Gary J. Montefusco v. Department of the Army

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-3841
GARY J. MONTEFUSCO,
Appellant
v.
DEPARTMENT OF THE ARMY; LOUIS CALDERA,
Secretary of the Army, as an agent of
Department of the Army; EDWARD G. ELGART,
Director of Acquistions Center, individually
and as an agent of Department of the Army;
WENDY M CCUTCHEON, individually and as an
agent of Department of the Army; ANDREW DELLOMO,
individually and as an agent of Department of the Army
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil No. 00-cv-05647
District Judge: Hon. William H. Walls
Submitted pursuant to Third Circuit LAR 34.1(a)
July 14, 2003
Before: McKee, Barry & Rosenn, Circuit Judges
(Filed: July 24, 2003)
OPINION OF THE COURT
McKee, Circuit Judge.
Gary J. Montefusco appeals the district court’s grant of summary judgment in
favor of the defendants and against plaintiff Montefusco in this civil rights action

-- 1 of 4 --

2
Montefusco brought against the defendants alleging a violation of Title VII of the Civil
Rights Act of 1964. We will affirm.
Inasmuch as we write only for the parties who are familiar with the factual and
procedural background of this dispute, we need not reiterate the circumstances or rulings
leading to this appeal. The district court filed its opinion on September 3, 2002
explaining why summary judgment in favor of defendants and against plaintiff was
appropriate. We have reviewed that opinion and conclude that we can add little to the
legal analysis that Judge Walls set forth therein. However, we do not completely agree
with the District Court’s analysis of the equitable tolling issue. Equitable tolling permits
the filing of an otherwise untimely claim when a defendant deliberately conceals
information relevant to a plaintiff’s legal claim, making it impossible for the plaintiff to
realize the existence of the claim until after the limitations period has expired (unless the
plaintiff should have known about the claim otherwise through due diligence).
In this case, Montefusco argues that he could not have known of the Government’s
alleged discriminatory motive until scoring sheets for the promotion exam were provided
to him in 1999, after having repeatedly requested the scores from the Government since
1997. He alleges that the scores for some questions on his exam were erased and
modified downward, while the scores of some African-American women were modified
upward, thus providing evidence of discriminatory purpose.
The District Court, however, held that Montefusco should have inferred

-- 2 of 4 --

3
discriminatory intent based solely on his nonselection for promotion in 1997 and the
selection of several minority women candidates, irrespective of the withheld scoring
sheets. According to the District Court, the limitations period thus began at the moment
his nonselection was announced. We disagree that the mere selection of African-
American women candidates over a white male candidate could, standing alone,
reasonably give rise to an inference of racial discrimination. Rather, we hold that there is
no evidence that the test sheets, containing the alleged suspicious erasures, were withheld
willfully, and we will affirm on that basis.
In this connection, we observe that Montefusco has produced naught but his own
lay analysis of the erasures and their import. We are constrained to resolve motions for
summary judgment on reliable evidence. Here, there is ample evidence that scores were
periodically erased and modified for innocent purposes after the initial scoring, based on
re-evaluation by the scorers. Nonetheless, trustworthy evidence that these erasures
systematically boosted the scores of one group and diminished the scores of another
might present statistical proof of discriminatory motive. However, we are unwilling to
allow this case to proceed to trial based exclusively on a plaintiff’s own personal
assessment that the erasures favored minority applications over his application, without
any expert testimony – or for that matter, any objective assessment whatsoever – to
ascertain the nature of the erasures, which applicants had scores erased, whether the
scores were changed up or down, or the statistical significance of these alterations.

-- 3 of 4 --

4
Absent any trustworthy evidence to show that there was a disproportionate number
of erasures on the score sheets of Montefusco and two African-American women
applicants, or that the scores were altered to Montefusco’s detriment and to the two
women’s benefit, we cannot ascribe any nefarious purpose to the Government’s
withholding of the sheets. Equitable tolling, therefore, does not apply. Accordingly, the
order of the district court dated September 4, 2002, dismissing “all counts against
defendants” is hereby affirmed.
TO THE COURT:
Please file the foregoing opinion.
By the Court,
/s/ Theodore A. McKee
Circuit Judge

-- 4 of 4 --