Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-20-2006
Kissell v. Dist Cncl 84
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3253
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3253
________________
MICHAEL F. KISSELL,
Appellant
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
DISTRICT COUNCIL 84, AFL-CIO, COUNCIL 13; PENNSYLVANIA
DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE OF
GREENSBURG
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 97-cv-00786)
District Judge: Honorable Gary L. Lancaster
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
SEPTEMBER 15, 2006
BEFORE: MCKEE, FUENTES AND NYGAARD, Circuit Judges
(Filed September 20, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Michael Kissell, proceeding pro se, appeals from an order of the United States
District Court for the Western District of Pennsylvania denying his motion to enforce the
judgment in his action under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e et seq. For the reasons that follow, we will affirm.
Kissell worked as a correctional officer for the Pennsylvania Department of
Corrections (“DOC”) at the State Correctional Institution in Greensburg (“SCI -
Greensburg”) from 1988 until he was fired in 1994. Kissell filed a complaint in District
Court against the DOC claiming, among other things, that he was terminated in retaliation
for reporting incidents of sexual harassment. In 2002, a jury returned a verdict in his
favor on his retaliation claim. The jury awarded Kissell compensatory damages and back
pay.
Kissell then moved the District Court for an order reinstating him to his former
position at SCI-Greensburg or, alternatively, an award of front pay. The DOC opposed
reinstatement based upon animosity between Kissell and the staff at SCI-Greensburg and
argued that Kissell should have sought front pay at trial. In September 2002, the District
Court ordered Kissell’s reinstatement at one of the DOC’s other institutions.
The record reflects that the parties discussed Kissell’s return to work at another
institution in February 2004, shortly after the DOC unsuccessfully appealed from the
District Court’s order denying its motion for judgment as a matter of law.1 In March
2004, Kissell filed a motion in District Court to enforce the judgment in which he again
1
The District Court awarded Kissell front pay from the date of the jury’s verdict to the
date the DOC offered reinstatement.
2
sought reinstatement to his former position at SCI-Greensburg. He argued that
assignment to another facility would cause hardship to him and his family because he
would either be required to travel a long distance or relocate. In October 2004, after a
hearing, the District Court affirmed its September 2002 order reinstating Kissell at
another institution. The District Court noted that Kissell did not appeal the 2002 order or
move for reconsideration. The District Court directed the DOC to offer Kissell a position
within 30 days and stated that, if Kissell did not accept the position within 30 days, it
would vacate the reinstatement order. The District Court denied Kissell’s subsequent
motion for reconsideration.
In May 2005, Kissell filed another motion to enforce the judgment. Kissell stated
that he returned to work at another institution but was not afforded on-site seniority based
upon his 1988 date of hire. He stated that he is consequently precluded from bidding for
other jobs, and his vacation days, shifts, and pass days are adversely affected. In
response, the DOC argued that Kissell received the salary he would have received if he
continuously worked for the DOC, and he received bargaining unit seniority. The DOC
submitted evidence establishing that a collective bargaining agreement covered on-site
seniority as it relates to shift openings, and that seniority accrued based upon the date an
employee began to work at a particular institution. The DOC stated that Kissell was
being treated the same as other employees in this regard, and that Kissell had been placed
in a position as close as possible to what he would have held had he never left the DOC.
3
The District Court denied Kissell’s motion without opinion. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
In his brief, Kissell contends that his reinstatement has not made him whole for
many reasons, including the fact that he has been denied on-site seniority. He argues that
reinstatement to his position at SCI-Greensburg would have made him whole, and that
there was no basis for the District Court’s decision that he could not return to SCI-
Greensburg.
Any challenge to the District Court’s order of reinstatement at another institution is
not properly before the Court at this time. Kissell did not appeal the District Court’s
September 2002 order directing reinstatement at one of the DOC’s other institutions, or
the District Court’s October 2004 orders affirming its September 2002 reinstatement
order and denying his motion for reconsideration.
Kissell’s argument that he should receive on-site seniority at his new location of
employment also comes too late. Although in his original petition for equitable relief
Kissell generally stated he should have that seniority he would have accrued had he not
been improperly terminated, the District Court’s reinstatement order only provides that
“he is to be reinstated to his former position as a correctional officer at one of
Pennsylvania’s other state correctional institutions.” Dist. Ct. Order entered 9/25/02. We
cannot conclude that the District Court erred in denying Kissell’s current motion where he
did not raise the issue of on-site seniority for more than two years after the District Court
4
ordered his reinstatement.
Kissell raises a host of other issues in his brief, including claims that he has not
received certain benefits, that he has not received front pay in accordance with the
District Court’s order, and that his lawyer has not given him checks issued to him for his
back pay award. These issues were not raised in District Court and are not properly
before us. See Dluhos v. Strasberg, 321 F.3d 365, 373 (3d Cir. 2003) (declining to
address claims raised for the first time on appeal).
Accordingly, we will affirm the order of the District Court.2
2
Kissell’s motion for leave to supplement the record is denied. See In re Capital
Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir.
1990) (noting Court cannot consider material on appeal that is outside of the district court
record).