Hatcher v. Potter , 196 F. App'x 120 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-23-2006
Hatcher v. Potter
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5412
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Recommended Citation
"Hatcher v. Potter" (2006). 2006 Decisions. Paper 558.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-5412
________________
JAMES HATCHER,
Appellant
v.
JOHN E. POTTER, PMG
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-02130)
District Judge: Honorable Ronald L. Buckwalter
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 28, 2006
Before: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES.
(Filed: August 23, 2006)
OPINION
_______________________
PER CURIAM
Based on the District Court’s Findings of Fact and Conclusions of Law following a
bench trial, judgment was entered in favor of Appellee. Appellant James F. Hatcher now
appeals. For the reasons that follow, we will affirm.
On May 19, 2004, Appellant filed a complaint in the United States District Court
for the Eastern District of Pennsylvania alleging gender- and disability-based
discrimination by his employer, the United States Postal Service.1 Appellant maintained
that the alleged discriminatory acts occurred between June 20, 2002 and August 2, 2003.
As required by the Equal Employment Opportunity Commission (“EEOC”) regulations,
he requested pre-complaint processing from the EEO counselor on September 22, 2003.
This was fifty-one days after the last alleged incident of discrimination and therefore
beyond the forty-five day time period provided for such a filing. See 29 C.F.R. §
1614.105. Hatcher’s EEO complaint was dismissed pursuant to 29 C.F.R. §
1614.107(a)(2) for failure to timely contact an EEO counselor.
Following the EEOC’s dismissal of his complaint, Appellant sought relief in
federal court. Appellee filed a motion for summary judgment, arguing that Appellant had
not exhausted his administrative remedies because he did not contact an EEO counselor
1
Appellant later filed an amended complaint and a second amended complaint in
which he added a claim of race-based discrimination. Despite his failure to request
permission to file the second amended complaint, the District Court nonetheless
considered it, concluding that to do so would not prejudice Appellee. Appellee does not
challenge this decision on appeal.
2
within forty-five days of the alleged discriminatory acts. The District Court denied
Appellee’s motion based on Appellant’s contention that he had not been provided with
notice of the forty-five day time limit as required by 29 C.F.R. § 1614.102(b)(5).2 The
Court ordered a ninety-day period of limited discovery on the issue of notice.
Following the completion of discovery, the Court conducted a bench trial, however
else it may have been denominated by the parties and the Court, with the parties clearly
understanding that the Court would thereafter determine whether or not Appellant had
received the requisite notice. Appellant was sworn in, questioned by the Court, and
cross-examined by counsel for Appellee. Then Sharon Roby-Wilson, the former
Manager of Customer Services at Logan Station Post Office during the time period when
Appellant alleges he was discriminated against, testified, and Appellant cross-examined
her. Appellant brought several photographs he had taken of the bulletin boards in the post
office on November 8, 2004, approximately a year after the date of the last alleged
discriminatory act. Appellant contended that the absence in these photographs of “Poster
72,” a poster notifying federal employees of the time limit for filing an employment
discrimination claim, gave rise to an inference that the poster was not posted during the
2
This subsection provides:
In order to implement its program, each agency shall . . . [m]ake written
materials available to all employees and applicants informing them of the
variety of equal employment opportunity programs and administrative and
judicial remedial procedures available to them and prominently post such
written materials in all personnel and EEO offices and throughout the
workplace.
3
time period in question. Appellant testified as to the content of the photographs and drew
a diagram of the Logan Station Post Office in response to questions from the Court.
Roby-Wilson was then questioned about the photographs and Appellant’s diagram, and
asked to indicate where in the post office the posters were located.3 On cross-
examination, Appellant questioned whether Poster 72 was ever posted at Logan Station
Post Office, and if so, whether it was posted in areas commonly used by postal carriers
such as himself.
During the course of the trial, Appellee stipulated to the fact that Appellant never
received actual notice of the filing requirement. Given this stipulation, the parties’
testimony and the District Court’s findings focused on the issue of constructive notice.
Based on Roby-Wilson’s testimony, the Court found that Government Exhibits 3, 4, and
5, three standard EEO posters explaining how to file a complaint and how to present it,
were posted during the relevant time period at the Logan Station Post Office, in areas in
which post office employees such as Appellant worked, and by which they regularly
passed. The Court further found that the content of the posters was reasonably geared to
notify employees of the forty-five day limitations period, and therefore, that Appellant
had constructive notice of the time limit.
Relying on two decisions from the Seventh Circuit Court of Appeals, the District
Court concluded that: (i) the requisite posters were posted in areas accessible to the
3
According to the transcript, all of these items were admitted into evidence.
However, they do not appear to have been made a part of the district court record.
4
complainant; and (ii) the posters were reasonably geared to inform the complainant of the
time limits. See Clark v. Runyon, 116 F.3d 275, 277 (7th Cir. 1997); Johnson v. Runyon,
47 F.3d 911, 918 (7th Cir. 1995). Based on these conclusions, the Court determined that
there was no basis on which to extend the time limitation as provided by 29 C.F.R. §
1614.105(a)(2).4
The District Court also refused to equitably toll the time period for contacting an
EEO counselor based on Appellant’s argument that health issues prevented him from
asserting his rights in a timely manner. Given Appellant’s representation that he had filed
a worker’s compensation application during the period in question, the Court determined
that Appellant’s health issues were not severe enough to prevent him from timely filing
his discrimination claim. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1387 (3d Cir. 1994) (to justify the application of equitable tolling, plaintiff must
have been prevented from asserting his rights in some extraordinary way).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the District Court’s factual findings for clear error. Rode v. Dellarciprete, 892 F.2d 1177,
4
This subsection provides:
The agency or the Commission shall extend the 45-day time limit in
paragraph (a)(1) of this section when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have been known
(sic) that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
5
1182 (3d Cir. 1990). We review the District Court’s refusal to equitably toll the time
limit for abuse of discretion. Doherty v. Teamsters Pension Trust Fund of Philadelphia &
Vicinity, 16 F.3d 1386, 1389 (3d Cir. 1994).
Based on the testimony and evidence provided at the bench trial, following a
ninety-day period of discovery on the issue of notice, the District Court concluded that
Appellant did have constructive notice of the 45-day filing requirement. In reaching this
determination, the Court found that the posters contained sufficient information regarding
the time period for filing an EEO complaint and were displayed in areas where postal
employees such as Appellant worked and by which they regularly passed. This finding
was not clearly erroneous. Nor did the District Court abuse its discretion in refusing to
equitably toll the time period for filing a complaint, given that, by Appellant’s own
admission, he was able to file a worker’s compensation claim during the time period in
question.
Based on the foregoing, we will affirm the judgment of the District Court.5
5
Appellant filed a motion to supplement the District Court record with Appellees’
responses to interrogatories and requests for production of documents, United States
Postal Service EEOC Handbook EL-603, and United States Postal Service Publication
133. Appellant’s motion is denied. Appellant’s motion to strike Appellee’s reply brief as
untimely is also denied.
6