Burkett v. Glickman, 02-1827.

Decision Date02 May 2003
Docket NumberNo. 02-1827.,02-1827.
Citation327 F.3d 658
PartiesBeverly BURKETT, Appellant, v. Dan GLICKMAN, Secretary, United States Department of Agriculture, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Brian O. Bowhan, argued, Nashville, TN, for appellant.

Stacey E. McCord, argued, Asst. U.S. Atty., Little Rock, AR, for appellee.

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Beverly Burkett appeals a grant of summary judgment to her employer, the United States Department of Agriculture, Farm Service Agency (FSA), in her employment discrimination action brought under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e through 2000e-17. Ms. Burkett, who is black, alleged that she was subjected to adverse employment actions and a hostile work environment because of her race. We affirm the judgment of the district court.1

I.

We review a district court's grant of summary judgment de novo. Rademeyer v. Farris, 284 F.3d 833, 836 (8th Cir.2002). "Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.2000); see Fed.R.Civ.P. 56(c).

We first address Ms. Burkett's claim that she was denied promotions on the basis of her race. Ms. Burkett maintains that the FSA denied her a promotion on twenty-one separate occasions, each time awarding the position to a lesser qualified white person. An examination of the record indicates, however, that only one of those incidents is properly before us.

Before the federal courts may hear a discrimination claim, an employee must fully exhaust her administrative remedies. For a federal employee, this requires, as an initial matter, that she "initiate contact" with an Equal Employment Opportunity (EEO) counselor "within 45 days of the date of the matter alleged to be discriminatory" or of the effective date of the alleged discriminatory personnel action, 29 C.F.R. § 1614.105(a)(1); see also Jensen v. Henderson, 315 F.3d 854, 858 (8th Cir. 2002). If the matter cannot be resolved informally with the help of the counselor, the employee may file a formal EEO complaint with the agency. See 29 C.F.R. § 1614.106.

Ms. Burkett has filed four EEO complaints with the FSA during the course of her employment, only three of which remain relevant on appeal, and only two of those, construed liberally, raised a failure-to-promote claim. One of these two was filed after she consulted with an EEO counselor on May 31, 1994, but the record reveals that Ms. Burkett was not even denied a promotion within the 45 days preceding the contact. The other relevant EEO complaint, filed on March 24, 1998, raised only one failure-to-promote claim that had arisen within the 45 days preceding Ms. Burkett's contact with a counselor on December 8, 1997. The rest of the incidents that Ms. Burkett now complains of were not raised within the time that the Title VII regulations allot.

Ms. Burkett contends that her earlier failure-to-promote claims are timely because, along with the claim raised in her March 24 EEO complaint, they are part of a continuing violation of Title VII. But the Supreme Court has held that events "such as termination, failure to promote, denial of transfer, or refusal to hire" constitute completed acts at the time that they occur. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072-73, 153 L.Ed.2d 106 (2002); see also Jensen, 315 F.3d at 859. These "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 122 S. Ct at 2072. Although in Morgan the plaintiff's Title VII claims were subject to different time limits because he was not a federal employee, see 42 U.S.C. § 2000e-5(e)(1), we think it plain that the principles set forth there govern cases involving the 45-day deadline for federal workers' claims. See Jensen, 315 F.3d at 858-59 & n. 9. The district court therefore correctly declined to consider claims for incidents that occurred outside the relevant time period.

We turn now to the failure-to-promote claim that Ms. Burkett raised in her March 24 EEO complaint. To prevail on this claim, Ms. Burkett must first establish a prima facie case of discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If she does so, the employer must rebut the presumption of discrimination that her prima facie case raises by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Id. at 506-07, 113 S.Ct. 2742. If the employer does so, the burden of production shifts back to the plaintiff to demonstrate that the employer's proffered reason is pretextual. Id. at 507-08, 113 S.Ct. 2742. The district court found that even if Ms. Burkett established a prima facie case, she did not offer evidence to demonstrate that FSA's nondiscriminatory explanation was pretextual. We agree.

When Ms. Burkett applied for the position at issue in this claim, she stated that the lowest grade level that she would accept was a grade level of nine. The FSA asserted below that because of a forecasted reduction-in-force it decided that its staffing needs would best be met by hiring only at grade level seven. For this reason, the FSA said, Ms. Burkett and all other applicants indicating acceptable grade levels other than seven were not considered for interviews.

Once the FSA articulated this nondiscriminatory justification for not promoting Ms. Burkett, it was entitled to summary judgment in the event that she could not produce evidence of pretext. The only evidence that Ms. Burkett offered on the issue of...

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