                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-1906
                                   _____________

                               MICHAEL J. RUDDY;
                               CHERILYNN RUDDY,

                                               Appellants

                                          v.

           US POSTAL SERVICE; LINDA SHALL; BRIAN TUCKER;
        CHRISTOPHER PUGLIESE; LISA BANSA; DIANE PASSERILLI;
       RICK DICKSON; HOLLY SHOPE; UNITED STATES OF AMERICA;
     JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES

                                   _____________

                    On Appeal from the United States District Court
                        For the Middle District of Pennsylvania
                                   (No. 09-cv-1984)
                     District Judge: Honorable A. Richard Caputo

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 17, 2011

       Before: FUENTES and CHAGARES, Circuit Judges and POGUE, Judge.1

                             (Filed: December 23, 2011 )
                                    ____________

                                      OPINION
                                    ____________



1
 Honorable Donald C. Pogue, Chief Judge, United States Court of International Trade,
sitting by designation.
                                          1
CHAGARES, Circuit Judge.

       Michael Ruddy appeals the District Court‟s Order adopting in part and rejecting in

part the Magistrate Judge‟s Report and Recommendation (“R&R”), which, inter alia,

dismissed in its entirety Ruddy‟s complaint against the United States Postal Service, the

Postmaster General, the United States and several postal employees (collectively

“USPS”). For the reasons that follow, we will affirm the District Court‟s Order.

                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition. Ruddy was born in 1955 and was an employee at the USPS in Scranton,

Pennsylvania. Appendix (“App.”) 116. Combined with his military service, he accrued

34 years of service and was second in seniority at the USPS-Scranton. App. 116.

       Ruddy alleged generally that he was treated differently than younger/non-disabled

employees. App. 117. He alleged that starting in November 2006, appellee Dickson, his

supervisor, insisted he sort mail faster and leave the office faster than younger

employees. He further alleged that on three occasions Dickson threatened to walk with

Ruddy the entire day and suggested Ruddy “bid out of [Dickson‟s] unit.” App. 118-20.

When appellee Passerilli became his supervisor, Ruddy alleges generally that she “treated

[him] differently than younger individuals and with less seniority” and insisted that he

perform “undertime”2 work before going to younger employees with less seniority. App.

120-21. Ruddy alleged that he sought medical care in November 2006 and his doctor


2
 Ruddy‟s brief defines undertime as requiring him “to deliver additional mail on another
mail carrier‟s route without getting paid.” Ruddy Br. xiii.
                                              2
was monitoring his workplace stress and anxiety and had prescribed medication. App.

120, 122.

      Ruddy alleges that on March 18, 2009, Passerilli was talking on the phone and

looking directly at him, which he alleges was a form of harassment. App. 122. Ruddy

alleges Passerilli then told him that he would have to work undertime on a job for one

hour. App. 122. He replied that he could not work undertime and requested to speak

with a union steward. App. 122. After a meeting with Passarelli and several other

supervisors, Ruddy alleges he started getting chest pains, feeling panic and was having

trouble breathing. App. 123. He called his wife, who called his doctor. App. 123-24.

The doctor directed Ruddy to go to the hospital. App. 127. Ruddy alleges on that day he

requested a union steward from Passarelli three times. App. 128.

      On June 29, 2009, Ruddy filed a claim with the Occupational Workers‟

Compensation Program (“OWCP”). App. 128. Ruddy received a letter from the United

States Department of Labor on July 16, 2009 that required him to respond to allegedly

false statements by appellees Shope and Pugliese that Ruddy had been treated for alcohol

abuse and smelled of alcohol. App. 129-30.

      Ruddy filed his complaint on October 13, 2009 and the USPS filed a motion to

dismiss and for summary judgment in response. App. 57-58. Ruddy filed an amended

complaint on March 10, 2010 and the USPS filed another motion to dismiss and for

summary judgment. App. 58-59. The District Court referred the motion to the

Magistrate Judge who issued an R&R, which granted in part and denied in part the

USPS‟s motion to dismiss, allowing only Ruddy‟s First Amendment retaliation and

                                             3
constructive discharge claims to survive dismissal. App. 62. The District Judge adopted

in part and rejected in part the R&R and dismissed Ruddy‟s complaint in its entirety.

App. 63.

                                            II.

       The District Court had jurisdiction pursuant 28 U.S.C. § 1331, except that it held

that it did not have jurisdiction over Ruddy‟s tort claims because he failed to exhaust

them in a timely fashion.3 App. 53. We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291.

                                            III.

       Ruddy first contends the District Court erred by denying his Federal Rule of Civil

Procedure 56(f) motion for continuance, arguing that discovery was necessary to support

his claims and to respond to the USPS‟s motion for summary judgment.4 Our review of

“questions concerning the scope or opportunity for discovery is for abuse of discretion.”


3
  Ruddy did not address the dismissal of his tort claims in his brief and, thus, has waived
the issue on appeal. Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000). In addition,
Ruddy‟s wife did not challenge the dismissal of her claim for loss of consortium, so we
address only Ruddy‟s claims.
4
  USPS notes in its brief that Ruddy did not reference the District Court‟s order,
document number 39 on the docket, denying his request for a continuance, in his notice
of appeal. App. 1. This Court has held that “we can exercise jurisdiction over orders not
specified in the Notice of Appeal if: „(1) there is a connection between the specified and
unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3)
the opposing party is not prejudiced and has a full opportunity to brief the issues.‟”
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010) (quoting Polonski v.
Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998)). In this case, we will
exercise jurisdiction over the order not specified in Ruddy‟s Notice of Appeal because
there is a connection between the orders appealed and the unspecified order, Ruddy‟s
intention to appeal the unspecified order is apparent and USPS is not prejudiced and, in
fact, correctly notes in its brief that this Court has jurisdiction.
                                             4
Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). Ruddy also contends that we

should strike the USPS‟s supplemental appendix.

       After Ruddy filed his amended complaint, the USPS filed a motion to dismiss and

for summary judgment. App. 59. The District Judge denied Ruddy‟s motion to continue

consideration of the USPS‟s motion until discovery was completed and held that it would

address only the USPS‟s motion to dismiss and not its arguments for summary judgment.

App. 60-61. Ruddy argues that the Magistrate Judge to whom the motions were referred

then addressed issues of summary judgment in his R&R; however, the Magistrate Judge

stated specifically that he was considering only the motion to dismiss and the R&R only

addressed the motion to dismiss. App. 6 n. 1. Ruddy does not specify what issues for

summary judgment he contends the Magistrate Judge addressed in his R&R. Ruddy Br.

2-3. Further, Ruddy contradicts himself in his motion to strike the USPS‟s supplemental

appendix by arguing that the supplemental appendix contains the exhibits to the USPS‟s

summary judgment motion and that the Magistrate Judge and District Court did not rely

on them, so they should not be part of the record before this Court.

       The USPS argues that the Magistrate Judge and District Court relied on elements

of Ruddy‟s EEOC file — contained in the supplemental appendix — in finding he failed

to exhaust administrative remedies. Specifically, the USPS notes that the Magistrate

Judge relied on the EEOC file to determine the date Ruddy sought EEOC counseling,

August 3, 2009, App. 20, and the District Court found that Ruddy failed to file a formal

EEOC complaint for his constructive discharge and disability discrimination claims, App.

49.

                                             5
       In deciding a motion to dismiss for failure to state a claim, “a court must consider

only the complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the complainant's claims are based upon these

documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)).

“[A] court may consider an undisputedly authentic document that a defendant attaches as

an exhibit to a motion to dismiss if the plaintiff‟s claims are based on the document.”

Pension Benefit Guar. Corp. 998 F.2d at 1196. A court may also consider “any „matters

incorporated by reference or integral to the claim, items subject to judicial notice, matters

of public record, orders, [and] items appearing in the record of the case.‟” Buck v.

Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A.

Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)). The

Magistrate Judge and District Court properly relied on Ruddy‟s EEOC file, which Ruddy

referenced in his complaint and which is integral to his claim and the District Court did

not abuse its discretion in denying Ruddy‟s motion for continuance.5




5
  Ruddy does not address the District Court‟s finding that he failed to exhaust his
administrative remedies for his disability and constructive discharge claims and has
waived the issue on appeal. Ghana, 226 F.3d at 180. Ruddy appeals the District Court‟s
dismissal of his disability discrimination and constructive discharge claims for failure to
state a claim. Because the District Court properly held that Ruddy failed to exhaust his
disability and constructive discharge claims, App. 48-49, and Ruddy does not contest that
holding on appeal, we do not reach the issue of whether Ruddy stated a claim for
disability discrimination or constructive discharge.
                                              6
       For the foregoing reasons, we will affirm the District Court‟s denial of a

continuance for discovery and we will deny Ruddy‟s motion to strike the USPS‟s

supplemental appendix.

                                            IV.

       Ruddy next argues that the District Court erred in denying his request for leave to

amend his complaint. Notably, his request was set forth in his supporting brief to his

objections to the Magistrate Judge‟s R&R and Ruddy failed to submit a proposed

amended complaint, as required by the local rules. We review the District Court‟s denial

of Ruddy‟s request for leave to amend his complaint for abuse of discretion. Lake v.

Arnold, 232 F.3d 360, 373 (3d Cir. 2000). We hold the District Court did not abuse its

discretion by denying Ruddy‟s request to file an amended complaint, because, even

though the R&R recommended the claims be dismissed without prejudice, Ruddy‟s

failure to file a motion for leave to amend or an amended complaint meant the District

Court “had nothing upon which to exercise its discretion.” Ramsgate Court Townhome

Ass‟n v. West Chester Borough, 313 F.3d 157, 161 (3d Cir. 2002); see also Lake, 232

F.3d at 374 (“We conclude that the Lakes‟ failure to provide a draft amended complaint

would be an adequate basis on which the court could deny the plaintiff‟s request.”).

                                            V.




                                             7
       Ruddy contests the District Court‟s dismissal of his age discrimination claim for

failure to state a claim.6 The Postmaster conceded that Ruddy timely exhausted his

administrative remedies for his age discrimination claim. USPS Br. 12; App. 158-63.

Our review of the District Court‟s dismissal of claims under Federal Rule of Civil

12(b)(6) is plenary. Emerson v. Thiel College, 296 F.3d 184, 188 (3d Cir. 2002).

       The District Court found that Ruddy failed to state a prima facie case of age

discrimination because he failed to plead that he was replaced by “„a sufficiently younger

person to create an inference of age discrimination.‟” Tomasso v. Boeing Co., 445 F.3d

702, 706 n. 4 (3d Cir. 2006) (quoting Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir.

2002)); see also Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002).

Ruddy made only general allegations that he was treated differently than younger

employees, App. 117-18, and alleged that “[o]n one occasion, Defendant Dickson let a

younger carrier who was replacing [Ruddy] on his day off leave the office much later

than [Ruddy].” App. 119. The District Court correctly found that Ruddy did not allege

facts that he was replaced by a “sufficiently younger” individual to raise an inference of

discrimination based on age, so we will affirm the District Court‟s dismissal of Ruddy‟s

age discrimination claims.

                                            VI.

       Ruddy also contests the District Court‟s dismissal of his hostile work environment

claims based on age and disability. Again, our review of the District Court‟s dismissal of

6
 Ruddy does not contest that only the Postmaster General in his official capacity is an
appropriate defendant in an employment discrimination claim brought by a USPS
employee. App. 17-18.
                                             8
claims under Federal Rule of Civil Procedure 12(b)(6) is plenary. Emerson, 296 F.3d at

188.

       The District Court correctly found that Ruddy failed to state a claim for a hostile

work environment because the conduct alleged was not “sufficiently severe or pervasive

„to alter the conditions of [the victim‟s] employment and create an abusive working

environment.‟” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting

Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The District Court correctly

noted that Ruddy‟s allegations that he was told to work faster and leave the office earlier

simply do not amount to a hostile work environment. We will therefore affirm dismissal

of Ruddy‟s hostile work environment claims.

                                            VII.

       Ruddy contests the District Court‟s dismissal of his First Amendment retaliation

claim as precluded under the Civil Service Reform Act of 1978 (“CSRA”). Although he

originally alleged his First Amendment retaliation claim under 42 U.S.C. § 1981 and §

1983, Ruddy argued in District Court and before us that he is raising his claim under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Our review of the District Court‟s dismissal of this claim for failure to state a

claim upon which relief can be granted is plenary. Spence v. Straw, 54 F.3d 196, 198 (3d

Cir. 1995). The District Court found that Ruddy was precluded from raising his First




                                              9
Amendment retaliation claim through Bivens because the CSRA provides the exclusive

avenue for damages claims for employees under its protection.7

       The Supreme Court in Bush v. Lucas held that for federal employees who contend

their First Amendment rights were violated by their supervisors, where claims “arise out

of an employment relationship that is governed by comprehensive procedural and

substantive provisions giving meaningful remedies against the United States, . . . it would

be inappropriate for us to supplement that regulatory scheme with a new judicial

remedy.” 462 U.S. 367, 368, 390 (1983); see also Mitchum v. Hurt, 73 F.3d 30, 35 (3d

Cir. 1995) (“It is true that Bush found that the history and structure of the CSRA spoke

with sufficient clarity to preclude the creation of a new Bivens claim.”).

       As Ruddy‟s First Amendment retaliation claim arises from the context of his

federal employment, the CSRA is his sole remedy and we hold that the District Court

lacked subject matter jurisdiction to hear that claim. Sarullo v. U.S. Postal Serv., 352

F.3d 789, 795-97 (3d Cir. 2003).8


7
  Ruddy also alleged in his amended complaint violations of his right to equal protection
for treating Ruddy differently than younger and non-disabled employees and of his right
to procedural due process for failing to allow Ruddy to speak to a union steward, failing
to process Ruddy‟s grievances and interfering with his OWCP claim. App. 136-37. The
District Court correctly dismissed Ruddy‟s claims for equal protection and due process
because the Rehabilitation Act and ADEA are the exclusive means for asserting these
claims that arise from Ruddy‟s federal employment. See Davis v. Passman, 442 U.S.
228, 247 (1978); Purtill v. Harris, 658 F.2d 134, 137 (3d Cir. 1981) (ADEA); Spence, 54
F.3d at 202-03 (Rehabilitation Act). We will affirm the District Court‟s dismissal of
Ruddy‟s equal protection and due process claims.
8
  Ruddy argues that he was a public employee speaking about a matter of public concern
under Holder v. Allentown, 987 F.2d 188, 194-96 (3d Cir. 1993); however, he failed to
allege any facts in his amended complaint that would support a finding that his speech
was a matter of public concern.
                                             10
                                              XI.

       Because none of the grounds for appeal that Ruddy raises are meritorious, we will

affirm the order of the District Court in its entirety.




                                               11
