David H. Ablestein v. Hampton Tp., 399 F.3d 238 3d Cir. 2005 . II. The District Court held that Ablestein…

NOT PRECEDENTIAL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

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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

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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.

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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).
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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.

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