Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-9-2006
Black v. US Post Ofc
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3747
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"Black v. US Post Ofc" (2006). 2006 Decisions. Paper 1140.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3747
________________
MICHELE BLACK,
Appellant
v.
UNITED STATES POST OFFICE
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-02393)
District Judge: Honorable J. Curtis Joyner
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 8, 2006
BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed : May 9, 2006)
_______________________
OPINION
_______________________
PER CURIAM
The parties are familiar with the underlying facts, so we summarize them only
briefly. Michele Black brought claims of a hostile work environment, sexual harassment,
and retaliatory discharge against John E. Potter, Postmaster General for the United States
Postal Service, before the United States Equal Employment Opportunity Commission
(“EEOC”). On January 7, 2004, the EEOC issued its final decision on the claims. (Supp.
App. at 039-042.) Black received notice of the decision on January 11, 2004, at the latest.
(Id. at 043.) With the decision, the EEOC notified Black that she could file a complaint
in federal court within 90 days. (Id. at 040.) In the United States District Court for the
Eastern District of Pennsylvania, Black filed a motion to proceed in forma pauperis on
June 2, 2004, and a complaint on June 10, 2004.
Potter submitted a motion to dismiss Black’s complaint as time-barred, which the
District Court granted as uncontested. Black filed a motion for reconsideration, claiming
that she had information to justify why she filed her complaint too late. The District
Court granted Black’s motion, converted Potter’s motion into a motion for summary
judgment, and allowed the parties additional time to present arguments for and against
equitable tolling.1 Upon consideration of the submissions of the parties, the District Court
granted summary judgment in favor of Potter on the grounds that Black filed her
complaint out of time and that she was not entitled to equitable tolling. Black appeals and
moves for appointment of counsel.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
1
Contrary to Black’s argument in her reply brief on appeal, the District Court did
not definitively resolve the statute of limitations issue in her favor with that order.
2
over the District Court’s order granting summary judgment. See Podobnick v. U.S. Postal
Service, 409 F.3d 584, 589 (3d Cir. 2005).
In the absence of equitable tolling, Black filed her complaint in District Court too
late. An aggrieved party must file a civil action within 90 days of notice of an EEOC
final action. See 42 U.S.C. § 2000e-16(c). Black filed her complaint in June 2004, more
than 90 days after she received notice of the EEOC’s final action in January 2004. Black
concedes that she filed her complaint outside the pertinent statute of limitations.
Furthermore, Black is not entitled to equitable tolling. Equitable tolling, applied
sparingly, see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 90 (1990), is appropriate in
such circumstances as “(1) where the defendant has actively misled the plaintiff
respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary
way has been prevented from asserting his or her rights, or (3) where the plaintiff has
timely asserted his or her rights mistakenly in the wrong forum.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Although the District
Court provided Black with the opportunity to present evidence to support these common
(or other) grounds for equitable tolling, Black did not do so.2
2
We note that Black filed a voluminous brief on appeal which puts the sparsity of
her submissions in the District Court in stark relief. Although she tries to supplement the
record and raise new issues and arguments on appeal, she may not do so. See Harris v.
City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). However, even her essential
tolling arguments on appeal, that she filed her complaint beyond the statute of limitations
because she was waiting for a union representative to return documents until March 1,
2004, (at the latest), and that she could not obtain counsel, do not provide a basis for
equitable tolling. See Irwin, 98 U.S. at 96; Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.
3
For the foregoing reasons, we will affirm the District Court’s order. Black’s
motion for appointment of counsel is denied.
2000) (holding that pro se status alone does not excuse late filing).
4