                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2640
                                   ________________

                                JOHN F. KOMOSA, JR.,
                                             Appellant

                                             v.

                         UNITED STATES POSTAL SERVICE
                                ________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 2-17-cv-00161)
                       District Judge: Honorable Mark R. Hornak
                                   ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   October 5, 2018

               Before: SHWARTZ, SCIRICA, and ROTH, Circuit Judges

                                  (Filed: April 3, 2019)


                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       John Komosa, a U.S. Postal Service employee, filed an Equal Employment

Oportunity complaint alleging disability discrimination. Komosa received a final decision

denying his claim. One year later, well outside the permitted statutory period, Komosa

sued in federal court challenging the denial of his claim. Komosa argues his case should

be saved from dismissal through application of equitable tolling, because of a timely

filing he made with an agency not authorized to handle his administrative appeal, and

because Komosa’s attorney believed that the agency would forward the filing to the

appropriate agency. The District Court rejected this argument, finding Komosa was not

reasonably diligent as required to benefit from equitable tolling. We will affirm.

                                             I.

       John Komosa worked for the U.S. Postal Service (U.S.P.S.) in Pittsburgh as a mail

carrier beginning in 1999. In 2013, Komosa suffered a stroke that, according to Komosa

and his doctor, required him to avoid climbing steps, a limitation that U.S.P.S. initially

accommodated. In 2015, Komosa began working under a new manager whose approach

to Komosa’s accommodation differed, leaving Komosa unable to continue working his

previous routes. Komosa filed an Equal Employment Opportunity (E.E.O.) complaint

making discrimination claims under the Rehabilitation Act. As a federal employee,

Komosa was required to file his complaint with the Equal Employment Opportunity

division of U.S.P.S., and he did so, filing both an informal complaint and a subsequent

formal complaint that included an allegation of retaliation against Komosa following his



                                              2
informal complaint. See 29 C.F.R. §§ 1614.103(b)(3), 1614.106(a).

       On January 20, 2016, a Final Agency Decision (“FAD”) was issued denying

Komosa’s claim and informing Komosa of his right to appeal. As the FAD explained,

Komosa had two appeal options. First, Komosa could make an administrative appeal by

sending, within thirty days of receipt of the FAD, an Equal Employment Opportunity

Commission (EEOC) Appeal Form 573 to the EEOC’s Office of Federal Operations

(OFO) and proof that he had sent an additional copy to the National EEO Investigative

Services Office (NEEOISO). Alternately, Komosa could file a civil action in federal

court within 90 days of receipt of the FAD.

       Komosa retained a lawyer to assist with the appeal of his FAD. Rather than

following the appeal procedure laid out in the FAD, the lawyer filed a Charge of

Discrimination and an accompanying cover letter with the Pittsburgh area office of the

EEOC, dated February 16, 2016. 1 This would have been the appropriate process had

Komosa been a private employee just beginning the process of filing an EEOC

complaint. See generally 29 C.F.R. §§ 1600–99. The cover letter stated that Komosa “has

already filed an internal EEO complaint with the USPS but has gotten no results.” App.

152. Neither the letter nor the Charge of Discrimination made reference to the FAD, and

neither document identified itself as an appeal of that outcome.

       On February 19, 2016, the Pittsburgh area office of the EEOC issued a letter


1
       It appears the reason for the lawyer’s mistake was that, as she explained at
argument on the motion to dismiss, the lawyer had “never filed an EEO appeal before.”
App. 84. The lawyer explained she “left this with [her] paralegal,” “under the assumption
[the paralegal] was going to follow everything properly.” Id.

                                              3
informing Komosa and his lawyer that, as a federal employee, Komosa could not file an

EEO complaint with that office or through that procedure. The area office enclosed an

informational pamphlet on the federal EEO complaint process, including appeal

procedures. The lawyer then called the area office and spoke with an EEOC employee,

who told her that he would send her filing to the correct office. Based on this

conversation, the lawyer believed that the Charge of Discrimination she had filed would

be forwarded to the OFO and that this would constitute a timely appeal of Komosa’s

FAD. Neither the lawyer nor Komosa subsequently contacted either the Pittsburgh area

office or the OFO to determine the status of Komosa’s prospective appeal.

       On February 3, 2017, nearly a year later, Komosa filed a complaint in the United

States District Court for the Western District of Pennsylvania. U.S.P.S. moved to dismiss

the case as untimely, since it was filed more than 90 days after Komosa’s receipt of the

FAD. Komosa argued he was entitled to equitable tolling of the time limitation given the

circumstances of his attempted appeal. Because both parties relied on facts outside the

complaint in addressing Komosa’s equitable tolling argument, the District Court, with

notice to both parties, treated the motion to dismiss as a motion for summary judgment

pursuant to Fed. R. Civ. P. 12(d). Following briefing and argument, the court granted the

motion on July 11, 2017.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and the Rehabilitation

Act of 1973, 29 U.S.C. §701. We have jurisdiction under 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s grant of a motion for summary judgment,


                                             4
viewing the facts and all reasonable inferences in the light most favorable to Komosa. See

Norfolk S. Ry. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008). Summary judgment

shall be granted where “there is no genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                            III.

       Komosa seeks equitable tolling of the period designated for appeal of the denial of

his claim. We have identified three principal situations potentially justifying equitable

tolling:

       (1) where the defendant has actively misled the plaintiff respecting the
       plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way
       has been prevented from asserting his or her rights; or (3) where the
       plaintiff has timely asserted his or her rights mistakenly in the wrong
       forum.

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).

In this case, all three circumstances are potentially at issue. In addition, Komosa must

show he has satisfied “the obligation of the plaintiff to exercise due diligence to preserve

his or her claim.” Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997). These criteria

also apply where Komosa acted through his attorney. Doherty v. Teamsters Pension Trust

Fund of Philadelphia and Vicinity, 16 F.3d 1386, 1394 (3d Cir. 1994). 2 Ultimately,


2
        There is a “narrow line of cases” in which attorney error or misconduct may
justify equitable tolling. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 238 (3d
Cir. 1999). The error must surpass “garden variety…excusable neglect” and the litigant
must provide evidence of his own reasonable diligence, such as attempts to prod the
neglectful lawyer, or to check on the status of the case independently. Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990); LaCava v. Kyler, 398 F.3d 271,
277–78 (3d Cir. 2005). Here, we have no evidence that this is a case in which, for
example, “a diligent client persistently questioned the lawyer as to whether he had filed

                                             5
Komosa cannot benefit from equitable tolling because, by waiting a full year after the

initial mistaken filing without taking any steps to correct or investigate the status of the

attempted appeal, Komosa and his lawyer have failed to exercise reasonable diligence.

       Komosa first raises his lawyer’s phone call to the Pittsburgh area EEOC office,

which led to her incorrect understanding that the employee she spoke with would take

necessary steps to ensure Komosa’s appeal was filed timely with the OFO. Komosa

contends these circumstances implicate both the first two justifications for equitable

tolling. We have established, though, that “one phone conversation with an EEO

counselor does not rise to the level of being prevented in an ‘extraordinary way,’” nor

does it constitute active deception by the defendant U.S.P.S. Robinson, 107 F.3d at 1023;

see also Podobnik v. U.S. Postal Serv., 409 F.3d 584 (3d Cir. 2005) (“[A]ny errant advice

Appellant may have received … did not rise to the level of an ‘extraordinary’

circumstance…”). Komosa compares his case to Husick v. Allegheny County, CIV.A.07-

1175, 2009 WL 1743917 (W.D. Pa. June 18, 2009), in which the plaintiff mistakenly

filed a charge of discrimination outside the statutory deadline because employees told

him a later deadline on three separate occasions, and it appeared the office’s employees

were under a systematic misapprehension of the actual filing deadline. Id. at *9.

       Here, by contrast, Komosa’s lawyer’s misunderstanding of what would be

required arose from a single phone call, as in Robinson and Podobnik. Moreover, prior to

the phone call, the area office’s informative letter put the lawyer on notice that the


… in time” and could not obtain a meaningful and truthful reply, so the exception does
not apply. Seitzinger, 165 F.3d at 237–38.

                                              6
Pittsburgh area office was unable to handle Komosa’s appeal, detailing precisely the

process available to a federal employee like Komosa. Even if, as the lawyer believed, the

Pittsburgh area office would forward her filing to the OFO, it would have been seriously

lacking as an attempted appeal. The filing was titled “Charge of Discrimination,”

included no direct reference to an appeal, did not indicate why Komosa believed the

initial FAD to be incorrect, and was not accompanied by proof that he had sent an

additional copy to NEEOISO as required. The lawyer’s single phone call with the

Pittsburgh area office was not an “extraordinary circumstance,” and she did not exercise

reasonable diligence in verifying the information she received, or in acting to correct

Komosa’s filing even had that information been correct.

       Komosa is closer to the mark in characterizing his February 16, 2016 letter and

Charge of Discrimination as a timely filing in the wrong forum, as required by the third

potential justification for equitable tolling. By filing a Charge of Discrimination, Komosa

got further than the plaintiff in Podobnik, whose actions did not constitute timely filing in

the wrong forum when he visited the EEOC office, but never completed an intake form or

any other written filing. Podobnik, 409 F.3d at 592-93. Nor is it an obstacle that

Komosa’s attorney rather than Komosa himself made the relevant mistake, since this

justification “comprehends mistakes by law firms as well as lawyers on behalf of the

party.” Doherty, 16 F.3d at 1394. Still, we have held that not every “poor choice by a

lawyer or law firm that lands a party in the wrong forum merits equitable tolling”: further

equitable justification is still required. Id. Moreover, given that Komosa’s filing identifies

itself as a charge of discrimination rather than an appeal of the FAD, it is not clear that it


                                               7
raises “the precise statutory claim in issue.” Id. at 1393 (quoting School Dist. of

Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981)).

        In the end, Komosa cannot benefit from equitable tolling because his failure,

through his attorney, to exercise reasonable diligence in the period after his incorrect

filing decides the issue. Komosa’s attorney was on notice that Komosa’s appeal had

arrived at the wrong office, and even if the lawyer expected that it would be redirected,

reasonable diligence required some form of follow-up to ensure that had occurred.

Equitable tolling must be invoked “sparingly,” and “[t]he plaintiff who fails to exercise

… reasonable diligence may lose the benefit” of the doctrine. Nat'l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113 (2002); Oshiver, 38 F.3d at 1390. We will not apply it

here.

        Komosa, as represented by his attorney, did not exercise reasonable diligence in

pursuing his claim. Unfortunately for Komosa, an attorney’s errors are chargeable to the

client barring exceptional circumstances. Komosa’s opportunity to pursue his claim is

therefore foreclosed.

                                             IV.

        For the foregoing reasons, we will affirm.




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