                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2008

Mills v. Phila Gas Works
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2481




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 07-2481
                                       ___________

                                      FIDEL MILLS,
                                                         Appellant

                                            VS.

                              PHILADELPHIA GAS WORKS

                        ____________________________________

                      On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                (D.C. Civ. No. 06-cv-02444)
                       District Judge: Honorable Timothy J. Savage
                               _________________________


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    January 25, 2008
                Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                             (Opinion filed February 13, 2008)

                                         OPINION
PER CURIAM

         Fidel Mills appeals pro se from the District Court’s entry of summary judgment in

favor of Philadelphia Gas Works (“PGW”). We will affirm for the reasons discussed

below.
                                              I.

       Mills, an African-American male, began working for PGW in 1997. In October

2001, after being promoted, he complained to PGW’s Equal Employment Opportunity

representative that a co-worker was harassing him about his weight. PGW took no action,

and in May 2002, Mills filed charges with the Equal Employment Opportunity

Commission (“EEOC”) and Pennsylvania Human Rights Commission (“PHRC”) alleging

that he was subject to a hostile work environment because he was “extremely

overweight.” 1 In May or June 2003, after Mills was passed over for promotion to the next

level of auto mechanic, he complained to his union representative, but not to anyone from

PGW. In November 2004, Mills filed a second PHRC complaint, which was cross-filed

in the EEOC, alleging race and disability discrimination. Then, in January 2005, he

applied for one of two Senior Driver II positions. A Hispanic male and a Caucasian male,

both of whom had more company seniority than Mills, were hired for the positions.

Mills’s union did not pursue the grievance it initially filed regarding Mills’s failure to

receive the senior driver II position.

       In June 2006 Mills received a right-to-sue letter from the EEOC regarding the

November 2004 charge. He filed the current lawsuit in the U.S. District Court for the

Eastern District of Pennsylvania shortly thereafter. Mills’s amended complaint alleged




       1
            Mills received a right-to-sue letter from the EEOC as to this charge in
October 2005. He did not file a civil action within 90 days of his receipt of the letter.

                                              2
that PGW violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e, and the Pennsylvania Human Relations Act, 43 P A. C ONS. S TAT. A NN. § 951, by

discriminating against him due to a disability and his race by not promoting him to the

next level of auto mechanic, by not considering him for the Senior Driver II position, and

by retaliating against him for filing EEOC and PHRC charges.

       On April 27, 2007, the District Court entered a footnote order granting the PGW’s

motion for summary judgment. After Mills filed a timely notice of appeal, the District

Court entered a memorandum opinion describing in further detail the reasons for its April

27th order. In particular, the District Court found that Mills (1) failed to exhaust his

administrative remedies as to his retaliation claim; (2) abandoned his disability

discrimination claim; and (3) did not make a prima facie showing of Title VII racial

discrimination because he offered no evidence that African-Americans were treated less

favorably than non-African-Americans. The District Court stated that the undisputed

facts showed that seniority was the determinative factor in the Senior Driver II selection

process, and that because two more senior candidates accepted the job, Mills was never

interviewed for the position. Mills, who at the time was represented by counsel, ignored

PGW’s assertions regarding its decision-making process and failed to present any

evidence casting doubt on the legitimacy of the seniority system.

       Mills timely appealed from the District Court’s order, but only challenges the

District Court’s finding that the seniority system was an appropriate basis for ranking the



                                              3
candidates. Mills contends that pursuant to the “Union Book,” PGW could not take

company seniority into account. Rather, PGW was only allowed to consider job

seniority—and Mills alleges that he had more job seniority than either of the two men

who were hired. In support of this new argument, Mills attempts to supplement the

record by attaching new documents, which include a page from the Union Book.

                                              II.

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and review a district court’s

entry of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231,

236 (3d Cir. 1995). Mills’s appeal is plagued by several problems.

      First, “[w]hile the record on appeal must be viewed in the light most favorable to

the party who lost on summary judgment, . . . an appellate court may only review the

record as it existed at the time summary judgment was entered. . . . The parties cannot

add exhibits, depositions, or affidavits to support their position.” Union Pac. R.R. Co. v.

Greentree Transp. Trucking Co., 293 F.3d 120, 125-26 (3d Cir. 2002). Mills, however,

has attempted to supplement the record by attaching several new documents to his

informal brief. We will not consider these documents. See In re Application of Adan,

437 F.3d 381, 389 n.3 (3d Cir. 2006) (“[W]e will not consider new evidence on appeal

absent extraordinary circumstances.”).

      Second, “[t]his court has consistently held that it will not consider issues that are

raised for the first time on appeal.” Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir.



                                              4
1994); Union Pac. R.R. Co., 293 F.3d at 126 (Appellants may not “advance new theories

or raise new issues in order to secure a reversal of the lower court’s determination.”). We

depart from this rule only when “manifest injustice would result” from a failure to

consider a novel issue. Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 7 F.3d

1110, 1115 (3d Cir. 1993). The sole issue that Mills presents in his informal brief is that

PGW’s use of company seniority in hiring for the Senior Driver II position violated the

“Union Book.” Even if that argument somehow demonstrated that PGW’s seniority-

based selection process was pretext for race discrimination, Mills could have asserted it in

his response to PGW’s motion for summary judgment. However, as the District Court

noted, Mills ignored PGW’s asserted legitimate non-discriminatory reason for not

interviewing or selecting him for the Senior Driver II position. Thus, because there is no

record of this theory being raised in the District Court, and because there is no indication

that manifest injustice will result, we will not consider it here.

       Additionally, after a thorough review of the record and the briefs submitted to this

Court, we find no error in the District Court’s entry of summary judgment. Thus, for the

foregoing reasons, we will affirm the District Court’s entry of summary judgment in favor

of PGW.




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