Walton v. Dalton

Filed: April 2, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1408
(CA-94-967-2)

Eric C. Walton, et al,

Plaintiffs - Appellants,

versus

John D. Dalton, etc.,

Defendant - Appellee.

O R D E R

The Court amends its opinion filed March 19, 1997, as follows:

On page 2, section 2, line 5 -- the following information is
added to the "On Brief" section: "John A. Dietrich, Daniel E.

O'Connell, Jr., Navy Litigation Office, UNITED STATES DEPARTMENT OF

THE NAVY, Arlington, Virginia, for Appellee."

On page 4, first full paragraph, line 2 -- the wording is cor-

rected to read "dismissing seven of their ten claims, . . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERIC C. WALTON, Agent; CARL L.
PHILLIPS, Agent,
Plaintiffs-Appellants,

and

CHARLES A. BROWN, Agent,
Plaintiff,

v.
No. 96-1408
JOHN D. DALTON, Secretary of the
Navy,
Defendant-Appellee,

and

TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNSEL,
AFL-CIO,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge; Robert G. Doumar,
Senior District Judge.
(CA-94-967-2)

Argued: January 29, 1997

Decided: March 19, 1997

Before HALL and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: SuAnne Leigh Hardee, HARDEE & HENNESSY, P.C.,
Chesapeake, Virginia, for Appellants. Lawrence Richard Leonard,
Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON
BRIEF: Thomas F. Hennessy, III, HARDEE & HENNESSY, P.C.,
Chesapeake, Virginia, for Appellants. John A. Dietrich, Daniel E.
O'Connell, Jr., Navy Litigation Office, UNITED STATES DEPARTMENT
OF THE NAVY, Arlington, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs-appellants, employees of the United States Navy, appeal
from the pre-trial dismissal of seven of their ten claims of employ-
ment discrimination against defendant-appellee, Secretary of the
Navy. We affirm.

I.

Plaintiffs-appellants Eric C. Walton, Carl L. Phillips, and Charles
A. Brown, all racial minorities, were employees in "Shop 71" at the
Norfolk Naval Shipyard. On January 25, 1994, Walton initiated con-
tact with an Equal Employment Opportunity ("EEO") Counselor at
the shipyard in order to complain of race discrimination in employ-
ment, see 42 U.S.C. § 2000e et seq., and subsequently filed an infor-
mal complaint against the Navy. J.A. at 5. This initial contact
commenced the administrative pre-complaint process set forth in
Equal Employment Opportunity Commission Regulations. See 29
C.F.R. § 1614.105.

In response to Walton's informal complaint, the Navy, in a letter
dated February 25, 1994, requested to Walton that he provide "spe-
cific information . . . regarding alleged discrimination," including

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"[n]ames, dates and circumstances of instances of adverse treatment."
J.A. at 14. About three weeks later, in a letter dated March 15, 1994,
Walton responded by setting forth several general allegations of
alleged discrimination against unspecified persons on unspecified
dates, as well as some specific instances of alleged discrimination.
J.A. at 16-19.

Walton had no further contact with the EEO counselor until March
23, 1994. On that date, the EEO counselor conducted a "final inter-
view" with Walton, 29 C.F.R. § 1614.105(d), thereby culminating the
administrative pre-complaint procedure. Supp. J.A. at 22; Appellant's
Br. at 17.

Subsequently, on April 6, 1994, Walton filed a formal administra-
tive complaint on behalf of himself, Phillips, and Brown,1 and, on
October 6, 1994, filed this action in the district court setting forth ten
separate claims of alleged discrimination. These claims included: (1)
discriminatory denial of training opportunities; (2) discriminatory
denial of nuclear designations; (3) discriminatory allocation of over-
time work; (4) discriminatory denial of promotions; (5) discrimina-
tory scheme to replace black workers; (6) discriminatory hiring
practices; (7) discriminatory salary differential; (8) discriminatory
assignment to the Excess Labor Shop; (9) discriminatory allocation of
undesirable work assignments; and (10) retaliatory conduct by the
employer. J.A. at 29-31, 146.

The district court, adopting the recommendation of the magistrate
judge, dismissed the first seven claims for failure to exhaust adminis-
trative remedies. J.A. at 108-09, 146. In addition, the district court
dismissed claims (1), (3), (4), (6), and (7), for lack of standing. J.A.
at 109, 146.

The remaining three claims proceeded to trial. At the close of
plaintiffs' evidence, the district court dismissed the claims of Brown
and Walton as a matter of law. J.A. at 999. At the close of defendants'
evidence, Phillips moved for a directed verdict on his remaining
_________________________________________________________________

1 Brown and Phillips are relying on Walton's administrative complaint
during the pre-complaint process, as well as his formal complaint. This
is the only complaint before the court.

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claims, which the district court denied. J.A. at 963-64. The jury
returned a verdict in favor of the Navy on Phillips' claims. J.A. at
1000. Plaintiffs appealed.

On appeal, plaintiffs claim that the district court erred first, in ini-
tially dismissing seven of their ten claims, second, in denying
Phillips' motion for a directed verdict, and third, in excluding certain
evidence.

II.

Plaintiffs argue that the district court erred in dismissing seven of
their ten claims for failure to exhaust administrative remedies. We
disagree.

Before an aggrieved individual may file suit in court against his
employer, that individual must first comply with the administrative
pre-complaint procedures set forth in EEOC regulations. See 29
C.F.R. § 1614.105. Specifically, "in order to try to informally resolve"
a claim of discrimination prior to the filing of a formal complaint in
court,

[a]n aggrieved person must initiate contact with a[n] [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). During this pre-complaint procedure, an
aggrieved individual must provide the EEO Counselor with "specific
information or details of discriminatory action suffered by [him]"
within 45 days of his initial contact with the counselor, Woodward,
717 F.2d at 914, since the failure to provide "such details and dates
. . . prevent[s] the defendant from investigating the charges," id. If an
aggrieved individual fails to provide such specified information, then
his complaint must be dismissed for failure to exhaust administrative
remedies. Id.

Here, prior to the termination of the pre-complaint procedure, the
plaintiffs utterly failed to provide the EEO Counselor with any details

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of specific instances of discrimination against them as to the seven
dismissed claims. Indeed, at oral argument, counsel for the plaintiffs
candidly conceded that the plaintiffs' March 15 letter contained no
specific instances of discrimination and that, in fact, there was no
record evidence of specific instances of discrimination at all with
respect to the seven dismissed claims.

For example, in his initial informal complaint (on which all three
plaintiffs rely), Walton merely alleged that his "requested relief [was]
to be given [the] opportunity to be treated fairly, training, manage-
ment experience, cross-training, decision-making process. Opportu-
nity to apply for higher [illegible word] position." J.A. at 7. Walton
declined to elaborate on these charges in his March 15 letter (which
apparently was the only other contact between Walton and the EEO
Counselor prior to his final interview). The most specific discrimina-
tory act identified by Walton in this letter alleged only that he and
Phillips had been denied overtime work because of their race, J.A. at
17-18, but the letter failed to set forth any details on this alleged
denial, such as when it had taken place or who was responsible for
it. More typical of Walton's allegations in this letter was his claim
that blacks had been denied training opportunities because of their
race, wherein he alleged merely that "trades that are overwhelmingly
black [ ] have been denied cross-training offered to other trades . . .
all of which are overwhelmingly white," J.A. at 16. Like the other
allegations in the letter, Walton merely alleged general acts of dis-
crimination against minorities, without naming the specific individu-
al(s) subject to discrimination, the specific date on which the
discrimination took place, or any other details regarding the discrimi-
nation.

Accordingly, we affirm the district court's dismissal of the seven
of plaintiffs' ten claims of race discrimination in employment. Prior
to the termination of the pre-complaint procedure, plaintiffs simply
failed to provide the EEO Counselor with any specific information
regarding alleged discriminatory actions taken by the Navy within 45
days of the plaintiffs' initial contact with the counselor.2
_________________________________________________________________

2 For the same reasons, the district court also did not err in dismissing
five of those seven claims for lack of standing. Because they failed to

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III.

Phillips argues that the district court erred in refusing to grant him
a directed verdict as to his claim that he was discriminatorily reas-
signed from more to less desirable work. We disagree.

The Navy offered several non-discriminatory reasons which, if
accepted, would indisputably exonerate the Navy. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). The Navy pres-
ented evidence that such re-assignment was necessitated by a decline
of work at the shipyard, that individuals who remained in the position
from which Phillips was transferred were more qualified, and that the
decision to transfer Phillips was made by minority supervisors of the
same race as Phillips. The jury apparently accepted these non-
discriminatory explanations over Phillips' evidence to the contrary as
was its prerogative to do. Thus, the district court did not err in deny-
ing the motion for directed verdict.

IV.

Finally, plaintiffs argue that the district court abused its discretion
in making two evidentiary rulings. Again, we disagree.

First, the district court did not err when it refused to admit docu-
ments demonstrating that, subsequent to the plaintiffs' complaint of
discriminatory job-assignments, a shipyard supervisor named Harold
Jones assigned certain jobs on the basis of race. Jones was not the
supervisor charged with decision-making authority over the plaintiffs
and, as we recently observed in Henson v. Liggett Group, statements
made by non-decision-makers are of low probative value, 61 F.3d
270, 276 (4th Cir. 1995). Moreover, these documents apparently evi-
denced a short-lived remedial program designed to address the
alleged racial imbalance complained of by the plaintiffs, J.A. at 459,
_________________________________________________________________

provide sufficient detail of the alleged discrimination, the plaintiffs did
not "allege specific, concrete facts demonstrating that the challenged
practices harmed [them], and that [they] personally would benefit in a
tangible way from the court's intervention." Warth v. Seldin, 422 U.S.
490, 508 (1974).

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462, and so, in addition to being of little relevance to claims of dis-
crimination against the plaintiffs, also presented the potential danger
of leading the jury to infer an admission of past discriminatory prac-
tices on the part of the Navy, cf. Fed. R. Evid. 407.

Second, the district court did not err when it refused to admit testi-
mony from Walton describing job assignments in Shop 71 over a
brief one to two week period in order to establish a pattern of discrim-
inatory job assignments. J.A. at 635. The plaintiffs already had avail-
able to them virtually identical information in the form of "job order
data" generated from a computerized labor accounting system which,
as the parties agreed, "reliably establishe[d] what workers performed
what jobs or tasks at what particular times." J.A. at 266. Indeed, at
trial, plaintiffs' counsel conceded that Walton's testimony almost
completely overlapped with the "job order data" for the relevant time
period, the only real difference being that the "job order data" was
more accurate than Walton's testimony. See J.A. at 635. Moreover,
unlike the "job order data," which covered an extended period of time,
Walton's testimony only would have covered a one to two week
period and so was less probative of an overall pattern of discrimina-
tion on the part of the Navy. Cf. Ottaviani v. S.U.N.Y., 875 F.2d 365,
376 (2nd Cir. 1989), cert. denied, 493 U.S. 1021 (1990).

CONCLUSION

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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