Petition for Writ of Certiorari — Shenkan v. Potter

Supreme Cow, U.S,

‘6 FILED

031053 JAN 9 - 2004

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

MARK D. SHENKAN,

Petitioner,

V.

JOHN E. POTTER, POSTMASTER

GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Bruce Bagin, Esq.

Counsel of Record for Petitioner

Wienand & Bagin

312 Boulevard of the Allies

Suite 600

Pittsburgh, PA 15222-1923

412.281.1110

Co-counsel Richard Shenkan, Esq.

ee ee RE ON

QUESTIONS PRESENTED

Prior to this court’s ruling in National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 and 115 n.9

(2002), (“Morgan”) there existed two principal theories of

the continuing violation in an employment discrimination case.

The first, the serial theory, was abrogated by this Court in

Morgan. The second, variously known as the systemic theory or

the pattern and practice theory, was specifically reserved by

Morgan in footnote nine. The issues in this case involve the

systemic theory of the continuing violation and the deference

owed to the administrative rulings of the EEOC interpreting its

own regulation.

I. Whether Petitioner’s complaints of violations of the

Rehabilitation Act were timely initiated when the

Respondent’s failure or refusal to hire him for a casual

position was the inevitable result of an ongoing systemic

policy, pattern or practice of regarding any applicant with

mental impairments as disabled, and therefore unsuitable for

employment.

Il. Whether the systemic or pattern and practice theory of

continuing violation makes any complaint timely as long as

the systemic policy, pattern and practice is operative.

ii

III. Whether Griggs deference, Chevron deference, or any

deference is due to the EEOC’s determination interpreting its

own procedural and interpretive regulations.

PARTIES TO THE PROCEEDINGS

Petitioner is Mark D. Shenkan.

Respondent is John E. Potter, Postmaster General of the

United States.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..... 02. c cece ccc eecene i- ii

pe ss) ea iil

pp ee ys 3 ys Se iV - Vil

kee need kesh ecer esa vankearevaees l

STATEMENT OF JURISDICTION .................... l

RELEVANT PROVISIONS INVOLVED ............. 2-3

Pee Cw BEE CAE ow eee cece cens 4

eee ee rer eee 4

(ii) Proceedings at the United States Postal Service . 4

(iii) Proceedings at the United States Equal

Opportunity Commission .............-..- 4-7

(iv) Proceedings at the District Court ............. 7

(v) Statement of Facts .................4..- 7-14

(vi) Statement of Court of Appeais and Supreme

I EE dg kw ee ee sees ewtnes 14

REASONS FOR GRANTING THE WRIT .............. 16

: The decision of the Third Circuit is in conflict with the

decisional law of the United States Courts of Appeals

for the 1st, 5, 6", 7", 9, 10° and D.C. Circuits as

well as the policy and precedential decisions of the

United States Equal Employment Opportunity

iv

eS ee) ee eae dee wean 16 - 25

Il. The decision of the Third Circuit failed to grant

Chevron deference to the decision of the EEOC,

interpreting its own regulations, policy and precedent

in finding that the contact by Mark Shenkan with the

EEO Ccounselor was timely. ................ 23 - 27

SE hi Sipe see heb ee eeaah see Demha Peene ea we 27

APPENDIX

A-CIRCUIT COURT OPINION (6/13/02) .......... la

B-ORDER DENYING REHEARING (8/14/03) .... 13a

C-DISTRICT COURT OPINION / ORDER (8/15/02). Sa

TABLE OF AUTHORITIES

CASES

Alexander v. Local 496, Laborers’ Intern. Union of North

America, 177 F.3d 394 (6th Cir 1999) ..........-......... 18

Allen v. United States Steel Corp., 665 F.2d 689 (Sth Cir.1982).17

Auer v. Robbins, 519 U.S. 452 (1997) ........... 24, 25, 26, 27

Barimess v. Drewrys USA Inc., 444 F.2d 1186 (7th Cir.), cert.

SOE SG UT Fer TTD ook tac cute ies tncbands 18, 20

Belt v. Johnson Motor Lines, Inc., 458 F.2d 443

a, of) rs eee Pere eee Te eT ere 16. 20

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, (1945) .. 24

Vv ~

Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344

bog, gi | ere ren yet aren ne 22

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

GET US. Ge Cie hos sa een 105545044 ee 24, 26

Cowell v. Palmer Twp., 263 F.3d 286 (3d Cir. 2001) ........ 13

Crowley v. L.L. Bean, Inc., 303 F.3d 387,405 (1st Cir.2002) .. 22

Dixon vy. Anderson, 928 F.2d 212, 216 (6" Cir. 1991) ........ 18

Dobbs v. City of Atlanta 606 F.2d 557 (Sth Cir.1979) ....... 17

Domingo v. New England Fish Co. 727 F.2d 1429, 1443 (9th Cir.

1984), modified 742 F.2d 520 (1984) ........... rarer e 19

E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265 (11th Cir.

2002), rehearing en banc denied, 55 Fed Appx. 904 (11th Cir

2002), cert. denied, US. __ U.S.L.W.. 3789, (2003) ..... 21

EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir. 1974).20

Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (Sth

Ci FOOT) ockcé cn bee wevads Sere tee eee ee 17

Green v. Los Angeles County Superintendent of Schools, 883 F.2d

M72 ERC, Ts i i odes Ses hese ees eee ee 19

Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) . 22

Jensen v. Frank, 912 F.2d 517 (1st Cir. 1990) .......... 13, 16

Johnson v. General Electric Co., 840 F.2d 132 (Ist Cir. 1988) 16

Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) ........... 23

Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179

og SS err errr re rer rer er roe re re ge ty 15

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir.

aE or py rere yr Ore nee nr 20, 21

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114

Shs KA ek cd vcd keds see ee Kee Oe Pena trees 17

Perez v. Laredo Junior College, 706 F.2d 731 (5" Cir 1983) .. 20

Reed v. Lockheed Aircraft Co., 613 F.2d 757, 760

Le eer rrr rere rer ay tan vent ets 20

Rich v. Martin Marietta, 522 F.2d 333 (10th Cir. 1975)... 16, 20

Roberts v. North American Rockwell Corp., 650-F .2d 823 (6" Cir.

NL os 8b a eo ae ee oe ee 18

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359

RI ok ie seh ck acm, © 9.9 aw 4 0c odow iw ea Rea a a eee 24

Rush v. Scott Specialty Gases, 113 F.3d 476, 482-84 (3d Cir.

SS Shc ca ir. Xi 05.4 ieu aw & 6-hAe ae eeT 13

Sabree v. United Brotherhood of Carpenters and Local Joiners.

gw ket a | rrr me ere 11, 26

Shenkan v. Potter, 71 Fed. Appx. 893, 895 (3d Cir. 2003) .... 13

Velazquez v. Chardon, 736 F.2d 831 (1 Cir. 1984) ......... 16

West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995) ... 14

Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.), cert.

Se SP OMMRD occ chvr peaks Kea esa eee eee eee 19

Neds oe ate OE a Re oe tie

Pe Ee OR STS ee

a vil

ADMINISTRATIVE DECISIONS

Gills v. United States Postal Service, EEOC Request No.

05970971 (August 18, 1997) .... 6... cee ee ee eee eee ee ees 26

Shenkan v Henderson, 1999 EEOPUB LEXIS 5506 (September

TS SP TeerTiTT error re tre ere er te 6

Shenkan v. Henderson, 2000 EEOPUB LEXIS 3134 (May 11,

pee mere rN rer er rs rer ere eee ce 6

STATUTES

28 U.S.C. $8 E531, 1559, & GAS owt cece cece eee enees 12

elke eS | eer er err rrr ec err ee 20

O2 USC. § TOO) «5c cc nvee nner ee cavisniees rates, 12

2 UGC. 06 DOOOE-IG 6. oc nec cccve st tasesrsiviasees 12, 25

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ... 9

Rehabilitation Act of 1973, 29 U.S.C §§ 701 et seq........ 9,11

Section 503(b) of the Rehabilitation Act Amendments of 1992,

Pub. L. No. 102-569, 106 Stat. 4344, 4424 (October 29, 1992) . 9

REGULATIONS

CER & TING 5 ieee 2,4

wWETR 4 WIENS «..... i iecycre 2,4

MISCELLANEOUS AUTHORITIES

1978 Reorg. Plan No. 1 of Feb. 23, 1978, 43 Fed. Reg. 19807,

NE Bn. La a cw chalh bees hee ee haa ee aes see ae 24

viii

Postal Service Publication EL-806 .................... 8,21

B. Schlei & P. Grossman, Employment Discrimination Law (2d

OG: SD CUE io dons eehn ceca seen wes see ee ear neee suas

1

PETITION FOR WRIT OF CERTIORARI

Mark Shenkan, the Petitioner, respectfully prays that a

writ of certiorari issue to review the opinion and order cf the

United States Court of Appeals for the Third Circuit entered in

this case on June 13, 2003.

OPINIONS BELOW

The opinion of the district court granting a motion for

summary judgment against Petitioner (App. C hereto) is

unreported. The opinion of the Third Circuit Court of Appeals,

(App. A hereto) which is sought hereby to be reviewed, is

reported at 71 Fed. Appx. 893 (3d Cir. 2003). The order of the

Third Circuit denying rehearing and denying rehearing en banc

(App. B hereto) is unreported.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit (Appendix A ) was entered on June 13, 2003. A

timely petition for rehearing and rehearing en banc was denied on

August 14, 2003 (Appendix B). The jurisdiction of the Supreme

Court is invoked under Supreme Court Rule 10 (a) and 10 (c) in

2

that the decision of the Third Circuit is in conflict with the

decisions of other United States Courts of Appeals on the same

important matter and has also decided an important question of

federal law that has not been, but should be, settled by this Court.

RELEVANT PROVISIONS INVOLVED

TITLE 29, SUBTITLE B, CHAPTER XIV, PART 1614,

SUBPART A, SECTION 105, (a)(1) and (2), 29 C.F.R. §

1614.105(a)(1) and (2). Provides as follows:

§ 1614.105 Pre-complaint processing.

(a) Aggrieved persons who believe they have

been discriminated against on the basis of race,

color, religion, sex, national origin, age or

handicap must consult a Counselor prior to filing

a complaint in order to try to informally resolve

the matter.

(1) An aggrieved person must initiate contact

with a 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.

(2) The agency or the Commission shall extend

the 45--day time limit in paragraph (a)(1) of this

section when the individual shows that he or she

was not notified of the time limits and was not

otherwise aware of them, that he or she did not

know and reasonably should not have been

known that the discriminatory matter or personnel

3

action occurred, that despite due diligence he or

she was prevented by circumstances beyond his

or her control from contacting the counselor

within the time limits, or for other reasons

considered sufficient by the agency or the

Commission.

4

STATEMENT OF THE CASE

(i) Nature of the Case

This is a petition for review of the decisions of the United

States District Court for the Western District of iene

granting Respondent’s Motion for Summary Judgment, on

grounds that the Third Circuit has not adopted the systemic or

pattern and practice theory of the continuing violation, and

therefore Petitioner failed to initiate the Federal sector Equal

Opportunity Procedure (29 C.F.R. § 1614.105(a)(1) and (2)),

within 45 days of the discriminatory acts, and the Third Circuit

Court of Appeals’ affirmance of that erroneous decision.

(ii) Proceedings at the United States Postal Service

Petitioner has been diagnosed with a mental impairment,

bi-polar disorder, which is controlled by medication and by

counseling therapy. Petitioner was denied employment for a

casual position on November 28, 1995, and again in November,

1997. Shenkan requested reconsideration and reactivated his

application on February 9, 1998.

-)

When the Postal Service failed or refused to respond to

this request within a reasonable time, Shenkan initiated the

federal sector EEO complaint procedure on March 17, 1998.

Critically, after Shenkan filed his EEO complaint, the Postal

Service management affirmed (as verified by the EEO

investigator) that Shenkan’s November, 1997 application was still

being considered. Thereafter, Shenkan timely filed a formal EEO

complaint when the informal period lapsed without his receiving

any relief.

The Postal. Service dismissed two of the four allegations

of Shenkan’s complaint as untimely by a “final agency decision”

(FAD 1) on June 4, 1998, and dismissed the third allegation by

remaining silent. It issued a “final agency decision” (FAD 2) on

January 20, 1999, of no discrimination on the remaining

allegation that it had retained for investigation.

(iii) Proceedings at the United States Equal Employment

Opportunity Commission.

Shenkan filed a timely appeal of the dismissal of his

complaint of discrimination in FAD 1 and in FAD 2 with the

6

United States Equal Employment Opportunity Commission

(EEOC). These were consolidated by the EEOC in making its

September 14, 1999, decision which affirmed the dismissal of the

two allegations in FAD 1 and affirmed the decision of no

discrimination in FAD 2.

The EEOC remanded the allegation that the Postal

Service violated the Rehabilitation Act when it requested

information concerning his impairment prior to making a

conditional offer of employment, which the Postal Service had

silently dismissed. Shenkan v Henderson, 1999 EEOPUB LEXIS

5506 (September 14, 1999).

On October 13, 1999, Mark D. Shenkan (complainant)

timely initiated a request to the EEOC to reconsider the decision

in Mark D. Shenkan v. Henderson, EEOC Appeal Nos. 01985106

& 01992808 (September 14, 1999). Shenkan v. Henderson, 2000

EEOPUB LEXIS 3134 (May 11, 2000). The EEOC granted

reconsideration and reversed its decision in Shenkan in its entirety

because Shenkan had alleged a systemic violation, not a serial

violation, and its earlier decision had mistakenly applied the serial

Sasa

iste AA an aa ENS ae Law

NAR As eh li Ahad LR Te an RO

7

violation theory of the continuing violation. It remanded the

complaint to the Postal Service for investigation.

(iv) Proceedings at the District Court

On February 13, 2001, Shenkan filed the complaint which

gives rise to this request, in the United States District Court for

the Western District of Pennsylvania. The court granted summary

judgment to the Posial Service on August 15, 2002 and a timely

Notice of Appeal was filed on September 9, 2002.

(v) Statement of Facts

On March 17, 1998, Petitioner initiated the informal

process with an EEO Counselor when he was not hired in

November 1995, in November 1997, after the Postal Service did

not respond to a request for reconsideration in February, 1998.

Later, in May of 1998, Shenkan filed yet another application for

employment at the invitation of the Postal Service. During the

informal process the EEO investigator conducted an initial

inquiry and learned that Shenkan’s 1997 application was still

current and under consideration. Postal Service management

verified by affidavit this critical fact.

In connection with the Postal Service’s uniform

8

application process, the Postal Service directed Shenkan to

complete a standardized form which elicited information of

Petitioner’s physical and mental impairments. The Postal Service

employed the use of this form prior to extending an offer of

employment. Shenkan learned that he was not hired because of

his mental impairment, which the Postal Service regarded as a

disability, without any regard to whether Shenkan could perform

the essential functions of a position with a reasonable

accommodation. .

In 1971, the Postal Service received authority from the

then Civil Service Commission to conduct its own personnel

practices. The Postal Service established medical standards

contained in Postal Service Publication EL-806, that were

specifically designed to reject for employment any individual

with a physica! or mental impairment. At the time that this

system of hiring was established, discrimination because of a

disability was not unlawful; however, the medical standards were

never changed after they were written, and the employees who

applied these standards were trained to apply them strictly even

hak best a) 3 a ek tb eiet DBE) dC ALY

9

after the passage of the Rehabilitation Act of 1973, 29 U.S.C §§

701 et seq. (2003), the Americans with Disabilities Act, 42 U.S.C.

§§ 12101 et seq. (2003), and Section 503(b) of the Rehabilitation

Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344,

4424 (October 29, 1992)

When Petitioner first applied for a casual position with

the Postal Service in 1995, the contract medical doctor certified

him as qualified and able to perform the duties of the casual

position. The Postal Service medical officer summarily reversed

the contract doctor’s decision to pursuant to the Postal Service’s

blanket, systemic, pattern and practice of relying on Postal

Service Publication EL-806 to reject for employment any

applicant with mental impairments regardless of the degree to

which the impairment was controlled.

The Postal Service dismissed Shenkan’s complaints as

untimely. Shenkan timely appealed to the EEOC on the grounds

that his being rejected for employment flowed from an

acknowledged pattern and practice of systemic discrimination,

and under the systemic pattern and practice of discrimination

|

10

theory of continuing violation and, accordingly, that he filed a

timely EEO complaint. From the very beginning, Shenkan has

maintained that his being denied employment by the Postal

Service was the direct and inevitable result of the Postal Service’s

systemic pattern and practice of discrimination because of its

inflexible application of its outmoded medical standards.

At the time of the appeal to the EEOC, there existed two

major theories of the continuing violation: the serial theory which

was abrogated by this court in National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002); and the systemic pattern and

practice theory which was specifically reserved for decision in

Morgan at 115, n. 9. In this case Petitioner complained about

discrimination flowing from the systemic pattern and practice of

using the unlawful medical standards to reject otherwise qualified

applicants for employment.

The EEOC mistakenly applied the serial theory of

continuing violations and ignored its precedent with respect to the

systemic, pattern and practice theory of the continuing violation

and initially affirmed the dismissals by the Postal Service.

However, because the Postal Service had de facto dismissed

Shenkan’s allegations that he was required to identify his

11

disability on a Postal form that referred to impairments as

disabilities prior to receiving any job offer (a per se violation of

the Rehabilitation Act), the EEOC remanded this issue for

investigation.

Shenkan requested reconsideration because the EEOC

decision ignored its precedent of the systemic theory - that where |

the discrimination was systemic, a claim is always timely so long

as the pattern and practice continues into the limitations period

and the discriminatory system remains unchanged. Unlike in

Morgan, this theory can involve multiple discrete acts and Is

applied to all applicants for employment with the Postal Service.

The EEOC reversed its prior decision and remanded all of

Shenkan’s complaints for investigation. The EEOC’s rationale

for the decision, was as follows:

Commission precedent holds that when a claim

involves a systemic violation, there need not be

an identifiable discrete act of discrimination

transpiring within the limitations period. See

Gills v. United States Postal Service, EEOC

Request No. 05970971 (August 18, 1997), citing

Sabree v. United Brotherhood of Carpenters and

Local Joiners, 921 F.2d 396, 400 (1st Cir. 1990).

According to the Sabree court, "[a] systemic

violation has its roots in a discriminatory policy

or practice; so long as the policy or practice itself

continues into the limitations period, a challenger

may be deemed to have filed a timely complaint."

Sabree, 921 F.2d at 400, fn. 7.

12

Further efforts to resolve Shenkan’s complaint

administratively failed. Subsequently, Shenkan timely filed a

complaint in the U.S. District Court for the Western District of

Pennsylvania. Jurisdiction and venue were proper under 42

U.S.C. § 2000e-16 and § 5(f)(3) and 28 U.S.C. §§ 1331, 1339, &

1343.

The complaint contained factual allegations that the

Postal Service maiantained a systemic policy of regarding as

disabled any applicant or employee with an impairment and then

summarily rejecting the applicant without any regard to whether

the applicant can perform the essential functions of the position

with or without a reasonable accommodation.

The complaint referenced two prior, separate cases which

addressed this systemic discriminatory policy at issue. In one of :

those cases, an EEOC Administrative Judge chastised the Postal

Service for failing to offer reasonable accommodations to its

casual employees (Shenkan applied for a casual position). The 7

Postal Service moved to strike this factual information as

impertinent and the Motion was granted.

Next, the Postal Service moved to dismiss the complaint,

or in the alternative for summary judgment. Thereafter, the court

13

granted very limited discovery to answer the motion. The court

ignored the systemic pattern and practice theory of the continuing

violation and instead applied the serial theory of the continuing

violation cases from the Third Circuit which were abrogated by

this court in Morgan, and granted summary judgment.

On appeal, the Third Circuit mistakenly concluded that

Shenkan is really complaining of two failures to hire,’ which are

"isolated, intermittent acts of discrimination, that are "not

susceptible to a continuing violation analysis” Shenkan v. Potter.

71 Fed. Appx. 893, 895 (3d Cir. 2003), and took issue with the |

holding in Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990)

(where such practices arise out of a systemic pattern or practice

they are timely so long as the pattern or practice continue) stating

1. Here, the record shows that Shenkan’s 1997 application was still

current and being considered by the Postal Service even after Shenkan

filed his EEO complaint and that the Postal Service continued to seek

applicants. Moreover in May of 1998, the Postal Service telephoned

Shenkan and requested that Shenkan complete yet another application.

Shenkan did so. To this date Shenkan has not been hired by the Postal

Service, despite his claims that the written medical standards

memorialize a pattern of practice of discrimination because of disability

in violation of the Rehabilitation Act.

14

that “[s]uch case law, however, is clearly inconsistent with our

binding precedent.” See, e.g., Cowell v. Palmer Twp., 263 F.3d

286, 292-95 (3d Cir. 2001); Rush v. Scott Specialty Gases, 113

F.3d 476, 482-84 (3d Cir. 1997; West v. Philadelphia Elec. Co.,

45 F.3d 744, 754-55 (3d Cir. 1995). The Third Circuit

subsequently affirmed the decision of the District Court in a non-

published, non-precedential opinion and denied the petition for

rehearing and for rehearing en banc., Shenkan at 895 (3d. Cir

2003).

(vi) Statement of Court of Appeals and Supreme Court

Jurisdiction

Jurisdiction was proper to the Third Circuit Court of

Appeals pursuant to 28 U.S.C. § 1291.

This court has jurisdiction pursuant to 28 U.S.C. § 1254

and (1) Rules10 (a) and (c) the Rules of the Supreme Court of the

United States as set forth above. That is, the petition for

certiorari will present a conflict among the circuits of an

important question of law and the Third Circuit Court of Appeals

has decided an important question of federal law that will affect

the employment rights of 2,726,755 federal and postal workers as

well as all workers protected by Title VII of the Civil Rights Act

of 1964, as amended, that should be decided by this Court. That

beaten ctr en

ee SURAT OEY CON

15

question is whether the systemic, pattern or practice theory of the

continuing violation requires an act of discrimination to have

occurred within the time permitted by statute or regulation in the

case of federal-postal workers, or is a charge or complaint always

timely as long as the systemic, pattern and practice is operative

during the limitations period. The decision of the Third Circuit,

that it does not, conflicts with decisional law of the U.S. Courts

of Appeals for the 1*, 5" 6", 7", 9", 10" and D.C. Circuits, as

well as the decisional law and policy of the EEOC.

It is an important question reserved by dhis court in

Morgan at 115, n. 9, which affects hundreds of thousands of

workers, which addresses repeated discrete acts of discrimination

arising from an employment system, the origin of which is in

discrimination, thereby creating a pattern or practice of

discrimination. A case of this magnitude deserves review by the

Supreme Court.

—_—— ces

16

REASONS FOR GRANTING THE WRIT

I. The decision of the Third Circuit is in conflict with the

decisional law of the United States Courts of Appeals

for the ist, 5, 6, 7, 9%, 10" and D.C. Circuits as

well as the policy and precedential decisions of the

United States Equal Employment Opportunity

Commission.

A. First Circuit.

In Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d

179, 183 (1°! Cir. 1989), the court addressed the systemic or

pattern or practice theory of the continuing violation as follows:

We have recognized that if a Title VII violation

occurs in the wake of some continuing policy,

itself illegal, then the law does not bar a suit

aimed at the employer's dogged insistence upon

that policy within the prescriptive period. See

Johnson v. General Electric Co., 840 F.2d 132,

136-37 & n. 5 (1st Cir. 1988); Velazquez v.

Chardon, 736 F.2d 831, 833 (1* Cir. 1984); see

also Rich v. Martin Marietta, 522 F.2d 333, 348

(10th Cir. 1975) (where entire promotional

system challenged as operating to hold plaintiffs

in lower echelons continually, the limitations

period "looms inconsequential"); B. Schlei & P.

Grossman, Employment Discrimination Law, 235

(2d ed. Supp. 1987) at 235-36. In other words, if

both discrimination and injury are ongoing, the

limitations clock does not begin to tick until the |

invidious conduct ends. |

and in Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990); where

the court described the difference between a serial violation and a

systemic violation as follows:

17

By contrast with a serial violation, a systemic

violation need not involve an identifiable,

discrete act of discrimination transpiring

within the limitation period. A systemic

violation has its roots in a discriminatory

policy or practice; so long as the policy or

practice itself continues into the limitation

period, a challenger may be deemed to have

filed a timely complaint. Citations omitted.

B. Fifth Circuit

In Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (Sth

Cir. 1972) ("no reason to lock the courthouse door to his claim

solely because he has alleged a contemporary course of conduct

as an act of discrimination.") the Fifth Circuit addressed the

problem of a systemic pattern or practice of denying more

lucrative over-the-road driving positions to its African-American

employees who were employed exclusively as city drivers where

the appellants had not filed charges with the EEOC within 90

days of the alleged violations. The court reversed the district

court and remanded the complaint for a determination as to

whether the employer engaged in a continuing pattern and

practice of not employing African-American city drivers in over-

the road driving positions which continued into the limitations

period.

In Perez v. Laredo Junior College, 706 F.2d 731,733 (5"

18

Cir 1983), the court stated:

3 Se ab aioe PA se bitestae 5

Similarly, if the statutory violation occurs as a i

result of a continuing policy, itself illegal, then

the statute does not foreclose an action aimed at

the company's enforcement of the policy within

the limitations period. n9 Thus in Gonzalez v.

Firestone Tire & Rubber Co., 610 F.2d 241, 249 -

(Sth Cir.1981), dealing with whether a charge of

discrimination in violation of Title VII was filed

within the 180-day statutory period, we

distinguished between "a discrete act of

discrimination [that occurred] more than 180 days

prior to the filing of [the] charge" and the act of

"continuously maintaining an illegal employment

practice." See also Allen v. United States Steel

Corp., 665 F.2d 689 (Sth Cir.1982); Dobbs v. ;

City of Atlanta 606 F.2d 557 (Sth Cir.1979).

eStart DR Aha RR A Hein Wt

Wee aa a ees ed eR aia DEI a

i gt i Sp i

C. Sixth Circuit

Siig Gin Webi

In Alexander v. Local 496, Laborers' Intern. Union of

North America, 177 F.3d 394, 408 (6th Cir 1999), the court

acknowledged that a second category of continuing violations

arises "where there has occurred a longstanding and demonstrable

» PI

eek cn 1 decent ina ke ate Ab Ds ae Rats Sea SBP

policy of discrimination .. .. Unrelated incidents of

te A dit

discrimination will not suffice to invoke this exception; rather

there must be a continuing over-arching policy of discrimination."

Dixon v. Anderson, 928 F.2d 212, 216 (6" Cir. 1991). See also: -

Roberts v. North American Rockwell Corp., 650 F.2d 823 (6" Cir.

1991).

19

D. Seventh Circuit

Bartmess v. Drewrys USA Inc., 444 F.2d 1186 (7th Cir.),

cert. denied, 404 U.S. 939 (1971) (maintenance of an allegedly

discriminatory retirement plan is a continuous discriminatory

practice). In Bartmess, the employer negotiated a contract

provision that retired female employees at age 62, and male

employees at age 65. The appellant filed a charge 4 months

before she was involuntarily retired pursuant to the pattern or

practice of discrimination. The employer challenged the filing as

premature. The court held that the charge was timely so long as

the policy or practice continued into the limitations period. In

other words the policy amounted to a continuing violation of Title

VII, so that her filing was not premature. /d. at 1188.

In this case, Shenkan initiated the EEO Process in which

he complained of a continuing written policy or practice, to which

the Postal Service adhered, that denied him employment in the

past and which continued to deny him employment thereafter.

E. Ninth Circuit

In Green v. Los Angeles County Superintendent of

Schools, 883 F.2d 1472, 1480 (9th Cir. 1989), the court held, as

follows:

|

20

The continuing violation theory generally has

been applied in the context of a continuing policy

and practice of discrimination on a company-

wide basis; a plaintiff who shows that a policy

and practice operated at least in part within the

limitation period satisfies the filing requirements.

[A] systematic policy of discrimination is i

actionable even if some or all of the events

evidencing its inception occurred prior to the

limitations period. The reason is that the

continuing system of discrimination operates

against the employee and violates his or her rights

up to a point in time that falls within the

applicable limitations period. Such continuing

violations are most likely to occur in the matter of

placements or promotions. Williams v. Owens-

Illinois, Inc., 665 F.2d 918, 924 (9th Cir.)

(citation omitted), cert. denied, 459 U.S.

971(1982); see also Domingo v. New England

Fish Co. 727 F.2d 1429, 1443 (9th Cir. 1984),

modified 742 F.2d 520 (1984); Reed v. Lockheed

Aircraft Co.. 613 F.2d 757, 760 (9th Cir. 1980).

i Ae ita Mc Re 8

F. Tenth Circuit

In Rich v. Martin Marietta, 522 F.2d 333, 348 n. 15 (10th

Cir. 1975), the Tenth Circuit held that:

This conclusion [Injunctive relief could be given

against the application of the alleged

discriminatory ranking system and, if proven,

damages could be awarded for the past effects of

that system within the two year time limitations

of 42 U.S.C. §§ 2000e-5(g).] is in accord with

the general rule that has evolved in the Circuits

that a plaintiff alleging a continuing violation of

Title VII may file charges with the EEOC at any

time during which the alleged continuing

violation has taken place. See EEOC v. Western

Publishing Co., 502 F.2d 599 (8th Cir. 1974);

21

Macklin y. Spector Freight Systems, Inc., 478

F.2d 979 (D.C. Cir. 1973); Belt v. Johnson Motor

Lines, Inc., 458 F.2d 443 (Sth Cir. 1972);

Bartmess v. Drewrys U.S.A., Inc., 444 F.2d | 186

(7th Cir.), cert. denied, 404 U.S. 939, (1971).

In Shenkan, Appellant challenged the discriminatory

medical standards that barred his employment, that were still

ongoing at the time that he filed his informal complaint with the

EEO Counselor. Since Shenkan filed his administrative

complaint, the Postal Service has continued to reject his

application despite annual hiring. Either the wooden application

of the medical standards contained in Postal Service publication

continues to the present time or Shenkan is a victim of retaliation

for complaining of discrimination.

G. D.C. Circuit

In Macklin v. Spector Freight Systems, Inc., 478 F.2d

979, 987 (D.C. Cir. 1973), the court held that the layoff of black

workers and prolonged union grievance proceedings "amounted

merely to single episodes in an alleged conspiracy to deny

applicants over-the-road driver jobs because of their race

continuing at least up to and including the date the EEOC

complaint was filed." It is clear that the pattern or practice

systemic medical standards for hiring continued in effect well

ee ee

22

after the complaint of Mark Shenkan. In fact, Dr. David Reid, the

USPS Medical Officer, testified that the medical standards are

found in Postal Service publication EL-806 and were unchanged

as of the date of the deposition, May 24, 2002, which is well after

Mr. Shenkan filed his complaint.

DECISIONS SINCE MORGAN

A. 11 th Circuit |

In E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265,

1275-1276, (11th Cir. 2002), rehearing en banc denied, 55 Fed

Appx. 904 (1 1th Cir 2002), cert denied, US. US.L.W.

3789, (2003), the Eleventh Circuit, relying on this Court’s ruling

in Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66

(1977), (“When a person's desire for a job is not translated into a

formal application solely because of his unwillingness to engage

in a futile gesture he is as much a victim of discrimination as is he

who goes through the motions of submitting an application.”),

held that no applicant during the pendency of the discriminatory

pattern or practice was required to file a timely charge of

discrimination if the policy or practice continued into the

limitations period.

23

B. First Circuit

In Crowley v. L.L. Bean, Inc., 303 F.3d 387,405 (lst

Cir.2002), the First Circuit recognized the systemic theory of the

continuing violation, but found that the appellant was a victim of

hostile working environment as defined in Morgan, and not an

ongoing pattern of practice of discrimination under the continuing

violations theory.

C. Ninth Circuit

In Carpinteria Valley Farms, Ltd. v. County of Santa

Barbara, 344 F.3d 822, 829 n. 3 (9" Cir. 2003), the Ninth Ciecuit

explained the history of the continuing violation theory before

and after Morgan, as follows:

In Morgan, the Court recognized that prior

Ninth Circuit precedent allowed plaintiffs two

methods by which to avail themselves of the ‘

continuing violation doctrine. Morgan, 536 U.S.

at 107. Although the Court invalidated the

"related acts" method, it declined to address

the "systematic pattern-or-practice" method. Id.

at 115 n. 9. Moreover, the Court distinguished

"hostile environment" claims and recognized

that proof of such claims may include reliance

on otherwise time-barred incidents. Id. at 115

("The 'unlawful employment practice’ therefore

cannot be said to occur on any particular day.

It occurs over a series of days or perhaps years

and, in direct contrast to discrete acts, a single

act of harassment may not be actionable on its

own.") On remand, the district court may consider

whether to allow Nesbitt to amend his complaint

sts

24

SR Se

to allege facts in support of these alternative

theories suggested by Morgan. See Lyons v.

England, 307 F.3d 1092, 1107 n. 8 (9th Cir. 2002).... ;

It is clear that the systemic or pattern or practice theory of

the continuing violation alleged by Petitioner throughout his

entire complaint from the administrative process through to the

present time was rejected by the Third Circuit, and is in conflict

with the decisional law of the circuits, as heretofore identified.

Il. The decision of the Third Circuit failed to grant Chevron

deference to the decision of the EEOC, interpreting its own

regulations, policy and precedent in finding that the contact

by Mark Shenkan with the EEO Counselor was timely.

In Auer v. Robbins, 519 U.S. 452. 461, n.11 (1997), this

Court held that:

Because the salary basis test is a creature of the

Secretary's own regulations, his interpretation of

it is, under our jurisprudence, controlling unless "

‘plainly erroneous or inconsistent with the

regulation.'" Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 359 (1989)

(quoting Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945)...

In Auer, the Secretary of Labor, in its brief, explained its

interpretation of a test contained in its regulations. This Court,

citing to precedent, stated that:

Because Congress has not "directly spoken to

the precise question at issue," we must sustain

the Secretary's approach so long as it is "based

on a permissible construction of the statute."

25

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-843 (1984).

In this case, the EEOC’s authority over the federal EEO

process is authorized by Section 3 of 1978 Reorg. Plan No. | of

Feb. 23, 1978, 43 Fed. Reg. 19807, which provided:

Transfer of Equal Opportunity in Federal

Employment Enforcement Functions

(a) All equal opportunity in Federal employment

enforcement and related functions vested in the

Civil Service Commission pursuant to Section

717(b) and (c) of the Civil Rights Act of 1964, as

amended, (42 U.S.C. 2000e-16(b) and (c)), are

hereby transferred to the Equal Employment

Opportunity Commission.

(b) The Equal Employment Opportunity

Commission may delegate to the Civil Service

Commission or its successor the function of

making a preliminary determination on the issue

of discrimination whenever, as a part of a

complaint or appeal before the Civil Service

Commission on other grounds, a Federal

employee alleges a violation of Section 717 of the

Civil Rights Act of 1964, as amended, (42 U.S.C.

2000e-16) provided that the Equal Employment

Opportunity Commission retains the function of

making the final determination concerning such

issue of discrimination.

One of the functions of the Civil Service Commission

under Section 717 of Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e-16 (2003) was as follows:

“the Civil Service Commission shall ... issue

26

such rules, regulations, orders and instructions as

it deems necessary and appropriate to carry out

its responsibilities under this section.”

Thus, Congress gave an express grant of authority to the

EEOC to issue rules, regulations, orders and instructions as it

deems necessary and appropriate to carry out its responsibilities

under Section 717 of Title VII of the Civil Rights Act of 1964.

Under Auer, the EEOC’s interpretations of its own regulations,

where, iio there is an express grant of authority from

Congress, are entitled to Chevron deference. Auer at 461.

In this case the EEOC interpreted its own regulations,

specifically, 29 C.F.R. § 1614.105(a)(2) which states:

(2) The agency or the Commission shall extend

the 45-day time limit in paragraph (a)(1) of this

section when the individual shows that he or she

was not notified of the time limits and was not

otherwise aware of them, that he or she did not

know and reasonably should not have been

known that the discriminatory matter or personnel

action occurred, that despite due diligence he or

she was prevented by circumstances beyond his

or her control from contacting the counselor

within the time limits, or for other reasons

considered sufficient by the agency or the

Commission.(emphasis added)

The EEOC concluded that Mark Shenkan had raised a

timely systemic complaint of discrimination and remanded the

case to the Postal Service for investigation. In deciding that the

27

Shenkan complaint was timely, the Commission applied its

precedent from a prior administrative case, Gills v. United States

Postal Service, EEOC Request No. 05970971 (August 18, 1997),

and the holding of the First Circuit in Sabree v. United Bhd. of

Carpenters and Joiners Local No. 33,921 F.2d 396, 400-02 n. 7

(1st Cir. 1990). The Third Circuit erroneously failed to grant

Chevron deference to the Commission’s interpretation of its own

regulations and instead stated that it had de novo review and the

EEOC decision was of no consequence. See: Shenkan v. Potter,

71 Fed. Appx. 893, 895 n.1 ( 3d Cir. 2003). This holding is in

conflict with this Court’s holding in Awer and should be reversed.

CONCLUSION ——

The petition of writ of certiorari should be granted.

Res fi

Mee ; 4

Counsel of Recérd for Petitioner

Wienand & Bagin

312 Boulevard of the Allies

Suite 600

Pittsburgh, PA 15222-1923

412.281.1110

Co-counsel Richard Shenkan, Esq.

la

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3508

MARK D. SHENKAN

V.

JOHN E. POTTER, POSTMASTER GENERAL,

Mark Shenkan, Appellant

7 Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil no. 01-cv-00299)

District Judge: Honorable Donald E. Ziegler

Before: RENDELL, SMITH and ALDISERT, Circuit Judges

Filed: June 13, 2003

Argued May 13, 2003

Bruce Bagin, Esq., Wienand & Bagin [Argued]

312 Boulevard of the Allies, Suite 600

Pittsburgh, PA 15222

Counsel for Appellant

Bonnie R.Schlueter, Esq.

Christine A. Sanner, Esq. [Argued]

Office of U.S. Attorney

633 U.S. Post Office & Courthouse

Pittsburgh, PA 15219

Counsel for Appellee

—_—_—-

aiasiiilaacieiee a

2a

OPINION OF THE COURT

RENDELL, Circuit Judge.

Mark Shenkan appeals from an order entered in the

District Court on August 16, 2002 terminating his disability

discrimination claims against the United States Postal

Service for failure to timely exhaust administrative remedies.

We will affirm.

In November of 1995, and again in November 1997,

Mark Shenkan, who suffers from bipolar disorder, applied

for “casual” temporary positions with the United States

Postal Service. On both occasions, the Postal Service

ultimately failed to hire him. On March 17, 1998 , Shenkan,

believing he had been discriminated against, contacted the

Postal Service’s Equal Employment Opportunity (“EEO”)

counselor for mandatory counseling. After counseling failed

to resolve the issue, Shenkan filed a formal administrative

3a

complaint, which was dismissed by the Postal Service

because Shenkan had failed to “initiate contact with (the)

Counselor within 45 days of the matter alleged to be

discriminatory,” as required by 29 C.F.R & 1614.105. That

decision was initially upheld on appeal to the Equal

Employment Opportunity Commission (“EEOC”), but was

later reversed on reconsideration, with the EEOC holding

that Shenkan’s claims were not barred for failure to timely

exhaust because they fell within the “continuing violations

doctrine” exception. On remand, the Postal Service found

Shenkan’s disability discrimination claims to be meritless.

Shenkan filed the present suit in February of 2001,

alleging that the Postal Service discriminated against him by

failing to hire him in 1995 and 1997 on the basis of his

4

disability, and, more broadly, that the Postal Service had a

pattern or practice of discriminating against the disabled

with regard to temporary employment positions. Soon after

4a | :

the suit was filed, the Postal Service moved to dismiss or, in

the alternative, for summary judgment, again maintaining

that Shenkan’s claims were time-barred because he had

failed to meet with the EEO counselor within 45 days. After

a limited period of discovery, the District Court agreed that

Shenkan had failed to comply with the requisite time limits,

and granted the Postal Service’s motion. This timely appeal

followed.

The District Court has jurisdiction under 28 U.S.C. &

1331, and we have jurisdiction pursuant to 28 U.S.C. &

1291. Shenkan first argues that the District Court erred in

concluding that he could not reap the benefit of the

continuing violations doctrine,' an “equitable exception to

|. Shenkan alternatively argues that we should accord deference to the

EEOC’s determination that his claims were timely. Our case law ts clear,

however, that our review here is de novo. See e.g. Ettinger v. Johnson,

518 F.2d 648, 652 (3d Cir. 1975) (remanding for a de novo hearing to

determine whether the plaintiff timely exhausted her administrative

sa

timely filing requirement” that-applies when a defendant's

conduct is part of a continuing practice.” Cowell v. Palmer

Twp.. 263 F.3d 286, 292 (3 Cir. 2001)(quotations omitted);

see also. e.g., West v. Phila. Elec. Co., 45 F.3d 744, 754-55

(3 Cir. 1995). Under the continuing violations doctrine,

“an action is timely so long as the last act evidencing the

continuing practice falls within the limitations period; in

such an instance, the court will grant relief for the earlier

related acts that would otherwise be time-barred.” Cowell,

263 F.3d at 292 (quoting Brenner v. Local 514, United Bhd.

Of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d

Cir. 1991)). In order to establish a continuing violation, the

plaintiff must “demonstrate that at least one act occurred

within the filing period,” and that the employer’s actions

were “more than the occurrences of isolated or sporadic acts

of intentional discrimination.” West, 45 F.3d at 754-55

remedies); Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 754 n.9

(3d Cir. 1983) (*(T)he EEOC’s belief as to the timeliness of a charge is

not determinative.”); See also e.g., Teemac v. Henderson, 298 F.3d 452

(5h Cir. 2002).

Ee

6a

(quotations omitted).

The present suit essentially alleges that the Postal

Service had a continuing policy of discriminating against the

disabled with respect to temporary employment positions.”

Shenkan contends that at least two acts that were part of the

policy occurred within 45 days of his contacting the

counselor, namely (1) his February 1998 letter requesting

“reconsideration” for employment, which went unanswered

by the Postal Service, and (2) the Postal Service’s

confirmation in May of 1998 that his employment file

remained active, and Shenkan’s subsequent update of his

application materials. But, neither of the supposed acts can

be plausibly said to evidence any alleged discriminatory

policy, as is explicitly required under the continuing

violations doctrine. See e.g.. Cowell, 263 F.3d at 292.

2. Shenkan also argues that his claims were timely because it would have

been futile for him to apply during the limitations period given the Postal

Service’s alleged policy of discrimination. However, Shenkan did not

allege in his complaint that he was in fact dissuaded from applying, nor is

there evidence in the record to support that contention.

7a

Further with the District Court conclusion, that

Shenkan is really complaining of two failures to hire, which

are “isolated, intermittent acts of discrimination.” West, 45

F.3d at 755, that are “not susceptible to a continuing

violation analysis.” Rush v. Scott Specialty Gases, Inc., 113

F.3d 476, 483-84 (3d Cir. 1997). Three factors distinguish

continuing violations from isolated occurrences - the subject

matter, frequency, and, most importantly, degree of

permanence of underlying acts. See Cowell, 263 F.3d at

292: Rush, 113 F.3d at 482. None point in Shenkan’s favor.

See e.g. Rush. 113 F.3d at 483-84 (holding that the

plaintiff's “failure to promote and train claim addresse[d]

discrete instances of alleged discrimination that [we]re not

susceptible to a continuing violation analysis”). The

Supreme Court recently emphasized this point in Nat’] R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). when

it stated: “Discrete acts such as...refusal to hire are easy to

identify. Each incident of discrimination...constitutes a

separate actionable “unlawful practice.” And, our warning

8a

in Cowell applies equally here: “[T]he continuing violations

doctrine should not provide a means for relieving plaintiff s

from their duty to exercise reasonable diligence in

persuading their claims.” Cowell, 263 F.3d at 295. °

Throughout, Shenkan has concentrated on his

continuing violation claim, but he has also maintained that

his claims were not in time-barred because the Postal Service

never notified him of the applicable time limits, citing a

regulatory exception to the limitations period that provides:

“The agency or the Commission shell extend the 45-day time

limit...when the individual shows that he or she was not

notified of the time limits and was not otherwise aware of

*

3. Shenkan contends that our continuing violations case law was

“abrogated” by the Supreme Court’s ruling in Morgan, but nothing in

Morgan supports that remarkable assertion. Shenkan also cites cases

from some of our sister Courts of Appeals for the proposition that one

who Is asserting a “systematic” continuing violation need not prove, for

instance, that a discrete act evidencing the policy took place during the

relevant limitations period. See, e.g. Jensen v. Frank, 912 F.2d 517, 523

(1* Cir. 1990).

SS

9a

them” 29 C.F.R & 1614.105(a)(2).* Under the cited

regulation, if Shenkan could prove that he was never notified

and that he was not otherwise aware of the time limits, his

claims would not in fact be barred for his failure to contact

the counselor within the proscribed 45 days.

Although there appears to be disputed record

evidence as to whether the Postal Service did provide

adequate notice, Shenkan has never come forth with any

evidence that he was “not otherwise aware” of the relevant

limitations periods, as required by 29 C.F.R.1614.105(a)(2).

It is particularly notable that Shenkan’s own affidavit, which

specifically asserts that he was never notified, does not also

aver that he was otherwise unaware of the relevant periods.

Moreover, the record confirms that Shenkan was being

represented by his brother, a licensed attorney, from at least

4. Shenkan’s reference to equitable tolling and our decision in Oshiver

v. Levin, Fishbein. Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994),

however, is clearly misplaced. There is no evidence that the Postal

Service actively misled Shenkan or somehow extraordinarily prevented

him from asserting his rights. Id. at 1387.

————————

10a

August of 1997, and, indeed, the District Court noted that

“Shenkan was assisted by counsel, who is also his brother,

throughout each application process.” whether or not the

Postal Service actually notified Shenkan, his attorney

certainly should have been aware of the 45 day period. Cf.

Bonham v. Dresser Indus.. Inc., 569 F.2d 187, 193 (3d Cir.

1977) (“Failure to post the required notice will toll the

running of the [limitations] period, at least until such time as

the aggrieved person seeks out an attorney or acquires actual

knowledge of his rights....”). And, the Supreme Court has on

many occasions affirmed that a party is “deemed bound by

the acts of his lawyer-agent and is considered to have notice

of all facts, notice of which can be charged upon the

attorney.” Irwin v. Dep’t. of Veterans Affairs, 498 U.S. 89,

92 (1990) (quotations omitted); see also Seitzinger v.

Reading Hosp. And Med. Ctr., 165 F. 3d 236, 241 (3d cir.

1999) (“‘[T]he principles of equitable tolling....do not extend

to what is best a garden variety claim of excusable neglect’

by an attorney.” (quoting Irwin, 498 U.S. at 96).

lla

Finally, Shenkan argues that, to the extent he has

been unable to establish a genuine issue of material fact, it is

due solely to the District Court’s refusal to grant his requests

for additional discovery. “We apply the abuse of discretion

standard when reviewing orders regarding the scope and

conduct of discovery.” Petrucelli v. Bohringer & Ratzinger,

46 F.3d 1298, 1310 (3d Cir.1995). Generally we will not

upset the District Court’s handling of discovery absent a

showing “that the district court’s denial of discovery “made

it impossible to obtain crucial evidence, and implicit in such

a showing is proof that more diligent discovery was

impossible.’” Mass. Sch. of Law at Andover, Inc. v. Am.

Bar Assn, 107 F.3d 1026, 1032 (3d Cir. 1997) (quoting In re

Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.

1982) (quotations omitted)); see also, e.g. Wisniewski v.

Johns-Manville Corp., 812 F. 2d 81, 90 (3d Cir. 1987)

(stating that we consider, among other facts, whether the

district court’s decision “deprived [the claimants] of crucial

evidence, or otherwise constituted a gross abuse of discretion

a

12a

resulting in fundamental unfairness’’). Here, the District

Court allowed Shenkan ninety days fo discovery before

ruling on the Postal Service’s preliminary motion, during

which Shenkan submitted twenty-five interrogatories, made

numerous document requests, and took an extended

deposition of a senior Postal Service employee. We can find

no abuse of discretion under such circumstances.

Accordingly, we will AFFIRM.

Dated /s/ Circurt Judge Rendell

A

I3 a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3508

MARK D. SHENKAN

V.-

JOHN E. POTTER,

POSTMASTER GENERAL

Mark Shenkan, Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 01-cv-00299)

District Judge: Honorable Donald E. Ziegler

Argued May 13, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges |

Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD,

ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO

FUENTES, SMITH, CHERTOFF, and ALDISERT™,

Circuit Judges |

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

*Hon. Ruggero J. Aldisert, Senior Judge of the United States

Court of Appeals for the Third Circuit; vote limited to panel

rehearing only.

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC .

_ ee

l4a

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

The petition for rehearing filed by appellant having

been submitted to all judges who participated in the decision

of this court, and to all the other available circuit judges in

active service, and a majority of the judges of the circuit in

regular active service not habing voted for rehearing by the

court in banc, the petition for rehearing is hereby DENIED.

BY THE COURT:

/s/ Circuit Judge Rendell

Dated: August 14, 2003

lSa e

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No:

01-299

MARK D. SHENKAN,

Plaintiff,

¥.

JOHN E. POTTER, :

Postmaster General of the

United States,

)

)

)

)

)

)

)

)

)

)

Defendant. )

OPINION

Ziegler, Senior District Judge.

Pending before the court is the motion (doc. No. 11)

'

of defendant, John E. Potter, Postmaster General of the

united States, to dismiss, or in the alternative, for summary

judgment, pursuant to Federal Rules of Civil Procedure

12(b) and 56. Plaintiff, Mark D. Shenkan (“Shenkan’’)

commenced this action alleging one count of “discrimination

5. John E. Potter became the Postmaster General of the United States,

effective June 4, 2001, to succeed William J. Henderson. Pursuant to

Federal Rule of Civil Procedure 25(d)(1), John E. Potter is automatically

substituted as the defendant in this case.

A al

l6oa

based on improper medical inquiries and examinations” and

an additional count of “discrimination based on improper

refusal to hire and failure to accommodate” in violation of

“the Americans with Disabilities Act, 42 U.S.C. §§

| 12112(d), as incorporated into the Rehabilitation Act under

29 U.S.C. §§ 791(g) and 794(b0, as well as federal

regulations implementing the Rehabilitation Act set forth at

29 C.F.R § 1614.203(b), (e) and 29 C.F.R. § 1630.00 et

seq.” Comp. At 8.10. For the reasons that follow, the motion

to dismiss, or in the alternative, for summary judgment will

be granted.

I. BACKGROUND

Shenkan is an adult male who was diagnosed with

bipolar disorder in 1983. In or about October of 1995,

Shenkan applied for a temporary, non-union (“casual”)

position at the Pittsburgh General Mail facility. On or about

November 24, 1995, the Postal Service informed Shenkan

via letter that he had been accepted for a temporary casual

position, albeit contingent upon his satisfactory completion

l7a

of a medical examination. Shenkan underwent the

examination, but was subsequently informed by letter dated

November 28, 1995, that the Postal Service was rescinding

the offer of employment because he was found to be “not fit

for duty.”

Approximately two years later, on or about

September 22. 1997, Shenkan applied for another temporary

casual position at the New Castle, Pennsylvania facility.

Shenkan alleges that, “in accordance with national

- standardized hiring and selection policies, practices and

procedures for casual employees,” he was “required to

complete form(s) which elicited medical information, which

included but may not have been limited to Form

2489.” Comp.at 4 § 9, 10 (emphasis in original). Shenkan

completed Form 2489 on October 17, 1997. See Compl. At

Ex. A. Thereafter, in November of 1997, Shenkan was

again denied employment with the Postal Service because he

was “not reliable nor dependable.” See Comp. at §] 11.

Shenkan then sent a letter dated February 9, 1998. requesting

Ee eee |

18a

that he be reconsidered for employment. See Comp. at § 12;

P].’s Mem. in Opp’n at Ex. 13. Shenkan alleges that to date,

the Postal service has not responded to this letter. See

Comp. at § 12.

On March 17, 1009, Shenkan contacted Florine

Williams (“Williams”), an Equal Employment Opportunity

(“EEO”) Counselor for mandatory counseling in accordance

with 29 C. F.R. 1614.105. See Def.’s Mem. in Supp. at Ex.

A. Shenkan subsequently submitted a formal complaint on or

about May 7, 1998. See Pl.’s Mem. in Opp’n at Ex. 15.

After receiving his right-to-sue notice, plaintiff commenced

the instant action on or about February 13, 2001.

II.. STANDARD OF REVIEW

On a motion to dismiss, we must view the allegations

in the complaint and all reasonable inferences therefrom as

true. See Neitzke v. Williams, 490 U.S. 319, 326 (1989):

Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir. 1986).

We should not dismiss a complaint unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

19a

his/her claim which would entitled him/her to relief. Conley

v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984). The issue is whether the

plaintiff should be entitled to offer evidence to support the

claim, and not whether he/she will ultimately prevail.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal

under Rule 12(b)(6) for failure to state a claim is therefore

limited to those instances where it is certain that no relief

could be granted under any set of facts that could be proved.

Ransom v. Marrazzo, 848 F.2d 398, 410 (3d Cir. 1988).

Further, we note that, generally, when ruling on a

motion to dismiss, we may not consider matters extraneous

to the pleadings. In re Burlington Coat Factory Sec. Litig.,

114 F. 3d 1410, 1426 (3d Cir. 1997) (citing Angelastro v.

Prudential-Bache Sec.. Inc., 764 F.2d 939, 944 (3d. Cir.

1985)). However, an exception to this general rule provides

that a “document integral to or explicitly relied upon I the

complaint” may be considered “without converting the

motion [{o dismiss] into one for summary judgment.” In re

20a

Burlington, 114 F. 3d at 1426 (quoting Shaw v. Digital

Equipment Corp., 82 F.3d 1194, 1220 (1“ Cir. 1996)). Thus,

in resolving the motion to dismiss, we may consider the

undisputed, authentic documents to determine whether

Shenkan complied with the administrative prerequisites to

suit. See Pension Benefit Guar. Corp. V. White Consol.

Indus. Inc., 998 F. 2d 112, 1196 (3d Cir 1993), cert. denied.

510 U.S. 1042 (1994).

Ill. DISCUSSION

Shenkan essentially contends that the Postal Service

has a policy, pattern, and practice of discriminating against

persons with disabilities, or perceived disabilities, who apply

for casual, seasonal, or temporary employment, and because

of such policy, pattern, and practice, he was denied

employment on two occasions. In brief, Shenkan asserts that

the “discriminatory scheme is executed by requiring

applicants to submit to medical examinations or medical

inquiries regarding disabilities before the Postal Service

provides the applicant with a bonafide offer of

21a

employment[.]” Pl.’s Mem. in Opp’n at 5.

The EEOC Regulations regarding federal section

employment are provided at 29 C.F.R. Part 1614, and govern

individual complaints of discrimination prohibited by the

Rehabilitation Act. See 29 C.F.R. § 1614.105(a).

Specifically, the Regulations state:

[a]n aggrieved person must initiate

contact with a [cJounselor 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) (emphasis added). However, it

is further provided that:

[t]he agency or the Commission

shall extend the 45-day time limit in

paragraph (a)(1) of this section when

the individual shows that he or she

was not notified of the time limits

and was not otherwise aware of them,

that he or she did not know and

reasonably should not have been

known that the discriminatory matter

or personnel action occurred, that

despite due diligence he or she was

prevented by circumstances beyond

his or her control from contacting

the counsel within the time limits,

or for other reasons considered

sarreerenneemenrieenmimniaetiaiaaiinimmamelill

22a

sufficient by the agency or the

Commission.

29 C.F.R. § 1614.105(a)(2)

(emphasis added).

The Postal Service argues that Shenkan has failed to

comply with the administrative prerequisites to suit.

Defendant indicates that , “it was not until March 17, 1998,

almost three (3) years from his first denial of temporary

employment and four months from his second denial of

temporary employment, that plaintiff first made contact with

an EEO counselor.” Def.’s Mem. in Supp. at 11; see Def.’s

mem in Supp. at Ex. A. Thus, defendant asserts, Shenkan

has failed to timely initiate the administrative process and

the complaint must be dismissed.

Shenkan rejoins that the continuing violation doctrine

applies as an exception to te 45-day mandatory counseling

requirement. See Pl.’s Mem. in Opp’n at 1. Shenkan argues

that he has alleged a discriminatory policy, pattern, and

practice, and his claims are timely so long as the alleged

policy, pattern, and practice existed on January 31, 1998, 45

days prior to this contact with Williams. See id. at 2:

MimMitbtuasacc i. ae

I a era aR Tei ecu lew ira aie nig CRS. cc pi uate cee cian ane erm

23a

Compl. at §§ 13, 14, 20, 21. In further supp. rt, Shenkan

indicates that the EEOC Office of Appeals agreed that

because he is fact alleged such a discriminatory policy,

patter, and practice that is ongoing, his claim is timely. See

PI.’s Mem. in Opp’n at 19-21, Ex. 1. Thus, Shenkan relies

on subpart (a) (2) of 9 C.F.R. § 1614.105, which provides

that the 45-day period shall be extended “for other reasons

considered sufficient by the agency or the Commission.” 29

C.F.R. § 1614.105 (a) (2). Shenkan asserts that this

determination is entitled to

great deference.” See Pl.’s Mem. In Opp’n at 20-21.

In addition, Shenkan contends that two other

exceptions provided at 29 C.F.R. § 1614.105 (a) (2) apply,

namely, that he was not notified or otherwise made aware of

the 45-day time limit, and, that he did not know that he was

the subject of the alleged discriminatory policy until the

Postal Service’s failure to respond to his request for

reconsideration in February of 1998. See Pl.’s Mem. in

Opp'n at 19-10, Ex. 4. In short, Shenkan urges that discovery

24a -

is necessary to determine whether the alleged discriminatory

policy, pattern, and practice in fact existed on J anuary 31,

1998, 45 days prior to his contact with EEO counselor

Williams. See Pl.’s Mem. in Opp’n at 3, 13-14, 28.

We turn now to analysis. “As a great rule, the statute

of limitations begins to run when the plaintiff's cause of

action accrues.” Oshiver v. Levin, Fishbein. Sedran &

Berman. 38 F. 3d 1380, 1385 (3d. Cir. 1994). “A claim

accrues in a federal cause of action as soon as a potential

claimant either is aware, or should be aware, of the existence

of and source of an injury.” Id. At 1386. This occurs when a

piaintiff “knows or reasonably should know that the

discriminatory act has occurred.” Id. (citations omitted).

The continuing violation doctrine is an “equitable

exception to the timely filing requirement.” West v.

Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). To

demonstrate a continuing violation, a plaintiff must show

two things: first, that at least one act occurred within the

filing period, and two, that the defendant’s conduct is more

25a

than the occurrence of isolated or sporadic acts of

intentional discrimination, but instead a persistent, ongoing

pattern. See West, 45 F.3d at 754-55 (emphasis added);

Rush v. Scott Speciality Gases, Inc., 113 F. 3d 476, 481 (3d

Cir. 1997).

The Third Circuit Court of Appeals has enumerated

several factors to consider in determining whether or not a

continuing violation exists: the subject matter of the various

incidents, the frequency at which they occur, and most

importantly, their degree of permanence. See Rush, 113 F.3d

at 482. citing Berry v. Board of Supervisors of Louisana

State Univ, 715, F.2d 971, 981 (5" Cir. 1983); see also

Cowell v. Palmer Township, 263 F. 3d 296, 292 (3d Cir.

2001) (citing West, 45 F.3d at 755 n.9). When the alleged

actions are of the type that should trigger a claimant’s

awareness of and duty to assert his or her rights, then there is

less likelihood that a continuing violation has occurred. See

Rush, 113 F.3d at 482-84.

As an initial matter, we note that plaintiff cannot

—_

26a

satisfy the first prong of the continuing violation theory,

namely, that at least one act occurred within the filing

period. Indeed, plaintiff alleges that he applied for a

temporary, non-union (“casual’’) position at the Pittsburgh

General Mail facility in October of 1995, and was

subsequently denied the position on or about November 28,

1995, after a physician determined that he was “not fit for

duty.” See Compl. at J] 6, 8. Approximately two years later,

Shenkan applied a second time for a casual position at the

New Castle facility, on or about September 22, 1997. See id.

at § 9. Shenkan alleges, “the Postal Service rejected Mr.

Shenkan again, this time under the pretext that [he] was not

reliable nor dependable.” Compl.at 4 11. It is undisputed that

Shenkan did not contact EEO Counselor Wiliams until

March 17, 1998. See Def.’s Mem. in Supp. at Ex. A. Thus,

based on plaintiff's own allegations and Williams’ report,

Shenkan has not shown at least one act occurring within the

45 days prior to March 17, 1998.

Moreover, applying the factors enumerated in West

27a

and Rush to the facts of the instant case, we find that the

allegations do not support a continuing violation. First, with

respect to subject matter, plaintiff's initial denial of

employment was based on a determination that he was “not

fit for duty.” See Comp. at § 8. The second denial, three

asiieaes was based on his classification as “not reliable

nor dependable.” See id. at § 11. Thus, each decision was

based on different reasons. In addition, each decision was

made by two different Postal Service facilities; the first by

the General Mail facility in Pittsburgh, and the second by the

New Castle facility. Second, regarding frequency, plaintiff

was denied employment on only two distinct occasions,

which tends to show isolated decisions rather than recurring

acts. Third, and most importantly, the denial of employment

had a degree of permanence which should have triggered

plaintiff's awareness of and duty to assert his rights. Indeed,

plaintiff was required to complete the medical

documentation and submit to an examination with each

application, and if he believed that the Postal Service was

28 a

using the information provided to discriminate against him

on the basis of his disability, the harm (denial of a job) was

final and complete. Thus, the allegations are insufficient to

establish a continuing violation under the factors set forth in

West and Rush. ——

In conjunction with the second prong of the

continuing violation theory (defendant’s conduct is more

than occurrence of isolated or sporadic acts), and the third

factor mentioned above (the degree of permanence), we note

tat by plaintiff s own allegations, there were two discrete

employment decisions by the Postal Service that were

allegedly unlawful. See Compl. at 4 8, 11. Courts have

held that when the alleged discrimination is a discrete, overt

act, the duty to assert one’s rights is triggered, and the

continuing violation theory will not apply. See, e.g.,

National Railroad Passenger Corp. v. Morgan, 122 S.Ct.

2061. 2073, __U.S.__ (2002) (“[d]iscrete acts such as

termination, failure to promote, denial of transfer, or refusal

to hire are easy to identify. Each incident of

29a

discrimination.....constitutes a separate actionable ‘unlawful

employment practice.’ *)(emphasis added); Rush, 113 F.3d

at 483-84 (plaintiff's failure to promote and train claim

addressed discrete instances of alleged discrimination that

were not susceptible to a continuing violation analysis);

Ryales v. Pilling Weck Surgical, No. CIV.A. 01-1116, 2002

WL 1364869, at *5 (ED. pa. June 24, 2002) (“Promotion

denials are discrete events with a permanent effect.”); Rogan

v. Giant Eagle. Inc. 113 F. Supp. 2d 777, 785 (W.D. Pa.

2000), aff'd, 276 F.3d 579 (3d Cir. 2001) (table) (dismissing

failure to promote claim as time-barred, and noting that the

continuing violation theory is “seldom applicable where the

discriminatory act is failure to hire, promote, or train.”).

Further, accepting plaintiff's allegation that the

Postal Service has a policy, pattern, and practice of

discriminating against the disabled, it necessarily existed at

the time Shenkan applied for employment, and when he was

rejected. Thus, he reasonably should have known that he was

the subject of unlawful discrimination, and should have

30a

contacted the EEO counselor to seek relief. See, e.g.,

Courtney v. La Salle Univ., 124 F.3d 499, 506-07 (3d Cir.

1997) (time for fling charge runs from the most recent

application of the policy to plaintiff) (emphasis in original)°;

Rush, 113 F.3d at 482 (citing Galloway v. General Motors

Serv. Parts Operations, 78 F.3d 1164, 1166 (7" Cir. 1996)

(court expressed desire to encourage plaintiffs to commence

litigation when they become aware of conduct that would

support a viable claim without forcing them to do so

prematurely); Moskowitz v. Trustees of Purdue Univ., 5

F.3d 279, 281-82 (7" Cir. 1993) ( [if [plaintiff] knows or

with the exercise of reasonable diligence would have known

after each act that it was discriminatory and had harmed

him, he may not sit back and accumulate all the

discriminatory acts and sue on all within the statutory period

applicable to the last one.”) (emphasis added). Notably,

6. The District Court dismissed plaintiffs’ allegation of a pattern and

practice of discrimination, but his issue was not presented on appeal. See

Courtney, 124 F.3d at 502, n.1.

>

jia

“(t]he continuing violation doctrine should not provide a

means for relieving plaintiffs from their duty to exercise

reasonable diligence in pursuing their claims.” Cowell v.

Palmer Township, 263 F. 3d 286,295 (3d Cir. 2001)

(citations omitted). Simply put, Shenkan cannot escape the

inevitable result that he slept on his rights. ’

We realize that the EEOC Office of Appeals

determined that plaintiff's claims are timely, relying upon a

footnote in Sabree v. United Brotherhood of Carpenters &

Joiners Local, wherein the court noted:

a systemic violation need not involve

an identifiable, discrete act of discrimination

transpiring within the limitations period.

A systemic violation has its roots in a

discriminatory policy or practice;

so long as the policy or practice itself

continues into the limitations

period, a challenger may be deemed

to have filed a timely complaint.

Sabree, 921 F.2d 396, 400 n.7 (1° Cir. 1990).

We note that Shenkan must rely on the systemic violation

theory because he cannot deny that there has been no discrete

7. We also note that Shenkan was assisted by counsel, who is also his

brother, throughout each application process.

et a ACTRESS NNR ONT EEE REET ROE NE STMT GE SESE ENE A ENEER TS RB SCO AEE

TT ce ee eR Re ee NS ee Mg Ee ey Pe RN a

32a

act-of discrimination within 45 days prior to March 17, 1998.

In any event, the Third Circuit Court of Appeals has not

adopted the systemic violation theory. See Negron v.

Henderson, No. Civ. A. 99-CV-4472, 2001 WL 876802, at

*4 (E.D. pa. May 16, 2001) (“The Third Circuit has not

explicitly adopted [the systemic violation theory] of liability

advanced in this case, is a case of first impression in the

Third Circuit [.]” Pl.’s Resp. at 7. As sch, we will follow the

established precedent of the Third Circuit Court of Appeals

concerning the continuing violation theory, as rehearsed. See

West, 45 F.3d at 754-55, Rush, 113 F.3d at 482.

In sum, we find that in the instant case, there are two

discrete acts of alleged unlawful discrimination, neither of

which fell with the applicable time period. Namely, the

failure to hire Shenkan because of his disability (in

accordance with the alleged policy, pattern, and practice) on

November 28, 1995 and in or about November of 1997. See

Compl. at {§ 8, 11. Each single act of rejecting plaintiff was

actionable on its own. However, Shenkan did not contact an

33a

EEO counselor until three years after the first discrete act

and four months after the second discrete act. See Def.’s

Mem. in Supp. at Ex. A. Because Shenkan failed to comply

with the required time limits, and the factual allegations do

not support a continuing violation, his claims are barred. The

motion to dismiss will be granted. An appropriate order will

follow.

Dated: August 15, 2002

/s/ Donald E. Ziegler

United States Senior Judge

cc: Counsel of Record

34a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK D. SHENKAN, ) Civil Action No:

) 01-299

Plaintiff, )

)

Vv.

JOHN E. POTTER,

)

)

)

Postmaster General of the )

United States, )

)

)

D

Defendant.

ORDER

AND NOW, this 15" day of August. 2002, after

consideration of the motion (doc. no. 11) of defendant, John

E. Potter, Postmaster General of the United States, to

dismiss. or in the alternative, for summary judgment,

pursuant to Federal Rules of Civil Procedure 12(b) and 56,

and the written submissions of the parties,

IT IS ORDERED that the motion (doc. no. 11) of

defendant, John E. Potter, Postmaster General of the United

States, to dismiss, or in the alternative, for summary

judgment, shall be and hereby is granted.

/s/ Donald E. Ziegler

United States Senior Judge