Phillips v. Sheraton Society , 163 F. App'x 93 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-21-2005
Phillips v. Sheraton Society
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4597
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"Phillips v. Sheraton Society" (2005). 2005 Decisions. Paper 63.
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APS-61 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4597
ERIC PHILLIPS,
Appellant
v.
SHERATON SOCIETY HILL
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-05659)
District Judge: Honorable Gene E.K. Pratter
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
December 1, 2005
BEFORE: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES
(Filed December 21, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Eric Phillips appeals the September 14, 2005, order of the United States District
Court for the Eastern District of Pennsylvania dismissing sua sponte his employment
discrimination complaint.
In December 2004, Phillips filed a complaint claiming that he injured his back in a
non-work related accident on July 4, 2003. He alleged that when he informed the
manager of his injury and of his need for physical therapy, the manager told him that he
would not be compensated for “work time off the schedule.” Phillips sought back pay
and damages. The District Court granted Phillips in forma pauperis status and appointed
counsel to represent him. After the Sheraton Society Hill filed an Answer, the District
Court dismissed the Complaint sua sponte for nonexhaustion because Phillips did not
allege that he had received a right-to-sue letter. The District Court also denied Phillips’s
motion for reconsideration, concluding that both Phillips’s complaint and reconsideration
motion were devoid of any assertion that he had contacted the EEOC or received a right-
to-sue letter. Phillips timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District
Court’s order granting dismissal is plenary. See Anjelino v. New York Times Company,
200 F.3d 73, 87 (3d Cir. 2000). We accept as true all factual allegations in the complaint
and will affirm a dismissal under Rule 12(b)(6) only if it is certain that no relief can be
granted under any set of facts which could be proved. Steamfitters Local Union No. 420
Welfare Fund v. Phillip Morris Inc., et al., 171 F.3d 912, 919 (3d Cir. 1999). Both parties
were given notice that the Court may take summary action, specifically that the Court may
affirm, reverse, vacate, modify or remand the judgment or order appealed. The parties had
until November 15, 2005 to submit written arguments in support of or in opposition to
2
summary action. The appellee has filed a brief in support of summary affirmance. For
the reasons set forth in detail below, we will vacate the dismissal order and remand to the
District Court for further proceedings.
The factual allegations in the Complaint appear to claim employment
discrimination based on a disability in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. (West 1995). The ADA requires that, prior to
bringing a civil action in court, a plaintiff must exhaust his administrative remedies by
filing a charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a)
(adopting Title VII enforcement scheme and remedies for ADA). If the charge has not
been resolved by the EEOC within 180 days, the agency must issue a right-to-sue letter or
the complainant may request a letter. Because the receipt of a right-to-sue letter indicates
that a complainant has exhausted administrative remedies, a complainant may not bring
an ADA suit without having first received one. See Burgh v. Borough Council of the
Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). However, failure to exhaust
administrative remedies is a defense “ in the nature of statutes of limitation and does not
affect the District Court’s subject matter jurisdiction.” Anjelino, 200 F.3d at 87 (quoting
Hornsby v. United States Postal Service, 787 F.2d 87, 89 (3d Cir. 1986)). Nonexhaustion
constitutes a possible ground for dismissal for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Anjelino, 200 F.3d at 88.
We are troubled by the fact that Phillips was given no opportunity to amend the
3
Complaint before the District Court sua sponte dismissed it. Phillips’s failure as a pro se
litigant to allege exhaustion does not warrant dismissal of this action with prejudice.
“Even when a plaintiff does not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative amendment unless an
amendment would be inequitable or futile.” Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004) (citing other cases); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(3d Cir. 1997) (dismissal without leave to amend is warranted only on grounds of bad
faith, undue delay, prejudice, or futility).1
There is no indication of bad faith, undue delay, or prejudice on this record to
warrant dismissal without leave to amend. Phillips used a form complaint prompting him
to state the facts of his case and the relief he sought. Notably, the only portion of the
form complaint that addresses exhaustion does not require an affirmative statement from
the plaintiff. Paragraph 5 simply requests that the plaintiff attach a copy of the Notice-of-
Right-To-Sue letter to the Complaint “[i]f you filed charges with the Equal Employment
Opportunity Commission or with the Pennsylvania Human Relations Commission.” We
cannot assume from Phillips’s pro se Complaint that no right-to-sue letter exists or that he
1
In Alston, we reiterated the suggestion that, where appropriate, District Judges
expressly state to the plaintiff that s/he may amend within a specific time period and that
application may be made to dismiss the action if no amendment is forthcoming. If the
plaintiff does not wish to file an amendment, s/he may notify the court of his/her intent to
stand on the complaint, at which time an order dismissing the action would be
appropriate. Id.
4
failed to exhaust his administrative remedies merely because he failed to attach a right-to-
sue letter. This kind of omission can be corrected by amendment and, therefore,
permitting Phillips an opportunity to amend his Complaint would not be futile.
Accordingly, we will vacate the dismissal order and remand to the District Court
for further proceedings consistent with this Opinion. On remand, Phillips should be
allowed a reasonable time to file an amended complaint alleging exhaustion of his
administrative remedies.