Angela Jones v. LOUIS DEJOY, Postmaster General

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2021*
Decided August 17, 2021
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-3518
ANGELA JONES,
Plaintiff-Appellant,
v.
LOUIS DEJOY, Postmaster General,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 18 C 1213
Thomas M. Durkin,
Judge.
O R D E R
Angela Jones appeals from the entry of summary judgment for her employer, the
United States Postal Service, on her claims of retaliation and discrimination based on
her race (African American) and gender. See 42 U.S.C. § 2000e-2. The district court
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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concluded that most of Jones’s claims were untimely and that her single timely claim
did not involve an adverse employment action. We agree with the district judge’s
reasoning and affirm.
Jones joined USPS in 2012 as a mail-processing clerk. Over the next five years,
she experienced four events she challenges as discriminatory. First, in late 2015, a
manager rescinded an offer to make permanent her temporary position as acting
supervisor. In Jones’s telling, the manager rescinded the offer because a senior decision-
maker had disagreed with it. (The manager disputes that he offered Jones the
promotion to permanent supervisor; he attests that he was not authorized to do so.)
Second, in March 2016, Jones was demoted from acting supervisor to mail-processing
clerk. Third, a couple of months later, the USPS Office of Inspector General subjected
Jones to a polygraph test after she became a suspect in the agency’s investigation into
timecard fraud at her branch office. Though she was eventually cleared of any
wrongdoing, Jones later filed an Equal Employment Opportunity (EEO) charge based
on management’s false accusations and refusal to produce the polygraph-examination
results. (She voluntarily withdrew the charge when her supervisor promised to turn
over the results.) Fourth, in late 2016, Jones’s supervisor asked to schedule a “pre-
disciplinary interview” with her to follow up on the investigation. Jones refused to
participate, and the interview never took place.
In early 2017, Jones requested pre-complaint counseling from the agency’s EEO
contact center. She asserted that her supervisor sought the pre-disciplinary interview in
retaliation for her request to see the polygraph results. Jones conceded that she had
missed the 45-day deadline for initiating this complaint of retaliation but argued that
the deadline should be tolled because her son had unexpectedly died in the interim.
Soon after, Jones submitted a formal EEO complaint. She asserted that managers
at USPS had retaliated and discriminated against her when they (1) withdrew her
promotion to permanent supervisor in September 2015; (2) removed her from the
acting-supervisor position in March 2016; (3) gave her a polygraph in July 2016; and
(4) asked her to participate in a pre-disciplinary interview in September 2016. The
agency dismissed Jones’s complaint as untimely because she filed it more than 45 days
after each event.
Jones then sued USPS under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.
§ 2000e-2. Reprising the allegations from her formal EEO complaint, she asserted that

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No. 20-3518 Page 3
USPS retaliated and discriminated against her, and subjected her to a hostile work
environment, based on her race and gender.
The district judge ultimately granted USPS’s motion for summary judgment. The
judge concluded first that Jones’s claims about the polygraph (July 2016), demotion
(March 2016), and rescinded promotion (September 2015) were time-barred and that
equitable tolling did not save them. Even assuming that Jones’s deadline to complain
about the rescinded promotion and demotion could be tolled until July 2016 (when
Jones says she first understood the link between these acts and USPS’s discriminatory
animus), the judge concluded that Jones failed to contact an EEO officer within the
requisite 45 days. The judge acknowledged Jones’s timely filing of an EEO charge over
the polygraph but explained that she withdrew that charge and took no steps to revive
it before the 45-day deadline had expired. As for the timely filed claims, the judge
concluded that these failed on the merits. With regard to Jones’s claim about the pre-
disciplinary interview, the judge determined that Jones waived this challenge by not
responding to USPS’s argument that no adverse action occurred. And regarding her
hostile work environment claim, the judge explained that Jones presented no evidence
that the challenged actions were based on her race or gender.
On appeal, Jones argues that the district judge erred in concluding that equitable
tolling did not save her claims about the rescinded promotion in 2015 and subsequent
demotion in 2016. She maintains that the deadline to file an EEO charge about these
events should have been tolled until 45 days after her polygraph in July 2016—when
she says she realized that the events showed a pattern of discrimination.
The district judge properly concluded that equitable tolling cannot apply to these
claims. As the judge explained, even if Jones could not have known until her polygraph
in July 2016 that the rescinded promotion or demotion was discriminatory, she failed to
raise these concerns with an EEO counselor within 45 days of that discovery. 29 C.F.R.
§ 1614.105(a)(1); Green v. Brennan, 136 S. Ct. 1769, 1775–76 (2016). The EEO charge that
Jones filed in August alluded only to the polygraph, and not until 2017 did she address
the potentially discriminatory nature of her rescinded promotion and demotion.
See Haynes v. Indiana Univ., 902 F.3d 724, 731 (7th Cir. 2018) (tolling implies an extension
not of indefinite duration but merely “a length of time within which it would have been
reasonable to file a complaint”).
Jones also argues that the judge erred by not applying equitable tolling to the
period between August 2016, when she withdrew her EEO charge about the polygraph,

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and February 2017, when she filed her final EEO charge. That period should be tolled,
she says, because her reason for withdrawing the charge—a supervisor’s promise to
turn over her polygraph results—was never fulfilled and, further, she suffered the
tragedy of her son’s unexpected death in October 2016.
The district judge was right not to apply equitable tolling to this period. Even if
Jones could point to her supervisor’s alleged deception as a “circumstance[] . . . beyond
her control” that might warrant tolling, see 29 C.F.R . § 1614.105(a)(2), Jones did not
explain why she was unable to reinstate her EEO charge within the 45-day filing
deadline, which lapsed more than a month before her son’s passing. See Irwin v. Dep't of
Veterans Aff., 498 U.S. 89, 96 (1990) (tolling does not apply “where the claimant failed to
exercise due diligence in preserving his legal rights”). Moreover, as the judge noted,
Jones never identified her supervisor’s actions as a basis for seeking more time to file an
EEO charge about the polygraph.
Jones next challenges the judge’s conclusion that the invitation to participate in a
pre-disciplinary interview was not an adverse action. But this argument misapprehends
the basis of the judge’s ruling. The judge concluded that Jones waived this challenge by
not responding to USPS’s argument questioning the adverse nature of such an
interview. In any case, she does not contend—and we cannot see how—an invitation to
participate in an optional meeting could qualify as a materially adverse action.
See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006).
Finally, Jones contends that the judge ignored her argument that her treatment at
USPS cumulatively amounted to a hostile work environment. The judge may not have
said much specifically about this argument, but he did conclude that Jones presented no
evidence that any of the challenged conduct was based on her race or gender—a
prerequisite for a plaintiff to survive summary judgment on a hostile work environment
claim. See Poullard v. McDonald, 829 F.3d 844, 859 (7th Cir. 2016).
We have considered Jones’s other arguments, and none has merit.
AFFIRMED

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