Ronald Lee Moss v. JOHN E. POTTER, Postmaster General, U.S. Postal Service On Appeal From the United…

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ALD-385 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2779
________________
RONALD LEE MOSS,
Appellant
v.
JOHN E. POTTER, Postmaster General, U.S. Postal Service
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 06-cv-01498)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted For Possible Summary Action Under
Third Circuit LAR 27.4 and I.O.P. 10.6
September 13, 2007
Before: SLOVITER, CHAGARES AND COWEN, CIRCUIT JUDGES
(Filed: October 3, 2007)
_______________________
OPINION
_______________________
PER CURIAM

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Appellant, Ronald Lee Moss, appeals from an order of the United States District
Court for the Western District of Pennsylvania granting the appellee’s motion for
summary judgment. The appellee has filed a motion for summary affirmance. Because
this appeal does not present a substantial question, we will grant the motion. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
Moss was employed by the United States Postal Service (the “Postal Service”) in
Pittsburgh, Pennsylvania, from 1986 until early 2004. In July 2000, Moss filed a
complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging, inter
alia, that he had been discriminated against on the basis of his race, color, gender, age,
and disability when the Postal Service Eastern Area Office of EEO Compliance and
Appeals failed to issue a timely decision on one of his prior complaints in violation of
Section 1614.110 of the Code of Regulations. Moss also appeared to allege that these
actions were taken in retaliation for his having filed previous complaints with the EEOC.
While this administrative action was pending, Moss filed a civil action in the
United States District Court for the Western District of Pennsylvania alleging individual
and class claims for discrimination and retaliation, as well as a number of other wrongs.
(W.D. Pa. Civ. No. 00-cv-01499.) The District Court eventually dismissed the complaint
for failure to exhaust administrative remedies, and remanded the complaint to the Postal
Service for investigation. On August 11, 2006, an Administrative Judge issued a
summary decision dismissing Moss’s complaint and, on August 14, 2006, the EEOC

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In his notice of appeal, Moss seeks review of the District Court’s order denying his1
motion for reconsideration, but does not appear to appeal from the preceding order
entering summary judgment against him. Nonetheless, we will review both orders. See
Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989) (stating that it is proper to exercise
appellate jurisdiction “over orders not specified in the notice of appeal if there is a
connection between the specified and unspecified order, the intention to appeal the
unspecified order is apparent and the opposing party is not prejudiced and has a full
opportunity to brief the issues”).
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implemented the dismissal.
On November 9, 2006, Moss commenced the present action in the District Court.
This time, Moss alleged that the Postal Service purposefully withheld medical
documentation from the Department of Labor so that his worker’s compensation benefits
would be terminated. According to Moss, the Postal Service engaged in these actions in
retaliation for his having filed the class action in the District Court.
The Postal Service filed a motion to dismiss or, in the alternative, motion for
summary judgment. On May 24, 2007, the District Court granted the Postal Service’s
motion insofar as it sought summary judgment on the ground that Moss had failed to
exhaust administrative remedies for his retaliation claim. Moss submitted a timely
motion for reconsideration, which the District Court denied on June 14, 2007. The
present appeal followed.1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Tourscher
v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). After a careful review of the record,
we conclude that the appeal presents “no substantial question” under Third Circuit LAR

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27.4 and I.O.P. 10.6 and will, therefore, summarily affirm the District Court’s order
dismissing Moss’s complaint.
The District Court correctly concluded that Moss failed to exhaust administrative
remedies for his retaliation claim before commencing the present action in the District
Court. “It is a basic tenet of administrative law that a plaintiff must exhaust all required
administrative remedies before bringing a claim for judicial relief.” Robinson v. Dalton,
107 F.3d 1018, 1020 (3d Cir. 1997). “The purpose of requiring exhaustion is to afford
the EEOC the opportunity to settle disputes through conference, conciliation, and
persuasion, avoiding unnecessary action in court.” Antol v. Perry, 82 F.3d 1291, 1296
(3d Cir. 1996).
In general, before filing a Title VII suit, an aggrieved federal employee must meet
informally with an EEOC counselor within forty-five days of the alleged discriminatory
event. 29 C.F.R. § 1614.105(a)(1). If the counseling is unsuccessful in resolving the
matter, then the federal employee must, within fifteen days, file a formal complaint with
the EEOC. 29 C.F.R. § 1614.106(b). If the employee is dissatisfied with the final
decision on the complaint, or if the EEOC fails to issue a decision within the requisite
period, he may commence a civil action in the appropriate district court. 29 C.F.R. §
1614.407. If the employee files suit in the district court, only those claims that are “fairly
within the scope of the prior EEOC complaint, or the investigation arising therefrom,” are
considered to have been exhausted. Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).

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Moss’s present Title VII claim was not administratively exhausted because it was
not within the scope of his July 2000 EEOC complaint. See id. Although Moss did assert
a retaliation claim in his administrative complaint, that claim concerned entirely different
events that took place more than five years prior to the conduct at issue here. In his July
2000 EEOC complaint, Moss alleged that the Postal Service failed to timely rule on an
earlier complaint in retaliation for his having filed prior grievances, whereas here, he
alleged that the Postal Service purposefully withheld medical documentation from the
Department of Labor in retaliation for his having filed the district court class action.
Therefore, Moss’s claim is not within the scope of his July 2000 EEOC complaint. See
Antol, 82 F.3d at 1296 (finding that employee’s administrative complaint alleging
disability discrimination did not fairly encompass his gender discrimination claim).
Furthermore, given that the EEOC summarily dismissed Moss’s administrative
complaint without conducting an investigation, the EEOC clearly never investigated any
of the circumstances surrounding the alleged retaliation. Cf. Waiters, 729 F.2d at 238
(finding that EEOC investigation encompassed employee’s district court claim of
retaliatory discharge even though she was not fired until after the EEOC investigation
was complete because the EEOC’s investigation concerned the same underlying conduct).
Accordingly, because the EEOC was never given an opportunity to consider Moss’s
retaliation claim before he initiated the present action, he failed to exhaust his
administrative remedies.

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Moss also sought relief under Federal Rule of Civil Procedure 52(b), which allows2
the court to correct plain errors of law or fact, or, in limited situations, allows the parties
to present newly discovered evidence. See Gutierrez v. Ashcroft, 289 F. Supp. 2d 555,
561 (D.N.J. 2003). For the reasons discussed above in connection with his Rule 60(b)
motion, the District Court correctly denied relief under Rule 52(b).
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We have also reviewed Moss’s motion for reconsideration and the District Court’s
June 14, 2007 order denying it, and conclude that the District Court did not abuse its
discretion in denying relief. In his motion, Moss sought relief under Federal Rule of Civil
Procedure 60(b) on the grounds of mistake, newly discovered evidence, and fraud and
misrepresentation. See Fed. R. Civ. P. 60(b)(1), (2) and (3). Specifically, Moss alleged
that: (1) the District Court made a mistake by overlooking an envelope attached to his
response brief; (2) he obtained newly discovered evidence in the form of a letter recently
received from the Postal Service directing him to return to duty; and (3) the Postal Service
misrepresented Moss’s claims when it stated that some of his claims had been previously
litigated. This Court has made clear, however, that only extraordinary circumstances
justify granting relief under Rule 60(b). Moolenaar v. Gov’t of V.I., 822 F.2d 1342, 1346
(3d Cir. 1987). Given that here, Moss failed to explain the significance of any of his
allegations, much less allege the existence of any extraordinary circumstances, we
conclude that the District Court acted well within its discretion when it denied Moss’s
motion.2
Finally, we note that in his opposition to the Postal Service’s motion for summary
affirmance, Moss argues that the District Court erred in converting the Postal Service’s

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Furthermore, given that the Postal Service’s motion was submitted in the alternative3
as one for summary judgment, it was not necessary for the District Court to characterize
its decision to construe the motion as one for summary judgment as a “conversion.”
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motion to dismiss into a motion for summary judgment without giving him an opportunity
to present additional material to the court. Contrary to Moss’s contention, however, the
District Court ordered Moss to submit a response before it ruled on the Postal Service’s
motion, and Moss indeed responded by filing a brief along with exhibits. See Fed. R.
Civ. P. 12(b)(6) (stating that a motion to dismiss can be treated and disposed of as one for
summary judgment under Rule 56 if all parties are given a reasonable opportunity to
present all material made pertinent to such a motion by Rule 56). Therefore, Moss’s3
argument in this regard is meritless.
For the foregoing reasons, we conclude that the District Court properly entered
summary judgment against Moss. Accordingly, as there is no substantial question
presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P.
10.6.

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