Emmert v. Runyon

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT K. EMMERT,
Plaintiff-Appellant,

v.
No. 98-2027
MARVIN RUNYON, Postmaster
General, U.S. Postal Service,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-2839)

Submitted: March 2, 1999

Decided: April 29, 1999

Before ERVIN and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mindy Gae Farber, Lori Elizabeth Kline, JACOBS, JACOBS & FAR-
BER, Rockville, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Donna C. Sanger, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert K. Emmert appeals from the district court's order granting
the Defendant, Marvin Runyon, Postmaster General of the United
States Postal Service (USPS), summary judgment and dismissing his
employment discrimination complaint. Because Emmert did not
exhaust his administrative remedies in a timely manner, the district
court correctly dismissed his complaint. Therefore, we affirm.

Emmert began working for USPS in 1980. In April 1986, Emmert
injured his shoulder while on the job, and USPS refused to place him
in a position with minimal lifting. Because of his injury, Emmert
missed work. However, in 1988 the USPS offered a partial accommo-
dation to Emmert by assigning him to the "flat sorting machine." He
was still required to perform in a position which required him to stand
for eight-hour periods, sorting and casing bundles of large envelopes.
By 1989, he began to experience a degenerative disease in his knee,
which he alleges required accommodation that the USPS refused to
provide (such as a chair to sit on at breaks or a nearby place to store
his belongings). He further contends that he often was unable to
attend work due to severe knee pain and USPS's failure to provide
accommodation. In early 1990, he filed a worker's compensation
claim asserting that he had injured his knee on the job. Emmert's fre-
quent absences from work caused the USPS to issue him numerous
warnings and suspensions. In December 1991, Emmert filed a com-
plaint with the Equal Employment Opportunity Commission (EEOC)
contending that the USPS had failed to provide him with a reasonable
accommodation for a degenerative disease in his knee. The final
agency decision, closing the claim with a finding of no discrimination
based on physical handicap, was issued on June 23, 1992. Emmert did
not appeal this EEOC decision.

Emmert continued to be frequently absent from work. On Septem-
ber 25, 1992, the USPS issued him a notice that he would be removed

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in thirty days for failure to meet the attendance requirements of his
position. Emmert did not file an EEOC complaint, but he did file a
union grievance, which resulted in a resolution between the USPS and
Emmert in November 1992. Under the resolution, the USPS agreed
to hold the September 25 notice of removal in abeyance for one year.
Emmert was required to submit a doctor's certificate for every
absence due to illness, report for work on a regular basis, and satisfac-
torily perform all of his duties. Furthermore, the resolution provided
that if Emmert failed to fulfill his obligations under the agreement,
action would be initiated immediately to remove him from the USPS;
if Emmert's attendance was acceptable at the end of twelve months,
the record of the matter would be removed from his personnel file.

During the ensuing year, Emmert continued to be frequently absent
from work. His requests for leave due to knee pain were denied. On
September 22, 1993, the USPS issued Emmert a second removal
notice, again citing excessive absences as the basis for the removal.
Emmert filed an EEOC complaint on October 22, 1993, claiming that
he had a physical handicap, which was not being accommodated by
the USPS. He also filed a union grievance, which resulted in a resolu-
tion between the USPS and Emmert in October 1993, holding the
September 22 notice of removal in abeyance for six months pending
a settlement with the Department of Labor and stating that a denial
of his Department of Labor claim would be sufficient cause for rein-
statement of the removal. The USPS issued Emmert his final notice
of removal on February 22, 1994, and his termination was effective
in March 1994. The EEOC issued a right to sue letter on June 24,
1995, after denying his claim.

Emmert filed this action on September 22, 1995. His amended
complaint alleges that USPS discriminated against him in the terms
and conditions of employment when it failed to accommodate his dis-
ability and terminated his employment without first offering him
accommodations so that he could be regular in attendance under Title
VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. § 794(b) (1994)), and the Family and Medical
Leave Act (29 U.S.C. §§ 2601-2654 (1994) (FMLA)). The district
court denied the USPS's initial motion to dismiss or for summary
judgment. The USPS subsequently renewed its motion for summary
judgment. The district judge granted summary judgment to the USPS

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on Emmert's FMLA claims as to absences from work which occurred
before February 5, 1994. Further, the court granted partial summary
judgment to the USPS on Emmert's claims of discrimination, ruling
that all claims involving conduct which occurred prior to June 23,
1992, were time barred. Finally, the court deferred ruling on the
USPS's contention that Emmert's post June 23, 1992, claims were
also time-barred. Emmert voluntarily dismissed his Title VII and
FMLA claims.

The remaining claims were referred to a magistrate judge pursuant
to 28 U.S.C. § 636(b) (1994), with the consent of the parties. The
magistrate judge found that all of Emmert's remaining claims occur-
ring after June 23, 1992, were time-barred because he failed to
exhaust his administrative remedies in a timely fashion. The magis-
trate also held that no finder of fact could reasonably conclude that
Emmert's excessive absences from work were caused by USPS's
refusal to accommodate his disability. Emmert timely appeals.

On appeal, Emmert claims that the district court erred in determin-
ing that: (1) his disability discrimination claims accrued on September
25, 1992 (the date of the first notice of removal); (2) the equitable
doctrines of continuing violation and equitable tolling were inapplica-
ble to his disability claim; and (3) no fact finder could conclude that
his absences were attributable to the USPS's refusal to accommodate
his disability.

We review the grant of summary judgment de novo. See Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Summary judgment is
appropriate if the pleadings and evidence of record"show that there
is no genuine issue of material fact and that the moving party is enti-
tled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluat-
ing a motion for summary judgment, "[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn
in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

A federal employee seeking to file an action based on the Rehabili-
tation Act must first exhaust his administrative remedies promulgated
pursuant to Title VII and set forth in EEOC regulations. See 29 U.S.C.
§ 794(a); 42 U.S.C.A. § 2000e-16 (West 1994 & Supp. 1998); 29
C.F.R. § 1614.105(a)(1) (1998); Doe v. Garrett, 903 F.2d 1455, 1458-

4
62 (11th Cir. 1990) (the administrative requirements under the Reha-
bilitation Act must be satisfied in the same manner as under Title
VII). Under these regulations, an aggrieved federal employee must
make contact with an EEOC counselor within forty-five days of the
alleged discriminatory act or, in the case of personnel action, within
forty-five days of the effective date of that action. See 29 C.F.R.
§ 1614.105(a)(1). A district court must dismiss an employment dis-
crimination claim if the plaintiff fails to seek EEOC counseling within
the prescribed time period. See Zografov v. V.A. Medical Ctr., 779
F.2d 967, 968-70 (4th Cir. 1985) (Title VII). The administrative filing
period commences with the date of the alleged unlawful employment
practice. See Delaware State College v. Ricks , 449 U.S. 250, 258-62
(1980).

In Ricks, the plaintiff was a college professor who learned in March
1974 that the board of trustees of the college had voted to deny him
tenure. He immediately filed a grievance with the college. On June
26, 1974, during the pendency of the grievance, the board of trustees
offered Ricks a one year "terminal" contract, which expired on June
30, 1975. The college rejected Rick's grievance in September 1974.
On April 4, 1975, Ricks filed a charge with the EEOC alleging that
the denial of tenure was discriminatory. The Supreme Court held that
the only alleged discriminatory conduct occurred, and thus the admin-
istrative filing period commenced, when the tenure decision was
made and communicated to Ricks. See id. at 258. The Supreme Court
found that the limitations period began to run by June 26, 1974, when
the college notified Ricks that he would be offered a terminal con-
tract. See id. at 261-62. The Court reasoned that this was the date that
the college had established its official position and made that position
apparent to Ricks. See id. at 262. The Court rejected the Third Cir-
cuit's reasoning that the initial decision to terminate an employee may
be reversed and the aggrieved employee therefore should not be
expected to resort to litigation until termination actually has occurred.
See id. at 255-56. The Court stated that the proper inquiry is determin-
ing the date of the discriminatory acts, not upon the time at which the
consequences of the acts became most painful. See id. at 258. The
Court reasoned that Ricks's termination was the inevitable conse-
quence of the earlier denial of tenure. See id. at 257-58. In this case,
the district court found that, in September 1992, the USPS made and
notified Emmert of its decision to terminate him; further, the court

5
found that this notice was the alleged discriminatory act which com-
menced the running of the filing period.

Emmert's claim under the Rehabilitation Act is that he was unable
to meet his job's attendance requirements because the USPS failed to
accommodate his disability. He states that he started requesting
accommodation of his disability in 1990. Therefore, he should have
initiated contact with an EEO counselor within forty-five days of the
first date his request was denied for allegedly discriminatory reasons.
In any event, the USPS's first personnel action occurred on Septem-
ber 25, 1992, when it issued Emmert his first notice of removal. Thus,
as the district court found, the issuance of the notice of removal com-
menced the administrative filing period. Because he failed to file
within forty-five days of that notice, Emmert failed to timely exhaust
his administrative remedies.

Emmert claims that the September 25, 1992, notice of removal was
revoked when he entered into an agreement with management.* In
essence, Emmert claims that the September 25, 1992, notice of
removal could not trigger the running of the limitations period
because it was not sufficiently final and unequivocal. Emmert further
argues that the November 1992 resolution did not provide any more
finality than the "rescinded" notice of removal and only notified him
that some further action regarding his employment status may be
taken at some future date based on his future performance. Thus,
Emmert contends, the USPS's position regarding his employment
remained tentative. Emmert asserts that his claim did not accrue until
September 23, 1993, when he received a second notice of removal.
He contends that it was at this time that the USPS stated unequivo-
cally that it would not accommodate his disability and that he filed
an EEOC complaint within forty-five days of that date.

Emmert's characterization of the November 1992 resolution with
management is misleading. The resolution did not rescind the Sep-
tember 25 notice of removal. Rather, the resolution held the notice of
_________________________________________________________________
*He also alleges that further acts of discrimination occurred between
the September 25, 1992, notice of removal and his discharge so that at
the time of his administrative filing a "present violation exist[ed]." How-
ever, he does not specify the nature of the further discriminatory acts.

6
removal in abeyance for one year. The resolution further stated that
if Emmert had acceptable attendance at the end of twelve months the
action would be removed from his personnel file. However, the USPS
had established its official position regarding Emmert's absenteeism
and made that position apparent to Emmert, no later than November
1992. See id. at 262. Thus, Emmert's limitations period commenced
no later than November 1992.

The Supreme Court has held, however, that "filing a timely charge
of discrimination with the EEOC is not a jurisdictional prerequisite to
suit in federal court, but a requirement that, like a statute of limita-
tions, is subject to waiver, estoppel, and equitable tolling." Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (footnote omit-
ted). Emmert argues that the disability discrimination of which he
complains continued up until his termination and thus qualifies as a
"continuing violation." Under the continuing violation theory, if an
actual violation has occurred within the requisite time period and the
untimely claims can be related to the timely incident, all the claims
may be considered as timely. See Beall v. Abbott Labs., 130 F.3d 614,
620 (4th Cir. 1997). However, mere continuity of employment, with-
out more, is insufficient to prolong the life of a cause of action for
employment discrimination. See Ricks, 449 U.S. at 257.

This Circuit has never delineated what constitutes a"continuing
violation." Our sister circuits, however, have developed a number of
tests for determining whether a claimant was suffering from a contin-
uing violation. See, e.g., DeNovellis v. Shalala, 124 F.3d 298, 307 (1st
Cir. 1997) (finding continuing violation in case 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 mis-
treatment"); Berry v. Board of Supervisors , 715 F.2d 971, 981 (5th
Cir. 1983) (finding continuing violation when three-prong test involv-
ing type of conduct, frequency of alleged acts, and degree of perma-
nence of acts is satisfied).

Emmert fails to establish a continuing violation under any of these
tests. As the Supreme Court has stated, the "critical question" in a
continuing violation case is "whether any present violation exists."

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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 Ricks, 449 U.S. at 257-58, nor do "separate and completed
events," Lawson v. Burlington Indus., Inc. , 683 F.2d 862, 863-64 (4th
Cir. 1982). Emmert has not established a present violation, because
after June 23, 1992, he requested only that his absences be excused,
but he did not request any accommodation of his disability.

Furthermore, if Emmert intended to complain of a discriminatory
discharge, he should have identified the alleged discriminatory acts
that continued until, or occurred at the time of, the actual termination
of his employment. See Ricks, 449 U.S. at 257. Although Emmert
alleges an "on-going practice to discriminate against him on the basis
of his disability" up until his termination, the record reveals that the
USPS's alleged failure to accommodate him was based on individual,
sporadic decisions of various supervisors, not a policy or practice of
discrimination. In fact, Emmert's amended complaint does not clearly
allege a policy or practice of discrimination. As Emmert explained,
a number of supervisors rotated through his section. On occasion,
Emmert asked a supervisor for a chair so that he could alleviate the
pain caused by having his weight on his knee. Emmert stated that two
supervisors, who were only temporarily assigned to him, did not ful-
fill his requests. Also, after June 23, 1992, Emmert requested only
that his absences be excused but he did not request any other accom-
modation of his disability. Thus, he has not established a continuing
violation.

A plaintiff who knows or with the exercise of reasonable diligence
would have known after each act that the act was discriminatory and
had harmed him may not sue on all the discriminatory acts within the
statutory period applicable to the last one. See Moskowitz v. Trustees
of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993). A series of discrimi-
natory acts will delay the deadline for suing with respect to the earli-
est acts in the series only if their character was not apparent when
they were committed but became so when viewed in the light of the
later acts. See id. Here, Emmert knew or with the exercise of due dili-
gence would have known that he was being discriminated against by
the USPS's alleged failure to accommodate his disability long before

8
1993. Emmert should have known as early as 1990 that the denial of
his requests for accommodation constituted disability discrimination.

Lastly, Emmert claims that even if he did not allege a continuing
violation and that his claim accrued on September 25, 1992, he is
entitled to equitable tolling of the filing period. The doctrine of equi-
table estoppel may excuse a plaintiff's untimely filing when the
employer has engaged in some type of misconduct or when plaintiff
filed a defective pleading during the statutory period. See Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990). Emmert con-
tends that the USPS's failure to enforce the September 25, 1992,
notice of removal caused him to forbear filing an EEOC charge. How-
ever, Emmert does not argue that he was entitled to any accommoda-
tion as of June 23, 1992, and after that time, he never advised the
USPS that he needed any accommodation. In fact, Emmert sought no
accommodation other than being excused from attendance. As the dis-
trict court noted, although the USPS ultimately agreed to hold the ter-
mination in abeyance, that agreement was in exchange for Emmert's
own agreement to report for duty on a regular basis, and he agreed
that he would be terminated if he did not do so. Thus, far from seek-
ing accommodation, he expressly undertook to meet his job's atten-
dance requirements under existing work conditions. There was no
misconduct by the USPS.

Because Emmert failed to timely exhaust his administrative reme-
dies, we affirm the district court's order granting summary judgment
to the Defendant. 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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