                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            ______________

                                 No. 09-4244

                                ______________


                           HOWARD SNYDER,

                                           Appellant,

                                      v.

                       BAXTER HEALTHCARE, INC.

                                ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Civ. Action No. 08-0566)
               Magistrate Judge: Honorable Amy Reynolds Hay
                              ______________

                  Submitted Under Third Circuit LAR 34.1(a)
                               July 15, 2010

                                ______________

       Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

                     (Opinion Filed: September 14, 2010)

                                ______________

                                   OPINION
                                ______________
GREENAWAY, JR., Circuit Judge

                                      1
       Appellant Howard Snyder (“Snyder”) appeals from the final order of the United

States District Court for the Western District of Pennsylvania granting the motion to

dismiss of Appellee Baxter Healthcare, Inc. (“Baxter”), as to his claims of discrimination,

in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq.1; the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seq.; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.;

and the Pennsylvania Human Relations Act (“PHRA”), 43 PA. CONS. STAT. ANN. § 951 et

seq. We find no merit to Snyder’s contentions, and no error with the District Court’s

determinations. We will affirm.

                                  I.   BACKGROUND

       We write solely for the benefit of the parties and recount only the essential facts.

       Snyder was hired by Baxter in 1990 to install machinery used in blood transfusions

and to conduct training in the operation of that machinery. On February 28, 2007, Baxter

ceased operation of its transfusion machinery unit, and sold its assets to Texas Pacific

Group (“TPG”), which formed a new corporation named Fenwal. Effective March 1,



  1
       In his submissions, Snyder appears to appeal the dismissal of his entire Complaint,
including his Title VII claim. The District Court correctly stated that “Title VII makes it
unlawful for an employer to discriminate on the basis of race, color, religion, sex, or
national origin.” Snyder v. Baxter, Inc., No. 08-566, 2009 WL 185993 at *1 n.1 (W.D.
Pa. Jan. 23, 2009). The District Court, thus, correctly dismissed Snyder’s Title VII
claims, as the Complaint and the charge filed with the Equal Employment Opportunity
Commission (“EEOC”) fail to allege discrimination on any of the aforementioned
grounds.

                                              2
2007, Snyder became an employee of Fenwal.

       On September 6, 2007, Snyder filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (the “EEOC Charge”), alleging that Baxter,

Fenwal, and TPG (collectively, “Defendants”) harassed, discriminated against, and

retaliated against Snyder on the basis of age and disability. The EEOC Charge was

subsequently cross-filed with the Pennsylvania Human Rights Commission (“PHRC”).

       On April 23, 2008, Snyder filed a two-count complaint (the “Complaint”) in the

United States District Court for the Western District of Pennsylvania.2 Snyder asserted

Title VII, ADEA, ADA, and PHRA violations against Defendants. The crux of those

allegations is as follows:

       Plaintiff, at all relevant times was subject to a continuous and ongoing
       hostile work environment, subject to disparate treatment, harassment,
       humiliation, and discrimination based on his age (66), his
       disability/perceived disability as well as retaliation for complaining
       regarding the ongoing hostile work environment, disparate treatment,
       harassment, and discrimination.

(J.A. Vol. II at 12.)

       Snyder’s Complaint went on to state generally that he had been the victim of

negative comments relating to his age. He also included a number of discrete allegations



  2
   Pursuant to 28 U.S.C. § 636(c), the parties consented to have United States Magistrate
Judge Amy Reynolds Hay adjudicate the instant action. The statute provides that “[t]he
consent of the parties allows a magistrate judge . . . to direct the entry of a judgment of
the district court in accordance with the Federal Rules of Civil Procedure.” 28 U.S.C. §
636(c)(3). Accordingly, we refer to the decision of Magistrate Judge Hay as the decision
of “the District Court.”

                                             3
of discrimination, specifically dated 1997; 2000; 2001; June 24, 2002; December 13,

2004; and mid-2006.3 (J.A. Vol. II at 13-16.) The EEOC Charge alleged, as follows:

failure to train in 1990; ageist jokes in 1990, 2002, and mid-2006; less favorable office

space in 1997; harassment through phone calls in January 2005; threatened job loss in

July 2005; reduced job responsibilities in April 2007; denied permission to train on April

20, 2007; too heavy workload during the week of April 25, 2007; account taken away on

or about July 20, 2007; and denied “helper” to disassemble heavy machinery on August 3,

2007. (Id. at 44-51.)

       On August 1, 2008, Baxter moved to dismiss for failure to state a claim, pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Baxter argued that all of

Snyder’s claims were barred by the applicable statute of limitations. In reply to Baxter’s

motion to dismiss, on September 11, 2008, Snyder submitted an affidavit,4 again alleging

general and discrete discriminatory behavior and acts on the part of Baxter, Fenwal, and

TPG. Snyder alleged in his affidavit that in Autumn 2006, as a result of his age and

disability, Baxter discriminated against him by removing a major account from his

supervision. This statement contravenes the allegations of Snyder’s Complaint, which

states that the account was taken from him in April 2007. Snyder’s affidavit also states


  3
   The Complaint states “In 2006.” The EEOC Charge clarifies the time of year.
  4
   Pursuant to Rule 12(b)(6), affidavits or other peripheral documents are generally not
permissible for a district court’s consideration because a motion to dismiss attacks claims
contained by the four corners of the complaint. In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997).

                                             4
that in December 2006, he requested a disability accommodation, in the form of

assistance with lifting heavy objects, and was denied. In contrast, Snyder’s Complaint

states that he requested accommodation in August 2007.

       Despite Snyder’s documented inconsistencies, the District Court reviewed all of

his submissions, including the Complaint, the EEOC Charge, and the affidavit, in

considering Baxter’s motion. The District Court dismissed all of Snyder’s ADA and

ADEA claims against Baxter on the basis that they were time-barred. After the remaining

defendants settled, Snyder filed a timely notice of appeal. He now argues that the District

Court erred in dismissing his Complaint, as against Baxter. Snyder also argues that the

District Court erred by failing to grant him leave to amend sua sponte.

       Upon consideration of the Complaint and the EEOC Charge, this Court agrees

with the decision of the District Court. Snyder’s ADEA and ADA claims are time-barred

and were properly dismissed. We shall affirm.

                                  II.   JURISDICTION

       The District Court exercised jurisdiction, pursuant to 28 U.S.C. § 1331. We have

jurisdiction to review an order granting a motion to dismiss, pursuant to 28 U.S.C.

§ 1291.



                           III.   STANDARD OF REVIEW

       We exercise plenary review over the District Court’s grant of Baxter’s motion to

dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). See Phillips v. County of

                                             5
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). “In deciding a motion to dismiss, all well-

pleaded allegations of the complaint must be taken as true and interpreted in the light

most favorable to the plaintiffs, and all inferences must be drawn in favor of them.”

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (quotation omitted). To

withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (May 18, 2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

                                     IV.    ANALYSIS

       A.     Statute of Limitations

       In order to maintain an action under the ADA or the ADEA, a Plaintiff is required

to file a charge with the EEOC within 300 days of the allegedly unlawful practice. 29

U.S.C. § 626(d)(2); 42 U.S.C. § 2000e-5(e)(1). Snyder filed his EEOC Charge on

September 6, 2007. Thus, his federal discrimination claims are limited to the period of

time between November 10, 2006 and September 6, 2007. The parties agree that

Snyder’s claims against Baxter are limited to February 28, 2007, his final day of

employment with the company. Thus, as to Snyder’s ADA and ADEA claims, the

applicable time period to assert a timely claim is between November 10, 2006 and

February 28, 2007.




                                               6
       B.     Snyder’s Federal Discrimination Claims5

       The District Court properly restricted the relevant period of alleged discrimination

attributable to Baxter to November 10, 2006 (or 300 days prior to Snyder’s September 6,

2007 EEOC filing) to February 28, 2007 (the day on which Snyder and Baxter’s


  5
    Snyder’s brief on appeal does not specifically address his intention to appeal the
District Court’s dismissal of his state law discrimination claims, or his state and federal
retaliation claims. Indeed, Snyder conceded before the District Court,

       that any claims against Baxter that he . . . asserted under the Pennsylvania
       Human Rights Act . . . are time barred. The PHRA has a 180 [day]
       limitations period relating to a charging party's administrative filing, and it
       is undisputed that Snyder’s EEOC Charge, which was cross filed with the
       [Pennsylvania Human Relations Commission], was filed more than 180
       days after Snyder ceased to be employed by Baxter.

(Supplemental App. at 4 n.2.)

        The District Court noted Snyder’s concession and, in quick fashion, dismissed his
state law claims. This Court agrees. The statute of limitations is shorter under the PHRA
than under the ADA or ADEA; claims must be filed within 180 days after the alleged act
of discrimination. See 43 PA. CONS. STAT. § 959(h). Since Snyder cross-filed his EEOC
Charge with the PHRC on September 10, 2007, the earliest date upon which he could
assert a PHRA claim is March 10, 2007. Snyder was no longer employed by Baxter on
that date. Thus, no state law claim can be maintained against Baxter.
        Further, the Complaint makes no allegation of retaliation preceding February 28,
2007, the day on which Snyder ceased to be employed by Baxter. Indeed, as even Snyder
recognizes, the earliest date on which any complaint of retaliation could be asserted is
September 6, 2007, the date Snyder filed his EEOC Charge. (See J.A. at 14
 (“[Snyder] has been subject to ongoing and continuous age and disability/perceived
disability harassment and discrimination since he filed his EEOC Charge. No corrective
action has been made, this is in retaliation for his filing a complaint. . . . Fenwal has not
addressed employment diversity issues under Title VII and in fact encourages and
perpetuates retaliation against Plaintiff for filing a complaint.”) (emphases added).)
        Baxter cannot be held liable for retaliating against Snyder. Baxter ceased to have
any employment relationship with Snyder several months prior to Snyder filing his EEOC
Charge. The District Court properly dismissed Snyder’s state law claims and retaliation
claims.
                                              7
employment relationship ceased).

       The Complaint contains no specific allegations of discrimination within the

relevant period. Nonetheless, Snyder contends that the District Court erred by failing to

consider that the Complaint and the EEOC Charge established “a colorable statement of

the facts and claims sought to be litigated.” (Appellant’s Br. at 11.) Snyder asserts that

his Complaint described in general terms, “an atmosphere of age based jokes, cartoons,

and innuendo which went unabated from 1990 to 2007.” (Id.)

       Despite Snyder’s vague allegations of unyielding discrimination and hostile work

environment, he seeks to invoke the continuing violation doctrine to resurrect his now

moribund claims. Under the continuing violation doctrine, “when a defendant’s conduct

is part of a continuing practice, an action is timely so long as the last act evidencing the

continuing practice falls within the limitations period; in such an instance, the court will

grant relief for the earlier related acts that would otherwise be time barred.” Brenner v.

Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.

1991). Curiously, Snyder fails to allege any specific act of discrimination that occurred

within the statute of limitations period. Snyder cannot revive his time-barred allegations

of discrimination or hostile work environment without alleging at least one specific,

timely violation.6


  6
   Before the District Court, however, Snyder, apparently understanding the deficiencies
of his Complaint, submitted an affidavit containing three specific allegations of age and
disability discrimination. Snyder claimed that in November 2006 and January 2007, a
coworker made “statements that were negative and demeaning with respect to age.” (J.A.
Vol II at 22.) Snyder also alleged that “because of my disability related to my back,” he
                                              8
       Upon review of the Complaint and the EEOC Charge, we agree with the District

Court that Snyder has failed to allege sufficient facts to withstand Iqbal’s and Twombly’s

plausibility standard.

       C.     Amending the Complaint

       Acknowledging the deficiency of his Complaint, Snyder now asserts that the

District Court erred by failing to sua sponte grant Snyder leave to amend his pleading.

We review for abuse of discretion the District Court’s failure to grant leave to amend.

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

       In Phillips, a Section 1983 case, we announced that “[i]f a complaint is vulnerable

to 12(b)(6), a district court must permit a curative amendment, unless an amendment

would be inequitable or futile.” Phillips, 515 F.3d at 236. The reach of this rule outside

of the Section 1983 context, and extent to which a district court must sua sponte offer

leave to amend remains unresolved. See Fletcher-Harlee Corp., v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (“Standing in tension with the long-

standing amendment rule is our longer-standing rule that, to request leave to amend a

complaint, the plaintiff must submit a draft amended complaint to the court so that it can

determine whether amendment would be futile. Indeed, we have held that a failure to



asked for heavy lifting assistance, but was refused accommodation. (Id.) Each of these
claims contradicts allegations set forth in his previously filed EEOC Charge and
Complaint.
       The District Court was not swayed by Snyder’s averments. Moreover, as the
District Court essentially acknowledged, the affidavit was outside the purview of the
Complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426.
                                             9
submit a draft amended complaint is fatal to a request for leave to amend.” (internal

citations omitted)). In fact, we have held that “it is hardly error for a district court to

enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff

has not properly requested leave to amend its complaint.” Id. at 253.

       This case does not present the proper vehicle to resolve the apparent conflict

between Phillips and Fletcher-Harlee Corp. Snyder has clearly chosen to stand on his

Complaint, and cannot expect relief in the form of leave to amend. See Frederico v.

Home Depot, 507 F.3d 188, 192-93 (3d Cir. 2007) (holding that a plaintiff elected to

stand on her complaint by failing to seek leave to amend before or after dismissal, and by

maintaining throughout the pendency of litigation that her complaint’s allegations were

sufficient).

       Snyder never requested leave to amend before the District Court, nor did he submit

a draft amended complaint for the District Court’s consideration. Even now, in spite of

his present request for leave to amend, Snyder still maintains that the Complaint and the

EEOC Charge, together, solely “provide a colorable statement of the facts and claims

sought to be litigated.” (Appellant’s Br. at 11.) Considering Snyder’s failure to request

leave to amend, and his persistence in the sufficiency of his Complaint, we find that the

District Court did not abuse its discretion by failing to provide Snyder leave to amend.

                                    V. CONCLUSION

       Snyder’s complaint does not state a cause of action upon which relief may be

granted. The District Court properly dismissed Snyder’s claims. We will affirm the

                                              10
Order of the District Court.




                               11
