Coefield v. GPU

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-11-2005
Coefield v. GPU
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2081
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2081
JAMES COEFIELD
Appellant
v.
GPU, FIRST ENERGY, DENNIS McGINNIS,
ROBERT SHERMAN, LARRY HAYES
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-2000)
District Judge: Honorable Stanley R. Chesler
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2005
Before: SCIRICA, Chief Judge, ROTH, and VAN ANTWERPEN, Circuit Judges.
(Filed: March 11, 2005)
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Before us is an appeal of an order by the United States District Court for the
District of New Jersey granting summary judgment in favor of Appellees. For the
foregoing reasons, we affirm the decision of the District Court.
I. Facts
Because we write only for the parties, we shall only restate the facts pertinent to
our analysis. James Coefield (“Appellant”) is an African-American who at all times
relevant to this lawsuit was employed by Jersey Central Power and Light Company
(“JCP&L”).1 In June 2001, JCP&L posted a job opening for the position of Senior Relay
Technician. After a more senior Caucasian employee withdrew his bid for this posting,
Appellant applied for, and was awarded, the position over two other Caucasian employees
who had also applied.
Appellant was a member of Local Union 1289 of the International Brotherhood of
Electrical Workers, and was also a member of a different local covered by the same
collective bargaining agreement at all times relevant to this suit. Sometime in 2000, these
organizations met with JCP&L management and agreed that the JCP&L’s Central New
Jersey Region (where Appellant worked) would adopt the same testing procedure that had
been used in the Northern Region for approximately 20 years to test candidates for
promotion to Senior Relay Technician. All future candidates for the Senior Relay
Technician position in the Central Region would be required to take this test, which
included the “230 kV line trip test.”
Appellant thereafter began the 90-day qualification period mandated by the
1
Appellee FirstEnergy Corp. is a holding company that purchased JCP&L. JCP&L
previously did business under the name GPU Energy.
2
collective bargaining agreement. During this time, JCP&L did not schedule the tests
required to promote Appellant, nor did it inform him he would be subject to the additional
testing. At the end of this period, Appellant was informed that he would have to pass five
categories of testing criteria, including the 230kV line trip test. In order to prepare for
this test, Appellant was scheduled to work with a senior relay technician for
approximately one week. He also prepared with another relay technician (who was
assigned to assist him on the actual test) for two or three days.
Appellant was tested on November 15, 2001. He made five errors, and failed the
test. Appellant then filed a union grievance, which JCP&L denied, citing a clause in the
collective bargaining agreement giving it exclusive authority to determine promotions.
It was thereafter decided that Appellant’s qualification period would be extended
so as to allow him another opportunity to pass the required tests. Appellant disagreed
with this course of action, arguing that, because there was no signed agreement between
JCP&L and his union relating to testing, the entire process was unfair. Despite his
protests, Appellant was given a document detailing the five testing criteria he would have
to pass. He was also informed in January 2002 that, if he qualified for the promotion
after the next test, he would receive back-pay retroactive to the end of his initial
qualifying period.
Appellant retook his test on February 4, 2002. At its conclusion, he was
immediately informed that he had passed. On February 21, 2002, his promotion became
3
official, and JCP&L confirmed that the promotion was retroactive to the end of his initial
qualifying period. He was also paid all promised back-pay.2
Appellant brought suit in the Superior Court of New Jersey, Law Division, Ocean
County Division, alleging ten causes of action based on the New Jersey Law Against
Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (“NJLAD”), and various common law
torts. Appellees timely removed the case to federal district court. Thereafter, Appellant
was granted permission to file a second amended complaint, in which he omitted all
employment claims implicating federal law. He moved for remand to the New Jersey
Superior Court, but was denied. Following discovery, Appellees moved for summary
judgment on all remaining counts. A motion hearing was held on October 21, 2003, and
the District Court granted Appellees’ motion on March 25, 2004. This appeal followed.
II. Jurisdiction and Standard of Review
The District Court originally had jurisdiction over this case pursuant to 28 U.S.C.
§§ 1331, 1367 and 1441.3 Our review of the District Court’s summary judgment order in
2
After Appellant’s promotion, two Caucasian males also applied for a promotion to
the position of Senior Relay Technician. Both were required to pass the same tests that
had been administered to Appellant. One applicant passed the examination, while the
other failed. The latter candidate was given another opportunity to retake the test similar
to the one offered to Appellant.
3
Several of Appellant’s original state law claims required the interpretation of
provisions of the relevant collective bargaining agreement between his union and JCP&L,
and hence were preempted by the Labor Management Relations Act of 1947, 29 U.S.C. §
185, et. seq. See Antol v. Esposto, 100 F.3d 1111, 1117-18 (3d Cir. 1996). Following
Appellant’s amendment of his complaint (purging it of all claims implicating federal
law), the District Court had the discretion to retain or remand the remaining state law
4
favor of Appellees is plenary. Torres v. McLaughlin, 163 F.3d 169, 170 (3d. Cir. 1998).
In reviewing grants of summary judgment, we apply the same test employed by a district
court under Rule 56. See Kelley v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir.
1988). Accordingly, we will find the District Court’s grant of summary judgment in favor
of Appellees to have been proper only if it appears “that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). In reviewing all evidence in the record, we are required “to view
the inferences to be drawn from the underlying facts in the light most favorable to the
party opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999). A
plaintiff cannot resist a properly supported motion for summary judgment merely by
restating the allegations of his complaint – rather, he must point to concrete evidence in
the record that supports each and every essential element of his case. Celotex v. Catrett,
477 U.S. 317, 322 (1986). It is in this regard that Appellant, by and through his counsel,
misapprehends his obligation as a non-movant responding to a motion for summary
judgment.
III. Discussion
Appellant asserted three state law claims before the District Court: (1) Failure to
Promote Based on Plaintiff’s Race; (2) Hostile Work Environment and Discrimination;
and (3) Intentional Infliction of Emotional Distress. “Except in matters governed by the
claims. Carnegie-Melon Univer. v. Cohill, 484 U.S. 343, 357 (1988).
5
Federal Constitution or by acts of Congress, the law to be applied in any case is the law of
the State.” Erie R. R. v. Tompkins, 304 U.S. 64, 78 (1938). “In so doing, we are not free
to impose our own view of what state law should be; we are to apply state law as
interpreted by the state’s highest court. In the absence of guidance from that court we are
to refer to decisions of the state’s intermediate appellate courts for assistance in
determining how the highest court would rule.” McKenna v. Pacific Rail Service, 32
F.3d 820, 825 (3d Cir. 1994) (citations omitted). Our determination today is therefore
governed by the laws of the State of New Jersey and the rulings of its courts. We shall
discuss the District Court’s disposition of each claim in turn.
A. Failure to Promote Based on Appellant’s Race
The District Court concluded that Appellant had failed to put forth evidence that
established a prima facie case for failure to promote due to race discrimination. The
Supreme Court of New Jersey has adopted the methodology of the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “as a starting point in
actions brought under the [NJLAD].” Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 490
(N.J. Sup. Ct. 1982). Under this methodology, a court must first determine whether or not
a plaintiff has established a prima facie case of discrimination, demonstrating by a
preponderance of the evidence that he (1) belongs to a protected class, (2) applied for and
was qualified for a position for which the employer was seeking applicants, (3) was
denied promotion, and (4) others with similar or lesser qualifications achieved promotion.
6
Dixon v. Rutgers, The State Univ. of New Jersey, 541 A.2d 1046, 1051-52 (N.J. Sup. Ct.
1988).
Appellant is clearly a member of a protected class, and the District Court presumed
that he was qualified for the Senior Relay Technician position. Where his first claim
stumbles is with regard to whether he was actually denied promotion. It is undisputed
that Appellant’s promotion was delayed during the second 90-day probationary period
following his failure of his qualification exam. However, it is also undisputed that, upon
passing the second examination, he was in fact promoted to the position of a Senior Relay
Technician, and received the pay raise commensurate with such a promotion that was
applied retroactively to the end of his first probationary period. We fail to see how this
situation can be described as a “denial of promotion.” At most it was, as the District
Court described it, a “delayed promotion.” Contrary to Appellant’s suggestion that such a
characterization is “absurd and offensive,” the fact remains that the particular position
Appellant applied for was essentially reserved for him while he prepared to retake the
qualification exam, since no other applicants were considered. Moreover, several courts
have held that a delayed promotion with retroactive pay does not constitute an adverse
employment action. See Pennington v. Huntsvile, 261 F.3d 1262, 1267 (11th Cir. 2001);
see also Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46 (6th Cir. 1999);
Benningfield v. The City of Houston, 157 F.3d 369, 377-78 (5th Cir. 1998). Finally, even
if we were to construe this as denial within the meaning of the test, there is no evidence in
7
the record that any other applicant with similar or lesser qualifications was promoted in
his place. We therefore conclude that the District Court properly granted summary
judgment in favor of Appellees as Appellant did not establish a prima facie case of
employment discrimination.
B. Hostile Work Environment
A plaintiff who alleges hostile work environment racial discrimination under the
NJLAD must prove that a defendant’s conduct (1) would not have occurred but for the
employee’s race; and that the conduct was (2) severe or pervasive enough to make a (3)
reasonable person of plaintiff’s race believe that (4) the conditions of employment are
altered and the working environment is hostile or abusive. Taylor v. Metzger, 706 A.2d
685, 688-89 (N.J. Sup. Ct. 1998) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445,
453 (N.J. Sup. Ct. 1993)). The District Court cited Appellant’s failure to present
evidence demonstrating that harassment took place because of his race, and concluded
summary judgment was appropriate as to this claim.
We agree. Appellant has not pointed us to a single fact suggesting that any
Appellee has acted in any particular way because of his race, nor could we find one
during our independent review. It is undisputed that the qualification exam had been in
place in the JCP&L’s North Region for some time, and that the decision to apply it to
employees of the Central Region predated Appellant’s application for promotion.
Appellant presents nothing to support his argument that race played any part whatsoever
8
in the adoption of the North Region’s testing scheme by the Central Region. There is no
evidence that the employee who first applied for the position, a Caucasian, would not
have been subject to the same test. Finally, the same test was given to the next two
applicants for Senior Relay Technician, both of whom were Caucasian. The mere
existence of new testing criteria is insufficient to satisfy Appellant’s burden.4 As such,
summary judgment was properly granted here as well.
C. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress, a party must
demonstrate that (1) a defendant acted intentionally or recklessly; (2) this conduct was
extreme and outrageous; (3) this conduct was the proximate cause of plaintiff’s emotional
distress; and (4) the distress was severe. Buckley v. Trenton Savings, 544 A.2d 857, 863
(N.J. Sup. Ct. 1988). The District Court concluded as a matter of law that Appellees’
conduct was neither extreme nor outrageous.
This conclusion was correct. “Examples of conduct found to be extreme and
outrageous by New Jersey courts include, when a physician, knowing it to be false, told
parents their son was suffering from cancer; spreading a false rumor that plaintiff’s son
4
Appellant’s accusation that his supervisor was “vindictive” toward him gets him no
further. He testified that the supervisor was also vindictive to Caucasians, and “no
NJLAD violation [lies] if the same conduct would have occurred regardless of [a]
plaintiff’s [race].” Lehmann, 626 A.2d at 454. Despite his repeated assertions that his
supervisor told racial jokes, we note that Appellant testified that his supervisor never
made a racial joke in his presence. Further, nothing in the record suggests that any party
to this claim ever made any racial joke regarding African-Americans, in or outside of
Appellant’s presence.
9
had hung himself; bringing a mob to plaintiff’s door with a threat to lynch him if he did
not leave town; and wrapping up a gory dead rat inside a loaf of bread for a sensitive
person to open.” McConnell v. State Farm Mut. Ins. Co., 61 F. Supp. 2d 356, 363
(D.N.J.1999) (citing Hume v. Bayer, 428 A.2d 966, 968 (N.J. Super Ct. Law Div. 1981))
(internal quotation marks omitted). The acts that Appellant claims are extreme and
outrageous are the exact same acts he cites in support of his NJLAD discrimination
claims, which, as we have discussed, are without merit. “As [he] is unable to make a
prima facie case for unlawful discrimination, [he] is perforce unable to prevail on [his]
claim for emotional distress damages based upon the same conduct.” Rosario v. Cacace,
767 A.2d 1023, 1030 (N.J. Super. Ct. App. Div. 2001); see also Griffin v. Tops Appliance
City, Inc., 766 A.2d 292, 297 (N.J. Super. Ct. App. Div. 2001) (holding that, except in the
case of aggravated discriminatory conduct, “it is extremely rare to find conduct in the
employment context that will rise to the level of outrageousness necessary to provide a
basis for recovery for the tort of intentional infliction of emotional distress”). Therefore,
summary judgment was appropriately granted as to this third cause of action.
IV. Conclusion
Because Appellant has failed to support the essential components of each claim
with record evidence, the District Court properly concluded that Appellees were entitled
to summary judgment as to each of the three causes of action. We therefore affirm the
decision of the District Court.
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