Filed: January 21, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-2295
(CA-95-349-AW)
Walter C. Sloane, etc.,
Plaintiff - Appellant,
versus
Donna Shalala, etc.,
Defendant - Appellee.
O R D E R
The court amends its opinion filed November 18, 1998, as
follows:
On page 7, first paragraph, line 5 -- "J.A. at 13" is cor-
rected to read "J.A. at 37."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WALTER C. SLOANE, CDR, M.D.,
Plaintiff-Appellant,
v.
No. 97-2295
DONNA SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-349-AW)
Argued: September 23, 1998
Decided: November 18, 1998
Before WIDENER and LUTTIG, Circuit Judges, and MAGILL,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Robert L. Bell, LAW OFFICES OF ROBERT L. BELL,
Washington, D.C., for Appellant. Allen F. Loucks, Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: C.
Vaughn Adams, Christopher Leon Jones, Jr., LAW OFFICES OF
ROBERT L. BELL, Washington, D.C., for Appellant. Lynne A. Bat-
taglia, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Walter C. Sloane challenges the district court's judgment
on his claims of racial discrimination under Title VII of the Civil
Rights Act of 1964. Because Sloane failed to exhaust the available
administrative remedies in a timely fashion before pursuing this
action, we vacate and remand with instructions to dismiss.
I.
In 1974, upon graduating from the Howard University College of
Medicine, appellant Walter C. Sloane became a uniformed medical
officer in the commissioned corps of the Public Health Service (PHS).
Upon commissioning, Sloane spent six years completing his clinical
training, then served for one year as a staff ophthalmologist in a PHS
hospital. Sloane was next stationed at the Food and Drug Administra-
tion (FDA), where he proceeded to serve in a variety of positions. By
1986, Sloane was reviewing applications for investigational ophthal-
mological devices in the Center for Devices and Radiological Health
at the FDA.
In 1986, the PHS issued a regulation requiring all of its officers to
be licensed by the relevant state authorities. The purpose of this regu-
lation was to subject PHS officers to the same requirements applica-
ble to doctors in the private sector. The regulation required all officers
to comply with the requirement by December 31, 1988, and estab-
lished sanctions for noncompliance, including loss of bonuses, exclu-
sion from consideration for promotions, and involuntary retirement.
The regulation created a Licensure Waiver Board (LWB) to pro-
cess requests from PHS officers for waivers from the licensing
requirement. The role of the LWB was to make recommendations to
the Surgeon General on these requests. The regulation set out the fol-
2
lowing four criteria to be used by the LWB in processing waiver
requests:
(1) The likelihood, nature, and amount of patient contact in
the position;
(2) Whether the role of the individual is essential to the mis-
sion of the agency or the program;
(3) The impact of the waiver on the potential risks to indi-
vidual patients, the program's constituency, and the public;
(4) The specific reason(s) why the officer cannot obtain the
appropriate credentials.
J.A. at 891.
In December 1988, Sloane applied for a waiver. The LWB recom-
mended rejecting his application, and, in March 1989, the Surgeon
General denied the application. From 1989 to 1995, Sloane repeatedly
attempted to come into compliance with the licensing requirement by
taking the state licensing examination, but failed the examination each
time. In 1991, acting on the recommendation of the LWB, the Sur-
geon General imposed sanctions on Sloane for his failure to comply
with the licensing requirement, including loss of bonuses, exclusion
from consideration for temporary promotions, and referral for invol-
untary retirement in three years' time. In 1993 and 1994, Sloane also
received poor performance evaluations from his supervisor at the
FDA.
On August 16, 1993, Sloane first approached the local EEO office
regarding alleged discrimination by the PHS and the FDA. On Janu-
ary 10, 1994, Sloane filed an informal EEOC complaint; on March
10, 1994, he filed a formal EEOC complaint.
On February 2, 1995, Sloane commenced this action against appel-
lee Donna Shalala and two other government officials, alleging dis-
crimination and retaliation under both Title VII and the ADEA. The
trial judge dismissed Sloane's retaliation claims at the end of his case
3
in chief. After a jury trial, the district court ruled against Sloane on
all of his discrimination claims. Sloane now brings this appeal, solely
on the basis of his Title VII racial discrimination claims.
II.
As a threshold matter, appellee contends that the district court
should have dismissed appellant's Title VII claims because appellant
failed to exhaust the available administrative remedies in a timely
manner. We agree.
It is well-established that a district court must dismiss a Title VII
claim if the plaintiff fails to seek EEO counseling within the pre-
scribed time period. See, e.g., Nealon v. Stone, 958 F.2d 584, 589-90
(4th Cir. 1992); Zografov v. V.A. Medical Center, 779 F.2d 967, 968-
69 (4th Cir. 1985). Appellant appears to have been subject to two dif-
ferent limitation periods. On the one hand, as a government
employee, appellant was required to seek EEO counseling within
forty-five days of the allegedly discriminatory event. See 29 C.F.R.
§ 1614.105(a)(1) (1998). On the other hand, as a PHS officer, under
the more stringent standards of the PHS's own regulations, appellant
was required to seek EEO counseling within thirty, rather than forty-
five, days of the precipitating incident. J.A. at 1363. Assuming,
arguendo, that the more generous general regulation for government
employees governs appellant's case, appellant must demonstrate one
of two things: either that he sought EEO counseling within forty-five
days of one of the allegedly discriminatory events pleaded in his com-
plaint, or that he was subject to a "continuing violation" at the time
he sought EEO counseling.
Appellant fails in both respects. First, appellant does not demon-
strate that he sought EEO counseling within forty-five days of an
allegedly discriminatory event. Even assuming that appellant can be
said to have sought EEO counseling on August 16, 1993 -- the date
of his first contact with the EEO office -- rather than on January 10,
1994 -- the date he filed his first EEOC complaint-- appellant has
not alleged that any discriminatory events occurred in the preceding
forty-five days. The nearest allegedly discriminatory event -- appel-
lant's poor performance evaluation from his FDA supervisor --
4
occurred no later than June 1, 1993, well outside the forty-five-day
period.
Second, appellant does not show that he was suffering from a "con-
tinuing violation" at the time he sought EEO counseling. This Circuit
has never adopted a test for what constitutes a continuing violation;
our sister circuits, however, have developed a number of variations.
See, e.g., DeNovellis v. Shalala, 124 F.3d 298, 307 (1st Cir. 1997)
(finding continuing violation in cases in which violation is systemic
or serial); Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.
1989) (finding continuing violation whenever "plaintiff had no reason
to believe he was a victim of discrimination until a series of adverse
actions established a visible pattern of discriminatory mistreatment");
Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)
(finding continuing violation when three-prong test involving type of
conduct, frequency of alleged acts, and degree of permanence of acts
is satisfied).
It is unnecessary for us to adopt any of these tests in this case, for
the simple reason that appellant fails to establish a continuing viola-
tion under any of them. As the Supreme Court has stated, the "critical
question" in a continuing violation case is "whether any present viola-
tion exists." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977). Events that simply constitute the inevitable consequences of
an earlier, allegedly discriminatory decision do not suffice to create
a continuing violation, see Delaware State College v. Ricks, 449 U.S.
250, 257-58 (1980), nor do "separate and completed events," Lawson
v. Burlington Industries, Inc., 683 F.2d 862, 863-64 (4th Cir. 1982).
In this case, all of the allegedly discriminatory events that occurred
after the original denial of appellant's waiver application in 1989
were either consequences of that denial, or entirely separate events
altogether. The imposition of sanctions on appellant in 1991 directly
resulted from his failure to comply with the licensing requirement in
the wake of the allegedly discriminatory denial of his waiver applica-
tion in 1989. And appellant's poor performance evaluations in 1993
and 1994 had no connection whatsoever with the denial of his waiver
application in 1989: unlike the denial of the waiver, which involved
officials at the PHS, the agency that employed appellant, the poor per-
formance evaluations were conducted by appellant's supervisor at the
5
FDA, the wholly separate agency at which appellant was stationed at
the time.
Appellant can avoid the requirement of timely exhaustion only by
providing evidence that he was unaware of the time limits for seeking
EEO counseling, see 29 C.F.R. § 1614.105(a)(2) (1998), or that the
government engaged in affirmative misconduct in connection with his
failure to seek timely counseling, see Zografov, 779 F.2d at 969-70.
Appellant makes no such showing. Therefore, the district court should
have dismissed his claims.
III.
Even if we were to hold that appellant had exhausted the available
administrative remedies in a timely manner, we would nevertheless
reject his underlying substantive claims. Appellant makes two claims:
that the trial judge erred by failing independently to adjudicate equita-
ble claims arising from events occurring before the enactment of a
jury right, and that the jury erred by finding that the justifications
offered by the PHS for its allegedly discriminatory behavior were not
pretextual. Each of these claims lacks merit.
Appellant bases his first claim on section 102 of the Civil Rights
Act of 1991, which had two significant consequences for plaintiffs
bringing Title VII actions. First, the provision allowed Title VII plain-
tiffs to recover damages, provided that the actionable conduct
occurred after the Civil Rights Act of 1991 took effect. See Landgraf
v. USI Film Prods., 511 U.S. 244, 281-83 (1994). Second, it entitled
Title VII plaintiffs to a jury trial, provided the same condition was
met. See id. at 280-81.
Based on this provision, appellant argues that the trial judge erred
by failing to make separate rulings of law on those Title VII claims
that were based on pre-1991 conduct ("pre-1991 claims"), for which
only an equitable remedy was available. This claim, however, is
flawed for two reasons. First, and more simply, at no stage during the
trial did appellant ask the judge to rule on any separate pre-1991
claims. To the contrary, as noted above, appellant contended that he
was subject to a continuing violation at the time he commenced this
action, an argument that squarely forecloses the existence of any sep-
6
arable pre-1991 claims at all. Second, to the extent that any distinct
pre-1991 claims did exist, the judge resolved those claims at the con-
clusion of the trial. Although the judge did not refer to "pre-1991
claims" in his final order, he expressly ruled against appellant on all
of his claims, see J.A. at 37, and subsequently denied appellant's
motion for "judgment on pre-1991 claims" on the ground that those
claims had already been decided in his final order, id. at 835. Conse-
quently, because the trial judge did resolve any separate claims aris-
ing from events occurring before the enactment of a jury right, to the
extent that such claims could be said to exist, the trial judge commit-
ted no error.
Appellant next claims that the jury erred by finding that the justifi-
cations offered by the PHS for its allegedly discriminatory behavior
were not pretextual. To succeed on this claim, appellant must demon-
strate that the jury's finding was not supported by substantial evi-
dence in the record as a whole. See, e.g., Evington v. Forbes, 742
F.2d 834, 835 (4th Cir. 1984). We hold that appellant has failed to
make such a showing. Indeed, to the contrary, as the government
points out, appellant fails even to demonstrate that the individuals
involved in the allegedly discriminatory behavior were aware of his
minority status. Two members of the LWB testified that the LWB did
not have information on the race of applicants while considering
waiver applications, see J.A. at 695, 697-98, 729, and the Surgeon
General testified that he had no knowledge of appellant's race while
reviewing the LWB's recommendation, see id. at 680. No evidence
in the record contradicts this testimony. In the absence of any evi-
dence even to suggest that any of the principal actors were aware of
appellant's race, it is impossible to conclude that the justifications for
their actions were pretextual to hide a racial motive. In any event,
because the jury's finding on pretext was supported by substantial
evidence in the record, we uphold that finding.
CONCLUSION
The judgment of the district court is vacated and remanded with
instructions to dismiss.
VACATED AND REMANDED
7