Jamar Coley v. New Jersey Transit Corp ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2373
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JAMAR COLEY,
Appellant
v.
NEW JERSEY TRANSIT CORPORATION; DAMIAN HALL
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:17-cv-05585)
U.S. District Judge: Honorable Michael A. Shipp
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 6, 2022
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Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit Judges.
(Filed: October 6, 2022)
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OPINION *
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Jamar Coley appeals the District Court’s order granting summary judgment to
Damian Hall, his former supervisor, on Coley’s employment discrimination claims.
Because no material disputes of fact exist, and Hall is entitled to judgment as a matter of
law, we will affirm.
I
A
Coley, an African-American, worked for New Jersey Transit Corporation. Since
2001, Coley served as a bus repairman. He was also the designated “pull-out man”
during certain shifts, which required him to remove a cash vault from the last bus to
return to the station and deliver it to a depot master. Hall, a Caucasian, served as Coley’s
direct supervisor.
In 2010, Hall witnessed a group of New Jersey Transit employees, including
Coley, sleeping on buses while on duty. Hall recommended that these employees be
discharged, but they were all reinstated at the second step of the disciplinary process. 1 At
the time of Coley’s reinstatement, he had a disciplinary record and was told that he would
be discharged if he was again found sleeping on the job.
1
Under the Collective Bargaining Agreement (“CBA”) between Coley’s union,
the Division No. 540, Trenton, New Jersey Amalgamated Transit Union (the “Union”),
and the New Jersey Transit Corporation, the process for a disciplinary matter consists of
a three-step hearing process. After the third step, the Union has the option to pursue
arbitration.
2
Coley asserts that Hall discriminated against African-American employees,
including Coley. Specifically, Coley asserts that Hall (1) disciplined Caucasian
employees for sleeping during shifts but terminated African-American employees for the
same conduct; (2) issued attendance occurrences 2 to Coley but not Caucasian employees
for identical conduct; (3) permitted a Caucasian employee to leave during fifteen-minute
breaks but did not permit Coley to do the same; (4) issued written warnings to two
Caucasian employees for taking unauthorized breaks but terminated an African-American
employee for the same conduct; (5) provided Caucasian employees but not Coley and
other African-American employees additional opportunities for overtime; 3 (6) allowed
only Caucasian employees to smoke cigarettes on company property; and (7) required
Coley to take an exam to secure a promotion, but did not require the same of Caucasian
employees.
In December 2014, Coley filed a complaint with the New Jersey Transit Equal
2
The CBA describes the attendance policy. The policy requires, among other
things, that employees be on time when reporting to work and returning from lunch
breaks. A violation of the attendance policy is referred to as an “occurrence” and is
assessed automatically by the company’s computer system when an employee scans his
employee identification card in the time clock on premises. A supervisor on duty then
determines whether the occurrences should be entered into the system. Once a certain
number of occurrences are accrued, the employee is subject to discipline.
3
The CBA also includes an overtime policy, which provides that overtime work
should first be offered to employees who are actually performing the work prior to the
overtime assignment, and then be offered by seniority. Coley was offered overtime on a
number of occasions and periodically accepted overtime. Coley asserts, however, that
Hall regularly provided only Caucasian employees a special option to accrue two extra
hours of overtime before a shift.
3
Opportunity and Affirmative Action (“EO-AA”) office, alleging, among other things, that
he was disciplined for lateness and not granted overtime because of his race. Coley
thereafter supplemented his EO-AA complaint, alleging that Hall and another foreman
subjected him to disparate treatment in connection with his request for a promotion.
In 2015, Coley was again reported for sleeping on the job. Coley was serving as
the assigned “pull-out man” during a 1:00 A.M. to 8:30 A.M. shift. At approximately
2:15 A.M., Coley’s co-workers could not locate him to provide him with the tool to pull
the cash vault from the bus. After paging him several times between approximately 2:15
A.M. and 2:45 A.M., and receiving no response, Steve Campbell, the depot master, and
Dave Calabrese, a foreman, searched for Coley and found him at approximately 2:50
A.M. purportedly sleeping in a parked bus with the internal lights off. 4
Coley received three hearings after this incident. Hall served as the hearing officer
at Coley’s first step hearing and recommended Coley’s discharge “based on the
statements of the witnesses, the video in support of the statements [and] his over all [sic]
record.” App’x 739, 745. The hearing officers at Coley’s second and third step hearings
4
Coley and Hall’s accounts differ as to whether Coley was actually sleeping on
the bus and whether he admitted to sleeping. Coley asserts that he was not sleeping and
had not admitted to doing so, and states that he was instead awake and had been checking
messages on his phone for approximately five minutes at the time that Campbell and
Calabrese observed him. Hall asserts that Coley approached him the morning of the
write-up and confirmed that Coley was sleeping, though later denied that he was sleeping
during the first step hearing. Regardless, both parties agree that Campbell and Calabrese
reported that Coley was sleeping on the bus and that their reports were the basis for
Hall’s termination decision.
4
upheld Hall’s discharge recommendation. The Union declined to challenge the discharge
decision.
B
Coley sued Hall for discrimination and retaliation under 42 U.S.C. § 1981 and the
New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-1, et seq. 5 After
discovery, Hall moved for summary judgment. The District Court granted the motion
because Coley failed to (1) “provide[] supporting evidence to rebut the evidence
proffered by [Hall] that shows [Coley] did not in fact receive disparate treatment as an
employee at [New Jersey Transit],” and (2) “satisfy his burden of showing that a genuine
dispute exists as to whether he received disparate treatment because of his race.” Coley
v. N.J. Transit, No. 17-CV-05585, 2021 WL 2581920, at *3 (D.N.J. June 23, 2021).
Coley appeals.
5
New Jersey Transit was initially named as a defendant but the claims against it
were dismissed for lack of jurisdiction. Coley does not appeal that ruling.
5
II 6
A
Coley’s § 1981 and NJLAD claims are both subject to the burden-shifting
framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ali v.
Woodbridge Twp. Sch. Dist., 957 F.3d 174, 180 (3d Cir. 2020). 7
We assume that Coley has established a prima facie case of discrimination and
note that Coley does not dispute that New Jersey Transit prohibits sleeping on the job and
that this was the reason given for his termination. Thus, Hall’s reliance on this policy
provided a legitimate, non-discriminatory reason for the employment decision.
6
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291. Our review “of a grant of summary
judgment is plenary, and the record is judged by the same standard district courts use.”
Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (citation omitted).
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
7
Coley asserts that because the District Court did not explicitly apply McDonnell
Douglas or analyze Coley’s retaliation claim, we must reverse and remand. Under
McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination,
which requires that a plaintiff show: (1) he is a member of a protected class; (2) he was
qualified for the position he sought to retain; (3) he suffered an adverse employment
action; and (4) the adverse employment action occurred “under circumstances that raise
an inference of discriminatory action[.]” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797
(3d Cir. 2003); see also Ali, 957 F.3d at 180 (citation omitted). If a plaintiff establishes a
prima facie case, then the burden shifts to the employer to show it had a legitimate
nondiscriminatory reason for the adverse employment action. Ali, 957 F.3d at 180. If
the employer makes such a showing, then the employee has the burden to prove that the
employer’s reason was pretextual. Id. The District Court’s analysis reflects the
McDonnell Douglas steps. Coley, 2021 WL 2581920, at *2-3. In any event, “[w]e may
affirm the District Court on any grounds supported by the record.” Nicini v. Morra, 212
F.3d 798, 805 (3d Cir. 2000) (citation omitted).
6
As a result, we will examine whether Coley established “through direct or
circumstantial evidence that the legitimate, non-discriminatory reason given is merely
pretext and the protected status of the plaintiff was the determinative factor of the adverse
employment action.” Ali, 957 F.3d at 180. To do so, Coley must either (1) submit
evidence that “meaningfully throw[s] into question, i.e., [casts] substantial doubt upon”
the employer’s proffered reason, or (2) “come forward with sufficient evidence from
which a factfinder could reasonably conclude that an illegitimate factor more likely than
not was a motivating or determinative cause of the adverse employment decision.”
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
Here, Coley has not shown pretext. First, Coley’s efforts to cast doubt on the
reason for his termination are unavailing. Coley points to inconsistencies in Campbell’s
and Calabrese’s reports that he argues undermine Hall’s reason for recommending
termination. Material aspects of their reports, however, were corroborated. For instance,
video evidence Hall reviewed showed Coley’s co-workers attempting to page Coley
several times before searching for him, and both Calabrese and Campbell reported
finding Coley in a bus with the internal lights off. Thus, inconsistencies in their reports
did not alter the reason Hall recommended termination.
Coley also does not assert that Calabrese and Campbell had discriminatory
motives to make their reports, and Hall, the relevant decisionmaker during the first step
hearing, had a basis to accept their reports. See id. at 766-67 (recognizing that a key
7
question is whether “the relevant decisionmaker” making an employment decision
believed criticisms made by other staff members in complaints about the plaintiff “to be
accurate and actually relied upon them, since only if [the plaintiff] can ultimately prove
that [the decisionmaker] in fact did not rely upon them can [the plaintiff] show
‘pretext’”). Even if Coley was not in fact sleeping, “the plaintiff cannot simply show that
the employer’s decision was wrong or mistaken, since the factual dispute at issue is
whether discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent or competent.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d
Cir. 1999) (citation omitted).
Second, Coley has not provided sufficient evidence from which “a factfinder could
reasonably conclude” that his race “more likely than not was a motivating or
determinative cause” of his termination. Fuentes, 32 F.3d at 765. A plaintiff can show
that an employer’s proffered legitimate reason for the employment action was pretextual
by, for example, “showing . . . that the employer treated other, similarly situated persons
not of his protected class more favorably.” Id. at 765. Coley has not provided any
evidence of a similarly situated Caucasian employee who was (1) previously terminated
and reinstated for sleeping on the job and warned that he would be automatically
terminated if he was caught sleeping on the job again, (2) then purportedly caught
sleeping on the job after the warning, and (3) not been recommended for termination by
Hall.
8
Finally, Coley claims that Hall treated African-Americans differently in terms of
attendance occurrences, breaks, overtime, smoking, and promotional exams. None of
these events, even if true, provide “sufficient evidence from which a factfinder could
reasonably conclude that” Coley’s race was “more likely than not . . . a motivating or
determinative cause” of Hall’s recommendation to terminate Coley for sleeping at work.
Id. Put simply, even if Coley is correct that there was different treatment in these areas,
he has not asserted that the individuals who reported that Coley violated the no sleeping
rule acted with discriminatory intent, and his purported violation of the rule was the
reason for his termination.
For these reasons, Coley failed to establish pretext, and so we will affirm the
District Court’s order granting summary judgment in favor of Hall on Coley’s
discrimination claim.
B
Coley is correct that the District Court did not separately explain why it granted
summary judgment in Hall’s favor on his retaliation claim. We have the supervisory
authority to remand to require the Court to provide an explanation for its ruling. Vadino
v. A. Valey Eng’rs, 903 F.2d 253, 259 (3d Cir. 1990). We also have the discretion to
address the issue without remanding. Caprio v. Bell Atl. Sickness & Accident Plan, 374
F.3d 217, 220 (3d Cir. 2004). One situation in which we need not remand is where, as
here, briefing, a developed record, and the application of straightforward legal principles
9
permit us to review the ultimate disposition despite the absence of explicit reasons for the
ruling. Cf. id. (remanding because the “complex matter” left questions as to the standard
of review the district court exercised and the basis for the district court’s assessment of
the plaintiff’s claim); Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1149 (3d Cir. 1993)
(remanding because the district court’s lack of explanation for the basis for summary
judgment was not alleviated by the briefing on appeal).
To succeed on a retaliation claim under § 1981 and NJLAD, a plaintiff must show
that: (1) he engaged in protected activity; (2) the employer took an adverse employment
action against him; and (3) there was a causal connection between the protected activity
and the adverse employment action. See Est. of Oliva ex rel. McHugh v. New Jersey,
604 F.3d 788, 798 (3d Cir. 2010). Similar to the framework for a discrimination claim, if
a plaintiff establishes a prima facie case of retaliation, the burden then shifts to the
employer to provide a “legitimate non-retaliatory reason” for the adverse employment
action. Id. “If [the] employer advances such a reason, a plaintiff then must show that the
proffered reason was a pretext for retaliation.” Id.Even if Coley established a prima facie case for retaliation, his retaliation claim
fails for the same reason as his discrimination claim: there is no genuine issue of material
fact that Hall’s proffered reason for recommending Coley’s termination—sleeping on the
job—is pretextual. Coley’s retaliation claim, therefore, also fails.
10
III
For the foregoing reasons, we will affirm.
11