Opinion
No. 07-2779.
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6 September 13, 2007.
Filed: October 3, 2007.
Appeal From the United States District Court For the Western District of Pennsylvania (W.D. Pa. Civ. No. 06-cv-01498) District Judge: Honorable Arthur J. Schwab.
Before: SLOVITER, CHAGARES AND COWEN, CIRCUIT JUDGES.
OPINION
Appellant, Ronald Lee Moss, appeals from an order of the United States District Court for the Western District of Pennsylvania granting the appellee's motion for summary judgment. The appellee has filed a motion for summary affirmance. Because this appeal does not present a substantial question, we will grant the motion. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Moss was employed by the United States Postal Service (the "Postal Service") in Pittsburgh, Pennsylvania, from 1986 until early 2004. In July 2000, Moss filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging,inter alia, that he had been discriminated against on the basis of his race, color, gender, age, and disability when the Postal Service Eastern Area Office of EEO Compliance and Appeals failed to issue a timely decision on one of his prior complaints in violation of Section 1614.110 of the Code of Regulations. Moss also appeared to allege that these actions were taken in retaliation for his having filed previous complaints with the EEOC.
While this administrative action was pending, Moss filed a civil action in the United States District Court for the Western District of Pennsylvania alleging individual and class claims for discrimination and retaliation, as well as a number of other wrongs. (W.D. Pa. Civ. No. 00-cv-01499.) The District Court eventually dismissed the complaint for failure to exhaust administrative remedies, and remanded the complaint to the Postal Service for investigation. On August 11, 2006, an Administrative Judge issued a summary decision dismissing Moss's complaint and, on August 14, 2006, the EEOC implemented the dismissal.
On November 9, 2006, Moss commenced the present action in the District Court. This time, Moss alleged that the Postal Service purposefully withheld medical documentation from the Department of Labor so that his worker's compensation benefits would be terminated. According to Moss, the Postal Service engaged in these actions in retaliation for his having filed the class action in the District Court.
The Postal Service filed a motion to dismiss or, in the alternative, motion for summary judgment. On May 24, 2007, the District Court granted the Postal Service's motion insofar as it sought summary judgment on the ground that Moss had failed to exhaust administrative remedies for his retaliation claim. Moss submitted a timely motion for reconsideration, which the District Court denied on June 14, 2007. The present appeal followed.
In his notice of appeal, Moss seeks review of the District Court's order denying his motion for reconsideration, but does not appear to appeal from the preceding order entering summary judgment against him. Nonetheless, we will review both orders. See Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989) (stating that it is proper to exercise appellate jurisdiction "over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issues").
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). After a careful review of the record, we conclude that the appeal presents "no substantial question" under Third Circuit LAR 27.4 and I.O.P. 10.6 and will, therefore, summarily affirm the District Court's order dismissing Moss's complaint.
The District Court correctly concluded that Moss failed to exhaust administrative remedies for his retaliation claim before commencing the present action in the District Court. "It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief." Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). "The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996).
In general, before filing a Title VII suit, an aggrieved federal employee must meet informally with an EEOC counselor within forty-five days of the alleged discriminatory event. 29 C.F.R. §§ 1614.105(a)(1). If the counseling is unsuccessful in resolving the matter, then the federal employee must, within fifteen days, file a formal complaint with the EEOC. 29 C.F.R. §§ 1614.106(b). If the employee is dissatisfied with the final decision on the complaint, or if the EEOC fails to issue a decision within the requisite period, he may commence a civil action in the appropriate district court. 29 C.F.R. §§ 1614.407. If the employee files suit in the district court, only those claims that are "fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom," are considered to have been exhausted. Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).
Moss's present Title VII claim was not administratively exhausted because it was not within the scope of his July 2000 EEOC complaint. See id. Although Moss did assert a retaliation claim in his administrative complaint, that claim concerned entirely different events that took place more than five years prior to the conduct at issue here. In his July 2000 EEOC complaint, Moss alleged that the Postal Service failed to timely rule on an earlier complaint in retaliation for his having filed prior grievances, whereas here, he alleged that the Postal Service purposefully withheld medical documentation from the Department of Labor in retaliation for his having filed the district court class action. Therefore, Moss's claim is not within the scope of his July 2000 EEOC complaint. See Antol, 82 F.3d at 1296 (finding that employee's administrative complaint alleging disability discrimination did not fairly encompass his gender discrimination claim).
Furthermore, given that the EEOC summarily dismissed Moss's administrative complaint without conducting an investigation, the EEOC clearly never investigated any of the circumstances surrounding the alleged retaliation. Cf. Waiters, 729 F.2d at 238 (finding that EEOC investigation encompassed employee's district court claim of retaliatory discharge even though she was not fired until after the EEOC investigation was complete because the EEOC's investigation concerned the same underlying conduct). Accordingly, because the EEOC was never given an opportunity to consider Moss's retaliation claim before he initiated the present action, he failed to exhaust his administrative remedies.
We have also reviewed Moss's motion for reconsideration and the District Court's June 14, 2007 order denying it, and conclude that the District Court did not abuse its discretion in denying relief. In his motion, Moss sought relief under Federal Rule of Civil Procedure 60(b) on the grounds of mistake, newly discovered evidence, and fraud and misrepresentation.See Fed.R.Civ.P. 60(b)(1), (2) and (3). Specifically, Moss alleged that: (1) the District Court made a mistake by overlooking an envelope attached to his response brief; (2) he obtained newly discovered evidence in the form of a letter recently received from the Postal Service directing him to return to duty; and (3) the Postal Service misrepresented Moss's claims when it stated that some of his claims had been previously litigated. This Court has made clear, however, that only extraordinary circumstances justify granting relief under Rule 60(b). Moolenaar v. Gov't of V.I., 822 F.2d 1342, 1346 (3d Cir. 1987). Given that here, Moss failed to explain the significance of any of his allegations, much less allege the existence of any extraordinary circumstances, we conclude that the District Court acted well within its discretion when it denied Moss's motion.
Moss also sought relief under Federal Rule of Civil Procedure 52(b), which allows the court to correct plain errors of law or fact, or, in limited situations, allows the parties to present newly discovered evidence. See Gutierrez v. Ashcroft, 289 F. Supp. 2d 555, 561 (D.N.J. 2003). For the reasons discussed above in connection with his Rule 60(b) motion, the District Court correctly denied relief under Rule 52(b).
Finally, we note that in his opposition to the Postal Service's motion for summary affirmance, Moss argues that the District Court erred in converting the Postal Service's motion to dismiss into a motion for summary judgment without giving him an opportunity to present additional material to the court. Contrary to Moss's contention, however, the District Court ordered Moss to submit a response before it ruled on the Postal Service's motion, and Moss indeed responded by filing a brief along with exhibits. See Fed.R.Civ.P. 12(b)(6) (stating that a motion to dismiss can be treated and disposed of as one for summary judgment under Rule 56 if all parties are given a reasonable opportunity to present all material made pertinent to such a motion by Rule 56). Therefore, Moss's argument in this regard is meritless.
Furthermore, given that the Postal Service's motion was submitted in the alternative as one for summary judgment, it was not necessary for the District Court to characterize its decision to construe the motion as one for summary judgment as a "conversion."
For the foregoing reasons, we conclude that the District Court properly entered summary judgment against Moss. Accordingly, as there is no substantial question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6.