                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

Zdziech v. DaimlerChrysler Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2953




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-2953


                                 STANLEY J. ZDZIECH,
                                                Appellant

                                               v.

                       DAIMLERCHRYSLER CORPORATION;
                                 UAW 1183


                       Appeal from the United States District Court
                                for the District of Delaware
                              (D. C. Civil No. 02-cv-00090)
                       District Judge: Honorable Gregory M. Sleet


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 27, 2004

               Before: RENDELL, FUENTES and SMITH Circuit Judges.

                               (Filed : September 30, 2004)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Appellant Stanley Zdziech (“Zdziech”) seeks reversal of the District Court’s grant

of summary judgment for Defendant DaimlerChrysler Corporation (“DCC”) on the

grounds that Zdziech failed to timely file his claims of discrimination against his former
employer DCC. This ruling was based on the Court’s determination that Zdziech’s

subsequent requests to return to work did not constitute discrete acts of employment

discrimination, but rather stemmed from DCC’s action of placing him on disability leave

on October 27, 1998. Because Zdziech failed to file a charge of discrimination with the

EEOC until May 12, 2000, his filing was not made within the requisite 300-day period

following DCC’s adverse employment action in October 1998.1 The District Court had

jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We

will affirm.

                                              I.

       As we write solely for the parties, our recitation of the facts will be limited to those

necessary to our determination. On October 27, 1998, after an aggravation of a pre-

existing condition, DCC placed Zdziech on disability leave. This act, Zdziech argues,

constituted unlawful discrimination in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-12213. Zdziech filed a complaint with the EEOC alleging




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       As noted by the District Court, although a plaintiff must normally bring suit within
180 days of an alleged discriminatory act, where the plaintiff files a claim with a state or
local agency authorized to adjudicate the claim, the plaintiff is granted an extension of
300 days from the original discriminatory act with which to file the claim with the EEOC.
See, e.g., White v. Gallagher Basset Servs., No. 02-2364, 2003 U.S. Dist. LEXIS 2051, at
*6 (E.D. Pa. Feb 4, 2003). Since the matter originated in the State of Delaware, which is
a deferral state with a state agency that has authority to investigate employment
discrimination charges, the plaintiff is permitted to file charges with the EEOC within
300 days of the alleged discriminatory act under the provisions of 42 U.S.C. § 2000e-
5(e)(1).

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disability discrimination on May 12, 2000. On February 24, 2000, Zdziech’s condition

improved and DCC returned him to his original disability status, which enabled him to

perform the essential functions of his former position with DCC, with reasonable

accommodation. Although this status reflected the original restrictions imposed upon him

prior to the exacerbation of his condition in October 1998, DCC did not reinstate him.

During the period of October 1998 through May 2000, Zdziech sent “repeated requests”

to DCC to be returned to work, which were either refused or ignored by DCC. The last of

these letters was dated May 1, 2000, again requesting that he be returned to work.

       Zdziech now appeals the District Court’s judgment, contending that the Court

erred by considering “the entire circle of events,” including Zdziech’s multiple requests

for reinstatement, as a single event stemming from DCC placing Zdziech on disability

leave in October 1998. Zdziech also raises an argument that the Court erred by not

regarding Zdziech’s change in status on February 24, 2000, and DCC’s subsequent failure

to reinstate him as a new and distinct act of discrimination which was within the 300-day

limitations period for him to file an EEOC complaint.

                                             II.

       We exercise plenary review of the District Court’s grant of summary judgment and

we apply the same standard that the lower court should have applied. Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is proper if there is

no genuine issue of material fact and if, viewing the facts in the light most favorable to



                                              3
the non-moving party, the moving party is entitled to judgment as a mater of law. Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       In Zdziech’s action before the District Court, he argued that each of his requests

for reinstatement, including the letter of May 1, 2000, constituted a discrete act of

employment discrimination which should restart the 300-day clock for filing with the

EEOC. The District Court properly found that each of these letters did not represent a

“discrete action” of discrimination. We agree with the judgment of the District Court that

“Zdziech’s rights under the ADA fully ripened on October 27, 1998 when

DaimlerChrysler placed him on disability leave.”

       The Supreme Court has held that “each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

employment practice’” that may start a new limitations period for filing a charge. Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). In National Railroad

Passenger Corp., the Court included as separate incidents of discrimination actions such

as terminations, failures to promote, denials of transfer, and refusals to hire. Id. The

repeated refusal of an employer to reinstate an employee to a formerly held position,

however, does not give rise to a new claim of discrimination. See NLRB v. Pennwoven,

194 F.2d 521, 526 (3d Cir. 1952).

       The failure to act upon receipt of a letter requesting reinstatement is not a discrete

act of discrimination and does not restart the statute of limitations. Zdziech’s complaint,



                                              4
and the subsequent letters, stem from DCC placing him on disability leave on October 27,

1998. To permit a person to reset the statutory requirements for the timely filing of a

complaint merely by writing a new letter to his former employer would clearly vitiate the

intent behind the 300-day time limit. See, e.g., Hart v. J.T. Baker Chem. Co., 598 F.2d

829, 833 (3d Cir. 1979) (noting that the “‘primary consideration underlying statutes of

limitations is that of fairness to the defendant’”) (quoting Smith v. Am. President Lines,

Ltd., 571 F.2d 102, 109 n.12 (2d Cir. 1978)).

                                              III.

       In the alternative, Zdziech argued to the District Court that DCC’s continued

refusal to return him to work should be considered a continuing act of ongoing

discrimination. If DCC’s actions could be considered an ongoing discriminatory action,

this would create a continuing violation, starting on October 27, 1998, and continuing

through the date of Zdziech’s last letter to DCC on May 1, 2000, only 12 days before

Zdziech’s EEOC filing. This theory, however, would be misapplied in the case before us.

Allowing Zdziech to establish a continuing violation “by repeatedly asking for

reinstatement . . . is contrary to the policy rationale of the statute of limitations.” Moiles v.

Marple Newtown Sch. Dist., No. 01-4526, 2002 U.S. Dist. LEXIS 15769, at *20 (E.D.

Pa. Aug. 23, 2002). To adopt such an argument would “effectively eviscerate statutes of

limitations” in cases like this one. Id.




                                               5
                                            IV.

       In an argument that was not presented to the District Court, Zdziech claims that the

District Court should have “treated the facts” contained in his complaint as “one

involving two different periods, resulting from a change in circumstances.” This

argument claims that the alleged discrimination stemming from DCC placing him on

disability leave in October of 1998 was a failure to accommodate his disability. DCC’s

subsequent failure to reinstate him following his reclassification in February 2000,

however, according to Zdziech, was discrimination on the basis of his “having a record of

a disability,” in violation of 42 U.S.C. § 12102(2)(B), or being “regarded as having a

disability,” in violation of 42 U.S.C. § 12102(2)(C). This, Zdziech contends, is “both

different in time and kind” from DCC’s October 1998 actions.

       While the record on appeal must be viewed in the light most favorable to the party

who lost on summary judgment in the District Court, United States v. Diebold, Inc., 369

U.S. 654, 655 (1962), an appellate court may only review the record as it existed at the

time summary judgment was entered. In reviewing a summary judgment order, an

appellate court “‘can consider only those papers that were before the trial court. The

parties cannot add exhibits, depositions or affidavits to support their position. Nor can

they advance new theories or raise new issues in order to secure a reversal of the lower

court’s determination.’” Union Pac. R.R. v. Greentree Transp. Trucking Co., 293 F.3d

120, 126 (3d Cir. 2002) (quoting 10A Charles Alan Wright, Arthur R. Miller, & Mary



                                             6
Kay Kane, Federal Practice and Procedure: Civil 3d § 2716 (1988)).

         “This court has consistently held that it will not consider issues that are raised for

the first time on appeal.” Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994);

see also, e.g., Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1115

(3d Cir. 1993); In re Am. Biomaterials Corp., 954 F.2d 919, 927-28 (3d Cir. 1992); Frank

v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990). Since there is no record of this issue

being raised in the District Court, we will not consider it here.

                                                V.

         For these reasons, we conclude that the District Court properly granted summary

judgment in favor of DCC. Accordingly, we will AFFIRM the Order of the District

Court.




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