                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2002

Bailey v. United Airlines
Precedential or Non-Precedential:

Docket 0-2537




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Filed February 1, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2537

JAMES BAILEY,
       Appellant

v.

UNITED AIRLINES

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 97-cv-05223)
District Judge: Hon. Lowell A. Reed, Jr.

Argued July 11, 2001

Before: SLOVITER, ALITO and GREENBERG
Circuit Judges

(Filed: February 1, 2002)

       Michael S. Haber (Argued)
       New York, NY 10007

       Michael J. Torchia
       Semanoff, Ormsby and Greenberg,
        LLP
       Jenkintown, PA 19046

        Attorneys for Appellant
        Otto W. Immel, Jr. (Argued)
        Alan D. Berkowitz
        Jane W. Voegele
        Dechert, Price & Rhoads
        Philadelphia, PA 19103

         Attorneys for Appellee

        Robert J. Gregory
         Senior Attorney
        Gwendolyn Young Reams
        Philip B. Sklover
        Lorraine C. Davis
         Associate General Counsel
        Equal Employment Opportunity
         Commission
        Washington, DC 20507

         Attorneys for Amicus-Appellant
        Equal Employment Opportunity
        Commission

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant James Bailey filed suit in the United States
District Court for the Eastern District of Pennsylvania
against his former employer United Airlines, Inc. ("United"),
alleging he was terminated in violation of the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29
U.S.C. S 621 et seq. (2001). The District Court granted
United's motion for summary judgment and Bailey appeals.

I.

FACTS

Bailey worked as a commercial airline pilot for Pan
American World Airways ("Pan Am") for most of his career.
In 1991, after Pan Am declared bankruptcy, United
purchased some of Pan Am's South American routes and

                                  2
agreed to hire a number of Pan Am's former pilots. Bailey
was one of the Pan Am pilots hired by United. Bailey was
59 years old at the time United hired him in October 1992.

Based upon his seniority, Bailey was able to bid for a
first officer, or copilot, position. To qualify to fly as a first
officer, Bailey was required to pass United's first officer
training. He passed the training in November 1992 and
began working as a first officer. Bailey turned 60 years old
on March 5, 1993, four months after completing his first
officer training with United.

Federal Aviation Regulations provide that "[n]o person
may serve as a pilot on an airplane . . . if that person has
reached his 60th birthday." 14 C.F.R. S 121.383(c) (2001).
In compliance with this regulation, United notified Bailey
that he was no longer qualified to work as a first officer.
However, Bailey was qualified to bid for a position as a
second officer, or flight engineer, upon the successful
completion of the transition training required by United.

United's second officer training consists of a combination
of ground school classroom work and participation in
aircraft simulator exercises. After probationary second
officer candidates complete this preliminary training, they
take an oral and written exam and a simulator "check ride,"
which is the final test designed to present candidates with
various real-life flying conditions. According to United's
policy, if a candidate fails a check ride or requires excessive
additional training periods, a Board of Review is convened
and can render a decision that could lead to "remedial
action, up to and including discharge" of the candidate.
Supp. App. at 17.

Bailey began the probationary second officer training in
April 1993 and received a number of low ratings
("unsatisfactory" or "needs improvement") during the
training exercises. A written evaluation by Bailey's trainer,
James Grimm, commented that Bailey was not able to
perform standard operating procedures. The authenticity of
this evaluation has been challenged by Bailey. Grimm's
deposition testimony was that he had created and signed
only one evaluation form for Bailey, but when confronted
with a second version of the evaluation uncovered by

                               3
Bailey, Grimm conceded that another evaluation existed.
The second version of Bailey's evaluation suggested that
Bailey performed the standard operating procedures"with
uncertainty and slowness," which resulted in his failure to
complete certain items, but did not say he was unable to
perform standard operating procedures. App. at 115.
However, Grimm gave Bailey a rating of "needs
improvement" on both versions of the evaluation.

In later evaluations, Bailey continued to have difficulties
with ground operations. Training records report that Bailey
was slow and appeared "unsure of how to deal with
unusual or irregular problems during all phases of ground
operations." Supp. App. at 32. However, one training
evaluator, W. J. Pierson, commented that Bailey"has
worked incredibly hard to master the DC-10, and he'll be a
fine second officer for [United]." See Bailey v. United
Airlines, Inc., 101 F. Supp. 2d 311, 312-13 (E.D. Pa. 2000).
Bailey also received an "above standard" rating in
"objectivity/motivation/industry." Id.

On April 30, 1993, Bailey failed his simulator check ride.
Bailey was informed by his instructor immediately after the
check ride that he did not pass. He was also told that
United would probably hold a Board of Review, although
Bailey maintains he was initially given assurances that
United would provide additional simulator training and
another check ride. Bailey claims he returned home to
Pennsylvania for the weekend knowing some action would
be taken, but confident that he would be given another
chance. The Board of Review met on May 4, 1993 to
evaluate Bailey's performance. After considering Bailey's
record and training, the Board decided to terminate Bailey's
employment.

Upon Bailey's return to work after the weekend, a United
official told Bailey things "didn't look good" and that the
Board was not going to recommend him for further
training. Supp. App. at 15. Bailey testified that Eric
Clethen, the new pilot supervisor, called him "a day later,"
approximately May 4, 1993, and told him to report to the
chief pilot's office in San Francisco the next day. Supp.
App. at 15. The substance of the telephone conversation is
the subject of dispute. The parties agree that Bailey

                               4
informed Clethen that he could not make a meeting on May
5th, but would be available on May 6, 1993. Bailey arrived
in San Francisco on May 6th and met with Captain Daly,
the chief pilot, and Clethen. Clethen gave Bailey the option
of resigning his employment upon the condition that he
sign a release of claims against United or have his
employment terminated. Bailey refused to sign the release
and he was terminated.

Bailey filed a charge of discrimination with the EEOC on
March 2, 1994, claiming that United terminated his
employment in violation of the ADEA. The ADEA requires
that a charge of discrimination be filed with the Equal
Employment Opportunity Commission ("EEOC") prior to the
initiation of a lawsuit in federal court so that the EEOC has
an opportunity to resolve the dispute. See Bihler v. Singer
Co., 710 F.2d 96, 97 (3d Cir. 1983). In a "deferral" state
such as Pennsylvania that has a procedure for conciliation
by a state agency, the EEOC charge must be filed within
300 days after the alleged unlawful employment practice
occurs. 29 U.S.C. S 626(d)(2); Colgan v. Fisher Scientific Co.,
935 F.2d 1407, 1413-14 (3d Cir. 1991) (en banc).

Bailey commenced this action on a pro se basis on
August 14, 1997 and later filed two amended complaints.1
After Bailey retained counsel, he commenced discovery. On
June 4, 1999, United submitted a motion for summary
judgment. The Magistrate Judge granted an extension of
the discovery deadline and dismissed United's motion for
summary judgment without prejudice to re-file at the close
of discovery. On September 27, 1999, Bailey filed another
motion to extend discovery and a motion to amend the
complaint to assert claims dealing with fraud, evidence
tampering, and civil RICO. The Magistrate Judge denied
both of these motions. United then renewed its motion for
summary judgment. After all briefing was complete on June
_________________________________________________________________

1. On January 8, 1998, Bailey asked the clerk to enter United's default
for failure to appear, plead, or otherwise defend. United claims that its
in-house counsel sought and received an extension from Bailey to
answer the amended complaint and filed an answer within the agreed
upon time. The Magistrate Judge granted United's motion to set aside
the default on August 7, 1998 and later reaffirmed that decision on
August 13, 1998.

                               5
13, 2000, the District Court granted United's renewed
motion for summary judgment, finding that Bailey's claim
was time-barred. Bailey sought reconsideration, which the
District Court denied on July 28, 2000. Bailey timely filed
this appeal on August 25, 2000. Bailey seeks reversal of the
grant of summary judgment, as well as several other
determinations of the Magistrate Judge and the District
Court.

II.

DISCUSSION

Summary judgment is appropriate where "there is no
genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, a
court must "draw[ ] all reasonable inferences from the
underlying facts in the light most favorable to the non-
moving party." See Battaglia v. McKendry, 233 F.3d 720,
722 (3d Cir. 2000) (quotations omitted). A district court's
grant of summary judgment is subject to plenary review.
See Pittston Co. Ultramar America Ltd. v. Allianz Ins. Co.,
124 F.3d 508, 515 (3d Cir. 1997).

The threshold inquiry in evaluating the timeliness of
Bailey's ADEA claim is to identify the precise unlawful
employment practice of which he complains. See Del. State
Coll. v. Ricks, 449 U.S. 250, 257 (1980). Here, Bailey claims
that United's decision to terminate his employment was
motivated by unlawful age discrimination.

It is well established that for purposes of filing a charge
claiming unlawful discharge, the limitations period must be
measured from the date on which the employee was
advised of the decision to terminate his or her employment.
See Ricks, 449 U.S. at 258-259, 262 (holding that the
limitations period commenced to run when the decision not
to offer tenure was made and communicated to plaintiff);
Bouker v. CIGNA Corp., 1994 WL 594273, at *2 (E.D. Pa.
Oct. 24, 1994) (explaining that the applicable limitations
period begins to run "when the employee knew or should
have known of the harm inflicted by the adverse

                               6
employment decision"), aff'd, 70 F.3d 1254 (3d Cir. 1995);
Guarnaccia v. John Wanamaker, Inc., 1990 WL 90490, at *3
(E.D. Pa. 1990) (limitations period "must be measured from
the date the plaintiff was advised he was to be discharged"
as opposed to the date of separation). Thus, for Bailey's
charge to have been timely, he must not have known prior
to May 6, 1993 (300 days earlier) that United had decided
to discontinue his employment.

Bailey argues that the statute of limitations began to run
on May 6, 1993, the undisputed day on which he was
officially presented by United with the option to resign or be
terminated.2 United argues that the limitations period
began to run on May 4, 1993, the day United alleges that
Clethen called Bailey and told him a Board of Review had
been held and that his employment would be terminated.
Thus, the question before the District Court on the motion
for summary judgment was whether there was a genuine
issue of material fact as to the date Bailey was advised that
United had decided to terminate his employment. The
District Court granted summary judgment to United,
holding that there was no genuine issue of material fact
with regard to this date, that Bailey knew of his termination
prior to May 6, 1993, and that therefore Bailey's claim was
untimely.

The Supreme Court has held that the charge-filing period
begins to run on a claim of unlawful discrimination when
the employer establishes its official position and
communicates that position by giving notice to the affected
employee. Ricks, 449 U.S. at 258-59, 262. An employer
establishes its official position when it decides,
unconditionally, to terminate an individual's employment
and provides the employee with notice of the unconditional
decision to terminate his or her employment. Id. at 257-58.
_________________________________________________________________

2. Bailey alternatively argues that his EEOC filing should be deemed
timely because he submitted an EEOC intake questionnaire on February
24, 1994, within the 300-day charge filing period. Bailey did not
adequately raise this issue before the District Court and thus it is
waived
on appeal. Even were the argument not waived, the intake questionnaire
was not adequate to constitute a charge sufficient to toll the limitations
period. See Michelson v. Exxon Research and Eng'g Co., 808 F.2d 1005,
1010-11 (3d Cir. 1987).

                               7
This court has stated that the charge-filing period begins
to run on a claim of wrongful discharge under the ADEA
when the employer has reached a "definitive conclusion" to
terminate the individual's employment. Colgan v. Fisher
Scientific Co., 935 F.2d 1407, 1419 (3d Cir. 1991) (en banc).
The charge-filing period begins to run only "when the
employee receives unequivocal notice of the adverse
employment decision." Grayson v. K Mart Corp. , 79 F.3d
1086, 1100 n.19 (11th Cir. 1996). Therefore, the statute of
limitations began to run when Bailey first learned
unconditionally that his employment with United had or
would come to an end.

It is that date that is the subject of conflicting evidence.
Bailey contends that he did not know he would be
terminated until May 6th, and alternatively that even
assuming he knew prior to May 6th, United's offer to allow
him to resign in lieu of termination delayed accrual of the
limitations period until his response to that offer. It is
undisputed that on May 6, 1993, Bailey traveled to San
Francisco and met with the chief pilot, where he was
officially presented with the option of resigning upon the
condition that he sign a release of claims against United or
be terminated.

The central focus of the factual dispute regarding when
Bailey was advised that United intended to terminate his
employment is Bailey's deposition testimony. App. at 20. At
his deposition, Bailey was asked what happened upon
returning to Denver after the weekend of May 1-2, 1993,
having failed to pass his check ride the previous week. He
stated that he was told "[i]t didn't look good" and that "the
board was not going to recommend [him] for further
training." App. at 20. Bailey continued to state that he
"received a call from the chief pilot's office in San Francisco
a day later and told [sic] to come to San Francisco to be
terminated." App. at 20 (emphasis added). Bailey further
testified that in the interim between being told to report to
the chief pilot's office in San Francisco and the time he
actually went to San Francisco, he called a number of
people and asked them to call the chief pilot on his behalf
in an effort to reverse the decision. It was Bailey's
understanding the local chief pilot was the "final determiner
of a position in the company." App. at 29.

                               8
The evidence before the District Court also included an
affidavit by Eric Clethen, a member of Bailey's Board of
Review. Clethen's affidavit differs from Bailey's testimony in
one material respect. Clethen attests that after the Board
met on May 4, 1993 and concluded that Bailey's
employment would be terminated, he "called Mr. Bailey,
informed him of the Board's decision and asked him to
travel to San Francisco on May 5, 1993 where he would be
removed from United's payroll and offered the opportunity
to resign in lieu of termination." App. at 37a. The District
Court relied on these two statements for its holding that
there was no genuine issue of material fact regarding the
date of termination.

In response to United's motion for summary judgment,
Bailey submitted an affidavit dated November 10, 1999, in
which he stated the following:

       [N]o sooner had I learned that the board of review had
       met than I was asked to travel to San Francisco to
       meet with the chief pilot. I promptly traveled from
       Denver to San Francisco to meet with the chief pilot. At
       the time, I did not know what the chief pilot's decision
       was; nor did I know what the board of review's
       recommendation had been. I hoped for the best, but
       . . . I affirmatively prepared for negative repercussions,
       and I sought out colleagues who knew my reputation,
       my professionalism, and my range of experience to
       articulate that to the chief pilot so as to help assure
       the best possible outcome.

App. at 91-92. Bailey also stated in the affidavit that "when
I arrived in San Francisco on May 6, 1993 I was surprised
to hear that a decision had already been made, and that I
was to be terminated." App. at 92. The District Court found
unpersuasive the fact that Bailey attempted to garner
advocates prior to traveling to San Francisco to affect the
decision, since "requests to reconsider . . . cannot extend
the limitations period." Bailey v. United Airlines, Inc., 101 F.
Supp. 2d 311, 317 (E.D. Pa. 2000) (quoting Ricks , 449 U.S.
at 261 n.15) (alteration in original).

The District Court held that Bailey could not avoid
summary judgment by submitting an affidavit that

                               9
contradicted his deposition testimony without offering a
satisfactory explanation for the apparent inconsistency.
Bailey, 101 F. Supp. 2d at 317 (citing Hackman v. Valley
Fair, 932 F.2d 239, 241 (3d Cir. 1991); Martin v. Merrell
Dow Pharms., Inc., 851 F.2d 703, 705-06 (3d Cir. 1988);
Blackburn v. United Parcel Serv., Inc., 3 F. Supp. 2d 504,
516 n.10 (D.N.J. 1998), aff'd, 179 F.3d 81 (3d Cir. 1999)).

The inconsistency to which the District Court referred
was Bailey's deposition testimony that Clethen called and
told him to come to San Francisco "to be terminated." The
District Court viewed this testimony as an admission by
Bailey that he was informed of United's decision to
terminate his employment in the May 4, 1993 phone
conversation. However, as Bailey has articulated, that
sentence can be interpreted to reflect what Bailey later
came to understand as the purpose of his meeting. In his
affidavit, dated November 10, 1999, Bailey said that when
he arrived in San Francisco on May 6th for his meeting
with the chief pilot, he was surprised to hear a decision to
terminate his employment had been made. The District
Court held that because of this contradiction, the affidavit
does not create a genuine issue of fact sufficient to
withstand summary judgment.

The Martin court recognized situations where"sworn
testimony can quite properly be corrected by a subsequent
affidavit." 851 F.2d at 705. In a situation "[w]here the
witness was confused at the earlier deposition or for some
other reason misspoke, the subsequent correcting or
clarifying affidavit may be sufficient to create a material
dispute of fact." Id. In his memorandum of law opposing
United's motion for summary judgment, Bailey explains
that his comment "to be terminated" was "merely
referencing, in hindsight, the irony that he had to travel a
long distance in order to be fired." Supp. App. at 121-122.
Bailey suggests that Clethen did not notify him of the
Board's decision to terminate his employment during their
phone call. Instead, his statement "to be terminated" simply
referred to the irony that he later learned he had traveled
from Denver to San Francisco to be fired and that this
meaning was obvious at the deposition from the tone and
cadence of his voice. Supp. App. at 122.

                               10
In a second affidavit dated June 27, 2000 submitted with
Bailey's Motion for Reconsideration of the District Court's
grant of summary judgment to United, Bailey asserted that
Clethan did not inform him during the May 4, 1993 phone
call that a decision had been made regarding his
employment with United. Furthermore, Bailey reiterated
that he did not know United intended to terminate his
employment until May 6, 1993, and submitted the
affidavits of two individuals who accompanied Bailey to the
meeting on May 6, who stated that Bailey expressed
surprise upon learning of his termination on that day.

In his brief and reply brief on appeal, Bailey does not
deny that he uttered the words "to be terminated." Rather,
he disputes the meaning of this phrase as it was
transcribed in his deposition testimony. Bailey explains
that the intended meaning of his remark would have been
clear had the court reporter inserted an ellipsis or a hyphen
before the words "to be terminated" in order to connote a
pause and that this would have alerted the reader of the
deposition to the intended meaning of his statement. Bailey
attempted to explain the contradiction in his affidavit dated
June 27, 2000 by explaining that his words "to be
terminated" merely referenced in hindsight the purpose of
his trip to San Francisco. But the District Court refused to
consider this subsequent affidavit since it contained only
evidence that was available prior to summary judgment. A
district court may properly refuse to consider evidence
presented in a motion for reconsideration when the
evidence was available prior to summary judgment. Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).

Whether or not these affidavits should have been
considered by the District Court, the evidence presented on
summary judgment was sufficient to create a genuine issue
of material fact. The deposition testimony and affidavit on
which the District Court relied do not show conclusively
that Bailey received notice that he was going to be
terminated prior to his meeting on May 6th with the chief
pilot. The language in Bailey's testimony and in Clethen's
affidavit does not lead unambiguously to one conclusion.

The Clethen affidavit stated that he "called Mr. Bailey,
informed him of the Board's decision and asked him to

                               11
travel to San Francisco on May 5, 1993 where he would be
removed from United's payroll and offered the opportunity
to resign in lieu of termination." App. at 37a. The District
Court opinion interpreted this statement to state that
"[Clethen] told Bailey that a Board of Review had been held
and that Bailey would be terminated." Bailey , 101 F. Supp.
2d at 316. The District Court assumed that Clethen was
describing what he said to Bailey as distinguished from
what ultimately happened in San Francisco. While the
assumption reached by the District Court may ultimately
be the finding the jury makes, there is contrary evidence,
and therefore summary judgment was inappropriate.

Bailey's deposition testimony that it was his
understanding that the "local chief pilots are apparently the
final determiner of a position in the company," App. at 29,
can be interpreted as supporting his belief that no final
decision had been made prior to his meeting on May 6th,
even if he knew that the Board of Review had made a
determination. It is consistent with his requests that co-
workers call the chief pilot to provide an evaluation of his
performance. In fact, United has not adequately explained
why it was necessary for Bailey to travel to San Francisco
at all if notice of his termination had already been conveyed
over the telephone. When Clethen referred to Bailey's
termination in a letter to Bailey dated May 14, 1993,
Clethen wrote that the letter "confirms our discussion on
May 6, 1993 regarding your failure to meet United Airlines
standards . . . . You were released from service from United
Airlines . . . effective May 6, 1993." App. at 54 (emphasis
added). The letter makes no reference to a conversation
prior to May 6, 1993 giving Bailey notice of his termination.

Because we conclude that the evidence does create a
genuine issue of material fact and that summary judgment
was not appropriate, we need not reach the argument
presented by Bailey and articulated in the amicus brief of
the EEOC that United's offer to allow Bailey to resign in
lieu of termination delayed accrual of the limitations period
until the time when Bailey responded to that offer. They
argue that commencement of the statute of limitations
before the employee has made the decision between
resignation and termination would encourage the

                               12
premature and unnecessary filing of charges by individuals
who later decide to voluntarily resign their jobs. Bailey
maintains that until he made that decision, nobody,
including his superiors at United, knew whether he was
going to be terminated. Thus, the statute of limitations
could have started running only after Bailey notified United
that he would not resign.

Inasmuch as Bailey did not present this argument to the
District Court, it has been waived on appeal. Brown v.
Phillip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001). We
hold that the statute of limitations began to run as soon as
Bailey was informed of the adverse employment decision
reached by United and presented with the offer to resign or
be terminated. It appears that this date was either May 4,
1993, as Clethen stated in his affidavit, or May 6, 1993, as
Bailey claims. This presents a fact issue to be determined,
and we must remand for that purpose.

III.

ADDITIONAL ISSUES

Bailey raises a number of additional issues. First, Bailey
contends that the District Court improperly determined
that United's motion for summary judgment was timely.
This court reviews that determination for abuse of
discretion. In re Fine Paper Antitrust Litigation, 685 F.2d
810, 817 (3d Cir. 1982) (stating that "matters of docket
control . . . are committed to the sound discretion of the
district court"). This argument was properly raised before
the District Court.

The District Court ordered that all dispositive motions be
filed on or before October 11, 1999. It is undisputed that
United's motion for summary judgment was submitted on
October 12, 1999. United contends that because October
11 was Columbus Day, a federal holiday on which the
District Court was closed, its filing the very next business
day was timely. The District Court agreed that the motion
was timely, consistent with the Federal Rules of Civil
Procedure and relevant case law. Bailey v. United Airlines,
Inc., 101 F. Supp. 2d 311, 315 n.6 (citing Fed. R. Civ. P. 6;

                               13
Greenberg v. United States, 873 F. Supp. 912, 914 n.1
(M.D. Pa. 1993), aff'd, 46 F.3d 239 (3d Cir. 1994) (holding
that a motion filed one day after a deadline falling on a
federal holiday is timely under Fed. R. Civ. P. 6)). Bailey
argues that under Rule 6, a federal holiday will extend a
deadline to the next day only when a computation of time
is involved. Here, the District Court did not order motions
to be filed in a specified number of days but instead
required briefs to be submitted by October 11, 1999,
leaving nothing to compute. Additionally, Bailey maintains
that Greenberg ignores the plain meaning of Rule 6 and
was never reviewed by this court.

The language of Rule 6 ("[i]n computing any period of
time . . .") does suggest it applies only when a computation
of time is involved. In fact, the rule would be unnecessary
in the context of a specified date. However, Greenberg
involved an analogous situation in which the court had
ordered that motions be filed on a specific date that fell on
a federal holiday and the defendant filed the motion the
following day. Greenberg, 873 F. Supp. at 914 n.1. This
court did review and affirm the Greenberg decision,
although we did not refer to this aspect of the decision. We
will follow that decision. Greenberg is consistent with this
court's recognition that "broad discretion should be
accorded district courts in the management of their
calendars." Titus v. Mercedes Benz of North America, 695
F.2d 746, 751 (3d Cir. 1982). Thus, we agree with the
District Court that United's motion was timely filed.

Second, Bailey argues that the Magistrate Judge
improperly denied his request to amend his complaint to
include claims alleging fraud, evidence tampering, and civil
RICO. Bailey's request stemmed from his allegation that
United fabricated an unfavorable performance evaluation
for his personnel file. The Magistrate Judge, having held a
hearing, ruled that Bailey had not made out a prima facie
case for any of these claims, and denied his request. This
court reviews a district court's denial of a request for leave
to amend a complaint for abuse of discretion. See Berger v.
Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990). The
factors which a trial court may appropriately consider
"include undue delay, undue prejudice to the opposing

                               14
party, and futility of amendment." Averbach v. Rival Mfg.
Co., 879 F.2d 1196, 1203 (3d Cir. 1989). United claims that
Bailey failed to appeal the Magistrate Judge's denial to the
District Court and thus has waived it on appeal. Appellee's
Br. at 62-65 (citing 28 U.S.C. S 636(b)(1)(A); United
Steelworkers of America, AFL-CIO v. N.J. Zinc Co., Inc., 828
F.2d 1001, 1008 (3d Cir. 1987)). Because Bailey has not
pointed to anything in the record to demonstrate that he
raised this issue with the District Court and has not shown
that there were "extraordinary circumstances," we will not
consider this issue. See United Steelworkers, 828 F.2d at
1008 (explaining extraordinary circumstances standard).

Third, Bailey contends that the Magistrate Judge
improperly denied his motion for an extension of the
discovery deadline, a matter subject to her discretion.
Although Bailey included in his statement of the issues to
be raised in this court whether the trial court"improperly
refused to grant a reasonable extension of the discovery
deadline," Appellant's Br. at 3, he failed to argue this issue
in his brief. See Kiewit Eastern Co., Inc. v. L & R Constr.
Co., Inc., 44 F.3d 1194, 1204 n. 30 (3d Cir. 1995) (noting
that under Fed. R. App. P. 28(a)(5), when an issue is
presented in the statement of issues raised on appeal, but
not in the argument section of the brief "the appellant has
abandoned and waived that issue on appeal") (quoting
Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13
F.3d 704, 711 (3d Cir. 1994)). Therefore, this argument was
waived.

Fourth, in his brief, Bailey includes in his statement of
the issues "[w]hether the trial court improperly failed to
reconsider its decision" to grant United's motion for
summary judgment. Appellant's Br. at 1. However, once
again Bailey has not addressed this issue in the argument
section of his brief. Therefore, there is no basis for finding
that the District Court abused its discretion in denying
Bailey's motion for reconsideration of its order granting
United's motion for summary judgment. See Kiewit , 44 F.3d
at 1204 n.30.

Finally, Bailey contends that the Magistrate Judge
improperly granted United's motion to set aside the clerk's
entry of default and the amended order to set aside the

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clerk's entry of default. A decision to set aside an entry of
default pursuant to Fed. R. Civ. P. 55(c) "is left primarily to
the discretion of the district court." See Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). However, United
claims that Bailey did not seek review by the District Court
of this decision and thus, he has waived the issue on
appeal. Appellee's Br. at 62 (citing 28 U.S.C. S 636(b)(1)(A);
United Steelworkers, 828 F.2d 1001, 1008 (3d Cir. 1987)
(stating that "this court has consistently held that it will
not, absent extraordinary circumstances, address on appeal
issues not originally presented to the district court" and
that "to allow parties to challenge magistrates' orders in the
first instance on appeal would be to permit them to
circumvent the district courts")). Again, Bailey has not
pointed to anything in the record to indicate that he raised
this issue with the District Court and thus, he has waived
the issue on appeal.

Finally, United has made a very strong argument that if
this court does not affirm on the grounds of the statute of
limitations which was the basis for the District Court's
disposition, we should affirm on the ground that Bailey's
ADEA claim fails on the merits. The District Court did not
reach the issue of summary judgment on the merits. If the
statute of limitations was in fact dispositive, then the
District Court did not err in failing to consider the merits.
However, inasmuch as we have held that there is an issue
of fact on the statute of limitations issue, the District Court
may on remand turn to the merits issue, which it may find
dispositive.

IV.

CONCLUSION

For the reasons set forth above, we will reverse the
decision of the District Court granting summary judgment
for defendant on the basis of the statute of limitations, and
will remand for further proceedings as the District Court
deems appropriate.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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