Kovoor v. School District of Philadelphia ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-26-2004
Kovoor v. Sch Dist Phila
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1583
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1583
THOMAS I. KOVOOR,
Appellant
v.
SCHOOL DISTRICT OF PHILADELPHIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 00-cv-05873
(Honorable Anita B. Brody)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 9, 2004
Before: SCIRICA, Chief Judge, ROTH and McKEE, Circuit Judges
(Filed February 26, 2004)
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this employment discrimination action, plaintiff Thomas Kovoor appeals a grant
of partial summary judgment in favor of defendant School District of Philadelphia. He
also requests a new trial alleging erroneous rulings by the district court at trial. We will
affirm.
I.
Kovoor began working for the school district as an Accounting Clerk in January
1985. Later that year, he became a Financial Management Trainee. Kovoor alleges that
during this time his supervisor, Herbert Schectman, harassed him on a daily basis, making
disparaging comments and referring to Kovoor and African-American employees as
“sons of slaves.” Nonetheless, Kovoor was promoted to an Auditor I position in
November 1986. Schectman, however, allegedly refused Kovoor a routine promotion to
an Auditor II position in November 1987. In December 1987 Kovoor requested and
received a transfer to the Pre-Audit section, where he worked under the supervision of
Bonnie Rosen. He received a promotion from Auditor I to Auditor II in March 1988. In
January 1989 Kovoor transferred to the Office of Categorical Finance working under the
supervision of William Kozlowski. Six months later Kovoor returned to his former
position of Auditor II under Rosen’s supervision.
Kovoor applied for an Auditor III position in 1989 but allegedly was not permitted
to take the required written and oral examinations because he had not completed the
requisite number of accounting credits. He then applied for positions in the
Transportation Department in 1990, 1991 and 1992. Kovoor rated second in the
examination all three times, but in each case the school district awarded the position to
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the applicant who rated first. Kovoor again applied for a promotion in the transportation
department in 1994 but was disqualified when he failed the written portion of the
examination. Kozlowski allegedly called Kovoor “Swami” during the 1994 examination.
Kovoor claims he never filed grievances for these promotion denials because he believed
an objection would be futile.
In October 1995, the school district transferred Kovoor to the Categorical Finance
Department under Kozlowski’s supervision. Kovoor and Kozlowski played cards
regularly during their lunch breaks, and Kozlowski allegedly referred to Kovoor as
“Swami” and “Gunga Din” 1 during the card games. On July 1, 1996, Kovoor was laid off
because of budget constraints. In November 1996 the school district rehired Kovoor in
November 1996 in the position of School Operations Officer, a $12,000 pay cut from his
previous position. In December 1999, the school district hired two other people for
Budget Analyst II and III positions, but did not consider Kovoor for the positions. When
Kovoor asked Kozlowski why he was not considered, Kozlowski allegedly told him it
was because his “degree is from India.” Kovoor continues to work for the school district.
On February 29, 2000, Kovoor filed a discrimination charge with the EEOC and
on November 17, 2000 brought suit in federal court. Kovoor alleges the school district
subjected him to a hostile work environment and denied him several promotions because
1
“Gunga Din” is apparently the name of an Indian servant in a movie based on a
Rudyard Kipling novel.
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of his nationality in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq.
(“Title VII”) and 42 U.S.C. § 1981 (“§1981”). The District Court granted the school
district’s motion for summary judgment on Kovoor’s hostile environment claim, but
denied summary judgment on the failure to promote claim. A jury rendered a defense
verdict finding the school district did not discriminate against Kovoor on the basis of his
national origin.
Kovoor brings three claims on appeal: (1) the court erred in granting the school
district’s motion for partial summary judgment on the hostile work environment claim;
(2) the court erred in failing to charge the jury with a mixed-motive instruction; and (3)
the court erroneously limited Kovoor’s evidence to post-1998 conduct.
II.
We have appellate jurisdiction under U.S.C. § 1291. Our review of the District
Court’s summary judgment award on the hostile work environment claim is plenary.
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999). We review jury
instructions for abuse of discretion unless the instruction misstates the law, when our
review is plenary. Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997).
We review rulings to exclude evidence for abuse of discretion. Walden, 126 F.3d at 517.
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III.
A.
Kovoor contends the District Court erred in granting summary judgment to the
school district on his hostile work environment claim. To establish a hostile work
environment claim in violation of Title VII, a plaintiff must prove that:
(1) he or she suffered intentional discrimination because of national origin; (2) the
discrimination was “pervasive and regular;” (3) he or she was adversely affected
by the discrimination; (4) the discrimination would adversely affect a reasonable
person of the same national origin; and (5) that respondeat superior liability
applies.
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). Kovoor failed to
satisfy the second prong, citing only one potentially discriminatory incident within the
two-year statute of limitations period,2 Kozlowski’s alleged comment about an Indian
degree.
Kovoor urges application of the continuing violation theory, which might permit
consideration of events that occurred outside the statute of limitations period. See West v.
Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). To establish a claim under the
continuing violation theory, a plaintiff must demonstrate: (1) at least one discriminatory
2
Pennsylvania law applies a two year statute of limitations to personal injury claims,
and federal courts generally use this limitations period from the relevant state law for
claims under § 1981. Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987); Burgh v.
Borough Council of Montrose, 251 F.3d 465, 471 (3d Cir. 2001). A Title VII claim must
be filed within 300 days of the alleged discrimination where there has been a cross-filing
with a state agency under state law. See 42 U.S.C. § 2000e-5(e)(1); Burgh, 251 F.3d at
472.
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act occurred within the filing period, and (2) the acts created a persistent, ongoing pattern.
West, 45 F.3d at 754-55.
Kovoor’s continuing violation claim fails because he did not demonstrate that the
comment was a pattern of an ongoing pattern of behavior. There was a five-year time gap
between the “Indian degree” comment and Kozlowski’s previous alleged discriminatory
comments. No other event demonstrated racial animus. We will affirm summary
judgment on the hostile work environment claim in favor of the school district.
B.
Kovoor contends he should have received a mixed motive jury instruction. The
District Judge gave only a pretext charge. App. 1279-85. Unlike a pretext charge, a
mixed motive charge shifts the burden of production and risk of nonpersuasion to the
defendant. The defendant must then show that the adverse employment decision would
have been made in the absence of retaliatory animus. Walden, 126 F.3d at 512-13.
Strong “direct” evidence is required to show that “an illegitimate criterion was a
substantial factor in the decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, 276
(1989) (O’Connor, J., concurring).
The District Judge explained at the charge conference that a mixed motive charge
was inapplicable because there was no direct evidence linking discrimination with the
failure to promote. App. 1279-85. We agree. The school district required all applicants
seeking a promotion to a teaching position to hold a Bachelor’s degree from a United
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States institution or an equivalent degree. The school district determined that Kovoor’s
degree from India was fifteen or sixteen credits short of an equivalent United States
degree and for this reason refused to consider him for a promotion. Kovoor presents no
evidence of retaliatory animus. Given this lack of evidence, the District Court properly
refused to give a mixed motive jury instruction.
C.
Kovoor contends the District Court improperly limited the evidence he was
allowed to present at trial to post-1998 conduct but allowed defendant to use pre-1998
evidence in its rebuttal. Kovoor’s brief is devoid of any reference to the record to support
this claim.3 Furthermore, the District Court allowed Kovoor to present considerable pre-
1998 evidence at trial. 4 This claim is meritless.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
3
On January 8, 2004, Kovoor submitted an motion to amend his brief to include
instances where the District Court allegedly refused to allow Kovoor’s pre-1998
evidence. Notwithstanding, he points to nothing in the record to support this claim.
4
This includes testimony from Kovoor’s supervisor Bonnie Rosen regarding the school
district’s failure to promote Kovoor in 1987; testimony by Kovoor regarding alleged
discriminatory comments by Schectman in 1985-87 and Kozlowski in 1995-96, among
other matters; and testimony of coworkers Levester Keitt, Mayer Krain and Tuyet Hoa
Ost and supervisor Sheldon Jahss, all regarding events that took place before 1998.
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