Watson v. Eastman Kodak Co.

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

12-21-2000

Watson v. Eastman Kodak Co.

Precedential or Non-Precedential:

Docket 99-3520

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Filed December 21, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3520

JOHNNY WATSON,

Appellant,

v.

EASTMAN KODAK COMPANY.

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Judge: Robert J. Cindrich

(D.C. Civ. No. 98-01330)

Argued October 24, 2000

Before: BECKER, Chief Judge, SCIRICA and FUENTES,

Circuit Judges.

(Filed: December 21, 2000)

Neal A. Sanders (argued)

Law Offices of Neal Alan Sanders

1924 North Main Street Extension

Butler, Pennsylvania 16001

Attorneys for Appellant

Michael A. Fitzhugh (argued)

Fitzhugh & Associates

155 Federal Street, Suite 1700

Boston, Massachusetts 02110

Attorneys for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant Johnny Watson alleges that he was r emoved

from his position of Account Executive at Eastman Kodak

Company ("Kodak") because of unlawful race and age

discrimination. Under federal law, a complainant has 300

days from the date of the adverse employment decision to

file a claim with the Equal Employment Opportunity

Commission ("EEOC"). In Delaware State College v. Ricks,

449 U.S. 250 (1980), the Supreme Court held that an

adverse employment action occurs, and the statute of

limitations therefore begins to run, at the time the

employee receives notice of that action and ter mination is

a delayed but inevitable result. Relying on Ricks, the

District Court measured the limitations period from the

date on which Watson was notified of his termination from

the Account Executive position, and dismissed W atson's

claim as untimely. Watson asserts that Ricks's date of

notification rule does not control the limitations period in

his case because Kodak left open the possibility of Watson's

continued employment with the company. We disagree.

Because we concur with the District Court that the r elevant

date from which to measure the timeliness of Watson's

discrimination claim is the date on which he was r emoved

from the Account Executive position, and because we

conclude that the mere speculative possibility of continued

employment does not alter Ricks's date of notification rule,

we will affirm.

I.

Johnny Watson began working for Kodak in 1979, and

was promoted in 1988 to the position of Account Executive.

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He alleges that in that capacity he consistently met his

sales quotas and received several employment awards,

including five 100% club awards and one master club

award for reaching 140% of his sales quota. He also

reportedly received favorable perfor mance evaluations and

was not subject to any disciplinary action.

In December 1994, Watson transferred to Kodak's office

in Pittsburgh, Pennsylvania, where he was the only African-

American Account Executive. Roger Gagnon was his

immediate supervisor. Watson alleges that, from the outset,

Gagnon interfered with his perfor mance by refusing to

provide support comparable to what he of fered younger,

white Account Executives. According to W atson, Gagnon's

interference prevented him fr om meeting his sales quotas

for 1995 and 1996.

In January 1997, Watson wrote a letter to Gagnon

complaining about these matters and contending that race

discrimination was the reason for that lack of support.

Gagnon responded in a letter dated February 4, 1997,

informing Watson that, due to poor per formance, he was

retroactively removed from his Account Executive

classification effective January 1, 1997. It also stated that

Watson would be allowed to remain with Kodak beyond

March 7, 1997 only if he was successful in obtaining

another position within the company, an effort with which

Gagnon professed he would help. Watson failed to find

another position. Consequently, Kodak terminated his

employment on March 7, 1997.

Thereafter, Watson was hospitalized briefly in

Pennsylvania. Upon his release, in June 1997, he traveled

to Florida where he stayed at his mother's r esidence. While

in Florida on December 31, 1997, realizing that the

administrative deadline for filing a discrimination charge

was about to expire, Watson filed a claim with the EEOC at

its Miami, Florida branch, alleging violations of T itle VII of

the Civil Rights Act of 1964 (Title VII), 42 U.S.C. SS 2000e

to 2000e-17, and the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. SS 621 to 634. When hefiled the

discrimination charge, Watson described the adverse action

taken against him as follows:

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I was employed by Eastman Kodak Company for

eighteen years. During that time there wer e several

situations revolveing [sic] around pay, assignments to

territory and like [sic] of understanding. I believe that

my race and age at the time of my termination from

[sic] played a roll [sic] in their decision to release me.

The EEOC investigator informed Watson that the claim

would be processed, then transferred back to Pennsylvania.

On May 7, 1998, after retaining counsel, W atson filed an

amended charge in which he added a pay discrimination

claim.

Relying upon Delaware State College v. Ricks, 449 U.S.

250 (1980), the District Court concluded that W atson's

unlawful termination claim accrued on February 4, 1997,

the date he received Gagnon's letter. Because Watson

submitted his EEOC charge 330 days later , on December

31, 1997, the Court determined his claim fell outside the

statutorily allotted 300 day filing deadline. Consequently,

the Court granted Kodak summary judgment.

On appeal, Watson argues that the District Court

misconstrued Ricks and that it erred in failing to conclude

that his termination claim accrued on Mar ch 7, 1997,

which is within 300 days of the date he filed his EEOC

discrimination charge in Florida. He also contends that,

even if we determine that the termination claim was

untimely, we should find that his discrimination in

compensation claim, based on a continuing violation

theory, was timely.

II.

This Court's review of a grant of summary judgment is

plenary, and the record is judged by the same standard

district courts use. Witkowski v. W elch, 173 F.3d 192, 198

(3d Cir. 1999). Federal Rule of Civil Pr ocedure 56 governs

summary judgment motions. Subsection 56(c) pr ovides, in

part, that:

[t]he judgment sought shall be render ed forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

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show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.

The moving party has the burden of demonstrating that

there is no genuine issue as to any material fact, and

summary judgment is to be entered if the evidence is such

that a reasonable fact finder could find only for the moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Doherty v. Teamsters Pension T rust Fund, 16 F.3d

1386, 1389 (3d Cir. 1994).

III.

Under Title VII and the ADEA, plaintif fs residing in states

having an agency authorized to grant relief for federally

prohibited employment discrimination must r esort to that

state remedy before they will be allowed access to federal

judicial relief. See 42 U.S.C. S 2000e-5(c) (Title VII); 29

U.S.C. S 633(b) (ADEA); Oscar Mayer & Co. v. Evans, 441

U.S. 750, 754-58 (1979). Such states are ter med "deferral"

states. See Evans, 441 U.S. at 758. It is undisputed that

Pennsylvania is a deferral state. See 43 Pa. Cons. Stat.

SS 955(a), 959; Sharpe v. Pennsylvania Hous. Auth., 693

F.2d 24, 26 (3d Cir. 1982).

Title VII and ADEA plaintiffs such as W atson, who file in

deferral states, must submit their administrative

discrimination charge within 300 days of the challenged

employment action. See 42 U.S.C. S 2000e-5(e)(1) (Title VII);

29 U.S.C. S 626(d)(2) (ADEA); Colgan v. Fisher Scientific Co.,

935 F.2d 1407, 1413-15 (3d Cir. 1991) (en banc). Therefore,

Watson's attempt to obtain relief under federal law from

Kodak's alleged employment discrimination on the basis of

race and age may proceed only if he filed his administrative

charge of discrimination within 300 days of the unlawful

employment actions he challenges.

The crucial issue in this case is whether the actionable

adverse employment decision was the one to separate

Watson from the position of Account Executive or the one

to terminate his employment with Kodak entir ely. We begin

our analysis of the timeliness issue with the Supr eme

Court's decision in Delaware State College v. Ricks. In

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Ricks, a professor at Delaware State College challenged the

college's decision not to grant him tenure as being

unlawfully based on national origin discrimination. Ricks,

449 U.S. at 252. The professor pursued inter nal grievance

procedures within the college to pr otest the tenure denial,

and in the meantime the college, as it customarily did,

entered into a one year "terminal" contract with him that

allowed the professor one extra year of employment before

his actual termination. Id. at 252-54.

Of primary importance in the case, due to the date the

professor filed his administrative discrimination charge,

was the date that his unlawful termination claim accrued.

See id. at 254-56. The professor ar gued that it accrued on

the date of his final day of employment under the one-year

terminal contract. See id. at 257. The Supreme Court

rejected his theory, ruling instead that his unlawful

termination claim accrued when he initially r eceived the

college's notice that he had been denied tenur e. Id. at 259,

261-62.

The Court emphasized that the key inquiry was

identifying the precise alleged unlawful employment

practice. Id. at 257. This was the central issue because the

relevant federal statute, Title VII, measured the

administrative charge's timeliness from the date " `the

alleged unlawful employment practice occurred.' " Id. at 256

(quoting 42 U.S.C. S 2000e-5(e)); accor d 29 U.S.C.

S 626(d)(2) (for ADEA claims, timeliness of administrative

charge is measured from date "the alleged unlawful practice

occurred"). The Supreme Court found it immaterial that the

professor's denial of tenure did not manifest itself until one

year later, when his terminal contract expired. See Ricks,

449 U.S. at 258. The Court instead approved the maxim

that " `[t]he proper focus is upon the time of the

discriminatory acts, not upon the time at which the

consequences of the acts became most painful.' " Id.

(quoting Abramson v. University of Hawaii, 594 F.2d 202,

209 (9th Cir. 1979)). Because the professor's allegations in

his complaint focused only on his denial of tenur e, the

Court concluded that the date he was notified of that

decision controlled. Id. at 257-58 & n.9, 261-62.

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Watson contends that Ricks is inapplicable. He argues,

for example, that the unlawful discrimination he challenges

relates to the termination of his employment from Kodak

generally, rather than specifically to his dischar ge from the

position of Account Executive. This argument fails for two

reasons. First, Watson's amended EEOC charge explicitly

alleged that "I was discharged from the position of Account

Executive, from [Kodak]," and it stated in support that he

"was the only black Account Executive in [his] area, and

[he] was not receiving support." Second, and more

importantly, the only evidence of either race or age

discrimination in the record, found in the various verified

statements to which Watson attested and that served

largely to verify his complaint and the allegations in his

EEOC charges, relates solely to Gagnon's supervision of

Watson.

In light of these facts, the record does not support

Watson's argument that he was challenging his termination

from employment in a general sense, as opposed to his

termination from the Account Executive position. Just as

the professor's allegations in Ricks made it clear that he

was challenging the more specific decision to deny him

tenure, see 449 U.S. at 257-58, the r ecord in Watson's case

demonstrates that he was challenging the specific decision

to remove him from the position of Account Executive. See

also Chardon v. Fernandez, 454 U.S. 6, 6-8 (1981)

(rejecting termination date as the r elevant event since no

allegations of discrimination existed between the date of

notice of termination and the date of ter mination).

Watson further argues that the date his claim accrued

cannot be February 4, 1997 because Gagnon's letter left

open the possibility of continued employment in another

position with Kodak and therefore it was an equivocal

notice of termination. Cf. Smith v. United Parcel Serv. of

Am., Inc., 65 F.3d 266, 268 (2d Cir . 1995) ("the limitation

period begins to run on the date when the employee

receives a definite notice of the ter mination. Moreover, for

the notice to be effective, it must be made apparent to the

employee that the notice states the official position of the

employer.") (internal quotations and citations omitted).

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However, Gagnon's letter cannot be deemed equivocal

merely because it preserved the possibility of continued

employment. In Ricks, the professor pursued an internal

grievance process that might have resulted in his having

obtained tenure. Ricks, 449 U.S. at 252-54 & n.2, 261-62.

Despite this action, the Court rejected an ar gument that

the notice of termination was render ed ambiguous by the

mere potential for continued employment. See id. at 260-

61. Therefore, the District Court corr ectly determined that

Watson's unlawful termination claim r elates specifically to

his removal from the Account Executive position, and that

Gagnon's letter of February 4, 1997 unequivocally informed

Watson of that decision.

At oral argument, Watson claimed that, despite Gagnon's

letter, he effectively remained in the Account Executive

position until March 7, 1997, which we must accept as the

date on which he suffered the adverse employment action.

However, the last day of employment is not necessarily the

date of the adverse employment action. For example, in

Ricks, even though the professor's employment continued

for one year after he was denied tenure, the Court

nevertheless refused to equate the last day of his

employment with the date on which the adverse

employment action occurred. Id. at 259, 261-62.

Moreover, even if Watson's last day as an Account

Executive was March 7, 1997, that cannot serve as the date

of the adverse employment action since Gagnon's letter

quite clearly informed Watson that, as of February 4, 1997,

he was terminated from the Account Executive position.

This is true because it does not matter that W atson was

notified of his termination several weeks before his ultimate

discharge. As a matter of law, notice of an"operative

decision" of termination is not equivocal merely because it

was "given . . . in advance of a designated date on which

employment terminated." See Char don, 454 U.S. at 8.

Finally, Watson incorrectly relies on the Ninth Circuit's

decision in the case of Bouman v. Block, 940 F.2d 1211 (9th

Cir. 1991). In Bouman, the plaintif f, a female police officer,

instituted a Title VII action against Los Angeles County and

the county's sheriff's department, alleging inter alia that the

department engaged in gender discrimination by

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intentionally failing to promote her. Id. at 1221. Under

department procedures, eligibility for pr omotion was

determined by the results of a ser geant's examination.

Exam scores were used to develop a pr omotion list, which

then served as the basis for promotion within the

department for two years. Id. at 1217. After failing to

receive a promotion during the list's two-year term, the

plaintiff instituted employment discrimination proceedings.

She filed an administrative charge within 300 days of the

expiration of the promotion list, but well beyond 300 days

from the date of the examination and the establishment of

the list. In assessing the timeliness of the claimfiled, the

Ninth Circuit held that the claim accrued when the

promotion list expired, not when the pr omotion list was

established or the promotion exam was given. Id. at 1221.

The Bouman Court distinguished Ricks because there, the

professor's "termination . . . was a delayed but inevitable

result of being denied tenure." Id. In Bouman's case, by

contrast, it was not certain that the petitioner would not be

promoted until the list had expired. She did not know until

that date that she had suffered an injury.

Watson argues that Bouman, rather than Ricks, controls

because when he received Gagnon's February 4, 1997

letter, his termination from the Account Executive position

was not a delayed but inevitable result since he might have

remained in that position in another part of the company.

Consequently, Watson argues that his termination claim

must be deemed to have accrued on March 7, 1997.

However, Watson ignores that in Bouman, the plaintiff's

failure to be promoted had not been inevitable because

(1) she was on the promotion list, (2) she was at the top of

the list when it expired, and (3) vacancies had occurred

before the list expired to which she could have been

promoted. Id. at 1217. Thus, in Bouman, the plaintiff's

potential promotion was not based on mer e speculation. By

contrast, Watson's contention that his r emoval from the

Account Executive position was not an inevitable r esult of

Gagnon's letter rests on pure speculation. Under these

circumstances, Watson's case is mor e analogous to Ricks

than Bouman, since the professor in Ricks relied on mere

speculation that his internal grievance concer ning the

tenure decision would be successful. See also Bronze

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Shields Inc. v. New Jersey Dep't Civil Serv., 667 F.2d 1074,

1080-84 (3d Cir. 1981) (when plaintif fs challenged legality

of hiring examination, claim accrued when they r eceived

notice that they had failed the examination and wer e not on

the hiring roster, not when roster expired).

Therefore, we agree with the District Court that Watson's

claim centered on his termination fr om the Account

Executive position, and that Gagnon's February 1997 letter

clearly informed Watson of his dischar ge from that position.

The letter stated that "as of January 1, 1997 you are no

longer in the Account Executive position." Consequently,

pursuant to Ricks, the District Court corr ectly held that

Watson's termination claim accrued on February 4, 1997,

the date he received Gagnon's letter. As a result, Watson's

discrimination discharge claim is untimely.

IV.

Watson also seeks review of his claim that Kodak

unlawfully compensated him at a lower rate than similarly

situated white employees. The District Court did not

discuss this issue in its initial summary judgment decision.

However, the Court did address the issue in ruling on

Watson's motion for reconsideration. First, it declared that

"all of Watson's claims related to any Kodak decision about

which he was notified on February 4, 1997 ar e time-

barred." Second, the Court held that "[a] reasonable reading

of" his December 31, 1997 EEOC discrimination charge

"does not lead to a conclusion that he was complaining

about race discrimination in his rate of pay." The Court

also concluded that its prior grant of summary judgment in

favor of Kodak on this issue was proper because Watson

"presented no evidence on summary judgment that

suggests that Kodak engaged in some conduct that might

qualify as a continuing violation."

Even assuming that Watson presented a timely unlawful

compensation claim to the EEOC, the District Court's

ruling on this issue must be affirmed because Watson failed

to identify any evidence that he was compensated at a

lower rate than similarly situated employees, or that this

alleged disparate compensation continued long enough to

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have rendered his December 31, 1997 EEOC charge timely.

For example, he failed to identify through extrinsic evidence

his pay rate, or those of comparable employees, and he

provided no evidence of the last date he r eceived a

paycheck. Although Watson filed an affidavit to support his

opposition to Kodak's summary judgment motion, he

makes no reference to an unlawful compensation claim nor

does he aver any facts to support it. Therefor e, since

Watson failed to make the requir ed evidentiary showing to

sustain his unlawful compensation claim, the District Court

properly entered summary judgment. See Fed. R. Civ. P.

56(e). A party's failure to make a showing that is "sufficient

to establish the existence of an element essential to that

party's case, and on which that party will bear the burden

of proof at trial" mandates the entry of summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also

J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531

(3d Cir. 1990).

V.

For all the reasons set forth above, we will affirm the

District Court's order.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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