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


5-15-2006

Ablestein v. Secretary Agri
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1785




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Recommended Citation
"Ablestein v. Secretary Agri" (2006). 2006 Decisions. Paper 1110.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1110


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                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-1785
                                    ________________

                                    David H. Ablestein
                                                Appellant
                                           vs.

                               Anne Veneman, Secretary,
                              U.S. Department of Agriculture

                       ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 04-cv-00910)
                   District Judge: Honorable Joseph A. Greenaway, Jr.
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 12, 2006
             Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

                                  (Filed May 15, 2006)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

              David Ablestein filed a pro se complaint against Anne Veneman, Secretary

of Agriculture, United States Department of Agriculture (“USDA”), alleging a hostile

work environment and wrongful termination based on sex and disability. He appeals the

District Court’s dismissal of the case for failure to consult a counselor from the Equal
Opportunity Employment Commission (“EEOC”) within 45 days of his dismissal from

the agency as required by 29 C.F.R. § 1614.105(a)(1) (1999). For the reasons which

follow, we will vacate the judgment of the District Court and remand for further

proceedings.

                                              I.

               As we write primarily for the parties, we will discuss only the facts relevant

to our disposition of this appeal. Ablestein was dismissed from employment as a Plant

Protection and Quarantine Officer at the Newark International Airport on May 1, 2000.

On May 30 he filed an appeal with the Merit Systems Protection Board (“MSPR”). After

Ablestein indicated to an EEOC counselor that he intended to withdraw the MSPR

complaint, the counselor granted him an extension to file a complaint using the EEO

process on August 8. The EEOC sent Ablestein a “right to sue” notice on October 6, and

he filed a formal complaint with the EEOC on October 19.

               Meanwhile, Ablestein withdrew his MSPB complaint on September 2,

2000, and the Administrative Judge for the MSPB dismissed the case without prejudice

on September 12. After pursuing a whistleblower complaint with the Office of Special

Counsel for nine months, Ablestein reinstated his MSPB appeal in June 2001, and added

a complaint for whistleblower retaliation. The MSPB appeal was dismissed in April 2002

for lack of jurisdiction, but the Office of Federal Operations reversed the decision in

October of 2002.

               Ablestein subsequently withdrew his EEOC complaint and filed the present

                                              2
action in March 2004. The District Court dismissed his complaint under Rule 12(b)(6)

for failure to state a claim. This appeal followed. We have jurisdiction under 28 U.S.C. §

1291 and review the dismissal de novo. Wheeler v. Hampton Tp., 399 F.3d 238 (3d Cir.

2005).

                                            II.

              The District Court held that Ablestein failed to contact an EEOC counselor

within the 45-day time period mandated by 29 C.F.R. § 1614.105(a)(1) and therefore

dismissed the case for failure to exhaust administrative remedies. The District Court

explained that Ablestein could not “bootstrap” the August counselor contact into a timely

filing under 29 CFR § 1614.302(b). Section 302(b) provides that if a person contacts a

counselor within 45 days of the jurisdictional dismissal of a MSPB appeal, the filing of

the MSPB appeal will be deemed the initial counselor contact required under § 105(a)(1).

              The District Court erred by finding that Ablestein did not comply with the

45-day time limit under § 105(a)(1). The next paragraph, § 105(a)(2), provides that the

USDA:

              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 . . . or for other reasons considered
              sufficient by the agency or the Commission.

29 CFR § 1614.105(a)(2). The record before the District Court clearly shows that the

EEO counselor granted such an extension.

              The USDA argues that the extension only pertained to the MSPB appeal.


                                             3
This argument is unpersuasive. The counselor’s report states that Ablestein had

withdrawn his MSPB appeal and would be now filing an EEO complaint. The EEOC

sent Ablestein a “right to sue” notice a few days after the counselor’s report. Ablestein

filed his EEOC complaint a few days later. Further, Ablestein did not need an EEO

counselor contact to pursue his MSPB appeal.

              Section 105(a)(2) grants the EEOC substantial discretion to waive the time

limit in appropriate circumstances. Because the EEO counselor, with authority from §

105(a)(2), waived the 45-day time limit, the District Court erred by dismissing the suit

under 29 C.F.R. § 1614.105(a)(1).

              Accordingly, we will vacate the judgment of the District Court and remand

for further proceedings.1 Appellant’s motion for summary reversal is denied as moot; his

remaining motions are denied.




   1
      In the alternative, the USDA asks us to affirm on the merits. However, as the
standard of review for an order dismissing a complaint under Rule 12(b)(6) implies, such
an outcome would be singularly inappropriate here. For obvious reasons the District
Court conducted no inquiry into the merits of Ablestein’s complaint, and we have no
other basis for concluding that it appears beyond doubt that Ablestein can prove no set of
facts in support of his claim which would entitle him to relief. Wheeler v. Hampton Tp.,
399 F.3d 238, 242 (3d Cir. 2005).
                                             4
