NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 23

- 1834

__________ LARRY S. WHETSTONE, Appellant

v. FRALEY AND SCHILLING TRUCKING CO.

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2

- 23

- cv - 00421 ) District Judge: Honorable Nora B. Fischer

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

October 20, 2023 Before: HARDIMAN, PORTER, and FREEMAN , Circuit Judges

(Opinion filed : October 2 4 , 2023 )

___________ OPINION *

___________ PER CURIAM

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Larry Whetstone appeals the District Court’s order dismissing his complaint. For the reasons that follow, we will affirm the District Court’s order. After Whetstone was injured in a work

- related accident, he signed a compromise and release agreement in return for a lump sum payment to resolve a workers’ compensation claim. He also signed a resignation agreement in which he resigned his position and release d his employer from any claims arising from the injury. He later filed an employment discrimination complaint. The District Court granted his employe r’s motion for summary judgment , and w e affirmed the District Court’s order on appeal. We noted that Whetstone argued on appeal that his employer violated the Age Discrimination in Employment Act (ADEA), but that he had not raised such a claim in his comp laint and could not do so on appeal. Whetstone v. Fraley & Schilling Trucking Co. , No. 22

- 1018, 2022 WL 4533847, at *2 n.2 (3d Cir. Sept. 28, 2022), cert. denied , 143 S. Ct. 2588 (2023). Whetstone then filed a second complaint in the District Court. T he District Court sua sponte dismissed the complaint with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). It considered Whetstone to be bringing a claim under the ADEA and concluded that he had failed to timely exhaust such a claim before the Equal Employment Opportunity Commission (EEOC). It also noted that he was challenging events from four years earlier

. Whetstone filed a timely notice of appeal. 1

1 As Whetstone established that his notice of appeal was received by the District Court on3

We have jurisdiction pursuant to 28 U.S.C. § 1291 , and o ur review of the dismissal of the complaint for failure to state a claim is plenary

. See Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999) . I n his brief, Whetstone does not challenge the District Court’s determination that he did not timely exhaust his
administrative remedies for his ADEA claim

. See 29 U.S.C. § 626(d) ( providing that ADEA plaintiff must exhaust administrative remedies before h e may access judicial relief) ; Watson v. Eastman Kodak Co. , 235 F.3d 851, 854 (3d Cir. 2000) (same). Rather, he argues that the release agreement he signed was invalid. However, the District Court did not rely on the validity of the release agreement in dismissing his complaint. 2 Whetstone has not shown that the District Court erred in dismissing his complaint. Accordingly, we will affirm the District Court’s order.

May 1, 2023, the notice of appeal was timely filed.

2 When we affirmed the District Court’s grant of summary judgment in Whetstone’s prior appeal, we did not rely on the release agreement

. See Whetstone , 2022 WL 4533847, at *2 (explaining that “even if the release is invalid, Fraley & Schilling was entit led to summary judgment on the merits of Whetstone's ADA claims”).