Sandra L. Berger v. Medina County Ohio Board of County Commissioners; John T. Shultz

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0589n.06
Filed: September 30, 2008
No. 07-3969
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SANDRA L. BERGER,
Plaintiff-Appellant,
v.
MEDINA COUNTY OHIO BOARD OF
COUNTY COMMISSIONERS; JOHN T.
SHULTZ,
Defendants-Appellees,
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: MARTIN, ROGERS, and SUTTON, Circuit Judges
ROGERS, Circuit Judge. Plaintiff appeals the district court’s dismissal of her Title VII
employment discrimination action. Because the claim was presented to the EEOC more than 180
days after it accrued, and the pleadings and briefing below presented no basis for applying a longer,
300-day limitations period, there is no basis for reversing the district court’s determination that the
claim was untimely.
Sandra L. Berger brought an employment discrimination action against the Medina County
Ohio Board of County Commissioners and against John Shultz. She alleged that significant sexual
harassment occurred while she was employed by the county and supervised by Shultz. Berger
worked for the Medina County Animal Shelter from some time in 1996 to September 27, 2004. Her

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complaint alleged various incidents of sexual harassment and Title VII violations. In addition to her
federal claim, she brought two state law claims under the court’s supplemental jurisdiction.
Berger pled that she first filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) on June 15, 2005. This date, about nine months after her employment with
defendants ended, is less than 300 days but more than 180 days after the last alleged instance of
harassment. Berger specifically pled that she did not file a charge of sex discrimination with the
Ohio Civil Rights Commission (“OCRC”). Further, Berger’s complaint made no mention of any
worksharing agreement between the EEOC and the OCRC.
Defendants moved for dismissal for failure to state a claim upon which relief may be granted
on the grounds that controlling law requires a plaintiff, as a prerequisite to filing suit in federal court,
to file a complaint with the EEOC within 180 days of the last episode of discrimination. Berger
argued in opposition that the longer 300-day statute of limitations, which applies when plaintiffs first
file with the appropriate state agency in a “deferral” state, should apply even if the plaintiff did not
file with the state agency. Her brief in opposition to the motion to dismiss did allude briefly, without
full explanation, to a worksharing agreement between the EEOC and the OCRC. However, neither
Berger’s complaint nor her brief based the timeliness of her complaint on arrangements between the
EEOC and the OCRC, and she did not move to amend her complaint in any relevant fashion.
The district court found Berger’s arguments unconvincing, and granted defendants’ motion
to dismiss. The court found that Berger’s complaint, as pled, did not allege facts sufficient to allow

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Twenty-nine days after entry of the district court judgment, she also filed a “motion for1
reconsideration” in the district court. While this appeal was pending, the district court ruled on the
motion. As the motion was filed more than 10 days after the entry of judgment, the district court
treated it as a Rule 60 motion seeking relief from judgment. The court noted that Berger’s motion
was based on new legal arguments and newly filed documents. The court held that Fed. R. Civ. P.
60 required the denial of such a post-judgment motion, as it was based on new arguments and
evidence and no exceptional circumstance applied. The denial of the motion for relief is not before
this court.
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her to qualify for the 300-day statute of limitations instead of the 180-day period. The court
therefore dismissed the federal claim with prejudice, and dismissed the remaining state claims
without prejudice. Berger appeals the dismissal.1
There was no basis in the record before the district court, on defendant’s Rule 12 (b)(6)
motion, to do anything but dismiss the case as untimely. A Title VII complainant must notify the
EEOC of her charge within 180 days of the alleged wrongdoing, or 300 days only if the plaintiff
notifies a parallel state agency of her charge.
A charge under this section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred . . . except that in a case of an
unlawful employment practice with respect to which the person aggrieved has
initially instituted proceedings with a State or local agency with authority to grant or
seek relief from such practice . . . such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged unlawful employment
practice occurred, or within thirty days after receiving notice that the State or local
agency has terminated the proceedings under the State or local law, whichever is
earlier . . . .
42 U.S.C. § 2000e-5(e)(1).

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To be sure, Berger did not have to say anything in her complaint about meeting Title VII's
filing deadline. Cf. Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir. 2005) (“[T]he period
of limitations is an affirmative defense that a complaint need not address. Unless the complaint
alleges facts that create an ironclad defense, a limitations argument must await factual
development.”). But when the defendants moved to dismiss, arguing that the 180-day deadline
applied, Berger had to respond and explain why her concession in her complaint that she had not
filed a charge with the OCRC did not doom her claim. On the record before it, the district court had
only Berger’s claim that she had filed with the EEOC, but not with the OCRC. Therefore, the 180-
day limitations period applied, and her EEOC filing was untimely. Berger failed to present to the
district court any reason why the 180-day period should not apply to her, and on that record the
district court properly dismissed the case.
Berger relies on various cases to support an argument that the filings were timely under a
worksharing agreement between the OCRC and the EEOC. Further, she seeks to supplement her
complaint through judicial notice of the worksharing agreement. Such an agreement, under
applicable law, could serve to qualify a plaintiff for the 300-day limitations period. However, Berger
neither pled nor introduced facts relating to any worksharing agreement between the EEOC and the
OCRC or to any forwarding of her complaint to the OCRC by the EEOC. Berger’s failure to present
any information on this point until well after final judgment was entered precludes our consideration
of this argument. The courts of appeals do not generally reverse district court judgments based on
facts and arguments that could have been, but were not, presented to the district court.

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This court reverses district court judgments on grounds not raised below only in
“exceptional” circumstances. St. Marys Foundry, Inc. v. Employers Ins. of Wausau, 332 F.3d 989,
996 (6th Cir. 2003) (quoting Estate of Quirk v. Comm’r, 928 F.2d 751, 756–57 (6th Cir. 1991)). We
may do so, for instance, to expedite protracted litigation, or to serve “an over-arching purpose
beyond that of arriving at the correct result in an individual case,” such as resolving an uncertain area
of the law. Foster v. Barilow, 6 F.3d 405, 407-08 (6th Cir. 1993).
Such exceptional circumstances are not present in this case. Excusing Berger from the
consequences of the waiver rule will protract, not expedite, this litigation, and she does not make any
showing that Title VII law is so uncertain as to require clarification by this court. Application of the
general rule in this case serves the rule’s core purpose of preventing litigants from failing or
declining to present a complete case to the district court. See St. Mary’s Foundry, 332 F.3d at 996.
It makes no difference that the worksharing agreement between the OCRC and the EEOC
has been mentioned in prior Sixth Circuit cases. See Nichols v. Muskingum College, 318 F.3d 674,
678-79 (6th Cir. 2003); Welker v. Goodyear Tire Co., No 96-3045, 1997 WL 369450 at *2 (6th Cir.
July 1, 1997). Even if the recognition of the worksharing agreement could be said to be part of the
law of the circuit, Berger did not present this point of law to the district court. Likewise, the
equitable tolling argument Berger makes is based on facts and law not before the district court.
Our ruling is supported by this Court’s unpublished order in Johnson v. East Tennessee State
University, No. 99-6418, 2000 WL 1182792 (6th Cir. Aug. 16, 2000). There we held that the

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plaintiff could not claim the 300-day limitations period because she did not first file with the
appropriate Tennessee agency. Moreover, we rejected plaintiff’s attempt to supplement the record
on appeal to show that she did make the required filing, noting that the “documents were not part
of the record before the district court in this case.” Id. at *2.
Defendants have filed a motion to strike certain materials from the joint appendix, which we
deny as moot. The materials in question are exhibits filed with the district court after final judgment
was entered below. As such, they are not part of the record on appeal. See U.S. v. Murdock, 398
F.3d 491, 499 (6th Cir. 2005). This court does not consider non-record materials. See, e.g.,
Murdock, 398 F.3d at 501; Armco, Inc. v. United Steelworkers of America, 280 F.3d 669, 684 n.6
(6th Cir. 2002). Moreover, inclusion in the appendix is not the same as inclusion in the record. See
Fed. R. App. P. 30(a)(2) (“Parts of the record may be relied on by the court or the parties even
though not included in the appendix.”); id. 30(b)(1) (“the entire record is available to the court”).
Only portions of the record should be included in the appendix. See id. 30(a)(1). The proper method
to include nonrecord materials is to move to expand the record, either pursuant to Fed. R. App. P.
10(e), see Bacon v. Honda of America Mfg., Inc., 192 Fed. App’x 337, 341 (6th Cir. 2006)
(supplementing record under Fed. R. App. P. 10(e)(2)(C)), or pursuant to this court’s equitable
power. See Murdock, 398 F.3d at 500-501. Berger has not so moved in this litigation, so the
materials in question are simply not in the record for purposes of this appeal, and we do not consider
them.
For the foregoing reasons, we affirm the judgment of the district court.

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