                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2006

Hatcher v. Potter
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5412




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Recommended Citation
"Hatcher v. Potter" (2006). 2006 Decisions. Paper 558.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/558


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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 05-5412
                    ________________

                    JAMES HATCHER,

                             Appellant


                              v.

                  JOHN E. POTTER, PMG

        ____________________________________

       On Appeal From the United States District Court
           For the Eastern District of Pennsylvania
                  (D.C. Civ. No. 04-cv-02130)
       District Judge: Honorable Ronald L. Buckwalter
       _______________________________________


         Submitted Under Third Circuit LAR 34.1(a)
                      June 28, 2006

Before: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES.

                  (Filed: August 23, 2006)


                       OPINION
                _______________________
PER CURIAM

       Based on the District Court’s Findings of Fact and Conclusions of Law following a

bench trial, judgment was entered in favor of Appellee. Appellant James F. Hatcher now

appeals. For the reasons that follow, we will affirm.

       On May 19, 2004, Appellant filed a complaint in the United States District Court

for the Eastern District of Pennsylvania alleging gender- and disability-based

discrimination by his employer, the United States Postal Service.1 Appellant maintained

that the alleged discriminatory acts occurred between June 20, 2002 and August 2, 2003.

As required by the Equal Employment Opportunity Commission (“EEOC”) regulations,

he requested pre-complaint processing from the EEO counselor on September 22, 2003.

This was fifty-one days after the last alleged incident of discrimination and therefore

beyond the forty-five day time period provided for such a filing. See 29 C.F.R. §

1614.105. Hatcher’s EEO complaint was dismissed pursuant to 29 C.F.R. §

1614.107(a)(2) for failure to timely contact an EEO counselor.

       Following the EEOC’s dismissal of his complaint, Appellant sought relief in

federal court. Appellee filed a motion for summary judgment, arguing that Appellant had

not exhausted his administrative remedies because he did not contact an EEO counselor



   1
    Appellant later filed an amended complaint and a second amended complaint in
which he added a claim of race-based discrimination. Despite his failure to request
permission to file the second amended complaint, the District Court nonetheless
considered it, concluding that to do so would not prejudice Appellee. Appellee does not
challenge this decision on appeal.

                                             2
within forty-five days of the alleged discriminatory acts. The District Court denied

Appellee’s motion based on Appellant’s contention that he had not been provided with

notice of the forty-five day time limit as required by 29 C.F.R. § 1614.102(b)(5).2 The

Court ordered a ninety-day period of limited discovery on the issue of notice.

       Following the completion of discovery, the Court conducted a bench trial, however

else it may have been denominated by the parties and the Court, with the parties clearly

understanding that the Court would thereafter determine whether or not Appellant had

received the requisite notice. Appellant was sworn in, questioned by the Court, and

cross-examined by counsel for Appellee. Then Sharon Roby-Wilson, the former

Manager of Customer Services at Logan Station Post Office during the time period when

Appellant alleges he was discriminated against, testified, and Appellant cross-examined

her. Appellant brought several photographs he had taken of the bulletin boards in the post

office on November 8, 2004, approximately a year after the date of the last alleged

discriminatory act. Appellant contended that the absence in these photographs of “Poster

72,” a poster notifying federal employees of the time limit for filing an employment

discrimination claim, gave rise to an inference that the poster was not posted during the


   2
       This subsection provides:

       In order to implement its program, each agency shall . . . [m]ake written
       materials available to all employees and applicants informing them of the
       variety of equal employment opportunity programs and administrative and
       judicial remedial procedures available to them and prominently post such
       written materials in all personnel and EEO offices and throughout the
       workplace.

                                             3
time period in question. Appellant testified as to the content of the photographs and drew

a diagram of the Logan Station Post Office in response to questions from the Court.

Roby-Wilson was then questioned about the photographs and Appellant’s diagram, and

asked to indicate where in the post office the posters were located.3 On cross-

examination, Appellant questioned whether Poster 72 was ever posted at Logan Station

Post Office, and if so, whether it was posted in areas commonly used by postal carriers

such as himself.

       During the course of the trial, Appellee stipulated to the fact that Appellant never

received actual notice of the filing requirement. Given this stipulation, the parties’

testimony and the District Court’s findings focused on the issue of constructive notice.

Based on Roby-Wilson’s testimony, the Court found that Government Exhibits 3, 4, and

5, three standard EEO posters explaining how to file a complaint and how to present it,

were posted during the relevant time period at the Logan Station Post Office, in areas in

which post office employees such as Appellant worked, and by which they regularly

passed. The Court further found that the content of the posters was reasonably geared to

notify employees of the forty-five day limitations period, and therefore, that Appellant

had constructive notice of the time limit.

       Relying on two decisions from the Seventh Circuit Court of Appeals, the District

Court concluded that: (i) the requisite posters were posted in areas accessible to the


   3
     According to the transcript, all of these items were admitted into evidence.
However, they do not appear to have been made a part of the district court record.

                                              4
complainant; and (ii) the posters were reasonably geared to inform the complainant of the

time limits. See Clark v. Runyon, 116 F.3d 275, 277 (7th Cir. 1997); Johnson v. Runyon,

47 F.3d 911, 918 (7th Cir. 1995). Based on these conclusions, the Court determined that

there was no basis on which to extend the time limitation as provided by 29 C.F.R. §

1614.105(a)(2).4

       The District Court also refused to equitably toll the time period for contacting an

EEO counselor based on Appellant’s argument that health issues prevented him from

asserting his rights in a timely manner. Given Appellant’s representation that he had filed

a worker’s compensation application during the period in question, the Court determined

that Appellant’s health issues were not severe enough to prevent him from timely filing

his discrimination claim. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d

1380, 1387 (3d Cir. 1994) (to justify the application of equitable tolling, plaintiff must

have been prevented from asserting his rights in some extraordinary way).

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s factual findings for clear error. Rode v. Dellarciprete, 892 F.2d 1177,


   4
       This subsection provides:

       The agency or the Commission shall extend the 45-day time limit in
       paragraph (a)(1) of this section when the individual shows that he or she
       was not notified of the time limits and was not otherwise aware of them,
       that he or she did not know and reasonably should not have been known
       (sic) that the discriminatory matter or personnel action occurred, that
       despite due diligence he or she was prevented by circumstances beyond his
       or her control from contacting the counselor within the time limits, or for
       other reasons considered sufficient by the agency or the Commission.

                                              5
1182 (3d Cir. 1990). We review the District Court’s refusal to equitably toll the time

limit for abuse of discretion. Doherty v. Teamsters Pension Trust Fund of Philadelphia &

Vicinity, 16 F.3d 1386, 1389 (3d Cir. 1994).

       Based on the testimony and evidence provided at the bench trial, following a

ninety-day period of discovery on the issue of notice, the District Court concluded that

Appellant did have constructive notice of the 45-day filing requirement. In reaching this

determination, the Court found that the posters contained sufficient information regarding

the time period for filing an EEO complaint and were displayed in areas where postal

employees such as Appellant worked and by which they regularly passed. This finding

was not clearly erroneous. Nor did the District Court abuse its discretion in refusing to

equitably toll the time period for filing a complaint, given that, by Appellant’s own

admission, he was able to file a worker’s compensation claim during the time period in

question.

       Based on the foregoing, we will affirm the judgment of the District Court.5




   5
       Appellant filed a motion to supplement the District Court record with Appellees’
responses to interrogatories and requests for production of documents, United States
Postal Service EEOC Handbook EL-603, and United States Postal Service Publication
133. Appellant’s motion is denied. Appellant’s motion to strike Appellee’s reply brief as
untimely is also denied.

                                               6
