Grant v. Secretary United States Department of Homeland Security
698 F. App'x 697
| 3rd Cir. | 2017Background
- Grant, a TSA employee, was terminated effective July 18, 2008 for alleged time-and-attendance falsification.
- Termination notice informed Grant of right to appeal to TSA’s Disciplinary Review Board (DRB) and warned that discrimination allegations must be pursued via EEO counseling within 45 days.
- Grant, represented by counsel, filed a DRB appeal in August 2008; DRB acknowledged receipt and again warned that discrimination claims belong in the EEO process.
- Grant waited until January 15, 2010 to contact an EEO counselor and filed an individual discrimination complaint on April 16, 2010—well beyond the 45-day deadline.
- DHS dismissed the EEO complaint as untimely; EEOC remanded for further proceedings, but after discovery an Administrative Judge granted summary judgment for TSA on the merits; EEOC Office of Federal Operations affirmed.
- Grant sued in district court in 2015; district court found failure to exhaust and rejected equitable tolling after discovery; Third Circuit affirmed summary judgment for TSA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Grant timely exhausted administrative remedies under Title VII (45‑day EEO counselor contact) | Grant conceded missing the 45‑day deadline but argued equitable tolling applies because he was misled into pursuing a DRB appeal | TSA argued Grant had actual and constructive notice of the 45‑day requirement (DRB form and acknowledgement) and did not act diligently | Court held Grant failed to show active misleading or reasonable diligence; equitable tolling not warranted; exhaustion requirement not met |
| Whether TSA waived timeliness defense by not appealing the AJ’s merits ruling | Grant argued TSA waived timeliness defense because TSA accepted AJ’s merits judgment in its favor | TSA explained timeliness was moot after prevailing on the merits, so no appeal was necessary; preservation not lost | Court rejected Grant’s waiver argument and affirmed that TSA did not waive the timeliness defense |
Key Cases Cited
- Robinson v. Dalton, 107 F.3d 1018 (3d Cir.) (exhaustion requirement for administrative remedies before Title VII suit)
- McKart v. United States, 395 U.S. 185 (statute-of-limitations/exhaustion principles)
- Podobnik v. U.S. Postal Serv., 409 F.3d 584 (3d Cir.) (equitable tolling should be applied sparingly)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (timing rules and relation to equitable tolling)
- Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir.) (three circumstances permitting equitable tolling)
- Miller v. N.J. State Dep’t of Corr., 145 F.3d 616 (3d Cir.) (plaintiff’s burden to show reasonable diligence; mere excusable neglect insufficient)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (equitable tolling principles)
- Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir.) (standard of review for summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)