                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 08-3065
                                    ___________

                                  LAILA ELMIRY,
                                     Appellant

                                          v.

               WACHOVIA CORPORATION; WACHOVIA BANK;
                      WACHOVIA SECURITIES, LLC;
             WACHOVIA SECURITIES FINANCIAL NETWORK, LLC;
                  DIANE VAGILE; RONALD CACHOEIRA
                  ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                           (D.C. Civil No. 2:04-cv-03621)
                    District Judge: Honorable Peter G. Sheridan
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 3, 2011

         Before: RENDELL, CHAGARES and STAPLETON, Circuit Judges

                          (Opinion filed: February 7, 2011)
                                    ___________

                             OPINION OF THE COURT
                                  ___________

PER CURIAM

      Laila Elmiry, proceeding pro se, appeals from the District Court’s November 16,

2007 order and May 12, 2008 judgment, which collectively dismissed or denied each of
her claims in this employment discrimination case. For the reasons that follow, we will

affirm.

                                               I.

          Because we write for the parties, who are familiar with the background of this

case, we discuss that background only briefly here. In November 2004, Elmiry, a Coptic

Christian woman who was born in Egypt and came to the United States in 1978, filed a

counseled complaint in the Superior Court of New Jersey against Wachovia Corporation,

Wachovia Bank, Wachovia Securities, LLC, and Wachovia Securities Financial Network,

LLC (hereinafter collectively referred to as “Wachovia”). Elmiry, who had worked for

Wachovia and its predecessor companies for at least 11 years prior to her termination in

2003, alleged discrimination, creation of a hostile work environment, intentional

infliction of emotional distress, “common law” emotional distress, and breach of contract.

Wachovia removed the case to the District Court on the basis of diversity jurisdiction. In

October 2005, Elmiry, represented by new counsel, filed an amended complaint in the

District Court. That pleading, which named two Wachovia employees as additional

defendants, alleged that Wachovia and the additional defendants had subjected Elmiry to

a hostile work environment and discriminated against her on the basis of her national

origin, ethnicity, religion, gender, and age, in violation of the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-1 et seq., and Title VII of the Civil Rights Act of




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1964, as amended, 42 U.S.C. § 2000e et seq. 1

       After the close of discovery, Wachovia moved for summary judgment. On

November 16, 2007, the District Court granted the motion in part and denied it in part. In

doing so, the court first dismissed the claims against the two individual defendants

without prejudice, concluding that Elmiry had failed to serve them within the time

prescribed by Fed. R. Civ. P. 4(m). 2 The court then turned to the merits of Elmiry’s

claims against Wachovia. The court, applying the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), concluded that Wachovia was

entitled to summary judgment as to Elmiry’s claims that her termination was the product

of discrimination and retaliation. In doing so, the court held that although Elmiry had

established a prima facie case of discrimination and retaliation, Wachovia had put forth a

legitimate, non-discriminatory reason for terminating her employment — she “printed” a

client’s name in the signature block of a brokerage application without the client’s

knowledge — and she had not shown that this proffered reason was merely a pretext for

discrimination and/or retaliation. As for her hostile work environment claims, the court


1
 As the District Court noted in its November 16, 2007 opinion, age discrimination is not
covered under Title VII. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 465 n.4 (1982).
2
  Although Elmiry appears to argue that the two individual defendants were served
through Wachovia’s counsel, this claim lacks merit. The two individual defendants were
not represented by Wachovia’s counsel, nor is there any indication that they otherwise
authorized Wachovia’s counsel to accept service on their behalf. As a result, service
could not be effectuated by sending the amended complaint to Wachovia’s counsel. See
Fed. R. Civ. P. 4(e); N.J. Ct. R. 4:4-4.

                                             3
denied Wachovia’s motion for summary judgment, holding that there was a material

issue of fact as to whether, in response to Elmiry’s allegations that co-workers were

harassing her, Wachovia took action “reasonably calculated to prevent further

harassment.” (See Dist. Ct. Op. of Nov. 16, 2007, at 29.) The court also denied the

motion for summary judgment as to Elmiry’s claim for punitive damages.

         In May 2008, a jury trial was held on Elmiry’s remaining claims. At the close of

the evidence, the court granted Wachovia’s motion for judgment as a matter of law as to

her age-based hostile work environment claim. Additionally, her religion-based claim

was dismissed and not charged to the jury. As for her remaining claims — those based

on her national origin, ethnicity, and gender — the jury returned a verdict in favor of

Wachovia on May 12, 2008. That same day, the court entered judgment in favor of

Wachovia. 3 Elmiry subsequently filed a pro se motion for a new trial, which the court

denied. She now seeks review of the District Court’s November 16, 2007 order and May

12, 2008 judgment. 4

                                             II.

         As a preliminary matter, we note that Wachovia has moved to strike three



3
 At some point before the jury retired to deliberate, the parties stipulated that the sole
appropriate defendant was Wachovia Bank. As a result, the May 12, 2008 judgment was
entered in favor of that entity alone.
4
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.


                                              4
documents that Elmiry submitted in support of her challenge to the District Court’s

partial grant of summary judgment. Two of those documents — handwritten notes

purportedly made by a Wachovia employee and an excerpt from the “Merck Manual

Home Edition” — were not part of the record before the District Court. The third

document — an expert report from Cheryl M. Kennedy, M.D., dated December 31, 2007 5

— was not made part of the record until after the District Court had granted partial

summary judgment. Because none of these documents were before the District Court

when it ruled on Wachovia’s summary judgment motion, we may not consider them in

reviewing that decision. See Union Pac. R.R. Co. v. Greentree Transp. Trucking Co.,

293 F.3d 120, 126 (3d Cir. 2002) (stating that “an appellate court may only review the

record as it existed at the time summary judgment was entered”). Accordingly, we

hereby grant Wachovia’s motion to strike, and turn to the merits of Elmiry’s appeal.

       We first consider Elmiry’s challenge to the District Court’s partial grant of

summary judgment. We exercise plenary review over that decision, and use the same

standard applied by the District Court. See Anderson v. Wachovia Mortg. Corp., 621

F.3d 261, 267 (3d Cir. 2010). Under that standard, Wachovia had to show that there was

“no genuine issue as to any material fact,” and that it was “entitled to judgment as a


5
  This report concerns Dr. Kennedy’s psychiatric evaluation of Elmiry on February 7,
2007. Although Elmiry seems to allege that Wachovia wrongfully withheld this report
until after the District Court had ruled on its motion for summary judgment, the report
clearly bears a date of December 31, 2007, and Elmiry has not identified any evidence to
support a charge of wrongdoing against Wachovia.

                                             5
matter of law.” See Fed R. Civ. P. 56(c)(2). 6 In determining whether Wachovia met that

standard, “we (i) resolve conflicting evidence in favor of the nonmovant, (ii) do not

engage in credibility determinations, and (iii) draw all reasonable inferences in favor of

the nonmovant.” See Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994). Having

examined the record, and for substantially the reasons set forth in the District Court’s

thorough and cogent opinion, we agree with the court’s decision to grant summary

judgment in Wachovia’s favor as to Elmiry’s claims of discrimination and retaliation.

       As for Elmiry’s challenge to the District Court’s May 12, 2008 judgment, she

alleges that she was not able to present evidence associated with her discrimination and

retaliation claims at trial, which “severely weakened the case for hostile work

environment and punitive damages and did not give the jury a true picture of all the facts

and evidence required to fully evaluate the case.” (Pet’r’s Opening Br. 22.) Wachovia

responds by arguing that Elmiry should be judicially estopped from making this claim

because it contradicts the position she took before the District Court. 7 In support of its

argument, Wachovia notes the following: (1) the final pretrial order reflected Elmiry’s


6
 Rule 56 was recently amended, effective December 1, 2010; however, we will apply the
version in effect at the time Wachovia moved for summary judgment.
7
  Judicial estoppel is an equitable doctrine that “seeks to prevent a litigant from asserting
a position inconsistent with one that she has previously asserted in the same or in a
previous proceeding.” Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d
355, 358 (3d Cir. 1996). Judicial estoppel is “an extreme remedy, to be used only when
the inconsistent positions are tantamount to a knowing misrepresentation to or even fraud
on the court.” Chao v. Roy’s Constr., Inc., 517 F.3d 180, 186 n.5 (3d Cir. 2008) (internal

                                              6
intent to seek to exclude at trial all evidence relating to her termination, (2) the final

pretrial order’s “Plaintiff’s Contested Facts” section did not include any facts relating to

her termination, and (3) Elmiry’s counsel agreed to the following jury instruction:

“Plaintiff’s employment at Wachovia ended in 2003 for reasons which are unrelated to

this lawsuit.” (See Supp. App’x at 333.)

       We need not decide whether judicial estoppel might be appropriate here, for

Elmiry’s challenge to the District Court’s May 12, 2008 judgment nonetheless fails on

the merits. First, she does not explain how the District Court erred in excluding evidence

that she herself seemingly wanted to exclude at the time. Second, she does not show how

any excluded evidence would have altered the resolution of her hostile work environment

claims.

       We have considered the remaining arguments set forth in Elmiry’s briefing and

conclude that they are without merit. Accordingly, and in light of the above, we will

affirm the District Court’s November 16, 2007 order and May 12, 2008 judgment.




quotation marks and citation omitted).

                                               7
