                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-4455
                                    _____________

                      FREDERICK LIVINGSTON, an individual,

                                           Appellant

                                           v.

       THE BOROUGH OF EDGEWOOD, a municipal corporation; DENNIS
   HOCKENBERRY; TIMOTHY QUINN; MICHAEL CROW; KURT FERGUSON;
     PAUL WOOD, individuals; EDGEWOOD BOROUGH POLICE OFFICERS
                              ASSOCIATION
                              _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (Civ. No. 2:08-00812)
                       Magistrate Judge: Hon. Lisa P. Lenihan

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 11, 2011

            Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                  (Filed June 2, 2011)

                                     ____________

                                      OPINION
                                    ____________




  Both parties consented to the exercise of jurisdiction by Magistrate Judge Lenihan
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
CHAGARES, Circuit Judge.

       Plaintiff Frederick Livingston appeals the Magistrate Judge‟s grant of summary

judgment in favor of defendants Borough of Edgewood and several of its current and

former employees.1 For the reasons that follow, we will affirm.

                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition.2 Livingston, who is African American, has been employed as a police officer

in the Borough of Edgewood since February 1996. In August 2005, Livingston was

arrested for rape, statutory sexual assault, sexual assault, incest, endangering the welfare

of children, aggravated indecent assault, indecent assault, and corruption of minors, based

upon allegations that he had sexually abused one of his daughters. The Borough of

Edgewood police department subsequently suspended Livingston, with pay, on August




1
 Dennis Hockenberry, Timothy Quinn, and Michael Crow are current or former
Borough of Edgewood police officers. Kurt Ferguson is the former Edgewood Borough
Manager. Paul Wood is the former Edgewood chief of police.
2
  Furthermore, we only cite to facts that are supported by evidence in the record. On
appeal, as before the Magistrate Judge, Livingston relies on unsupported factual
assertions. As the Magistrate Judge noted, Livingston “may not, at this stage of the
proceedings, continue to maintain claims on unsupported/conclusory allegations” or rely
on “hearsay or speculative assertions made without foundation.” Appendix 5 n.3.

                                              2
16, 2005. In February 2006, following a Loudermill hearing,3 the Borough changed the

terms of Livingston‟s suspension to one without pay.

       Livingston‟s criminal trial took place in September 2006. At that trial, several of

the individual defendants testified against Livingston regarding his reputation for

truthfulness. On September 19, 2006, the jury returned a verdict of acquittal.

Livingston‟s pay was reinstated the following day and he returned to active duty as a

police officer on November 11, 2006.4

       Livingston compares his pre-suspension and post-suspension experience as an

Edgewood police officer as being in “separate continents.” Appendix (“App.”) 720. For

example, after returning from suspension, many of Livingston‟s extra responsibilities had

been reassigned, including his former position of “crime prevention officer” and his duty

of acting as the liaison for the library‟s annual Halloween party. Several of Livingston‟s

other pre-suspension responsibilities had simply been discontinued. He had formerly

acted as a Drug Abuse Resistance Education (DARE) officer, and had also been involved

in a bike rodeo program and the citizen‟s police academy program. All three of these

programs were terminated during Livingston‟s suspension.



3
  This is the name given to a hearing for a public employee conducted pursuant to the
Supreme Court‟s decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985).
4
  Before Livingston returned to work, the Edgewood police department completed an
investigation regarding whether Livingston had violated any departmental rules or
regulations stemming from his criminal prosecution. The investigation concluded that no
violations had occurred.
                                             3
       In addition, Livingston complained of general mistreatment after his return,

including that: (1) fellow police officer (and defendant) Hockenberry did not assist him

when he was evacuating children during a potential fire emergency; (2) he was not

allowed to take a third week of vacation for his wedding; (3) unlike other officers, he was

not provided a new individually-fitted bullet-proof vest for more than two years

following his return; (4) he did not receive appropriate computer training; and (5) he was

unfairly reprimanded for minor infractions such as failing to turn in daily log sheets.

Livingston was also assigned to handle DUI case preparations and abandoned vehicles,

tasks that he deemed to be less desirable than his previous pre-suspension

responsibilities.

       In January and March/April of 2007, Livingston complained to the chief of the

police department about a “hostile work environment.”5 On August 13, 2007, Livingston

filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”),

alleging race discrimination and retaliation. See App. 943-50.6 In September 2007,

Livingston verbally complained to the chief of the police department, and contended that




5
  The January 2007 complaint provided no specifics regarding this hostile work
environment. The March/April 2007 complaint pertained to fellow officer Hockenberry,
and mentioned, among other things, Hockenberry‟s failure to assist Livingston during the
potential fire emergency.
6
  This August 2007 EEOC complaint is the first time that Livingston alleged racial
discrimination.

                                             4
two additional African American employees had been discriminated against.7 In

September 2009, Livingston again complained to the chief of the police department, this

time regarding a dispute with defendant Timothy Quinn, a fellow police officer with less

seniority than Livingston. There is evidence in the record to suggest that Livingston and

Quinn had verbally threatened one another, and that during Livingston‟s suspension,

Quinn had created a computer image of Livingston behind bars and had used insensitive

racial language. After holding Loudermill hearings, the Borough suspended Quinn for

ten days and ordered both Livingston and Quinn to attend anger management classes.

       Livingston initiated this case by filing a complaint on June 12, 2008.8 After the

completion of discovery, defendants moved for summary judgment. On November 1,

2010, the Magistrate Judge granted defendants‟ motion and entered summary judgment in

favor of defendants as to Livingston‟s claims for racial discrimination, hostile work

environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. (“Title VII”), Livingston‟s equal protection claim asserted

pursuant to 42 U.S.C § 1983, Livingston‟s federal conspiracy claim asserted pursuant to




7
  The September 2007 complaint, like the March/April 2007 complaint, pertained to the
behavior of officer Hockenberry.
8
  Livingston later filed a second civil action in Pennsylvania state court. That action was
removed to federal court and consolidated with the first action then proceeding before the
Magistrate Judge.

                                             5
42 U.S.C § 1985(3), and Livingston‟s state-law claims for civil conspiracy and

defamation.9 This timely appeal followed.




                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §

1367. We have appellate jurisdiction under 28 U.S.C. § 1291.

       Our review of the Magistrate Judge‟s grant of summary judgment is plenary, and

we apply the same legal standard as the Magistrate Judge. Vitalo v. Cabot Corp., 399

F.3d 536, 542 (3d Cir. 2005). A party is entitled to summary judgment “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). In conducting our analysis, we must

view the record in the light most favorable to Livingston, and must draw all reasonable

inferences in his favor. See Vitalo, 399 F.3d at 542. To defeat summary judgment,

Livingston must “produce admissible evidence containing „specific facts showing that

there is a genuine issue for trial.‟” Id. at 542 (quoting Fed. R. Civ. P. 56(e)).

                                             III.

9
  Defendants previously filed a motion to dismiss certain claims asserted by Livingston
in his original complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Magistrate Judge granted that motion and dismissed Livingston‟s claims
alleging violations of his First, Fifth, Sixth, and Fourteenth Amendment due process
rights, all asserted pursuant to 42 U.S.C § 1983, as well as his state-law claim for
intentional infliction of emotional distress. Livingston does not challenge these earlier
dismissals on appeal.
                                                6
       Livingston appeals the entry of summary judgment dismissing all of his claims.

We will assess each of Livingston‟s claims in turn, and will affirm for essentially the

same reasons articulated by the Magistrate Judge in her thorough and well-reasoned

opinion.

                                             A.

       We will first discuss Livingston‟s claims for racial discrimination, hostile work

environment, and retaliation brought pursuant to Title VII. In sum, we conclude that

while the evidence establishes that tensions arose between Livingston and certain of his

colleagues following Livingston‟s arrest based upon allegations that Livingston had

sexually abused one of his daughters, and that perhaps as a result, Livingston may have

been treated differently after returning to work following his arrest-related suspension,

there is insufficient evidence in the record to support a finding that Livingston suffered

intentional discrimination, a hostile work environment, or retaliation on account of his

race. We will therefore affirm the dismissal of Livingston‟s claims brought under Title

VII.

                                              1.

       Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of such

individual‟s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).


                                              7
       Livingston first claims that defendants discriminated against him on the basis of

his race. To maintain a prima facie case for racial discrimination, Livingston must show

that: (1) he is African American; (2) he was qualified for the position; (3) he was subject

to an adverse employment action; and (4) that similarly situated persons who are not

African American were treated more favorably or that the circumstances of the adverse

employment action give rise to an inference of discrimination. See Sarullo v. U.S. Postal

Serv., 352 F.3d 789, 797 (3d Cir. 2003); Jones v. Sch. Dist. Phila., 198 F.3d 403, 410-11

(3d Cir. 1999). In the absence of direct evidence of discrimination,10 Livingston may

satisfy this initial burden pursuant to the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas,

Livingston bears the initial burden of establishing a prima facie case of unlawful

discrimination by a “preponderance of the evidence.” Sarullo, 352 F.3d at 797. If

Livingston succeeds, the burden of production shifts to defendants to articulate a

legitimate, nondiscriminatory reason for the adverse employment action. Id. If

defendants meet this “relatively light burden,” the burden of production returns to

Livingston, who must show by a preponderance of the evidence that defendants‟

proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

       In this case, Livingston has failed to meet his initial burden to establish a prima

facie case of unlawful discrimination by a preponderance of the evidence in regard to the


10
   Since Livingston offers no direct evidence, we will assess his claims under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
                                            8
fourth element of his racial discrimination claim. As the Magistrate Judge held,

“[p]laintiff has proffered nothing more than his own speculation that his post-arrest and

post-reinstatement treatment would have been different were he not African American”

and there is “no evidence of reasonably similarly situated individuals (e.g., in

circumstances of comparable seriousness) treated differently.” App. 20. Accordingly,

we affirm the dismissal of Livingston‟s racial discrimination claim.



                                                 2.

       For similar reasons, Livingston‟s hostile work environment claim also fails. To

establish a Title VII hostile work environment claim, Livingston must prove that: (1) he

suffered intentional discrimination because of his race; (2) the discrimination was

pervasive and regular; (3) the discrimination detrimentally affected him; (4) the

discrimination would detrimentally affect a reasonable person of the same sex in that

position; and (5) the existence of respondeat superior liability. See Huston v. Procter &

Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). For the reasons just

stated, there is insufficient evidence in the record from which a reasonable juror could

conclude that Livingston suffered intentional discrimination due to his race. Moreover,

there is also insufficient evidence to support a reasonable finding that any discrimination

was pervasive and regular. We therefore affirm the dismissal of Livingston‟s hostile

work environment claim.

                                                 3.
                                             9
       In order to prevail on a retaliation claim under Title VII, Livingston must show

that: (1) he engaged in activity protected by Title VII; (2) defendants took an adverse

employment action against him; and (3) there was a causal connection between the

protected activity and the adverse employment action. See Nelson v. Upsala Coll., 51

F.3d 383, 386 (3d Cir. 1995). Livingston‟s retaliation claim is limited to events occurring

on or after October 14, 2006, three-hundred days prior to the filing of his August 13,

2007 EEOC complaint. Cf. Nat‟l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14

(2002). During that relevant time period, the only protected acts in which Livingston

engaged were his complaints to the chief of the police department in 2007, his August

2007 EEOC complaint, and his subsequent complaints regarding racial discrimination.

We agree with the Magistrate Judge that “there is simply insufficient evidence from

which the fact finder could reasonably infer a causal connection between any material

adverse action and retaliation for conduct protected under Title VII.” App. 27; see

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass‟n, 503 F.3d 217, 232-33 (3d Cir. 2007).

Accordingly, we affirm the dismissal of Livingston‟s retaliation claim, and by so doing,

we affirm the dismissal of all of Livingston‟s claims brought pursuant to Title VII.

                                            B.

       Livingston also appeals the dismissal of his equal protection claim, asserted

pursuant to 42 U.S.C. § 1983. “To bring a successful claim under 42 U.S.C. § 1983 for a

denial of equal protection, plaintiffs must prove the existence of purposeful

discrimination.” Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)
                                            10
(emphasis added). A claim brought pursuant to 42 U.S.C. § 1983 also requires that

defendants “exercised power possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” Bonenberger v.

Plymouth Twp., 132 F.3d 20, 23 (3d Cir. 1997) (internal quotations omitted). Here,

Livingston has failed to adduce sufficient evidence that any of the defendants acted under

the authority of state law to discriminate purposefully against him on the basis of his race.

Furthermore, in order to maintain a § 1983 claim against the Borough of Edgewood, a

municipality, Livingston must prove that an official policy or custom caused him to be

denied a constitutional right pursuant to Monell v. Department of Social Services, 436

U.S. 658 (1978). There is no evidence in the record to suggest that any such policy or

custom existed. We thus affirm the dismissal of Livingston‟s equal protection claims.

                                             C.

       Livingston‟s federal conspiracy claim, asserted pursuant to 42 U.S.C. § 1985(3),

requires that he establish: “(1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly, any person or class of

persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy;

and (4) an injury to person or property or the deprivation of any right or privilege of a

citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

Similarly, Livingston‟s Pennsylvania state-law claim for civil conspiracy requires: “(1) a

combination of two or more persons acting with a common purpose to do an unlawful act

or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done
                                             11
in pursuance of the common purpose; and (3) actual legal damage.” Gen. Refractories

Co. v. Fireman‟s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003) (quotation marks

omitted). For purposes relevant to both of these claims, in order “[t]o constitute a

conspiracy, there must be a meeting of the minds.” Startzell v. City of Phila., 533 F.3d

183, 205 (3d Cir. 2008) (quotation marks omitted).

       The Magistrate Judge correctly concluded that there is insufficient evidence in the

record to establish the requisite “meeting of the minds,” and therefore, the existence of a

conspiracy, since Livingston has “proffered neither direct nor circumstantial evidence

sufficient to a reasonable finding of conspiratorial agreement or concerted efforts among

the [d]efendants.” App. 32; cf. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d

788, 802 (3d Cir. 2010) (“To survive a motion for summary judgment on [plaintiff‟s]

section 1985(3) claim, [the plaintiff] first was required to put forward facts that would

allow a reasonable factfinder to conclude that [the defendants] formed a conspiracy to

deprive him of his rights.”). We therefore affirm the dismissal of Livingston‟s federal

and state-law conspiracy claims.

                                             D.

       Finally, we affirm the dismissal of Livingston‟s state-law defamation claim. A

one-year statute of limitations applies to this claim, see 42 Pa. Cons. Stat. § 5523, and

Livingston has failed to adduce evidence of a single defamatory statement by any of the




                                             12
defendants within one year of the filing of his first complaint on June 12, 2008.

Accordingly, Livingston‟s state law defamation claim is time-barred.11

                                            IV.

       For the reasons stated above, we will affirm.




11
   Livingston also appeals the denial of his claim for punitive damages. See Livingston
Br. at 43-45. The Magistrate Judge did not address this issue in her opinion. In light of
our disposition affirming the Magistrate Judge‟s dismissal of all of Livingston‟s
substantive claims, we also hold that there is no need to determine whether punitive
damages would be appropriate in this case.
                                             13
