NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4527
                                     _____________

                                HOWARD C. KIBURZ,

                                           Appellant

                                            v.

                 SECRETARY, U.S. DEPARTMENT OF THE NAVY
                               _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                  (D.C. No. 04-2247)
                           District Judge: Hon. Yvette Kane

                             Submitted September 22, 2011

             Before: AMBRO, CHAGARES, and GARTH, Circuit Judges.

                                (Filed: October 3, 2011)
                                     ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

      Howard Kiburz appeals the District Court‟s denial of his Fed. R. Civ. P. 60(b)(3)

motion for relief from judgment and his request for sanctions under Fed. R. Civ. P. 37.

Kiburz argues that the failure of the United States Department of the Navy (“Navy”) to

produce an alleged responsive document during the discovery phase of his disability
discrimination lawsuit demands relief from the judgment dismissing his claim in addition

to sanctions against the Navy for its alleged misconduct. For the reasons that follow, we

will affirm the judgment of the District Court.

                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition. Howard Kiburz had been employed by the Navy as an Information

Technology Specialist and, on July 1, 2003, he voluntarily retired from the Navy due to a

persistent medical condition. On October 13, 2004, Kiburz filed a complaint under the

Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 701, et seq., alleging

discrimination and constructive discharge based on his medical condition. During the

discovery phase of the suit, Kiburz requested that the Navy produce “all policies,

regulations, and agreements that were in effect between May 3, 2002 and July 1, 2003

that pertain to allowing employees of the [Navy] to work at home as a medical

accommodation.” Appendix (“App.”) 138-39. The Navy produced five different

pertinent regulations in response. On July 16, 2008, the District Court granted summary

judgment to the Navy, holding that the Navy‟s denial of Kiburz‟s request to work from

home was reasonable in light of his job responsibilities, which required him to be in the

office, and as such, his voluntary retirement did not constitute a constructive discharge.

This Court affirmed the District Court‟s grant of summary judgment on January 19, 2010,

concluding that Kiburz had not supported his claim for constructive discharge because his

requested accommodation was unreasonable, as he could not perform the essential



                                              2
functions of his job from home and he had not shown that his work environment was

intolerable.

       On March 19, 2010, Kiburz moved for post-judgment relief under Fed. R. Civ. P.

60(b)(3) and sanctions under Fed. R. Civ. P. 37. Kiburz argued that the Navy should

have produced during discovery Public Law 106-346 Section 359, DOD Telework Policy

and Telework Guide issued October 22, 2001, DOD Directive No. 1035.1, and NAVSUP

Instruction 12620.2 (hereinafter collectively referred to as “telework policies”). These

telework policies encouraged eligible Navy employees to participate in telecommuting to

the maximum extent possible without it effecting work performance. Kiburz alleged that

had these documents been produced, he would have altered how he pursued his

discrimination claim.1 The Navy maintained that these documents were not disclosed

because they had not been implemented yet due to the fact that the policies were still

being negotiated with the local union as required by federal law. Additionally, the Navy

argued that the documents were not responsive to Kiburz‟s request as these telework

policies did not pertain to medical accommodations. The Navy contended that Kiburz

had the ability to present his case fully and fairly because, even if the Navy had produced


1
  Kiburz initially maintained in front of the District Court that he was not aware of the
telework polices until March 5, 2010. On appeal, however, Kiburz now contends that he
was aware of the policies by December 2007, but did not bring it to the attention of the
District Court because briefing of the summary judgment motion had closed and he
considered the policies cumulative of his other arguments. See Kiburz Br. 8-9; see also
Kiburz Reply Br. 16 n.6. The timeliness of Kiburz‟s discovery of the telework policy and
his statement that he considered the telework policies cumulative of medical
accommodation policies strongly weighs against his argument post-judgment that the
Navy‟s failure to provide these documents prevented him from fully and fairly presenting
his case.
                                             3
the policy documents, Kiburz did not qualify for telework because he could not perform

the essential functions of his job from home. On November 2, 2010, the District Court

denied Kiburz relief under Rule 60(b) and his request for sanctions under Rule 37,

finding first that “there is no reason to believe [Kiburz] did not have the opportunity to

„fully and fairly‟ litigate the issue that was truly in dispute, namely, whether he could

perform the essential functions of the job.” App. 5. In addition, the court determined that

the Navy had not committed any fraud by not disclosing the documents and that the

requested disclosures were not relevant to the issue of whether Kiburz was able to

perform the essential functions of his position. Kiburz filed a timely appeal.

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a denial of a motion filed

pursuant to Fed. R. Civ. P. 60(b) for abuse of discretion. Coltec Indus., Inc. v. Hobgood,

, 269 (3d Cir. 2002). Rule 60(b)(3) allows the court to “relieve a party . . .

from a final judgment, order, or proceeding for . . . fraud, . . . misrepresentation, or other

misconduct by an opposing party.” The movant must show not only that “the adverse

party engaged in fraud or other misconduct, [but also] that his conduct prevented the

moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 

, 207 (3d Cir. 1983). “Failure to disclose or produce evidence requested in discovery

can constitute Rule 60(b)(3) misconduct.” 

movant in a Rule 60(b)

motion carries a heavy burden, as Rule 60(b) motions are viewed as “extraordinary relief

which should be granted only where extraordinary justifying circumstances are present.”

                                               4
Bohus v. Beloff, 

, 929 (3d Cir. 1991) (quoting Pilsco v. Union R. Co., 

, 17 (3d Cir. 1967)).

       The District Court properly denied Kiburz‟s Rule 60(b) motion because Kiburz

failed to demonstrate that either alleged fraud or misconduct prevented him from fully

and fairly presenting his case. Kiburz argues that the Navy‟s failure to produce the

telework policies did not allow him to fully and fairly present his case, as he would have

performed discovery differently by being less focused on showing that he was not a

“team leader” under the medical accommodation policies. This argument, however,

ultimately fails because Kiburz has not shown how the Navy‟s failure to produce these

documents would have had any bearing on his disability discrimination claim regarding

whether working from home was a reasonable accommodation. Importantly, both this

Court and the District Court previously determined that Kiburz could not perform the

essential functions of his job from home. Hence, the existence of the telework policies

caused no real prejudice to Kiburz‟s claim because, as the District Court concluded, the

policies did not create “an issue of material fact regarding whether he could perform the

essential functions of his job.” App. 7. Since this Court has held that Kiburz could not

maintain his job responsibilities while working from home, the discovery of “new”

telework policies is irrelevant to his disability discrimination claim, as it would not affect

the Court‟s conclusion that working from home was not a reasonable accommodation

request.2


2
  Further, we recognize that Kiburz‟s Rule 60(b)(3) motion could also fail because there
is no evidence of misconduct, as the telework policies arguably were not responsive to
                                              5
      Therefore, the District Court did not abuse its discretion in denying Kiburz‟s Rule

60(b) motion for relief from his disability discrimination judgment and his Rule 37

motion for sanctions.

                                           III.

      For the foregoing reasons, we will affirm the judgment of the District Court.




his discovery request. The policies were not effective during the requested time period as
the programs could not be implemented – and therefore could not have been applicable to
Kiburz – without the approval of the local union. Additionally, the Navy does not appear
to have erred by not providing the telework policies under Kiburz‟s request for policies
on “medical accommodations” because these policies fall under the Navy‟s Flexiplace
Program, not the Reasonable Accommodation Program. See App. 247-48. Therefore, it
is evident that Kiburz has not demonstrated any “misconduct” on the part of the Navy.
However, even assuming that the telework polices were responsive to Kiburz‟s request
and therefore misconduct occurred, Kiburz‟s motion still must be denied because it did
not affect his ability to fully and fairly litigate his case.
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