NOT PRECEDENTIAL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 24, 2023) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 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 released his employer from any claims arising from the injury. He later filed

an employment discrimination complaint. The District Court granted his employer’s

motion for summary judgment, and we 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 complaint and

could not do so on appeal. Whetstone v. Fraley & Schilling Trucking Co., No. 22-1018,

, at *2 n.2 (3d Cir. Sept. 28, 2022), cert. denied,

(2023).

Whetstone then filed a second complaint in the District Court. The District Court

sua sponte dismissed the complaint with prejudice for failure to state a claim pursuant to

(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 on 2 We have jurisdiction pursuant to

, and our review of the

dismissal of the complaint for failure to state a claim is plenary. See Tourscher v.

McCullough,

(3d Cir. 1999). In 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

(d) (providing that

ADEA plaintiff must exhaust administrative remedies before he may access judicial

relief); Watson v. Eastman Kodak Co.,

(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,

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

3