NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2928 __________

LEONARD N. BARSODY, Appellant

v.

CLEARFIELD AREA SCHOOL DISTRICT ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 3-21-cv-00091) District Judge: Honorable Stephanie L. Haines ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) May 25, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed June 5, 2023) ___________

OPINION* ___________

PER CURIAM

Leonard N. Barsody, proceeding pro se, appeals an order of the United States

District Court for the Western District of Pennsylvania granting defendant’s motion to

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. dismiss his complaint. For the reasons that follow, we will affirm the judgment of the

District Court.

Barsody filed a complaint against Clearfield Area School District, seeking

compensatory and punitive damages for alleged violations of the Americans with

Disabilities Act (“ADA”),

et seq. Dkt. No. 1. Barsody alleged that,

because of a disability, employees of the School District harassed him, discriminated and

retaliated against him, subjected him to a hostile work environment, and constructively

discharged him from his position as a high school physics teacher.

. The

School District moved to dismiss the complaint for failure to state a claim, and the

District Court granted the motion, with leave to amend his hostile work environment and

discrimination claims. Dkt. Nos. 9 & 18. Barsody timely appealed, then filed a notice of

intention to stand on his complaint. Dkt. Nos. 23 & 25.

We have jurisdiction under

. See Batoff v. State Farm Ins. Co.,

, 851 n.5 (3d Cir. 1992); Borelli v. City of Reading,

(3d Cir. 1976) (per curiam). We exercise de novo review over the District Court’s grant

of a motion to dismiss. Castleberry v. STI Grp.,

(3d Cir. 2017). To

survive dismissal, “a complaint must contain sufficient factual matter, accepted as true,”

to show that its claims are facially plausible. Ashcroft v. Iqbal,

(2009).

On appeal, Barsody challenges the District Court’s rulings that he failed to

plausibly allege that he is a person with a disability under the ADA and failed to exhaust

his constructive discharge and retaliation claims prior to filing a lawsuit. C.A. Dkt. No.

2 12 at 18-20 & 30-33. He also argues that the District Court improperly refused to

consider 75 exhibits he filed in response to the School District’s motion to dismiss. Id. at

20-22. However, we agree with the District Court.

To present a claim of discrimination or hostile work environment under the ADA,

a plaintiff must demonstrate that he is a person with a disability according to the ADA.

See Eshleman v. Patrick Indus., Inc.,

(3d Cir. 2020); Walton v. Mental

Health Ass’n of Se. Pa.,

(3d Cir. 1999). Barsody asserted that he

qualifies as a person with a disability under the ADA because, inter alia, he experienced

alcoholism in 2012, was treated at an inpatient psychiatric ward for short periods in 2012

and 2013, and, until 2018, was prescribed medication that “helped him maintain a normal

work/sleep cycle[.]” Dkt. No. 1 at 3-4 & 12. The District Court correctly determined

that this “brief description of his disability” was insufficient to allow the Court to

conclude he had a disability under the ADA. Dkt. No. 18 at 17-18; see Emory v.

AstraZeneca Pharms. LP,

(3d Cir. 2005) (explaining that, under the

ADA, a disability “substantially limits one or more . . . major life activities”); Tice v.

Centre Area Transp. Auth.,

, 513 n.5 (3d Cir. 2001) (“[A] particular

diagnosis, no matter how severe (or severe-sounding to the layperson), standing alone, is

not sufficient to establish ‘disability.’”). Although the District Court properly provided

Barsody the opportunity to provide further facts to support a finding of disability under

the ADA, Dkt. No. 18 at 18, Barsody explicitly stated that he did not want to amend his

complaint, Dkt. No. 25 at 1.

3 The District Court also correctly concluded that Barsody failed to exhaust his

constructive discharge and retaliation claims. Before bringing suit under Title VII of the

ADA in federal court, Barsody was required to first file a charge with the Equal

Employment Opportunity Commission (“EEOC”) and receive a right-to-sue letter. See

Hicks v. ABT Assocs. Inc.,

(3d Cir. 1978). Barsody filed an EEOC

charge on February 23, 2021, stating that the School District discriminated against him

based on disability, and he received a right-to-sue letter on February 24, 2021.1 Dkt. No.

1-1 at 2-3. Barsody’s EEOC charge did not include the facts giving rise to the

constructive discharge claim in his District Court complaint, including that, in April

2021, he exhausted his paid sick leave days, was placed on unpaid leave, and lost his

employee benefits. See Dkt. No. 1 at 20. Accordingly, his EEOC charge did not

encompass the constructive discharge claim. See Ostapowicz v. Johnson Bronze Co.,

(3d Cir. 1976) (“[T]he parameters of the civil action in the district

court are defined by the scope of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimination[.]”).

To the extent Barsody made a retaliation claim against the School District based

on its directive that he complete an independent medical examination after he asked for a

written update on his employment status, he also failed to exhaust that claim. Barsody’s

1 As the District Court correctly noted, although Barsody filed a second EEOC charge against the School District in March 2021, that charge was still pending at the time he filed his federal lawsuit. See Dkt. No. 1 at 3; Dkt. No. 18 at 5 n.1. Accordingly, any claims included in the second charge were unexhausted for the purposes of the suit. See Hicks,

. 4 EEOC charge referenced neither the request for a written update nor the alleged

retaliatory action. See Dkt. No. 1-1 at 2. On the contrary, the subject of Barsody’s

EEOC charge, his placement on paid administrative leave, began two weeks before he

requested a written statement about his employment. Dkt. No. 1 at 13-15. Accordingly,

the retaliation claim was unexhausted. See Simko v. U.S. Steel Corp.,

(3d Cir. 2021) (explaining that courts must consider “whether the claim arises from the

same set of facts that support the original charge” in “determining whether a claim fairly

or reasonably falls within the investigation arising from a charge”).

Finally, the District Court correctly refused to consider the numerous exhibits

Barsody filed in response to the School District’s motion to dismiss. See Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc.,

(3d Cir. 1993). As stated,

the District Court properly allowed Barsody to amend his complaint, which he opted not

to do.

We will affirm the judgment of the District Court.

5