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. e du/thir dc ir c uit_2002/89Filed 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 AppellantOtto 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 Sta tes District Court for the Eastern District of Pennsylv ania 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 gra nted United's motion for summary judgment and Bailey app eals.

I.

FACTS

Bailey worked as a commercial airline pilot for Pan American World Airways ("Pan Am") for most of his c areer. In 1991, after Pan Am declared bankruptcy, United purchased some of Pan Am's South American routes an d

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

was one of the Pan Am pilots hired by United. Baile y was 59 years old at the time United hired him in Octobe r 1992.

Based upon his seniority, Bailey was able to bid fo r 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 a nd 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 per son may serve as a pilot on an airplane . . . if that p erson 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 succes sful completion of the transition training required by U nited.

United's second officer training consists of a comb ination of ground school classroom work and participation i n aircraft simulator exercises. After probationary se cond officer candidates complete this preliminary traini ng, they

take an oral and written exam and a simulator "chec k ride," which is the final test designed to present candida tes with various real-life flying conditions. According to U nited's policy, if a candidate fails a check ride or requir es excessive additional training periods, a Board of Review is c onvened

and can render a decision that could lead to "remed ial action, up to and including discharge" of the candi date. Supp. App. at 17.

Bailey began the probationary second officer traini ng in April 1993 and received a number of low ratings ("unsatisfactory" or "needs improvement") during th e training exercises. A written evaluation by Bailey' s trainer, James Grimm, commented that Bailey was not able to perform standard operating procedures. The authenti city of this evaluation has been challenged by Bailey. Grim m's deposition testimony was that he had created and si gned only one evaluation form for Bailey, but when confr onted

with a second version of the evaluation uncovered b y

3Bailey, Grimm conceded that another evaluation exis ted.

The second version of Bailey's evaluation suggested that Bailey performed the standard operating procedures" with uncertainty and slowness," which resulted in his fa ilure to complete certain items, but did not say he was unab le 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 diff iculties with ground operations. Training records report tha t 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 trainin g 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. Un ited Airlines, Inc., 101 F. Supp. 2d 311, 312-13 (E.D. P a. 2000). Bailey also received an "above standard" rating in "objectivity/motivation/industry." Id.

On April 30, 1993, Bailey failed his simulator chec k ride. Bailey was informed by his instructor immediately a fter the check ride that he did not pass. He was also told t hat United would probably hold a Board of Review, altho ugh 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 wo uld be taken, but confident that he would be given anot her chance. The Board of Review met on May 4, 1993 to evaluate Bailey's performance. After considering Ba iley's record and training, the Board decided to terminate Bailey's employment.

Upon Bailey's return to work after the weekend, a U nited 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 E ric Clethen, the new pilot supervisor, called him "a da y later," approximately May 4, 1993, and told him to report t o the chief pilot's office in San Francisco the next day. Supp. App. at 15. The substance of the telephone conversa tion is the subject of dispute. The parties agree that Bail ey

4informed Clethen that he could not make a meeting o n May

5th, but would be available on May 6, 1993. Bailey arrived in San Francisco on May 6th and met with Captain Da ly, the chief pilot, and Clethen. Clethen gave Bailey t he 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 r elease

and he was terminated.

Bailey filed a charge of discrimination with the EE OC on March 2, 1994, claiming that United terminated his employment in violation of the ADEA. The ADEA requi res that a charge of discrimination be filed with the E qual Employment Opportunity Commission ("EEOC") prior to the

initiation of a lawsuit in federal court so that th e 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 conci liation by a state agency, the EEOC charge must be filed wi thin 300 days after the alleged unlawful employment prac tice occurs. 29 U.S.C. S 626(d)(2); Colgan v. Fisher Sci entific 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 complai nts.1 After Bailey retained counsel, he commenced discove ry. 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 motio n for summary judgment without prejudice to re-file at th e close of discovery. On September 27, 1999, Bailey filed a nother motion to extend discovery and a motion to amend th e complaint to assert claims dealing with fraud, evid ence tampering, and civil RICO. The Magistrate Judge den ied

both of these motions. United then renewed its moti on for summary judgment. After all briefing was complete o n June

___________________________________________________ ______________

1. On January 8, 1998, Bailey asked the clerk to en ter United's default for failure to appear, plead, or otherwise defend. United claims that its in-house counsel sought and received an extension f rom Bailey to answer the amended complaint and filed an answer wi thin the agreed upon time. The Magistrate Judge granted United's mo tion to set aside the default on August 7, 1998 and later reaffirmed that decision on August 13, 1998.

513, 2000, the District Court granted United's renew ed

motion for summary judgment, finding that Bailey's claim was time-barred. Bailey sought reconsideration, whi ch the District Court denied on July 28, 2000. Bailey time ly filed this appeal on August 25, 2000. Bailey seeks revers al of the grant of summary judgment, as well as several other determinations of the Magistrate Judge and the Dist rict

Court.

II.

DISCUSSION

Summary judgment is appropriate where "there is no genuine issue as to any material fact and the movin g 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 rev iew.

See Pittston Co. Ultramar America Ltd. v. Allianz I ns. 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 unla wful employment practice of which he complains. See Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980). Here, Bai ley 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 emp loyment. See Ricks, 449 U.S. at 258-259, 262 (holding that t he limitations period commenced to run when the decisi on not to offer tenure was made and communicated to plaint iff); Bouker v. CIGNA Corp., 1994 WL 594273, at *2 (E.D. Pa. Oct. 24, 1994) (explaining that the applicable limi tations period begins to run "when the employee knew or sho uld have known of the harm inflicted by the adverse

6employment 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 measur ed from the date the plaintiff was advised he was to be dis charged" as opposed to the date of separation). Thus, for Ba iley's charge to have been timely, he must not have known prior to May 6, 1993 (300 days earlier) that United had d ecided 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 r esign or be terminated.2 United argues that the limitations per iod began to run on May 4, 1993, the day United alleges that Clethen called Bailey and told him a Board of Revie w had been held and that his employment would be terminat ed. Thus, the question before the District Court on the motion for summary judgment was whether there was a genuin e issue of material fact as to the date Bailey was ad vised 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 t ermination prior to May 6, 1993, and that therefore Bailey's c laim was untimely.

The Supreme Court has held that the charge-filing p eriod 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 employ er establishes its official position when it decides, unconditionally, to terminate an individual's emplo yment and provides the employee with notice of the uncond itional decision to terminate his or her employment. Id. a t 257-58.

___________________________________________________ ______________

2. Bailey alternatively argues that his EEOC filing should be deemed timely because he submitted an EEOC intake question naire on February 24, 1994, within the 300-day charge filing period. Bailey did not adequately raise this issue before the District Cou rt and thus it is

waived on appeal. Even were the argument not waived, the i ntake questionnaire was not adequate to constitute a charge sufficient to toll the limitations period. See Michelson v. Exxon Research and Eng'g C o., 808 F.2d 1005, 1010-11 (3d Cir. 1987).

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

to run on a claim of wrongful discharge under the A DEA when the employer has reached a "definitive conclus ion" to terminate the individual's employment. Colgan v. Fi sher Scientific Co., 935 F.2d 1407, 1419 (3d Cir. 1991) (en banc). The charge-filing period begins to run only "when t he 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 st atute 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 ev en assuming he knew prior to May 6th, United's offer t o allow him to resign in lieu of termination delayed accrua l 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 wa s officially presented with the option of resigning u pon 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 terminat e his employment is Bailey's deposition testimony. App. a t 20. At his deposition, Bailey was asked what happened upon returning to Denver after the weekend of May 1-2, 1 993, having failed to pass his check ride the previous w eek. 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 th at he "received a call from the chief pilot's office in S an Francisco a day later and told [sic] to come to San Francisco to be terminated." App. at 20 (emphasis added). Bailey fu rther testified that in the interim between being told to report to the chief pilot's office in San Francisco and the t ime he actually went to San Francisco, he called a number of people and asked them to call the chief pilot on hi s 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.

8The evidence before the District Court also include d an

affidavit by Eric Clethen, a member of Bailey's Boa rd of Review. Clethen's affidavit differs from Bailey's t estimony in one material respect. Clethen attests that after th e Board met on May 4, 1993 and concluded that Bailey's employment would be terminated, he "called Mr. Bail ey, informed him of the Board's decision and asked him to travel to San Francisco on May 5, 1993 where he wou ld be removed from United's payroll and offered the oppor tunity to resign in lieu of termination." App. at 37a. The District

Court relied on these two statements for its holdin g that there was no genuine issue of material fact regardi ng the

date of termination.

In response to United's motion for summary judgment
, Bailey submitted an affidavit dated November 10, 19 99, 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 Franci sco to meet with the chief pilot. I promptly travel ed from

Denver to San Francisco to meet with the chi ef pilot. At the time, I did not know what the chief pilo t's decision was; nor did I know what the board of review 's recommendation had been. I hoped for the bes t, but . . . I affirmatively prepared for negative repercussions, and I sought out colleagues who knew my repu tation, my professionalism, and my range of experien ce 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 sur prised to hear that a decision had already been made, and that I was to be terminated." App. at 92. The District Cou rt found unpersuasive the fact that Bailey attempted to garn er advocates prior to traveling to San Francisco to af fect the decision, since "requests to reconsider . . . canno t 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

9contradicted his deposition testimony without offer ing a

satisfactory explanation for the apparent inconsist ency. Bailey, 101 F. Supp. 2d at 317 (citing Hackman v. V alley Fair, 932 F.2d 239, 241 (3d Cir. 1991); Martin v. M errell Dow Pharms., Inc., 851 F.2d 703, 705-06 (3d Cir. 19 88); 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 refer red was Bailey's deposition testimony that Clethen call ed and

told him to come to San Francisco "to be terminated ." The District Court viewed this testimony as an admissio n 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, t hat sentence can be interpreted to reflect what Bailey later came to understand as the purpose of his meeting. I n his affidavit, dated November 10, 1999, Bailey said tha t when he arrived in San Francisco on May 6th for his meet ing with the chief pilot, he was surprised to hear a de cision to terminate his employment had been made. The Distric t 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 subs equent affidavit." 851 F.2d at 705. In a situation "[w]her e the witness was confused at the earlier deposition or f or 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 oppo sing United's motion for summary judgment, Bailey explai ns 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 terminate d" simply referred to the irony that he later learned he had traveled

from Denver to San Francisco to be fired and that t his meaning was obvious at the deposition from the tone and cadence of his voice. Supp. App. at 122.

10In 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 asserte d that Clethan did not inform him during the May 4, 1993 p hone call that a decision had been made regarding his employment with United. Furthermore, Bailey reitera ted

that he did not know United intended to terminate h is employment until May 6, 1993, and submitted the affidavits of two individuals who accompanied Baile y to the meeting on May 6, who stated that Bailey expressed surprise upon learning of his termination on that d ay.

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 exp lains that the intended meaning of his remark would have been clear had the court reporter inserted an ellipsis o r a hyphen

before the words "to be terminated" in order to con note a pause and that this would have alerted the reader o f the deposition to the intended meaning of his statement . Bailey attempted to explain the contradiction in his affid avit dated June 27, 2000 by explaining that his words "to be terminated" merely referenced in hindsight the purp ose of his trip to San Francisco. But the District Court r efused to consider this subsequent affidavit since it contain ed only evidence that was available prior to summary judgme nt. A district court may properly refuse to consider evid ence presented in a motion for reconsideration when the evidence was available prior to summary judgment. H arsco 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 pres ented on summary judgment was sufficient to create a genuine issue of material fact. The deposition testimony and affi davit on

which the District Court relied do not show conclus ively 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 Cl ethen's affidavit does not lead unambiguously to one conclu sion.

The Clethen affidavit stated that he "called Mr. Ba iley,

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

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

removed from United's payroll and offered the oppor tunity to resign in lieu of termination." App. at 37a. The District Court opinion interpreted this statement to state t hat "[Clethen] told Bailey that a Board of Review had b een 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 th e assumption reached by the District Court may ultima tely be the finding the jury makes, there is contrary ev idence, and therefore summary judgment was inappropriate.

Bailey's deposition testimony that it was his understanding that the "local chief pilots are appa rently 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 t hat coworkers call the chief pilot to provide an evaluati on of his performance. In fact, United has not adequately exp lained why it was necessary for Bailey to travel to San Fr ancisco at all if notice of his termination had already bee n conveyed over the telephone. When Clethen referred to Bailey 's termination in a letter to Bailey dated May 14, 199 3,

Clethen wrote that the letter "confirms our discuss ion on May 6, 1993 regarding your failure to meet United A irlines

standards . . . . You were released from service fr om United Airlines . . . effective May 6, 1993." App. at 54 ( emphasis
added). The letter makes no reference to a conversa tion prior to May 6, 1993 giving Bailey notice of his te rmination.

Because we conclude that the evidence does create a genuine issue of material fact and that summary jud gment was not appropriate, we need not reach the argument presented by Bailey and articulated in the amicus b rief of the EEOC that United's offer to allow Bailey to res ign in lieu of termination delayed accrual of the limitati ons period until the time when Bailey responded to that offer. They argue that commencement of the statute of limitatio ns before the employee has made the decision between resignation and termination would encourage the

12premature and unnecessary filing of charges by indi viduals

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 limita tions could have started running only after Bailey notifi ed 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. 200 1). We hold that the statute of limitations began to run a s soon as Bailey was informed of the adverse employment decis ion reached by United and presented with the offer to r esign 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 det ermined, 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 determi ned that United's motion for summary judgment was timel y. 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 d ocket

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 mot ions be filed on or before October 11, 1999. It is undisput ed that United's motion for summary judgment was submitted on October 12, 1999. United contends that because Octo ber 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 Ci vil Procedure and relevant case law. Bailey v. United A irlines, Inc., 101 F. Supp. 2d 311, 315 n.6 (citing Fed. R. Civ. P. 6;

13Greenberg 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 fallin g on a federal holiday is timely under Fed. R. Civ. P. 6)) . Bailey argues that under Rule 6, a federal holiday will ex tend 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 inste ad required briefs to be submitted by October 11, 1999
, leaving nothing to compute. Additionally, Bailey ma intains 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 co mputation of time is involved. In fact, the rule would be unn ecessary in the context of a specified date. However, Greenb erg involved an analogous situation in which the court had ordered that motions be filed on a specific date th at fell on a federal holiday and the defendant filed the motio n 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 dec ision. We will follow that decision. Greenberg is consistent with this court's recognition that "broad discretion should b e 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 t he District Court that United's motion was timely file d.

Second, Bailey argues that the Magistrate Judge improperly denied his request to amend his complain t to include claims alleging fraud, evidence tampering, and civil RICO. Bailey's request stemmed from his allegation that United fabricated an unfavorable performance evalua tion for his personnel file. The Magistrate Judge, havin g held a hearing, ruled that Bailey had not made out a prima facie case for any of these claims, and denied his reques t. This court reviews a district court's denial of a reques t for leave to amend a complaint for abuse of discretion. See B erger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 199 0). The factors which a trial court may appropriately consi der "include undue delay, undue prejudice to the opposi ng

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

Co., 879 F.2d 1196, 1203 (3d Cir. 1989). United cla ims that Bailey failed to appeal the Magistrate Judge's deni al to the District Court and thus has waived it on appeal. Ap pellee's Br. at 62-65 (citing 28 U.S.C. S 636(b)(1)(A); Unit ed 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 th at he

raised this issue with the District Court and has n ot shown that there were "extraordinary circumstances," we w ill not consider this issue. See United Steelworkers, 828 F .2d at 1008 (explaining extraordinary circumstances standa rd).

Third, Bailey contends that the Magistrate Judge improperly denied his motion for an extension of th e discovery deadline, a matter subject to her discret ion. Although Bailey included in his statement of the is sues to be raised in this court whether the trial court"imp roperly refused to grant a reasonable extension of the disc overy 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 appe al, but not in the argument section of the brief "the appel lant has abandoned and waived that issue on appeal") (quotin g Travitz v. Northeast Dep't ILGWU Health & Welfare F und, 13 F.3d 704, 711 (3d Cir. 1994)). Therefore, this argu ment was
waived.

Fourth, in his brief, Bailey includes in his statem ent of the issues "[w]hether the trial court improperly fa iled to reconsider its decision" to grant United's motion f or summary judgment. Appellant's Br. at 1. However, on ce again Bailey has not addressed this issue in the ar gument section of his brief. Therefore, there is no basis for finding

that the District Court abused its discretion in de nying Bailey's motion for reconsideration of its order gr anting 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

15clerk's entry of default. A decision to set aside a n 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 Distr ict Court of this decision and thus, he has waived the issue on appeal. Appellee's Br. at 62 (citing 28 U.S.C. S 63 6(b)(1)(A); United Steelworkers, 828 F.2d 1001, 1008 (3d Cir. 1 987) (stating that "this court has consistently held tha t it will not, absent extraordinary circumstances, address on appeal issues not originally presented to the district cou rt" and that "to allow parties to challenge magistrates' or ders in the first instance on appeal would be to permit them to circumvent the district courts")). Again, Bailey ha s 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 tha t if this court does not affirm on the grounds of the st atute of

limitations which was the basis for the District Co urt's disposition, we should affirm on the ground that Ba iley'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, the n the District Court did not err in failing to consider t he merits. However, inasmuch as we have held that there is an issue of fact on the statute of limitations issue, the Di strict Court may on remand turn to the merits issue, which it ma y find dispositive.

IV.

CONCLUSION

For the reasons set forth above, we will reverse th e decision of the District Court granting summary jud gment
for defendant on the basis of the statute of limita tions, and will remand for further proceedings as the District Court deems appropriate.

16A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17