the facts in the light
most favorable to the nonmoving party.” Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290,
293 (3d Cir. 2008) (citations omitted).
A. Timeliness of Thomas’s Claims
3
Thomas argues that the District Court should have applied the “continuing
violation” doctrine to his otherwise time-barred failure to promote, excessive discipline,
and reassignment claims. We concur with the District Court that these claims constitute
discrete incidents to which the continuing violation analysis is inapplicable. See Rush v.
Scott Speciality Gases, Inc., 113 F.3d 476, 483-84 (3d Cir. 1997). Accordingly, we find
that the District Court properly dismissed all Title VII claims that occurred more than 300
days prior to the filing of Thomas’s EEOC complaint, all § 1981 claims that occurred
before March 29, 2001, and all § 1983 claims that occurred before March 29, 2003.
However, evidence of discriminatory or retaliatory intent from this period may still be
relevant to analyzing claims that are not time-barred.
B. Merits of Thomas’s Remaining Claims
1. Title VII, 42 U.S.C. § 1981, First Amendment, and PHRA Claims
The District Court concluded that Thomas had failed to present evidence to
support his claim that he was subjected to a hostile work environment. Thomas alleges
that Office of Attorney General staff made derogatory comments about the abilities of
African-American and Latino officers, but admits that he is unable to identify who made
these comments and cannot “specifically state what comments were made.” (App. 161.)
We agree with the District Court that these vague allegations are not sufficient to meet
Thomas’s burden at the summary judgment stage. Accordingly, we will affirm the
District Court’s grant of summary judgment on Thomas’s hostile work environment
4
claim, and will not discuss these alleged comments in evaluating Thomas’s other claims.
The District Court applied the familiar McDonnell Douglas burden-shifting
framework to analyze Thomas’s disparate treatment claims. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The District Court found that Thomas had failed to
present a prima facie case of discrimination as to his July 2004 failure to promote claims
and his unfavorable assignment claim. As to the unfavorable assignment claim, the
District Court determined that Thomas had presented no evidence that he was denied
favorable assignments. The District Court also found that the defendants had presented
evidence of a legitimate non-discriminatory reason for not promoting Thomas to
Narcotics Officer III in July 2004: the open position was reclassified to a higher ranking
position for which Thomas was not eligible.
The District Court assumed that Thomas had met his initial burden of presenting a
prima facie case of discrimination as to his claim of failure to train and his July 2002 and
March 2004 failure to promote claims. The District Court found that Thomas was denied
training because of the application of legitimate non-discriminatory Office of Attorney
General policies. Thomas was denied training to become “B certified” in wiretap
investigations because the training was expensive and the Office of Attorney General
only needed one B certified agent in each regional office. Thomas was denied polygraph
training because his division of the Office of Attorney General did not use polygraph
testing. In sum, Thomas failed to present evidence that these policy justifications were
untrue or that the real reason for applying the policies to him was discriminatory animus.
5
We concur with the District Court and adopt its reasoning as to these claims.
The District Court also determined that the defendants presented evidence of a
legitimate reason for declining to promote Thomas in July 2002 and March 2004: other
candidates were better qualified. Thomas argues that the District Court erred in granting
summary judgment as to these claims because he would have been well-qualified but for
the Office of Attorney General’s failure to provide him with the training and experience
needed to meet its promotion criteria. As noted above, we concur with the District
Court’s reasoning that Thomas did not present adequate evidence to suggest that he was
denied training or favorable assignments because of discrimination. Accordingly, we will
also affirm the District Court’s decision to grant summary judgment as to Thomas’s
March 2004 failure to promote claim.
As to Thomas’s retaliation claims, we agree that Thomas failed to present evidence
suggesting a causal nexus between any employment actions and his earlier suit. The
District Court found that Thomas had failed to raise a genuine issue of material fact as to
his First Amendment claim for the same reason. Thomas’s only evidence suggesting a
causal nexus is that in 1998, James Caggiano made comments indicating retaliatory
animus. Caggiano participated in the final phase of the selection process for the March
2004 promotion. However, Thomas was eliminated from consideration prior to this
phase, and Thomas has presented no evidence that Caggiano influenced the selection of
candidates during the initial levels of review. In light of the many years’ gap between
Thomas’s first discrimination claim, Caggiano’s 1998 comments, and the 2004 promotion
6
process, more was needed to suggest a causal nexus. Further, Thomas has not presented
evidence linking Caggiano to any other non-time barred employment actions. Thus, we
will also affirm the District Court’s decision as to these claims.
2. Fourteenth Amendment Claims
On appeal, Thomas claims that his rights to substantive and procedural due
process, and equal protection were violated. In his complaint, Thomas claimed violations
of his “right under the . . . 14th Amendment . . . to be gainfully employed and thereby
contribute as a taxpayer and support himself and his family free of a hostile work
environment inflicted upon him based upon his race” and his “right under the 14th
Amendment . . . to work and be employed in the stream of American commerce and enjoy
the benefits and emoluments of employment so that he can participate in supporting the
American nation through the payment of taxes and to support his family free of unlawful
discrimination on account of his race, national origin and color.” (Compl. ¶¶ 13-14, app.
69.) The District Court granted summary judgment on Thomas’s Fourteenth Amendment
claim noting that he had failed to “define the legal or factual basis” for this claim and
introduced “no factual evidence on this particular claim.” Accordingly, the District Court
concluded that the defendants were entitled to “judgment on the alleged Fourteenth
Amendment violation as a matter of law.” Thomas v. Wheeler, 05-cv-1447, Dkt. # 26 at
35 (Apr. 10, 2005).
Thomas did not raise his procedural or substantive due process claims in his
complaint, or otherwise, before the District Court and may not amend his complaint
7
through his arguments on appeal. Accordingly, we will not consider these claims.2
We find that the District Court properly granted summary judgment on Thomas’s
equal protection claim for the same reasons that his statutory employment discrimination
claims fail.
III.
Conclusion
We have considered all contentions raised by the parties and conclude that no
further discussion is necessary.
The judgment of the District Court will be affirmed.
2
Further, even if a claim for violation of Thomas’s substantive or procedural due
process rights were properly before this Court, we would find that Thomas did not raise a
genuine issue of material fact that these rights were violated.
8