Mitchell Dinnerstein v. Burlington County College

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3623
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MITCHELL DINNERSTEIN,
Appellant
v.
BURLINGTON COUNTY COLLEGE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 13-cv-05598)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 17, 2018
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed: March 8, 2019)
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OPINION*
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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.
Mitchell Dinnerstein, a former employee of Rowan College at Burlington County
College (the “College”), appeals from the District Court’s order granting summary
judgment to the College. For the following reasons, we will affirm.
Because we write primarily for the parties, who are familiar with the background
of this case, we discuss that background only briefly. Dinnerstein was hired by the
College in July 2007 as a maintenance mechanic-electrician. In December 2013,
Dinnerstein filed a complaint in the United States District Court for the District of New
Jersey, alleging that the College subjected to him to unlawful discrimination, a hostile
work environment, and retaliation based on his religion – Judaism – in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Specifically,
Dinnerstein claims that he was “slandered, devalued, [and] harassed” by the College, and
when he reported acts of anti-Semitism to his supervisor, he was subjected to
unwarranted discipline and eventually terminated.
Following a protracted discovery period, the College filed a motion for summary
judgment. Dinnerstein initially filed an “objection” to the College’s motion with a
request for additional discovery, followed by a request for an extension of time to
respond to the motion. Shortly thereafter, the College filed a motion for sanctions and to
deny Dinnerstein’s additional discovery demands and request additional time to respond
to the summary judgment motion. By order entered on November 21, 2017, the District
Court granted the College’s motion for summary judgment, concluding that Dinnerstein
2
had failed to establish prima facie claims of religious discrimination, hostile work
environment, or retaliation, and that the College’s nondiscriminatory reason for firing
Dinnerstein – several violations of the College’s Civility Policy – was not pretext for
discrimination. The District Court further denied Dinnerstein’s request for additional
discovery and time as “unsupported” and “unwarranted,” and also denied the College’s
request for sanctions. Dinnerstein appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the District Court’s decision granting summary judgment. See
McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is
appropriate “if the movant shows that 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).
We agree with the District Court that Dinnerstein has failed to establish prima
facie claims of religious discrimination, hostile work environment based on religious
harassment, and retaliation.1 Because Dinnerstein has not introduced direct evidence of
1
In his appellate brief, Dinnerstein claims that the District Court improperly granted
summary judgment before he had time to complete discovery. A court may defer ruling
on a summary judgment motion if the “nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R.
Civ. P. 56(d). The rule also “requires that a party indicate to the district court its need for
discovery, what material facts it hopes to uncover and why it has not previously
discovered the information.” Radich v. Goode, 886 F.2d 1391, 1393–94 (3d Cir. 1989).
Dinnerstein did not clearly address Rule 56(d)’s requirements, either in the District Court
or on appeal. See Dowling v. City of Phila., 855 F.2d 136, 139–40 (3d Cir. 1988); see
also Hamilton v. Bangs, McCullen, Butler, Foye & Simmons, L.L.P., 687 F.3d 1045,
1050 (8th Cir. 2012). Because Dinnerstein has failed to demonstrate how any additional
discovery will allow him to defeat the College’s well-supported motion for summary
3
discrimination, we analyze his claims under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the disparate
treatment theory of religious discrimination, “the prima facie case and evidentiary
burdens of an employee alleging religious discrimination mirror those of an employee
alleging race or sex discrimination.” Abramson v. William Paterson Coll. of N.J., 260
F.3d 265, 281 (3d Cir. 2001). Under this framework, a plaintiff seeking to establish a
prima facie case discrimination must show that “(1) [he] is a member of a protected class;
(2) [he] was qualified for the position [he] sought to attain or retain; (3) [he] suffered an
adverse employment action; and (4) the action occurred under circumstances that could
give rise to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205,
214 (3d Cir. 2008).
Here, with regard to the fourth factor,2 the District Court properly determined that
Dinnerstein’s generalized, subjective beliefs that Jewish members of the College’s
administration are “going to discriminate against . . . anyone who is not their friend,” and
“they’re not going to listen to you and do what you say if you’re Jewish,” are insufficient
to maintain an unlawful discrimination claim. See Mlynczak v. Bodman, 442 F.3d 1050,
1058 (7th Cir. 2006) (“[I]f the subjective beliefs of plaintiffs in employment
discrimination cases could, by themselves, create genuine issues of material fact, then
judgment, the District Court did not grant summary judgment prematurely or otherwise
abuse its discretion in managing discovery.
2
The first three factors are not in dispute.
4
virtually all defense motions for summary judgment in such cases would be doomed.”)
(citation omitted). Moreover, Dinnerstein testified at his deposition to only two
comments made by employees or administrators at the College referring to his Jewish
faith. First, he claimed that a coworker in the boiler room commented about him that
“the Jew doesn’t know anything.” Second, he testified that “[t]he entire maintenance
shop” said that he was hired only because he is Jewish. These “stray remarks,” which
were not made by or to any of the College’s decisionmakers, are insufficient to show
discrimination related to Dinnerstein’s termination. See Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992).
Dinnerstein’s hostile work environment claim based on religious harassment fails
for the same reasons. See Abramson, 260 F.3d at 277. Nor has Dinnerstein shown that
his termination was motivated by the College’s intent to retaliate against him for
reporting acts of anti-Semitism. Dinnerstein’s deposition testimony that he “thinks” he
told the College administrators when he was given his final warning that he was
discriminated against because of his Jewish faith does not establish a causal connection
between that activity and his termination. See Daniels v. Sch. Dist. of Phila., 776 F.3d
181, 196 (3d Cir. 2015).
Even if Dinnerstein could satisfy his prima facie burden with regard to any of his
allegations, nothing in the record suggests that the College’s proffered explanation for
terminating Dinnerstein – that he violated the College’s Civility Policy on several
occasions – was pretext. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). The
5
undisputed record shows that the College addressed violations of the Civility Policy with
Dinnerstein on several occasions in 2008 and issued him a final warning after he yelled
profanities at a coworker in August 2011. Dinnerstein admitted in his deposition that
when he was terminated on December 1, 2011, for yelling profanities at his supervisors,
he knew that he had been issued prior warnings, understood what the warnings meant, but
had nevertheless used profane language with his supervisors in violation of the Civility
Policy.3 Because Dinnerstein has failed to provide evidence from which a factfinder
could reasonably infer that the College’s proffered reason for terminating him is pretext
for discrimination, the District Court properly granted summary judgment to the College
as to Dinnerstein’s claims.4
For the foregoing reasons, we will affirm the District Court’s judgment. In light of
our disposition, we deny Dinnerstein’s motion to expedite the appeal as moot; his motion
to file an overlength brief is granted. We note that the Clerk previously granted the
3
When asked whether he called his supervisor “the F word” or used other profanities,
Dinnerstein replied “Yeah, it’s in there,” referring to a hearing transcript. He further
admitted in his deposition to calling someone a “pantywaist faggot.”
4
Dinnerstein also argues in his appellate brief that he was suspended for refusing to put
his electrical license in jeopardy by allowing unqualified co-workers to perform electrical
work improperly under his supervision. However, he has failed to demonstrate either in
the District Court or here how this discipline is in any way related to his religion and his
underlying discrimination claims. Moreover, this allegation, even if true, does not permit
a finding that the College’s legitimate nondiscriminatory reason for firing Dinnerstein
was pretext for discrimination.
6
College’s motion for leave to file a supplemental appendix. To the extent that the
College’s motion requests further relief, it is denied.
7