                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2005

Panichelli v. General Elec Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2247




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     NO. 04-2247
                                  ________________

                               MICHAEL A. PANICHELLI,

                                            Appellant

                                             v.

                             GENERAL ELECTRIC CO.
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00461)
                        District Judge: Honorable Marvin Katz
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 19, 2005

     Before: VAN ANTWERPEN, GREENBERG and NYGAARD, Circuit Judges

                                (Filed: August 22, 2005)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant, Michael Panichelli, appeals from an order dismissing his complaint for

failure to exhaust administrative remedies and an order denying his motion for
reconsideration of that order. For the reasons set forth below, we will vacate and remand

for further proceedings.

       Panichelli was employed, as a refrigerator compressor charger and eventually an

appliance technician, by General Electric Company (“GE”) from 1988 until March 2002.

On February 26, 2002, he was placed on “lack of work” status. In March 2002, he

received a letter, dated March 5, 2002, that notified him that his employment was

terminated effective March 13, 2002. On December 30, 2002, he submitted a Charge

Questionnaire to the Equal Employment Opportunity Commission (“EEOC”). A formal

Charge of Discrimination was filed by the EEOC on January 31, 2003.

       After receiving a “right to sue letter” from the EEOC, Panichelli filed the

underlying complaint in the District Court alleging disability discrimination in violation

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

termination of his employment in March 2002. He also filed a motion for appointment of

counsel, which was denied the day it was filed. The District Court granted GE’s motion

to dismiss the complaint. Panichelli filed a motion for reconsideration, which was denied.

He then filed this timely appeal.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over an order granting a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We review an order denying a motion

for reconsideration for abuse of discretion. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909

(3d Cir. 1985).

                                             2
       With his motion for reconsideration, which was filed with the assistance of

counsel, Panichelli submitted his Charge Questionnaire to show that he had timely

exhausted his administrative remedies. He claimed that he received notice of the

discriminatory act when he was terminated from his employment on March 13, 2002; that

the Charge Questionnaire, which is date-stamped December 30, 2002, is sufficient to

constitute a charge pursuant to 29 C.F.R. § 1601.12; and that, therefore, he timely filed a

charge with the EEOC within the 300-day statutory period. See Philbin v. Gen. Elec.

Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991). The District Court denied

the motion for reconsideration.

       A motion for reconsideration may be granted to prevent manifest injustice. Max’s

Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citation omitted). When he

filed his complaint, Panichelli also filed a motion for appointment of counsel, which was

denied. He proceeded pro se in this case until he filed his post-judgment motion with the

assistance of counsel. He obtained a copy of the Charge Questionnaire only after his

attorney helped him to exercise his rights under the Freedom of Information Act. In an

affidavit filed in this Court, Panichelli explains that he thought the Charge of

Discrimination was sufficient evidence that he had filed a timely claim with the EEOC,

especially since the EEOC did not dismiss his complaint. Based on the circumstances

presented in this case, the District Court should have exercised its discretion to grant the

motion for reconsideration and consider whether the Charge Questionnaire was adequate

to constitute a charge.


                                              3
       Based on the foregoing, we will reverse the District Court’s order denying

Panichelli’s motion for reconsideration, vacate the District Court’s order granting GE’s

motion to dismiss, and remand for further proceedings consistent with this opinion.




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