                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2004

Berry v. Jacobs IMC LLC
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3776




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Berry v. Jacobs IMC LLC" (2004). 2004 Decisions. Paper 678.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/678


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 03-3776


                                  JAMES BERRY,
                                            Appellant

                                           v.

                                 JACOBS IMC, LLC


       APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
                            DIVISION OF ST. CROIX
                           D.C. Civil No. 01-cv-00007
          District Judge: The Honorable Raymond L. Finch, Chief Judge


                     Submitted Under Third Circuit LAR 34.1(a)
                                   May 7, 2004


                Before: BARRY, AM BRO, and SMITH, Circuit Judges


                            (Opinion Filed: May 27, 2004)


                                      OPINION




BARRY, Circuit Judge

      Plaintiff James Berry brought suit against defendant Jacobs Industrial Maintenance

Company, LLC (“Jacobs”) alleging various forms of employment discrimination and
breach of contract, in violation of federal and territorial law. The District Court granted

summary judgment in favor of Jacobs. Plaintiff appeals, and we will affirm.

                                             I.

       Plaintiff, an African-American male, was employed by Jacobs as a mechanical

troubleshooter from August 1999 to September 2000. Jacobs was formed in August 1999

to provide various services, such as maintenance and construction for the HOVENSA oil

refinery. Prior to this employment, plaintiff worked as an off site superintendent for the

Virgin Islands Industrial Maintenance Company, LLC (“VI IMC”), a contractor that

provided services to the HOVENSA refinery before Jacobs was created in 1999.

       In August 1999, representatives of Jacobs gave a presentation to prospective job

applicants. Plaintiff alleges that during the question and answer session, he asked a

Jacobs representative about the pay rates and employment positions offered at Jacobs.

Although plaintiff did not recall the representative’s exact words, he interpreted them to

mean that successful applicants would not be given a pay cut or be demoted from their

current positions at their respective companies if they chose to work for Jacobs.

       Plaintiff then accepted a position at Jacobs as a mechanical troubleshooter.

According to him, this new position constituted a demotion from his former position at VI

IMC because it was not supervisory in nature. He admitted, however, that the mechanical

troubleshooter position had not existed at VI IMC. In addition, plaintiff’s salary at Jacobs

was at least equal to what he had made at VI IMC. He also received a housing allowance



                                             2
from Jacobs, which he had not received while employed at VI IMC. Moreover, he

acknowledged that the exact position he had occupied at VI IMC did not exist at Jacobs.

The position at Jacobs that most closely resembled his former position was that of a

terminal zone supervisor, which was filled by Val Richardson, a black West Indian

employee. Daryl Kramer, Routine Maintenance Manager of Jacobs, stated that he had

considered plaintiff for the position of a terminal zone supervisor, but hired Richardson

instead because Richardson “had excellent credentials and experience and was highly

regarded by his colleagues at IMC and HOVENSA.” (A72).

       In June 2000, plaintiff asked Ken Lawson, General Manager of Jacobs, about

opportunities to be promoted to a superintendent’s position. Lawson informed plaintiff

that he did not believe that he was qualified. According to Lawson, he had been told that

plaintiff was not working a 40-hour week, and had a problem with absenteeism. In

September 2000, plaintiff resigned from Jacobs and accepted a position as an operator

trainee at HOVENSA.

       Plaintiff then brought suit in the United States District Court for the Virgin Islands

against Jacobs alleging (1) employment discrimination, in violation of Title VII of the

Civil Rights Act of 1964 and the Virgin Islands Civil Rights Act; (2) breach of contract;

(3) intentional infliction of emotional distress or, in the alternative, negligent infliction of

emotional distress; (4) pattern and practice of racial discrimination against black

employees; and (5) constructive discharge, in violation of the Virgin Islands Wrongful



                                               3
Discharge Act. Jacobs moved for summary judgment. In support of its motion, it filed

the deposition transcript of plaintiff, and affidavits of General Manager Lawson and

Routine Maintenance M anager Kramer. Plaintiff did not oppose the motion.

       In an order dated April 9, 2003, the District Court granted Jacobs’s motion, and

plaintiff moved for reconsideration. The District Court denied the motion for

reconsideration on August 11, 2003. Plaintiff filed a notice of appeal, which stated that

he was appealing from the order denying his motion for reconsideration. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and will affirm the orders of the District Court.

                                              II.

       In his brief to us, plaintiff contends that the District Court erred (1) in granting

summary judgment to Jacobs because it failed to consider all the evidence in the record;

and (2) in denying plaintiff’s motion for reconsideration. Jacobs, in response, argues that

the notice of appeal failed to designate the April 9, 2003 order granting summary

judgment; rather, the notice indicated only that plaintiff was appealing from the August

11, 2003 order denying the motion for reconsideration.

       Federal Rule of Appellate Procedure 3(c)(1)(B) requires that the notice of appeal

“designate the judgment, order, or part thereof being appealed.” Although plaintiff did

not specify the order granting summary judgment in his notice of appeal, his failure to do

so “is not fatal because a policy of liberal construction of notices of appeal prevails” in

this Court. Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 202 n.1 (3d Cir. 2001).



                                              4
We may exercise jurisdiction over orders not designated in the notice “if there is a

connection between the specified and unspecified order, the intention to appeal the

unspecified order is apparent and the opposing party is not prejudiced and has a full

opportunity to brief the issues.” Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989).

       Here, those requisites have been met. The “specified order” denying the motion

for reconsideration is predicated upon the “unspecified order” granting summary

judgment. See, e.g., Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir. 1992).

Moreover, Jacobs has not been prejudiced by plaintiff’s failure to note the summary

judgment order in the notice of appeal; indeed plaintiff’s intent to challenge that order

was apparent in his motion to reconsider, and both parties have fully briefed the issue of

whether summary judgment was warranted. Thus, we have jurisdiction over both the

order granting summary judgment, and the order denying the motion for reconsideration.

       We will first address the order of summary judgment. Our review of a grant of

summary judgment is plenary. Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.

2004). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact,” and

where, viewing the facts in the light most favorable to the non-moving party, the moving

party is entitled to judgment as a matter of law. Id. Even if the non-moving party does

not respond to the motion, summary judgment should be granted only when it is



                                              5
appropriate. See Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168,

175 (3d Cir. 1990).

       Plaintiff first argues that the grant of summary judgment on his race discrimination

claim was erroneous. To succeed on a Title VII claim, a plaintiff must initially establish a

prima facie case of discrimination by showing that (1) he is a member of a protected

class; (2) he was qualified for an open position; and (3) nonmembers of the protected

class were treated more favorably. See Goosby v. Johnson & Johnson Med., Inc., 228

F.3d 313, 318-19 (3d Cir. 2000). Once the plaintiff makes out a prima facie case, the

burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason”

for its action. Id. If the defendant meets its burden of persuasion, the plaintiff must

“prove by a preponderance of the evidence that the legitimate reasons offered by the

defendant were not its true reasons, but were a pretext for discrimination.” Jones v. Sch.

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). A plaintiff may prove pretext by

showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its actions that a

reasonable factfinder could rationally find them unworthy of credence.” Id. at 413

(quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997)). He

may also defeat a motion for summary judgment if he demonstrates that “an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action.” Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).



                                              6
       Plaintiff did not set forth a prima facie case of discrimination. He did not come

forward with evidence demonstrating that nonmembers of the protected class were given

more favorable treatment. The position at Jacobs which most closely resembled his

former position – terminal zone supervisor – was held by a black employee, Val

Richardson. Moreover, as for his request for a promotion to the position of

superintendent, he did not produce evidence showing that he was qualified.

       Even if we assume that plaintiff made out a prima facie case, Jacobs has satisfied

its burden of articulating a legitimate, nondiscriminatory reason for its actions. Jacobs

claimed that it hired Richardson over plaintiff as the terminal zone supervisor based on

the feedback it received from Richardson’s previous supervisor, and because of

Richardson’s “excellent credentials and experience.” In addition, Jacobs’s general

manager provided a valid reason for believing that plaintiff was not qualified for a

promotion: he routinely saw plaintiff’s name on reports of those leaving work early, and

had been informed that he was not working a 40-hour week. Plaintiff, in turn, has not

offered any evidence beyond his own conclusory allegation that Jacobs discriminated

against him based on race. Thus, there was insufficient evidence to support the claim of

pretext, and the District Court did not err in granting summary judgment on the race

discrimination claim.1



  1
   Plaintiff also alleges that Jacobs’s actions violated the Virgin Islands Civil Rights Act.
He does not, however, specify the violations claimed. Thus, we will assume that his
Virgin Islands claim mirrors his Title VII claim. For the reasons stated previously,

                                              7
       Plaintiff next contends that Jacobs was not entitled to summary judgment on his

breach of contract claim. According to plaintiff, he accepted employment at Jacobs

because he was offered a housing allowance of $1,500 per month, grossed up to $2,300

for Virgin Islands tax purposes. Plaintiff signed the memorandum of understanding,

dated September 10, 1999, which set forth the terms of the housing allowance. He argues

that although the housing allowance was to continue for as long as he was employed at

Jacobs, Jacobs breached this contract when it issued an amended memorandum of

understanding on November 5, 1999, which limited the housing allowance to a maximum

period of 24 months.

       We reject this argument. The original memorandum of understanding did not

guarantee housing allowances to employees for the full duration of their employment at

Jacobs. Rather, the memorandum explicitly provided that “[t]he terms and conditions

stated in this assignment letter are based on current project schedules and requirements

and therefore could be subject to change.” (A284). Jacobs’s issuance of the amended

memorandum, therefore, did not constitute a breach of contract.

       Plaintiff also asserts that he established sufficient facts indicating intentional

infliction of emotional distress or, in the alternative, negligent infliction of emotional

distress. We disagree. With respect to his claim of intentional infliction of emotional



plaintiff failed to produce sufficient evidence to survive summary judgment on this claim.
See, e.g., Matheson v. Virgin Islands Cmty. Bank, Corp., 297 F. Supp. 2d 819, 832
(D.V.I. 2003).

                                               8
distress, there is nothing in the record to support a finding that Jacobs’s conduct was “so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Restatement (Second) of Torts § 46 cmt. d (1965); see also Claytor v.

Chenay Bay Beach Resort, 79 F. Supp. 2d 577, 583 (D.V.I. 2000); Manns v. Leather

Shop, Inc., 960 F. Supp. 925, 930 (D.V.I. 1997). As for the claim of negligent infliction

of emotional distress, plaintiff did not produce evidence that he suffered any sort of an

injury as a result of Jacobs’s conduct, or that it was reasonably foreseeable that Jacobs’s

conduct would result in such injury. See Restatement (Second) of Torts § 313 (1965);

Anderson v. Gov’t of the Virgin Islands, 180 F.R.D. 284, 287 (D.V.I. 1998).

       Summary judgment was also properly granted on the claim of pattern and practice

of race discrimination. Although plaintiff claims that Jacobs engaged in a pattern and

practice of discrimination, the acts alleged by him were, at most, isolated or sporadic. See

United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3d Cir. 1990) (quoting Int’l

Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)). There was no evidence

showing that racial discrimination was Jacobs’s “standard operating procedure – the

regular rather than the unusual practice.” Id. The alleged acts, therefore, do not rise to

the level required for a finding of pattern and practice of discrimination.

       Finally, the District Court did not err in granting summary judgment on the claim

brought under the Virgin Islands Wrongful Discharge Act. To succeed in establishing a



                                              9
claim for constructive discharge, a plaintiff must demonstrate that the working conditions

were “so unpleasant or difficult that a reasonable person in the employee’s shoes would

resign.” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d. Cir. 1992) (quotations

and citations omitted). Plaintiff made no such demonstration.

                                             III.

       Plaintiff also appeals the District Court’s order denying his motion for

reconsideration. According to him, the District Court erred in failing to consider the

evidence in the record when it granted summary judgment to Jacobs. The denial of a

motion for reconsideration is reviewed for abuse of discretion, but “if the court’s denial

was based upon the interpretation and application of a legal precept, review is plenary.”

Le v. Univ. of Pa., 321 F.3d 403, 405-06 (3d Cir. 2003) (quoting Koshatka v.

Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985)).

       The standard plaintiff must meet to prevail on a motion for reconsideration is high:

       a judgment may be altered or amended if the party seeking reconsideration
       shows at least one of the following grounds: (1) an intervening change in
       the controlling law; (2) the availability of new evidence that was not
       available when the court granted the motion for summary judgment; or (3)
       the need to correct a clear error of law or fact or to prevent manifest
       injustice.

Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)

(citation omitted). Plaintiff does not allege that the controlling law has changed, or that

there was new evidence. Thus, he must demonstrate that the order of the District Court

constituted a clear error, or resulted in manifest injustice. It did not. The grant of

                                             10
summary judgment was proper, and we will affirm the order denying the motion for

reconsideration.

                                            IV.

       For the foregoing reasons, we will affirm the April 9, 2003 order of the District

Court granting summary judgment to Jacobs, and the August 11, 2003 order denying

plaintiff’s motion for reconsideration.
