2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-2002

Bailey v. United Airlines

Precedential or Non-Precedential:

Docket 0-2537

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Recommended Citation

"Bailey v. United Airlines" (2002). 2002 Decisions. Paper 89.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/89
Filed February 1, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-2537 

JAMES BAILEY, 

 Appellant 

v. 

UNITED AIRLINES 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil No. 97-cv-05223) 

District Judge: Hon. Lowell A. Reed, Jr. 

Argued July 11, 2001 

Before: SLOVITER, ALITO and GREENBERG 

Circuit Judges 

(Filed: February 1, 2002) 

 Michael S. Haber (Argued) 

 New York, NY 10007 

 Michael J. Torchia 

 Semanoff, Ormsby and Greenberg, 

 LLP 

 Jenkintown, PA 19046 

 Attorneys for Appellant 
 Otto W. Immel, Jr. (Argued) 

 Alan D. Berkowitz 

 Jane W. Voegele 

 Dechert, Price & Rhoads 

 Philadelphia, PA 19103 

 Attorneys for Appellee 

 Robert J. Gregory 

 Senior Attorney 

 Gwendolyn Young Reams 

 Philip B. Sklover 

 Lorraine C. Davis 

 Associate General Counsel 

 Equal Employment Opportunity 

 Commission 

 Washington, DC 20507 

 Attorneys for Amicus-Appellant 

 Equal Employment Opportunity 

 Commission 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

Appellant James Bailey filed suit in the United States 

District Court for the Eastern District of Pennsylvania 

against his former employer United Airlines, Inc. ("United"), 

alleging he was terminated in violation of the Age 

Discrimination in Employment Act of 1967 ("ADEA"), 29 

U.S.C. S 621 et seq. (2001). The District Court granted 

United's motion for summary judgment and Bailey appeals. 

I. 

FACTS 

Bailey worked as a commercial airline pilot for Pan

American World Airways ("Pan Am") for most of his career. 

In 1991, after Pan Am declared bankruptcy, United 

purchased some of Pan Am's South American routes and 

 2 
agreed to hire a number of Pan Am's former pilots. Bailey 

was one of the Pan Am pilots hired by United. Bailey was 

59 years old at the time United hired him in October 1992. 

Based upon his seniority, Bailey was able to bid for a 

first officer, or copilot, position. To qualify to fly as a first 

officer, Bailey was required to pass United's first officer 

training. He passed the training in November 1992 and 

began working as a first officer. Bailey turned 60 years old 

on March 5, 1993, four months after completing his first 

officer training with United. 

Federal Aviation Regulations provide that "[n]o person 

may serve as a pilot on an airplane . . . if that person has 

reached his 60th birthday." 14 C.F.R. S 121.383(c) (2001). 

In compliance with this regulation, United notified Bailey 

that he was no longer qualified to work as a first officer. 

However, Bailey was qualified to bid for a position as a 

second officer, or flight engineer, upon the successful 

completion of the transition training required by United. 

United's second officer training consists of a combination 

of ground school classroom work and participation in 

aircraft simulator exercises. After probationary second 

officer candidates complete this preliminary training, they 

take an oral and written exam and a simulator "check ride," 

which is the final test designed to present candidates with 

various real-life flying conditions. According to United's 

policy, if a candidate fails a check ride or requires excessive 

additional training periods, a Board of Review is convened 

and can render a decision that could lead to "remedial 

action, up to and including discharge" of the candidate. 

Supp. App. at 17. 

Bailey began the probationary second officer training in 

April 1993 and received a number of low ratings 

("unsatisfactory" or "needs improvement") during the 

training exercises. A written evaluation by Bailey's trainer, 

James Grimm, commented that Bailey was not able to 

perform standard operating procedures. The authenticity of 

this evaluation has been challenged by Bailey. Grimm's 

deposition testimony was that he had created and signed 

only one evaluation form for Bailey, but when confronted 

with a second version of the evaluation uncovered by 

 3 
Bailey, Grimm conceded that another evaluation existed. 

The second version of Bailey's evaluation suggested that 

Bailey performed the standard operating procedures"with 

uncertainty and slowness," which resulted in his failure to 

complete certain items, but did not say he was unable to 

perform standard operating procedures. App. at 115.

However, Grimm gave Bailey a rating of "needs 

improvement" on both versions of the evaluation. 

In later evaluations, Bailey continued to have difficulties 

with ground operations. Training records report that Bailey 

was slow and appeared "unsure of how to deal with 

unusual or irregular problems during all phases of ground 

operations." Supp. App. at 32. However, one training 

evaluator, W. J. Pierson, commented that Bailey"has

worked incredibly hard to master the DC-10, and he'll be a 

fine second officer for [United]." See Bailey v. United 

Airlines, Inc., 101 F. Supp. 2d 311, 312-13 (E.D. Pa. 2000). 

Bailey also received an "above standard" rating in 

"objectivity/motivation/industry." Id. 

On April 30, 1993, Bailey failed his simulator check ride. 

Bailey was informed by his instructor immediately after the 

check ride that he did not pass. He was also told that 

United would probably hold a Board of Review, although 

Bailey maintains he was initially given assurances that 

United would provide additional simulator training and 

another check ride. Bailey claims he returned home to 

Pennsylvania for the weekend knowing some action would 

be taken, but confident that he would be given another 

chance. The Board of Review met on May 4, 1993 to 

evaluate Bailey's performance. After considering Bailey's 

record and training, the Board decided to terminate Bailey's 

employment. 

Upon Bailey's return to work after the weekend, a United 

official told Bailey things "didn't look good" and that the 

Board was not going to recommend him for further 

training. Supp. App. at 15. Bailey testified that Eric 

Clethen, the new pilot supervisor, called him "a day later," 

approximately May 4, 1993, and told him to report to the 

chief pilot's office in San Francisco the next day. Supp. 

App. at 15. The substance of the telephone conversation is 

the subject of dispute. The parties agree that Bailey 

 4 
informed Clethen that he could not make a meeting on May 

5th, but would be available on May 6, 1993. Bailey arrived 

in San Francisco on May 6th and met with Captain Daly, 

the chief pilot, and Clethen. Clethen gave Bailey the option 

of resigning his employment upon the condition that he 

sign a release of claims against United or have his

employment terminated. Bailey refused to sign the release 

and he was terminated. 

Bailey filed a charge of discrimination with the EEOC on 

March 2, 1994, claiming that United terminated his 

employment in violation of the ADEA. The ADEA requires 

that a charge of discrimination be filed with the Equal 

Employment Opportunity Commission ("EEOC") prior to the 

initiation of a lawsuit in federal court so that the EEOC has 

an opportunity to resolve the dispute. See Bihler v. Singer 

Co., 710 F.2d 96, 97 (3d Cir. 1983). In a "deferral" state 

such as Pennsylvania that has a procedure for conciliation 

by a state agency, the EEOC charge must be filed within 

300 days after the alleged unlawful employment practice 

occurs. 29 U.S.C. S 626(d)(2); Colgan v. Fisher Scientific Co., 

935 F.2d 1407, 1413-14 (3d Cir. 1991) (en banc). 

Bailey commenced this action on a pro se basis on 

August 14, 1997 and later filed two amended complaints.1 

After Bailey retained counsel, he commenced discovery. On 

June 4, 1999, United submitted a motion for summary

judgment. The Magistrate Judge granted an extension of 

the discovery deadline and dismissed United's motion for 

summary judgment without prejudice to re-file at the close 

of discovery. On September 27, 1999, Bailey filed another 

motion to extend discovery and a motion to amend the 

complaint to assert claims dealing with fraud, evidence 

tampering, and civil RICO. The Magistrate Judge denied 

both of these motions. United then renewed its motion for 

summary judgment. After all briefing was complete on June 

_________________________________________________________________ 

1. On January 8, 1998, Bailey asked the clerk to enter United's default 

for failure to appear, plead, or otherwise defend. United claims that its 

in-house counsel sought and received an extension from Bailey to 

answer the amended complaint and filed an answer within the agreed 

upon time. The Magistrate Judge granted United's motion to set aside 

the default on August 7, 1998 and later reaffirmed that decision on 

August 13, 1998. 

 5 
13, 2000, the District Court granted United's renewed 

motion for summary judgment, finding that Bailey's claim 

was time-barred. Bailey sought reconsideration, which the 

District Court denied on July 28, 2000. Bailey timely filed 

this appeal on August 25, 2000. Bailey seeks reversal of the 

grant of summary judgment, as well as several other

determinations of the Magistrate Judge and the District 

Court. 

II. 

DISCUSSION 

Summary judgment is appropriate where "there is no 

genuine issue as to any material fact and the moving party 

is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(c). In considering a motion for summary judgment, a 

court must "draw[ ] all reasonable inferences from the 

underlying facts in the light most favorable to the nonmoving party." See Battaglia v. McKendry, 233 F.3d 720, 

722 (3d Cir. 2000) (quotations omitted). A district court's 

grant of summary judgment is subject to plenary review. 

See Pittston Co. Ultramar America Ltd. v. Allianz Ins. Co., 

124 F.3d 508, 515 (3d Cir. 1997). 

The threshold inquiry in evaluating the timeliness of 

Bailey's ADEA claim is to identify the precise unlawful 

employment practice of which he complains. See Del. State 

Coll. v. Ricks, 449 U.S. 250, 257 (1980). Here, Bailey claims 

that United's decision to terminate his employment was 

motivated by unlawful age discrimination. 

It is well established that for purposes of filing a charge 

claiming unlawful discharge, the limitations period must be 

measured from the date on which the employee was 

advised of the decision to terminate his or her employment. 

See Ricks, 449 U.S. at 258-259, 262 (holding that the 

limitations period commenced to run when the decision not 

to offer tenure was made and communicated to plaintiff); 

Bouker v. CIGNA Corp., 1994 WL 594273, at *2 (E.D. Pa. 

Oct. 24, 1994) (explaining that the applicable limitations 

period begins to run "when the employee knew or should 

have known of the harm inflicted by the adverse 

 6 
employment decision"), aff'd, 70 F.3d 1254 (3d Cir. 1995); 

Guarnaccia v. John Wanamaker, Inc., 1990 WL 90490, at *3 

(E.D. Pa. 1990) (limitations period "must be measured from 

the date the plaintiff was advised he was to be discharged" 

as opposed to the date of separation). Thus, for Bailey's 

charge to have been timely, he must not have known prior 

to May 6, 1993 (300 days earlier) that United had decided 

to discontinue his employment. 

Bailey argues that the statute of limitations began to run 

on May 6, 1993, the undisputed day on which he was 

officially presented by United with the option to resign or be 

terminated.2 United argues that the limitations period 

began to run on May 4, 1993, the day United alleges that 

Clethen called Bailey and told him a Board of Review had 

been held and that his employment would be terminated. 

Thus, the question before the District Court on the motion 

for summary judgment was whether there was a genuine 

issue of material fact as to the date Bailey was advised that 

United had decided to terminate his employment. The

District Court granted summary judgment to United, 

holding that there was no genuine issue of material fact 

with regard to this date, that Bailey knew of his termination 

prior to May 6, 1993, and that therefore Bailey's claim was 

untimely. 

The Supreme Court has held that the charge-filing period 

begins to run on a claim of unlawful discrimination when 

the employer establishes its official position and 

communicates that position by giving notice to the affected 

employee. Ricks, 449 U.S. at 258-59, 262. An employer 

establishes its official position when it decides, 

unconditionally, to terminate an individual's employment 

and provides the employee with notice of the unconditional 

decision to terminate his or her employment. Id. at 257-58. 

_________________________________________________________________ 

2. Bailey alternatively argues that his EEOC filing should be deemed 

timely because he submitted an EEOC intake questionnaire on February 

24, 1994, within the 300-day charge filing period. Bailey did not 

adequately raise this issue before the District Court and thus it is 

waived 

on appeal. Even were the argument not waived, the intake questionnaire 

was not adequate to constitute a charge sufficient to toll the limitations 

period. See Michelson v. Exxon Research and Eng'g Co., 808 F.2d 1005, 

1010-11 (3d Cir. 1987). 

 7 
This court has stated that the charge-filing period begins 

to run on a claim of wrongful discharge under the ADEA 

when the employer has reached a "definitive conclusion" to 

terminate the individual's employment. Colgan v. Fisher 

Scientific Co., 935 F.2d 1407, 1419 (3d Cir. 1991) (en banc). 

The charge-filing period begins to run only "when the 

employee receives unequivocal notice of the adverse

employment decision." Grayson v. K Mart Corp. , 79 F.3d 

1086, 1100 n.19 (11th Cir. 1996). Therefore, the statute of 

limitations began to run when Bailey first learned 

unconditionally that his employment with United had or 

would come to an end. 

It is that date that is the subject of conflicting evidence. 

Bailey contends that he did not know he would be 

terminated until May 6th, and alternatively that even 

assuming he knew prior to May 6th, United's offer to allow 

him to resign in lieu of termination delayed accrual of the 

limitations period until his response to that offer. It is 

undisputed that on May 6, 1993, Bailey traveled to San 

Francisco and met with the chief pilot, where he was 

officially presented with the option of resigning upon the 

condition that he sign a release of claims against United or 

be terminated. 

The central focus of the factual dispute regarding when 

Bailey was advised that United intended to terminate his 

employment is Bailey's deposition testimony. App. at 20. At 

his deposition, Bailey was asked what happened upon

returning to Denver after the weekend of May 1-2, 1993, 

having failed to pass his check ride the previous week. He 

stated that he was told "[i]t didn't look good" and that "the 

board was not going to recommend [him] for further 

training." App. at 20. Bailey continued to state that he 

"received a call from the chief pilot's office in San Francisco 

a day later and told [sic] to come to San Francisco to be 

terminated." App. at 20 (emphasis added). Bailey further 

testified that in the interim between being told to report to 

the chief pilot's office in San Francisco and the time he 

actually went to San Francisco, he called a number of 

people and asked them to call the chief pilot on his behalf 

in an effort to reverse the decision. It was Bailey's 

understanding the local chief pilot was the "final determiner 

of a position in the company." App. at 29. 

 8 
The evidence before the District Court also included an 

affidavit by Eric Clethen, a member of Bailey's Board of 

Review. Clethen's affidavit differs from Bailey's testimony in 

one material respect. Clethen attests that after the Board 

met on May 4, 1993 and concluded that Bailey's 

employment would be terminated, he "called Mr. Bailey, 

informed him of the Board's decision and asked him to 

travel to San Francisco on May 5, 1993 where he would be 

removed from United's payroll and offered the opportunity 

to resign in lieu of termination." App. at 37a. The District 

Court relied on these two statements for its holding that 

there was no genuine issue of material fact regarding the 

date of termination. 

In response to United's motion for summary judgment, 

Bailey submitted an affidavit dated November 10, 1999, in 

which he stated the following: 

 [N]o sooner had I learned that the board of review had 

 met than I was asked to travel to San Francisco to 

 meet with the chief pilot. I promptly traveled from 

 Denver to San Francisco to meet with the chief pilot. At 

 the time, I did not know what the chief pilot's decision 

 was; nor did I know what the board of review's 

 recommendation had been. I hoped for the best, but 

 . . . I affirmatively prepared for negative repercussions, 

 and I sought out colleagues who knew my reputation, 

 my professionalism, and my range of experience to 

 articulate that to the chief pilot so as to help assure 

 the best possible outcome. 

App. at 91-92. Bailey also stated in the affidavit that "when 

I arrived in San Francisco on May 6, 1993 I was surprised 

to hear that a decision had already been made, and that I 

was to be terminated." App. at 92. The District Court found 

unpersuasive the fact that Bailey attempted to garner 

advocates prior to traveling to San Francisco to affect the 

decision, since "requests to reconsider . . . cannot extend 

the limitations period." Bailey v. United Airlines, Inc., 101 F. 

Supp. 2d 311, 317 (E.D. Pa. 2000) (quoting Ricks , 449 U.S. 

at 261 n.15) (alteration in original). 

The District Court held that Bailey could not avoid

summary judgment by submitting an affidavit that 

 9 
contradicted his deposition testimony without offering a 

satisfactory explanation for the apparent inconsistency. 

Bailey, 101 F. Supp. 2d at 317 (citing Hackman v. Valley 

Fair, 932 F.2d 239, 241 (3d Cir. 1991); Martin v. Merrell 

Dow Pharms., Inc., 851 F.2d 703, 705-06 (3d Cir. 1988); 

Blackburn v. United Parcel Serv., Inc., 3 F. Supp. 2d 504, 

516 n.10 (D.N.J. 1998), aff'd, 179 F.3d 81 (3d Cir. 1999)). 

The inconsistency to which the District Court referred 

was Bailey's deposition testimony that Clethen called and 

told him to come to San Francisco "to be terminated." The 

District Court viewed this testimony as an admission by 

Bailey that he was informed of United's decision to

terminate his employment in the May 4, 1993 phone 

conversation. However, as Bailey has articulated, that 

sentence can be interpreted to reflect what Bailey later 

came to understand as the purpose of his meeting. In his 

affidavit, dated November 10, 1999, Bailey said that when 

he arrived in San Francisco on May 6th for his meeting 

with the chief pilot, he was surprised to hear a decision to 

terminate his employment had been made. The District 

Court held that because of this contradiction, the affidavit 

does not create a genuine issue of fact sufficient to 

withstand summary judgment. 

The Martin court recognized situations where"sworn 

testimony can quite properly be corrected by a subsequent 

affidavit." 851 F.2d at 705. In a situation "[w]here the 

witness was confused at the earlier deposition or for some 

other reason misspoke, the subsequent correcting or

clarifying affidavit may be sufficient to create a material 

dispute of fact." Id. In his memorandum of law opposing 

United's motion for summary judgment, Bailey explains 

that his comment "to be terminated" was "merely 

referencing, in hindsight, the irony that he had to travel a 

long distance in order to be fired." Supp. App. at 121-122. 

Bailey suggests that Clethen did not notify him of the 

Board's decision to terminate his employment during their 

phone call. Instead, his statement "to be terminated" simply 

referred to the irony that he later learned he had traveled 

from Denver to San Francisco to be fired and that this 

meaning was obvious at the deposition from the tone and 

cadence of his voice. Supp. App. at 122. 

 10 
In a second affidavit dated June 27, 2000 submitted with 

Bailey's Motion for Reconsideration of the District Court's 

grant of summary judgment to United, Bailey asserted that 

Clethan did not inform him during the May 4, 1993 phone 

call that a decision had been made regarding his 

employment with United. Furthermore, Bailey reiterated 

that he did not know United intended to terminate his 

employment until May 6, 1993, and submitted the 

affidavits of two individuals who accompanied Bailey to the 

meeting on May 6, who stated that Bailey expressed 

surprise upon learning of his termination on that day. 

In his brief and reply brief on appeal, Bailey does not 

deny that he uttered the words "to be terminated." Rather, 

he disputes the meaning of this phrase as it was 

transcribed in his deposition testimony. Bailey explains 

that the intended meaning of his remark would have been 

clear had the court reporter inserted an ellipsis or a hyphen 

before the words "to be terminated" in order to connote a 

pause and that this would have alerted the reader of the 

deposition to the intended meaning of his statement. Bailey 

attempted to explain the contradiction in his affidavit dated 

June 27, 2000 by explaining that his words "to be 

terminated" merely referenced in hindsight the purpose of 

his trip to San Francisco. But the District Court refused to 

consider this subsequent affidavit since it contained only 

evidence that was available prior to summary judgment. A 

district court may properly refuse to consider evidence 

presented in a motion for reconsideration when the 

evidence was available prior to summary judgment. Harsco 

Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). 

Whether or not these affidavits should have been 

considered by the District Court, the evidence presented on 

summary judgment was sufficient to create a genuine issue 

of material fact. The deposition testimony and affidavit on 

which the District Court relied do not show conclusively 

that Bailey received notice that he was going to be

terminated prior to his meeting on May 6th with the chief 

pilot. The language in Bailey's testimony and in Clethen's 

affidavit does not lead unambiguously to one conclusion. 

The Clethen affidavit stated that he "called Mr. Bailey, 

informed him of the Board's decision and asked him to 

 11 
travel to San Francisco on May 5, 1993 where he would be 

removed from United's payroll and offered the opportunity 

to resign in lieu of termination." App. at 37a. The District 

Court opinion interpreted this statement to state that 

"[Clethen] told Bailey that a Board of Review had been held 

and that Bailey would be terminated." Bailey , 101 F. Supp. 

2d at 316. The District Court assumed that Clethen was 

describing what he said to Bailey as distinguished from 

what ultimately happened in San Francisco. While the 

assumption reached by the District Court may ultimately 

be the finding the jury makes, there is contrary evidence, 

and therefore summary judgment was inappropriate. 

Bailey's deposition testimony that it was his 

understanding that the "local chief pilots are apparently the 

final determiner of a position in the company," App. at 29, 

can be interpreted as supporting his belief that no final 

decision had been made prior to his meeting on May 6th, 

even if he knew that the Board of Review had made a

determination. It is consistent with his requests that coworkers call the chief pilot to provide an evaluation of his 

performance. In fact, United has not adequately explained 

why it was necessary for Bailey to travel to San Francisco 

at all if notice of his termination had already been conveyed 

over the telephone. When Clethen referred to Bailey's 

termination in a letter to Bailey dated May 14, 1993, 

Clethen wrote that the letter "confirms our discussion on 

May 6, 1993 regarding your failure to meet United Airlines 

standards . . . . You were released from service from United 

Airlines . . . effective May 6, 1993." App. at 54 (emphasis 

added). The letter makes no reference to a conversation 

prior to May 6, 1993 giving Bailey notice of his termination. 

Because we conclude that the evidence does create a

genuine issue of material fact and that summary judgment 

was not appropriate, we need not reach the argument

presented by Bailey and articulated in the amicus brief of 

the EEOC that United's offer to allow Bailey to resign in 

lieu of termination delayed accrual of the limitations period 

until the time when Bailey responded to that offer. They 

argue that commencement of the statute of limitations 

before the employee has made the decision between 

resignation and termination would encourage the 

 12 
premature and unnecessary filing of charges by individuals 

who later decide to voluntarily resign their jobs. Bailey 

maintains that until he made that decision, nobody,

including his superiors at United, knew whether he was 

going to be terminated. Thus, the statute of limitations 

could have started running only after Bailey notified United 

that he would not resign. 

Inasmuch as Bailey did not present this argument to the 

District Court, it has been waived on appeal. Brown v. 

Phillip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001). We 

hold that the statute of limitations began to run as soon as 

Bailey was informed of the adverse employment decision 

reached by United and presented with the offer to resign or 

be terminated. It appears that this date was either May 4, 

1993, as Clethen stated in his affidavit, or May 6, 1993, as 

Bailey claims. This presents a fact issue to be determined, 

and we must remand for that purpose. 

III. 

ADDITIONAL ISSUES 

Bailey raises a number of additional issues. First, Bailey 

contends that the District Court improperly determined 

that United's motion for summary judgment was timely. 

This court reviews that determination for abuse of 

discretion. In re Fine Paper Antitrust Litigation, 685 F.2d 

810, 817 (3d Cir. 1982) (stating that "matters of docket 

control . . . are committed to the sound discretion of the 

district court"). This argument was properly raised before 

the District Court. 

The District Court ordered that all dispositive motions be 

filed on or before October 11, 1999. It is undisputed that 

United's motion for summary judgment was submitted on 

October 12, 1999. United contends that because October 

11 was Columbus Day, a federal holiday on which the

District Court was closed, its filing the very next business 

day was timely. The District Court agreed that the motion 

was timely, consistent with the Federal Rules of Civil 

Procedure and relevant case law. Bailey v. United Airlines, 

Inc., 101 F. Supp. 2d 311, 315 n.6 (citing Fed. R. Civ. P. 6; 

 13 
Greenberg v. United States, 873 F. Supp. 912, 914 n.1 

(M.D. Pa. 1993), aff'd, 46 F.3d 239 (3d Cir. 1994) (holding 

that a motion filed one day after a deadline falling on a 

federal holiday is timely under Fed. R. Civ. P. 6)). Bailey 

argues that under Rule 6, a federal holiday will extend a 

deadline to the next day only when a computation of time 

is involved. Here, the District Court did not order motions 

to be filed in a specified number of days but instead 

required briefs to be submitted by October 11, 1999, 

leaving nothing to compute. Additionally, Bailey maintains 

that Greenberg ignores the plain meaning of Rule 6 and 

was never reviewed by this court. 

The language of Rule 6 ("[i]n computing any period of 

time . . .") does suggest it applies only when a computation 

of time is involved. In fact, the rule would be unnecessary 

in the context of a specified date. However, Greenberg 

involved an analogous situation in which the court had 

ordered that motions be filed on a specific date that fell on 

a federal holiday and the defendant filed the motion the 

following day. Greenberg, 873 F. Supp. at 914 n.1. This 

court did review and affirm the Greenberg decision,

although we did not refer to this aspect of the decision. We 

will follow that decision. Greenberg is consistent with this 

court's recognition that "broad discretion should be 

accorded district courts in the management of their

calendars." Titus v. Mercedes Benz of North America, 695 

F.2d 746, 751 (3d Cir. 1982). Thus, we agree with the 

District Court that United's motion was timely filed. 

Second, Bailey argues that the Magistrate Judge 

improperly denied his request to amend his complaint to 

include claims alleging fraud, evidence tampering, and civil 

RICO. Bailey's request stemmed from his allegation that 

United fabricated an unfavorable performance evaluation 

for his personnel file. The Magistrate Judge, having held a 

hearing, ruled that Bailey had not made out a prima facie 

case for any of these claims, and denied his request. This 

court reviews a district court's denial of a request for leave 

to amend a complaint for abuse of discretion. See Berger v. 

Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990). The 

factors which a trial court may appropriately consider 

"include undue delay, undue prejudice to the opposing 

 14 
party, and futility of amendment." Averbach v. Rival Mfg. 

Co., 879 F.2d 1196, 1203 (3d Cir. 1989). United claims that 

Bailey failed to appeal the Magistrate Judge's denial to the 

District Court and thus has waived it on appeal. Appellee's 

Br. at 62-65 (citing 28 U.S.C. S 636(b)(1)(A); United 

Steelworkers of America, AFL-CIO v. N.J. Zinc Co., Inc., 828 

F.2d 1001, 1008 (3d Cir. 1987)). Because Bailey has not 

pointed to anything in the record to demonstrate that he 

raised this issue with the District Court and has not shown 

that there were "extraordinary circumstances," we will not 

consider this issue. See United Steelworkers, 828 F.2d at 

1008 (explaining extraordinary circumstances standard). 

Third, Bailey contends that the Magistrate Judge 

improperly denied his motion for an extension of the 

discovery deadline, a matter subject to her discretion. 

Although Bailey included in his statement of the issues to 

be raised in this court whether the trial court"improperly 

refused to grant a reasonable extension of the discovery 

deadline," Appellant's Br. at 3, he failed to argue this issue 

in his brief. See Kiewit Eastern Co., Inc. v. L & R Constr. 

Co., Inc., 44 F.3d 1194, 1204 n. 30 (3d Cir. 1995) (noting 

that under Fed. R. App. P. 28(a)(5), when an issue is 

presented in the statement of issues raised on appeal, but 

not in the argument section of the brief "the appellant has 

abandoned and waived that issue on appeal") (quoting 

Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13 

F.3d 704, 711 (3d Cir. 1994)). Therefore, this argument was 

waived. 

Fourth, in his brief, Bailey includes in his statement of 

the issues "[w]hether the trial court improperly failed to 

reconsider its decision" to grant United's motion for 

summary judgment. Appellant's Br. at 1. However, once 

again Bailey has not addressed this issue in the argument 

section of his brief. Therefore, there is no basis for finding 

that the District Court abused its discretion in denying 

Bailey's motion for reconsideration of its order granting 

United's motion for summary judgment. See Kiewit , 44 F.3d 

at 1204 n.30. 

Finally, Bailey contends that the Magistrate Judge 

improperly granted United's motion to set aside the clerk's 

entry of default and the amended order to set aside the 

 15 
clerk's entry of default. A decision to set aside an entry of 

default pursuant to Fed. R. Civ. P. 55(c) "is left primarily to 

the discretion of the district court." See Hritz v. Woma 

Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). However, United 

claims that Bailey did not seek review by the District Court 

of this decision and thus, he has waived the issue on 

appeal. Appellee's Br. at 62 (citing 28 U.S.C. S 636(b)(1)(A); 

United Steelworkers, 828 F.2d 1001, 1008 (3d Cir. 1987) 

(stating that "this court has consistently held that it will 

not, absent extraordinary circumstances, address on appeal 

issues not originally presented to the district court" and 

that "to allow parties to challenge magistrates' orders in the 

first instance on appeal would be to permit them to

circumvent the district courts")). Again, Bailey has not 

pointed to anything in the record to indicate that he raised 

this issue with the District Court and thus, he has waived 

the issue on appeal. 

Finally, United has made a very strong argument that if 

this court does not affirm on the grounds of the statute of 

limitations which was the basis for the District Court's 

disposition, we should affirm on the ground that Bailey's 

ADEA claim fails on the merits. The District Court did not 

reach the issue of summary judgment on the merits. If the 

statute of limitations was in fact dispositive, then the 

District Court did not err in failing to consider the merits. 

However, inasmuch as we have held that there is an issue 

of fact on the statute of limitations issue, the District Court 

may on remand turn to the merits issue, which it may find 

dispositive. 

IV. 

CONCLUSION 

For the reasons set forth above, we will reverse the 

decision of the District Court granting summary judgment 

for defendant on the basis of the statute of limitations, and 

will remand for further proceedings as the District Court 

deems appropriate. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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