                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2005

Caver v. City of Trenton
Precedential or Non-Precedential: Precedential

Docket No. 04-2600




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                                         PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                         NO. 04-2600
                        ____________

      LIMMIE CAVER; LAWRENCE M. DAVIS;
      JOSEPH FINNEY; JOSEPH RICHARDSON;
 BROTHER OFFICERS LAW ENFORCEMENT SOCIETY;
    TERESA CAVER, As the Wife of Limmie Caver;
KAREN DAVIS, As the Wife of Lawrence Davis; LAFAYETTE
                     SUTPHIN,

                              v.

THE CITY OF TRENTON; THE TRENTON POLICE DIVISION;
 ERNEST WILLIAMS, Individually and in his Official Capacity;
DENNIS KEENAN, Public Safety Director, Individually and in his
                       Official Capacity;
  JAMES A. WALDRON, JR., Former Public Safety Director,
           Individually and in his Official Capacity;
   PAUL J. MEYER, Individually and in his Official Capacity;
  DANIEL MCKEE, Individually and in his Official Capacity;
 JOSEPH VALDORA, Individually and in his Official Capacity;
   FRED REISTER, Individually and in his Official Capacity;
   RONALD COLE, Individually and in his Official Capacity;
JOSEPH CONSTANCE, Individually and in his Official Capacity;
  THOMAS COPPALECCHIA, Individually and in his Official
                           Capacity;
    RICHARD KOKOTALAJ, Individually and in his Official
                           Capacity;
 ALFRED AULETTA, Individually and in his Official Capacity;
    ROBERT DEFEO, Individually and in his Official Capacity;
  THOMAS MURPHY, Individually and in his Official Capacity;
   JOHN DOES, NO. 1 THROUGH 50, Individually and in their
                         Official Capacity;
    THE TRENTON POLICE BENEVOLENT ASSOCIATION
                            LOCAL 11;
ROBERT SMITH, Trenton PBA President, Individually and in his
                         Official Capacity;
JOSEPH NOCERA, Trenton PBA Member, Individually and in his
                         Official Capacity;
 LEONARD CIPRIANO, Trenton PBA Member, Individually and
       in his Official Capacity; JOHN DOES, Trenton PBA
               Officers/Members, No. 1 through 10,
 Individually and in their Official Capacity; JOHN R. GABAUER

                     Lawrence M. Davis,
                                           Appellant
                        ____________

       On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. Civil No. 99-cv-01636)
      District Judge: The Honorable Garrett E. Brown, Jr.


                     Argued June 7, 2005

BEFORE: FUENTES, VAN ANTWERPEN and BECKER, Circuit
                     Judges

                   (Filed: August 26, 2005)




                              2
Kevin Kovacs (Argued)
Purcell, Ries, Shannon, Mulcahy & O’Neill
Crossroads Business Center
One Pluckemin Way
P.O. Box 754
Bedminster, NJ 07921

Counsel for Appellant Lawrence M. Davis

Herbert I. Waldman (Argued)
Nagel Rice & Mazie, LLP
103 Eisenhower Parkway
Roseland, NJ 07068

Susan S. Singer (Argued)
Singer & Goger
Renaissance Towers
111 Mulberry Street, Th-1A
Newark, NJ 07102

Joel B. Korin
Kenney & Kearney
220 Lake Drive East
Woodland Fall Corporate Park
Suite 210
Cherry Hill, NJ 08034

Counsel for Appellee City of Trenton



                             OPINION



                                3
VAN ANTWERPEN, Circuit Judge

        Appellant Lawrence Davis brought various federal and
New Jersey state law claims against his employer, the City of
Trenton, alleging unlawful discrimination, retaliation and hostile
work environment. Before this Court are six challenges on appeal
from the five-plus year litigation that ensued. Davis first appeals
the District Court’s September 28, 2001, grant of summary
judgment on his retaliation claim brought under the New Jersey
Conscientious Employee Protection Act (“CEPA”), N.J.S.A.
34:19-1, et seq. Second, Davis challenges the District Court’s
denial of his Motion to Vacate the summary judgment order.
Third, he appeals the District Court’s denial of his Motion to
Amend the Final Pretrial Order. Fourth, Davis appeals the District
Court’s apparent dismissal of his hostile work environment claim
at the close of evidence. Fifth, Davis challenges evidentiary
rulings that limited his ability to present psychiatric evidence.
Finally, Davis claims that the District Court erred in applying a
“determinative factor” standard to his retaliation claims. For the
reasons set forth below, we affirm the District Court’s disposition
of this case in all respects.

                                 I.

A.     Background

         Davis is a police officer of African-American descent who
began working for the Trenton Police Department (“the
Department”) in August 1990. Prior to the events that gave rise to
this litigation, Davis had been a successful officer in the K-9 unit
of the Department. He has received a number of commendations
for meritorious service and was never subject to discipline from the
beginning of his employment until May 1998.


                                 4
         The long and complicated procedural history of this case
began on April 9, 1999, when Davis, along with four other
African-American officers and the Brother Officers Law
Enforcement Society (“BOLES”), filed a Complaint in federal
district court. The plaintiffs filed an Amended Complaint on
October 7, 1999, and a Second Amended Complaint on May 1,
2000. Since then, all of the plaintiffs with the exception of Davis
have settled their claims with the City, and only Davis’ case went
to trial. On March 19, 2004, a jury returned a verdict in favor of
the City in Davis’ case.

        Only Counts One, Four, Seven, and Sixteen of the 16-count
Second Amended Complaint are relevant to the issues presented to
this Court. Count One alleged that the defendants created a hostile
work environment for Davis and other African-American officers
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq., and the New Jersey Law Against Discrimination
(“LAD”), N.J.S.A. 10:5-1, et seq. In Count Four, Davis alleged
race-based retaliation in violation of Title VII and the LAD. Count
Seven set forth a retaliation claim under the CEPA, New Jersey’s
“whistle-blowing” statute. Finally, Count Sixteen, which was not
part of the original Complaint, alleged that Davis suffered
continued discrimination, harassment, and retaliation in violation
of Title VII, the LAD, and the CEPA after the filing of the original
Complaint with the District Court.

B.     Factual History

             Racial insensitivity in the Department

       Davis testified that he overheard other officers, including
two of his superiors, Lt. Joseph Valdora and Cpt. Daniel McKee,
use hurtful racial slurs to describe African-Americans on a number


                                 5
of occasions throughout the 1990s. On one occasion, McKee read
a memo about the City’s harassment policy, which stated that
officers should not be harassed for their membership in social
groups, and told Valdora, in front of all of the other officers, “see,
the chief just said it’s okay to be in the KKK.” (Pa486.)1 Davis’
testimony mainly concerned comments made by Valdora and
McKee to African-American prisoners and detainees. Davis did
not testify that other officers ever directed racist comments at him
personally. Davis also sought to show that the City failed to
address complaints of racist graffiti being written on bathroom
walls and racist flyers being posted at headquarters.

    Problems with the Department’s Communications Center

        In addition to problems with the racial insensitivity of other
officers, Davis claimed that he began to experience problems with
the Department’s Communications Center (“the radio room”) in
the summer of 1997. The radio room is responsible for dispatching
and assigning officers and for keeping records of which officers
have been dispatched to particular jobs. Davis said he observed
mistakes in the radio room’s record-keeping, and he was
erroneously assigned to multiple jobs at the same time. He also
objected to being assigned to cases that he believed were
inappropriate for a K-9 officer.

       In July 1997, Davis confronted the radio room supervisor,
Joe Woodcock, with his concerns. Around the same time,
according to Davis’ testimony, an unidentified radio room

1
 Throughout this opinion, we will use “Pa” to refer to pages in the
appendix submitted by Plaintiff-appellant Davis, and we will use
“Da” to refer to pages in the appendix submitted by Defendant-
appellee the City of Trenton.

                                  6
employee informed Davis that he was being singled out by
Woodcock. Davis believed that the only possible reason
Woodcock would target him was his race. Davis began submitting
memoranda to his supervisors indicating that the radio room was
purposely falsifying information. Cpt. McKee forwarded one of
these complaints to the Department’s Communications Section for
an investigation. McKee also drafted a memo to his superior,
Deputy Chief Paul Meyer, agreeing that there were problems with
the radio room’s record-keeping that needed to be addressed.

        On July 18, 1997, Davis met with Lt. Valdora and another
superior officer, Sgt. John Kemler. They suggested that Davis not
question the radio room staff directly about assignments, but rather
approach his superior officers with any concerns. Valdora and
Kemler also advised Davis that his problems with the radio room
were not unique. Davis has since conceded that he knew problems
in the radio room were widespread and that many white officers
also had issues with inaccurate radio room record-keeping and
inappropriate assignments. He nevertheless persisted in his belief
that he was being singled out. After the meeting, Valdora wrote a
memo to McKee, stating that he believed Davis was being
“paranoid,” even though he was an otherwise “bright, young
officer.” (Pa406.)

        Davis continued to submit complaints about the radio
room. One memo, which detailed a conflict between Davis and
Woodcock over the radio, was forwarded to Internal Affairs for an
investigation. Woodcock admitted to Internal Affairs that the radio
room had problems with record-keeping and mistaken assignments.
He denied, however, that Davis’ concerns arose out of any personal
dispute. On October 3, 1997, Internal Affairs determined that




                                 7
Davis’ harassment complaint was “Not-Sustained.” (Pa410.)2 On
January 9, 1998, Valdora wrote another memo to McKee,
expressing concerns about Davis’ behavior. He stated that the
most recent complaint was “a somewhat rambling account” of the
radio room incident. (Pa412.)

          Recommendations for psychiatric treatment

        In the January 9, 1998, memo, Valdora reiterated that he
thought Davis was “essentially a good officer,” but that he was
exhibiting “paranoid” behavior. Valdora agreed that many of
Davis’ complaints about the radio room were well-founded, but he
faulted Davis for attributing those problems to a personal or racial
dispute.

       This irrational, obsessive behavior troubles me
       deeply. Imagine if you will, Officer Davis arresting
       a civilian employee for official misconduct when
       the elements of the crime are completely absent
       from all reporting. The civil liabilities would be
       tremendous. Therefore, I would like to provide you
       a recommendation. I would like to see Officer
       Lawrence Davis evaluated by a trained professional.

Id.

       On January 11, 1998, McKee wrote a memo concerning
Davis’ behavior to Deputy Chief Meyer. Like Valdora, McKee
praised Davis’ police work, but characterized his behavior

2
  After the Internal Affairs determination, radio room personnel
submitted a complaint taking issue with the manner in which Davis
responded to radio dispatches.

                                 8
surrounding the radio room incidents as “paranoid.” McKee also
recommended that Davis be ordered to undergo psychiatric
evaluation. He was subsequently referred to the Corporate Health
Center, where Dr. Michael Makowsky ordered a psychiatric
evaluation to determine whether there was a “reason for his
apparent multiple personalities, one that appears paranoid.”
(Pa575.)3 The City’s psychologist, Dr. Douglas Logue, conducted
the evaluation, found Davis to be fit for duty, and only
recommended follow-up evaluations. Davis accordingly retained
his full responsibilities.

             Alleged harassment by superior officers

        Davis also testified that, in January of 1998, around the
time when Valdora and McKee recommended that he be ordered to
undergo psychiatric treatment, they called him in for a meeting.
He alleges that Valdora and McKee told him they would “shut
[him] up” for “making waves” because the radio room complaints
might jeopardize an informal arrangement with the dispatchers,
referred to as “the bone,” by which the radio room would cover for
officers who went home early. (Pa481.) Davis claims McKee and
Valdora also began making sarcastic remarks about him during the
morning roll call.




3
   It appears that this referral was based in large part on the
recommendations of Valdora and McKee. Dr. Makowsky’s language
here very closely tracks the language of McKee’s January 11, 1998,
memo, which stated, “I would respectfully recommend that the Police
Division order Officer Davis to be evaluated to determine if there is
a reason for his apparent multiple personalities, one that appears to be
paranoid.” (Pa417.)

                                   9
         On May 9, 1998, Valdora confronted Davis for violating an
instruction not to enter the radio room.4 Davis then submitted a
private report alleging harassment by Valdora and McKee. On
May 11, 1998, Valdora and McKee wrote memos requesting that
disciplinary action be taken against Davis for insubordination. On
the same day, Davis completed an EEOC intake form for use in a
litigation being brought by the other BOLES members. On May
30, 1998, Davis was issued an official warning for allegedly
violating the order to not enter the radio room. This was the first
time Davis had ever been the subject of any formal discipline. The
next day, he submitted a memorandum requesting that Internal
Affairs conduct a full investigation of his claims of harassment by
McKee and Valdora. Very shortly thereafter, Deputy Chief Meyer
ordered Davis to go back to Dr. Logue for further evaluation,
which he did on June 2, 1998.

               Assignment to administrative duty

        After his second evaluation, Dr. Logue reported that Davis
was developing a psychiatric disorder that required treatment. He
recommended that Davis not be permitted to patrol with a gun. As
such, the Department confiscated his gun on June 4, 1998, and
assigned him to light administrative duty. Davis was later ordered
to undergo further psychological testing to determine his fitness for
duty, and he met with Dr. Jonathan Willard-Mack on August 19,
1998. Dr. Willard-Mack determined that Davis was not fit to
return to full duty. At about the same time, Davis privately sought
treatment from Dr. Peter Krakoff. In May 1999, after nine months
of treatment, Dr. Krakoff provided a report to Dr. Makowsky,
stating that Davis was fit for duty.

4
 Davis disputes ever actually being instructed not to enter the radio
room for any reason.

                                 10
             Involuntary sick leave and termination

        By the time Dr. Krakoff gave his report to Dr. Makowsky,
Davis had already been on administrative duty for well over the six
month limit imposed by Department policy. In the spring of 1999,
Deputy Chief John Gabauer requested that Dr. Willard-Mack
reevaluate Davis to determine if he was able to resume full duty.5
Dr. Willard-Mack determined that his condition at the time was
unchanged, and Dr. Makowsky concurred. As a result, Gabauer
placed Davis on involuntary sick leave on August 19, 1999. He
remained on sick leave for a year. In the meantime, Davis
privately sought the opinion of yet another doctor and got a full
psychiatric exam from Dr. Jodi Whitehouse in January 2000. Dr.
Whitehouse forwarded a report to Dr. Makowsky indicating that
Davis was fit for duty, but that report apparently had no impact on
the City’s view of Davis’ fitness.

       In October 2000, the City held a Departmental Hearing to
determine whether Davis was psychologically unfit and should be
discharged. Davis attended the hearing with counsel but did not
present any testimony or evidence. He was officially terminated on
October 13, 2000.

              Administrative appeal of termination

       Pursuant to the New Jersey State Civil Service Law, Davis
challenged his termination in an administrative appeal to the New
Jersey Merit System Board. The appeal was referred to the Office
of Administrative Law and was assigned to an Administrative Law
Judge (“ALJ”). The ALJ conducted an extensive hearing from

5
 By this time, the initial Complaint in the underlying discrimination
and retaliation suit had already been filed with the District Court.

                                11
April to June 2002 to determine whether the City erred in finding
that Davis was unable to perform his duties.6 On March 20, 2003,
the ALJ found that he was fit for duty and that the opinions of
Doctors Logue and Willard-Mack were inaccurate. She also found
that the City “improperly placed Officer Davis on light duty,
improperly removed his weapon, improperly issued him an official
warning, [and] improperly placed him on ‘out sick’ status. . . .”
(Pa262.)

        The ALJ went on further to state that the Department was
irresponsible in its handling of Davis’ radio room complaints and
that supervising officers used his complaints as a basis “to
intimidate him further by sending him for fitness for duty
evaluations.” (Pa260.) The ALJ found that “this was deliberately
done to either: seek his removal from the police department; to
cause him to cease expressing his legitimate concern over issues
regarding safety of officers and the residents of Trenton; or have
him quit his job.” Id. Moreover, she found that the Internal
Affairs investigation into the radio room incidents was a “sham,”
as was McKee’s memo expressing concern about Davis’ mental
state.

       The ALJ ordered Davis reinstated to his full duties and
awarded him back pay and attorneys’ fees. On May 8, 2003, the
Merit System Board affirmed the ALJ’s decision without opinion
and issued its Final Agency Order. The City did not appeal.

                          Ongoing issues

6
 During this time, the proceedings in the underlying federal suit had
been stayed by the District Court’s March 28, 2002, Order for
Administrative Termination, because one of the plaintiffs, Joseph
Finney, had been activated for military duty overseas.

                                12
         Davis claims that he continued to be discriminated and
retaliated against after the ALJ ordered reinstatement. First, Davis
claims the City stalled his reinstatement for several weeks and only
reinstated him after the filing of an Order to Show Cause in the
New Jersey state courts. Second, he alleges that when he did
return to the Department, he was not reinstated to his prior position
in the K-9 unit until he exerted pressure through the state courts.
Third, Davis claims he was not given a proper dog when he was
finally reinstated to the K-9 unit. Finally, Davis claims the City
delayed giving him his back pay for several months after the entry
of the administrative reinstatement order.

C.     Procedural History

         Given the lengthy and complicated procedural history in
this case, we will outline only those procedural developments that
are relevant to the issues presented to this Court. As noted, the
initial Complaint in this action was filed on April 9, 1999. After
more than two years of discovery, the District Court granted partial
summary judgment in favor of the City on September 28, 2001.
The summary judgment order disposed of a number of the
plaintiffs’ claims, including Counts Four and Seven – Davis’
retaliation claims under Title VII, the LAD, and the CEPA.

         However, the court denied summary judgment on Count
Sixteen, which alleged incidents of harassment, discrimination, and
retaliation occurring after the filing of the initial Complaint. In a
footnote, the District Court pointed out that Davis could not use
Count Sixteen as a vehicle to revive the now-dismissed retaliation
claims brought under Counts Four and Seven. Count One, alleging
a hostile work environment, also remained alive, as neither party
sought summary judgment on that count.



                                 13
        On April 5, 2002, the District Court entered a “Final
Pretrial Order,” setting the trial for May 7, 2002. However, as
mentioned in note 6, supra, plaintiff Joseph Finney was
subsequently activated for military duty overseas, and the court
stayed proceedings. After the District Court reinstated proceedings
in the summer of 2003, Davis filed two motions that are relevant to
this appeal.

        First, he moved to reconsider and vacate the District
Court’s entry of partial summary judgment on Counts Four and
Seven. In support, Davis claimed: (1) New Jersey retaliation law
had changed since 2001; and (2) the March 2003 findings of the
ALJ were relevant to retaliation and should be binding on the
District Court under the doctrine of collateral estoppel. The
District Court denied this motion on February 12, 2004. Second,
Davis moved to amend the Final Pretrial Order. He sought to
expand the allegations in Count Sixteen to include the incidents of
discrimination, harassment, and retaliation that allegedly occurred
after the ALJ ordered reinstatement. The District Court denied this
motion on October 20, 2003, and set the trial for March 2, 2004.

         After a five-day jury trial, the District Court instructed the
jury with regard to the Count Sixteen retaliation claims but did not
instruct them with regard to a hostile work environment claim. On
March 19, 2004, the jury returned a verdict in favor of the City on
retaliation but did not rule on hostile work environment. Davis
moved for a new trial on March 29, 2004, and the District Court
denied the motion on May 3, 2004. He filed a Notice of Appeal
with this Court on June 2, 2004.

                                  II.




                                  14
        The District Court had subject matter jurisdiction over the
federal claims contained in the Second Amended Complaint
pursuant to 28 U.S.C. §§ 1331 and 1338, and had supplemental
jurisdiction over the New Jersey state law claims pursuant to 28
U.S.C. § 1367(a). This Court has jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291.

                                 III.

A.     Summary Judgment on the CEPA Retaliation Claim

       1.      Standard of Review

         This Court reviews lower court grants of summary
judgment de novo, and we apply the same standard that the District
Court should have applied. Union Pacific R.R. v. Greentree
Transportation Trucking Co., 293 F.3d 120, 125 (3d Cir. 2002).
Under Fed. R. Civ. Pro. 56(c), summary judgment should be
granted only where 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 that the moving party is entitled to a judgment as a matter of
law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

       2.      Analysis

        Davis claims the City unlawfully retaliated against him
because of his radio room complaints. The New Jersey CEPA
makes it unlawful for an employer to take retaliatory action against
an employee because he “[o]bjects to, or refuses to participate in
any activity, policy or practice which the employee reasonably
believes is incompatible with a clear mandate of public policy
concerning the public health, safety or welfare or protection of the


                                 15
environment.” N.J.S.A. 34:19-3(c)(3). New Jersey courts have
created a four-pronged test for evaluating CEPA claims, which
mirrors the three-pronged test used to evaluate federal unlawful
retaliation claims under Title VII:

       A plaintiff . . . must demonstrate that: (1) he or she
       reasonably believed that his or her employer’s
       conduct was violating either a law, rule, or
       regulation promulgated pursuant to law, or a clear
       mandate of public policy; (2) he or she performed a
       “whistle-blowing” activity described in N.J.S.A.
       34:19-3c; (3) an adverse employment action was
       taken against him or her; and (4) a causal
       connection exists between the whistle-blowing
       activity and the adverse employment action.
Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003); Kolb v.
Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999).

        The District Court held that Davis failed to make out a
prima facie CEPA claim because (1) his complaints were
unreasonable; (2) being required to undergo psychiatric evaluations
does not constitute an adverse employment action; and (3) any
subsequent adverse employment action was not taken because of
Davis’ whistle-blowing. With respect to the first prong, the
District Court concluded that Davis’ complaints were unreasonable
as a matter of law because he refused to acknowledge that he was
not being harassed by radio room personnel. In so holding, the
court noted that the CEPA “is not intended to spawn litigation
concerning the most trivial or benign employee complaints,” Estate
of Roach v. TRW, Inc., 754 A.2d 544, 552 (N.J. 2000).

       Davis argues that the District Court inappropriately made
findings of fact on this issue. We agree. The Supreme Court of


                                16
New Jersey has clearly outlined the role of a trial judge in
addressing the first prong of the CEPA standard:

       [T]he trial court must make a threshold
       determination that there is a substantial nexus
       between the complained-of conduct and a law or
       public policy identified by the court or the plaintiff.
       If the trial court so finds, the jury then must
       determine whether the plaintiff actually held such a
       belief and, if so, whether it was reasonable.

Dzwonar, 828 A.2d at 901-902 (emphasis added); see also
Abbamont v. Piscataway Township Bd. of Educ., 650 A.2d 958,
967-68 (N.J. 1994).

        In this case, the District Court properly determined that the
complained of conduct (the radio room’s poor record keeping and
inappropriate assignments) implicates public policy concerns in
that Davis’ complaints “identified potential official misconduct
issues.” (Pa76.)7 However, the District Court overstepped its
bounds by deciding for itself whether the complaints were “trivial”
or “reasonable.” This is an issue of fact that has been specifically
reserved for the jury under New Jersey case law.8 Therefore, we


7
 The radio room complaints also implicate the state’s public policy
concerns for the safety of employees in the workplace, which are
codified at N.J.S.A. 34:6A-3, because inaccuracies in police
dispatching may place officers at risk. Cf. Cerracchio v. Alden
Leeds, Inc., 538 A.2d 1292, 1298 (N.J. Super. Ct. App. Div. 1988).
8
  It is worth noting that the City does not argue to this Court that the
District Court’s factual findings here were somehow proper. Rather,
the City has chosen to argue only the third and fourth prongs of the

                                  17
could not affirm summary judgment based on the first element of a
CEPA standard.

        The District Court’s alternative basis for summary
judgment was that, even if Davis could satisfy the first two
elements, he did not establish that he was subject to an adverse
employment action under the CEPA because of whistle-blowing.
The CEPA defines “retaliatory action” as “the discharge,
suspension or demotion of an employee, or other adverse
employment action taken against an employee in the terms and
conditions of employment.” N.J.S.A. 34:19-2(e). New Jersey
courts have interpreted N.J.S.A. 34:19-2(e) “as requiring an
employer’s action to have either impacted on the employee’s
‘compensation or rank’ or be ‘virtually equivalent to discharge’ in
order to give rise to the level of a retaliatory action required for a
CEPA claim.” Klein v. Univ. of Med. & Dentistry of New Jersey,
871 A.2d 681, 691 (N.J. Super. Ct. App. Div. 2005) (quoting
Hancock v. Borough of Oaklyn, 790 A.2d 186, 193 (N.J. Super. Ct.
App. Div. 2002)). The Superior Court in Klein elaborated further:

       Moreover, retaliatory action does not encompass
       action taken to effectuate the discharge, suspension
       or demotion but rather speaks in terms of completed
       action. . . . Nor does the imposition of a condition
       on continued performance of duties in and of itself
       constitute an adverse employment action as a matter
       of law, absent evidence of adverse consequences
       flowing from that condition.

Id. at 691-92 (internal quotations and citations omitted).



CEPA standard.

                                 18
        Similarly, in deciding a Title VII retaliation claim, this
Circuit stated, “retaliatory conduct must be serious and tangible
enough to alter an employee’s compensation, terms, conditions, or
privileges of employment.” Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997).9 As such, in cases not involving
actual discharge or refusal to hire, courts may find unlawful
retaliatory conduct “only if it alters the employee’s compensation,
terms, conditions, or privileges of employment, deprives him or her
of employment opportunities, or adversely affects his or her status
as an employee.” Id. (internal citations omitted).
“[U]nsubstantiated oral reprimands” and “unnecessary derogatory
comments” are not serious and tangible enough to constitute
adverse employment actions. Id. at 1301.

        In this case, there are two possible retaliatory actions
relevant to Count Seven. The first is the Department’s requirement
that Davis submit to psychiatric evaluations. The second is Davis’
transfer from the K-9 unit to light administrative duty.10 We agree


9
  Although Robinson involved a federal retaliation claim, the
requirements to make out a prima facie CEPA claim mirror the Title
VII requirements in that both claims require an adverse employment
action and a causal link between that action and the protected activity.
Moreover, the definition of adverse employment action provided in
Robinson is consistent with the language of N.J.S.A. 34:19-2(e).
Therefore, courts frequently apply a Title VII analysis in resolving
New Jersey state retaliation claims. See, e.g., Donofry v. Autotote
Systems, Inc., 795 A.2d 260, 269 (N.J. Super. Ct. App. Div. 2001);
Kolb, 727 A.2d at 530; Bowles v. City of Camden, 993 F. Supp. 255,
261 (D.N.J. 1998).
10
 Davis’ placement on involuntary sick leave and his termination
were clearly adverse employment decisions, but those actions had not

                                  19
with the District Court that ordering Davis to see a psychiatrist,
without more, did not adversely affect his status as an employee.
“[A]n adverse employment action involves some harm to an
employee’s employment opportunities.” Nelson v. Upsala College,
51 F.3d 383, 388 n.6 (3d Cir. 1995); see also Robinson, 120 F.3d
at 1300. Where an officer is not guaranteed a negative evaluation
upon entering the psychiatrist’s office, merely being required to
undergo an evaluation does not harm the officer’s employment
opportunities.11 Davis’ case actually illustrates this point because,


yet materialized when the initial Complaint was filed. Challenges to
these post-Complaint decisions were thus made part of Count Sixteen
and are not relevant to our discussion of the Count Seven CEPA
claim.
11
   We also acknowledge that deference should be given to a police
department’s decision to refer an officer for psychiatric evaluation
based on a supervising officer’s recommendation. New Jersey courts
have recognized an obligation on the part of police departments to
ensure that their officers are well-trained and mentally stable. See
McAndrew v. Mularchuk, 162 A.2d 820, 828-29 (N.J. 1960) (failure
to adequately train officers could render a municipality vicariously
liable for a wrongful shooting); see also Denis v. City of Newark, 704
A.2d 1003, 1008-1007 (N.J. Super. Ct. App. Div. 1998) (police
department vicariously liable for an officer’s assault on a civilian
where the department knew or should have known about the officer’s
dangerous propensities). In holding that random and universal drug
testing of police officers is permissible under the Fourth Amendment,
this Court noted the “awesome and dangerous power” conferred to
police officers and the “need in a democratic society for public
confidence, respect and approbation of the public officials on whom
the state confers that awesome power.” Policeman’s Benevolent
Ass’n of New Jersey v. Washington, 850 F.2d 133, 141 (3d Cir.

                                 20
after his first compelled psychiatric evaluation in 1998, he received
a favorable determination from Dr. Logue, and the terms and
conditions of his employment remained unchanged. Cf.
Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir, 1998)
(referral of police officer for psychological testing to determine
fitness for duty, in and of itself, “was not an adverse employment
action. Rather, the referral was designed to gather facts to form the
basis for an employment decision.”); Hopkins v. Baltimore Gas &
Elec. Co., 77 F.3d 745, 755 (4th Cir. 1996) (referral for
psychological examination insufficient under Title VII where no
adverse employment action actually resulted).

        On the other hand, Davis’ transfer to administrative duty
was an adverse employment action under the standards articulated
in Robinson, 120 F.3d at 1300, in that it significantly altered his
duties and status as an officer. The administrative position carried
much less prestige than did his position as a K-9 officer, and he
was forced to turn over his weapon, thereby preventing him from
performing many of the normal duties of a police officer. Thus,
the transfer to light duty was essentially a demotion. The issue,
then, is whether Davis made out a prima facie case for retaliation
by presenting evidence that there was a causal connection between
this demotion and his protected whistle-blowing activities.

       Davis has not alleged that the Department’s decision-
makers relied on anything other than the psychiatric reports when
they decided to assign him to light duty. He does not dispute that
Chief Williams and Deputy Chief Meyer transferred him because
they saw reports from trained professionals indicating that he was


1988). Accordingly, police departments should be able to refer
legitimate concerns about the mental stability of their officers to the
appropriate professionals.

                                 21
not fit for duty, and not because they resented him for “blowing the
whistle” on the radio room. The only individuals that Davis
alleges were directly motivated by his whistle-blowing activities
were Valdora and McKee. They were not, however, in a position
to demote, transfer, or terminate Davis.

        The extent of Valdora and McKee’s alleged retaliatory
conduct is the writing of memos suggesting that Davis be referred
for psychiatric treatment.12 This leaves a gap in causation between
the actions of Davis’ supervisors, who may have had inappropriate
motives but did not directly take an adverse employment action,
and the eventual adverse employment decision made by the City.
When Davis’ Count Sixteen retaliation claims went to trial in
2004, he attempted to fill this gap with the theory that the
otherwise innocent decision-makers were tainted by the biased,
untrue, and retaliatory memos of their subordinates, Valdora and
McKee.

        Some courts have held that an innocent employer who
relied on a biased subordinate may be liable for retaliation under

12
  Davis continues to claim that Valdora and McKee also “retaliated”
by harassing him at work. But, harassment is not unlawful retaliation.
The CEPA is specifically designed to protect whistle-blowers from
retaliatory discharges, suspensions, demotions and the like, but it does
not provide a cause of action for generalized harassment. See Young
v. Schering Corp., 645 A.2d 1238, 1244 (N.J. Super. Ct. App. Div.
1994) (discussing the CEPA’s legislative history); see also
McDonnell v. Cissneros, 84 F.3d 256, 258 (7th Cir. 1996), cited in
Robinson, 120 F.3d at 1301 (actions that “can cause distress” do not
necessarily constitute adverse employment actions); Nelson, 51 F.3d
at 388 (unlawful retaliation does not include “conduct in general
which the former employee finds objectionable.”).

                                  22
Title VII or the CEPA. See, e.g., Roach, 754 A.2d at 552 (“the
jury could have inferred from the evidence that in deciding to
terminate plaintiff, [the employer] relied on a ‘tainted’ evaluation
prepared by [his subordinate].”); see also Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If the
employee can demonstrate that others had influence or leverage
over the official decisionmaker, . . . it is proper to impute their
discriminatory attitudes to the formal decisionmaker.”); Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990); Abbamont, 650
A.2d at 965-66 (holding that a school board may be held
vicariously liable under the CEPA for the retaliatory actions of its
officials).

         However, Davis’ theory in connection with Count Sixteen
at the 2004 trial was different from the theory he advanced in the
initial pleadings and in opposing summary judgment on the Count
Seven CEPA claim in 2001. In reviewing the September 2001
summary judgment grant, we restrict our review to the submissions
made to the District Court at that time. Knoll v. Springfield
Township Sch. Dist., 699 F.2d 137, 145 (3d Cir. 1983); see also
MacGlashing v. Dunlop Equipment Co., Inc., 89 F.3d 932, 936 (1st
Cir. 1996). Prior to the entry of summary judgment, Davis’
retaliation claim hinged solely on the allegation that Valdora and
McKee sought to embarrass and harass him by forcing him to
undergo unwanted psychiatric evaluations. We reemphasize,
however, that neither generalized harassment nor being referred for
psychiatric evaluation are adverse employment actions for the
purposes of sustaining a retaliation claim.

        On the other hand, Davis’ later trial theory went further by
asserting that Valdora and McKee wrote intentionally false memos
in order to effectuate an adverse employment action, knowing that
their recommendations would lead to a negative evaluation from


                                 23
the psychologists.13 This slight difference in theories is a critical
one. In 2001, Davis claimed the memos were only aimed at
harassing him, rather than claiming they were intentionally
fabricated and aimed at effectuating an adverse employment action.
These 2001 allegations were insufficient to meet the CEPA’s
causation element.

        The Valdora and McKee memos may have been factual
but-for causes of Davis’ demotion. However, unless they
somehow improperly tainted the decision-making process (a
crucial fact which Davis failed to allege in connection with Count
Seven), it was Davis’ actual receipt of a negative diagnosis that
was the intervening and proximate cause of his adverse
employment action. This is especially apparent given that Dr.
Logue initially found Davis to be fit for duty, notwithstanding the
Valdora and McKee memos. The pleadings alleged, at most, that
Valdora and McKee had deplorable motivations for referring Davis
for psychiatric evaluation. But retaliatory motive on the part of
non-decision-makers is not enough to satisfy the causation element
of a CEPA claim. Even viewing all reasonable inferences (that
were available in September 2001) in favor of Davis, the proximate
cause of his demotion was the mental health professionals’
diagnosis that he was unfit for duty, not the supervisors’



13
   Counsel for Davis asserted at oral argument that he raised this
theory in his November 17, 2000, Brief in Opposition to Defendants’
Motion for Summary Judgment. However, that brief contained no
allegation that Valdora and McKee intentionally fabricated their
accounts of Davis’ behavior in order to get him fired or demoted. At
most, the brief alleged that Valdora and McKee characterized Davis
as “paranoid” and recommended psychiatric evaluations in order to
harass him. (See Da155-57.)

                                24
recommendations. Cf. Donofry, 795 A.2d at 269-70 (applying a
proximate cause analysis to a CEPA retaliation claim).

       We will therefore affirm the District Court’s September 28,
2001, grant of summary judgment on Count Seven of the Second
Amended Complaint.

B.     Motion to Reconsider and Vacate Summary Judgment

       1.      Standard of Review

        We review the District Court’s denial of a motion to
reconsider for abuse of discretion. Coregis Ins. Co. v. Baratta &
Fenerty, Ltd., 264 F.3d 302, 309 (3d Cir. 2001); Lorenzo v.
Griffith, 12 F.3d 23, 26 (3d Cir. 1993).

       2.      Analysis

       Davis offered two bases to the District Court for granting
reconsideration. First, he argued that New Jersey retaliation law
had changed since the entry of summary judgment. Second, he
argued that the many facts adduced from his state administrative
proceeding were relevant to the retaliation claims and binding on
the District Court under the doctrine of collateral estoppel. Davis’
submissions to this Court do not challenge the District Court’s
determination that reconsideration was not warranted based on
recent New Jersey case law. He has therefore waived his changed
law argument, and we will only address the collateral estoppel
issue.

        Federal courts have held that agency determinations may be
given preclusive effect in certain circumstances where the agency
is acting in a judicial capacity. See United States v. Utah Constr.


                                 25
& Mining Co., 384 U.S. 394, 422 (1966). However, we agree with
the District Court that collateral estoppel is not applicable in this
case. At the outset, we note the Supreme Court’s decision in Univ.
of Tenn. v. Elliott, 478 U.S. 788 (1986), which prohibits the use of
collateral estoppel to give an unreviewed state administrative
determination preclusive effect in a Title VII action. See also Roth
v. Koppers Indus., Inc., 993 F.2d 1058, 1062-63 (3d Cir. 1993).
Therefore, because the ALJ’s findings were not reviewed by any
court of law in this case, they can have no binding effect on the
District Court in deciding Davis’ Title VII claims.

         However, New Jersey courts have not categorically
prohibited the application of collateral estoppel to unreviewed
agency determinations in cases involving New Jersey state
retaliation claims. See, e.g., Hennessey v. Winslow Township,
2005 N.J. LEXIS 810 (N.J. June 28, 2005) (analyzing whether an
unreviewed agency decision should be given preclusive effect in an
LAD action); Hernandez v. Region Nine Hous. Corp., 684 A.2d
1385, 1392 (N.J. 1996) (same); Ensslin v. Township of North
Bergen, 646 A.2d 452, 461 (N.J. Super. Ct. App. Div. 1994)
(terminated police officer’s LAD claim precluded by an
unfavorable agency determination from the Merits System Board).
Therefore, we must look to the state’s preclusion law in
determining what effect, if any, the ALJ’s determinations could
have on Davis’ state law claims. See Elliot, 478 U.S. at 799
(“federal courts must give the agency's fact-finding the same
preclusive effect to which it would be entitled in the State’s
courts”).

       Under New Jersey law, collateral estoppel may only be
applied where the following factors are satisfied:




                                 26
       (1) the issue to be precluded is identical to the issue
       decided in the prior proceeding; (2) the issue was
       actually litigated in the prior proceeding; (3) the
       court in the prior proceeding issued a final judgment
       on the merits; (4) the determination of the issue was
       essential to the prior judgment; and (5) the party
       against whom the doctrine is asserted was a party to
       or in privity with a party to the earlier proceeding.

Hennessey, 2005 N.J. LEXIS 810 at *7 (citations omitted); In re
Estate of Dawson, 641 A.2d 1026, 1034-35 (N.J. 1994). We find
that the fourth element is lacking in this case, and we will therefore
affirm the District Court’s refusal to apply collateral estoppel.

         The ultimate issue before the ALJ was whether Davis was
fit for duty as a police officer. Thus, the only truly essential
aspects of the ALJ’s findings were that Dr. Logue and Dr. Willard-
Mack’s testimony were lacking in credibility and that their
conclusions regarding Davis’ mental health were baseless. The
other findings offered by the ALJ, regarding the reasonableness of
Davis’ radio room complaints, the motivations of Valdora and
McKee, and the validity of the Internal Affairs investigation were
not essential to the ALJ’s judgment to reinstate Davis. While these
findings may provide a background for the ALJ’s ultimate
conclusions, they do not bear directly on the ultimate question:
Davis’ fitness for duty. Because the ALJ’s conclusions on such
non-essential matters were at best nothing more than dicta, they
can have no preclusive effect in litigating Davis’ LAD and CEPA
retaliation claims. The fact that the ALJ chose to touch on those
issues in its opinion does not mean they were properly before the
administrative body or essential to its holding.




                                 27
       For these reasons, we do not find an abuse of discretion in
the District Court’s denial of reconsideration, and we will affirm
the February 12, 2004, Order denying the motion.

C.     Motion to Amend the Final Pretrial Order

       1.      Standard of Review

        We review a District Court’s refusal to amend its pretrial
order for abuse of discretion. Petree v. Victor Fluid Power, Inc.,
831 F.2d 1191, 1194 (3d Cir. 1987).

       2.      Analysis

        Davis sought in October 2003 to amend the pretrial order to
allow him to present evidence that acts of harassment, retaliation,
and discrimination continued to occur after the ALJ ordered
reinstatement. In denying the motion, the District Court noted,
“We’re talking about amending the complaint, the possible
reopening of discovery, and delay of the case that has been far too
long delayed.” (Pa431.) The court also stated “We’ve got a case
that’s already been pre-tried. Discovery has been closed.” Id. We
find no abuse of discretion here.

        Davis points out that the trial was scheduled for March
2004 and contends that any additional discovery could have been
conducted in the remaining four months. However, the addition of
Davis’ new allegations could have involved not only amendments
to the Complaint, but also other problems, including answers from
the defendants, the taking of additional deposition testimony, and
the reopening of motion practice. Such matters are best left to the
District Court, which was well within its discretion to determine
that the risk of delay would undermine “the orderly and efficient


                                 28
trial of the case.” Petree, 831 F.2d at 1194. Moreover, we find
that reversal of the District Court’s determination is not “required
to prevent manifest injustice.” Id. The District Court did not
deprive Davis of his day in court on these new allegations, as he
was not precluded from asserting them in a separate complaint.
We will therefore affirm the District Court’s October 20, 2003,
denial of Davis’ Motion to Amend.

D.     Dismissal of the Hostile Work Environment Claim

       1.      Appellate Jurisdiction

        Before reaching the merits of Davis’ hostile work
environment claim, we must first resolve the issue of whether the
District Court’s disposition of that claim constitutes an appealable
final decision under 28 U.S.C. § 1291. Both parties assert the
District Court “dismissed” the hostile work environment claim
after the close of evidence. However, the docket does not reflect
that the City ever made a motion to dismiss or that the District
Court ever entered an order dismissing the claim, either with or
without prejudice. Moreover, it does not appear that the District
Court made any statements on the record formally dismissing the
claim or entering judgment as a matter of law.

        The District Court seems to have handled the hostile work
environment claim largely off the record, and each party provides a
slightly different account of the circumstances surrounding the so-
called “dismissal.” While the City claims that Davis’ counsel
abandoned the claim at an off-the-record charge conference, Davis
disputes that he ever stopped pursuing a hostile work environment
theory. At a March 15, 2004, sidebar conference, the following
exchange took place between the District Judge and counsel for the
City (Mr. Waldman):


                                 29
                THE COURT: In the course of the charge
        conference, I think counsel clarified exactly what
        they see as an issue.
                MR. WALDMAN: So, as I understand the
        hostile work environment claim is no longer in the
        case?
                THE COURT: That’s my understanding.
(Pa604-605.) Davis’ counsel responded by stating, “I thought there
was still an element of hostile environment. . . .” (Id. at 605.)
After a short exchange in which Davis’ counsel explained his
harassment theory, the court stated, “I just don’t see that it fits into
hostile work environment under either LAD or Title 7 based on the
evidence that you’ve seen.” (Id. at 606.) The only other treatment
of hostile work environment conducted on the record occurred
during the jury instructions, when the District Judge gave an
instruction on retaliation but stated, “There is no claim here for
hostile work environment.” (Id. at 621.) Davis did not make a
contemporaneous objection to that instruction.

         In determining whether this disposition constitutes an
appealable final decision, we are mindful that § 1291 is to be given
a “practical rather than a technical construction.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Decisions
from both the Supreme Court and this Court have focused the
inquiry on whether the lower court intended its ruling to have a
final rather than a tentative effect. For example, in Bankers Trust
Co. v. Mallis, 435 U.S. 381 (1978), the Supreme Court permitted
appellate review notwithstanding the district court’s failure to enter
judgment on a separate document as required by Fed. R. Civ. P. 58.
Because the lower court’s intent to dismiss was clear despite the
absence of a separate order, the Court reasoned:




                                  30
        [N]othing but delay would flow from requiring the
        court of appeals to dismiss the appeal. Upon
        dismissal, the district court would simply file and
        enter the separate judgment, from which a timely
        appeal would then be taken. Wheels would spin for
        no practical purpose.

Id. at 385.

        The effect of the District Court’s actions here is
unmistakable, and we therefore apply the reasoning of Bankers
Trust, even though the District Court did not formally dismiss the
hostile work environment claim on the record. The decision to
remove a claim from the jury’s consideration after the close of
evidence and over the plaintiff’s protest was clear and had the
undeniable effect of a judgment in favor of the City on that claim.
We will thus view the District Court’s disposition as a judgment as
a matter of law under the standards set forth in Fed. R. Civ. P. 50.

        This conclusion is supported by our ruling in Shapiro v.
UJB Fin. Corp., 964 F.2d 272, 278-79 (3d Cir. 1992). In that case,
the district court granted plaintiffs leave to amend their complaint
within 30 days to correct deficiencies in the pleading. The court
neither formally dismissed the plaintiffs’ claims nor expressly
stated it would grant a dismissal if the plaintiffs declined to make
the required amendments. We nevertheless construed the district
court’s actions as an appealable dismissal because “once the
amendment period expired, the district court’s order had the effect
of dismissing the improperly pleaded claims with prejudice.” Id. at
278 (emphasis added). Echoing on the reasoning of Cohen and
Bankers Trust, this Court stated:




                                31
       It seems clear that the district court planned to
       dismiss with prejudice any claims not amended.
       Requiring plaintiffs to return to the district court
       now would be a wasteful elevation of form over
       substance.

Id. Similarly, by instructing the jury that “[t]here is no claim here
for hostile work environment,” it seems clear that the District
Court in this case intended a judgment in favor of the City on that
claim.14

       2.      Standard of Review

        This Court’s review of a judgment as a matter of law is
plenary. Northview Motors, Inc. v. Chrysler Motors Corp., 227
F.3d 78, 88 (3d Cir. 2000). Judgment as a matter of law is only
appropriate where, viewing all reasonable inferences in the light
most favorable to the non-moving party, “there is no legally
sufficient evidentiary basis for a reasonable jury to find for that
party on that issue. . . .” Fed. R. Civ. P. 50(a)(1); Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993).

14
   Our willingness to retain appellate jurisdiction should not be
viewed as an approval of the District Court’s handling of the hostile
work environment claim. This Court has previously emphasized the
importance of clearly memorializing decisions with separate written
orders, see, e.g., WRS, Inc. v. Plaza Entm’t, Inc., 402 F.3d 424, 428-
29 (3d Cir. 2005); Schrob v. Catterson, 948 F.2d 1402, 1407 (3d Cir.
1991), and we continue to disfavor judgments not set forth in written
orders. However, as we stated in Schrob, “[w]e do not approve of
[the district court’s] procedure, but we think that a holding that it
deprives us of appellate jurisdiction would exalt form over
substance.” Id. at 1407.

                                 32
       3.     Analysis

        Because we accept as true Davis’ testimony regarding the
racially charged atmosphere in the Department, the propriety of a
judgment in favor of the City on his hostile work environment
claim is an admittedly close issue. That said, we hold that the
evidence presented does not warrant a reversal of the District
Court’s judgment under either Title VII or the LAD. Under Title
VII, the evidence must establish that:

       (1) he suffered intentional discrimination because of
       his [race]; (2) the discrimination was pervasive and
       regular; (3) it detrimentally affected him; (4) it
       would have detrimentally affected a reasonable
       person of the same protected class in his position;
       and (5) there is a basis for vicarious liability.

Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). The hostile
work environment standard under New Jersey law is strikingly
similar:

       When a black plaintiff alleges racial harassment
       under the LAD, she must demonstrate that the
       defendant’s “conduct (1) would not have occurred
       but for the employee’s [race]; and [the conduct] was
       (2) severe or pervasive enough to make a (3)
       reasonable [African American] 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. 1998) (quoting
Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 453 (N.J. 1993))
(modifications in original).


                                33
        In evaluating a hostile work environment claim under both
Title VII and the LAD, we are mindful that “offhanded comments,
and isolated incidents (unless extremely serious)” are not sufficient
to sustain a hostile work environment claim. Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998), quoted in Heitzman v.
Monmoth County, 728 A.2d 297, 304 (N.J. Super. Ct. App. Div.
1999). Rather, the “conduct must be extreme to amount to a
change in the terms and conditions of employment. . . .” Id.

        In determining whether the conduct at issue is sufficiently
extreme, we consider the “totality of the circumstances.” Andrews
v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). As
such, “a discrimination analysis must concentrate not on individual
incidents, but on the overall scenario.” Id. at 1484; see also Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (“[W]hether an
environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances.”); Taylor, 706 A.2d at 692
(“Severity and workplace hostility are measured by surrounding
circumstances.”). The types of circumstances we consider “may
include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris, 510 U.S. at 23, quoted in
Heitzman, 728 A.2d at 304.

         According to Davis, the specific incidents that, when
viewed cumulatively, contributed to his hostile work environment
include: (1) McKee’s comment to Valdora during roll call that it
was “okay to be in the KKK”; (2) Valdora and McKee’s use of
racial epithets when dealing with prisoners; and (3) the racist
graffiti and flyers placed around the Department by unidentified
individuals. He also claims that certain facially neutral conduct,
such as being referred for unwanted psychiatric evaluations and


                                 34
being berated by Valdora and McKee during meetings, was aimed
at harassing him because of his race.

        We note first that no racist comment, written or spoken,
was ever directed at Davis himself. In addition, Davis does not
dispute that he never personally saw any racist graffiti or flyers in
the Department; he heard about the graffiti and flyers second-hand.
As a threshold matter, Davis cannot meet the first element of the
hostile work environment claim under Title VII or the LAD –
causation – solely by pointing to comments that were directed at
other individuals. Davis cannot show that the comments would not
have been uttered or written but for his race if Davis was neither on
the receiving end nor the subject of any comments.15

        Furthermore, comments referring to other individuals that
were merely overheard by Davis are the sorts of “offhanded
comments and isolated incidents” that the Supreme Court in
Faragher, 524 U.S. at 788, cautioned should not be considered
severe or pervasive enough to constitute a hostile work
environment. Cf. Heitzman, 728 A.2d at 304-305 (“[A] derogatory
comment about another person generally does not have the same
sting as an ethnic slur directed at a minority group member.”).
Thus, although there was some evidence in this case of



15
   Davis relies on the Supreme Court of New Jersey’s decision in
Taylor for the proposition that “a single utterance of an epithet can,
under particular circumstances, create a hostile work environment.”
706 A.2d at 690. However, that case is easily distinguishable from
the case at hand because the extremely derogatory “single utterance”
involved in Taylor was directed at the plaintiff, whereas Davis has not
come forward with any examples of racist comments being directed
at him.

                                 35
inappropriate16 racist comments, graffiti, and flyers, this evidence
was insufficient without more to establish a hostile work
environment.

        That said, Davis’ claim was not based solely on comments
that were directed at others; he also alleged that Valdora and
McKee’s conduct toward him, particularly their recommendations
for psychiatric evaluation, was racially motivated. Although the
racist comments involved in this case cannot alone be the basis of a
hostile work environment claim, evidence of those comments may
be considered in determining whether facially neutral conduct on
the part of Valdora and McKee was actually based on Davis’ race.
See Cardenas, 269 F.3d at 261-62 (“[T]he advent of more
sophisticated and subtle forms of discrimination requires that we
analyze the aggregate effect of all evidence and reasonable
inferences therefrom, including those concerning incidents of
facially neutral mistreatment in evaluating a hostile work
environment claim.”); Hurley v. Atlantic City Police Dep’t, 174
F.3d 95, 110-11 (3d Cir. 1999); Lehmann, 626 A.2d at 457.17


16
   It goes without saying that we strongly disapprove of the use of
racial epithets, particularly by those charged with enforcing the law,
but the fact that inappropriate comments were made is not enough on
its own to sustain a cause of action for hostile work environment.
17
    As the Eastern District of Pennsylvania stated in a sex
discrimination case, “While case law recognizes that offensive
statements made to a female other than the plaintiff can contribute to
creating a hostile work environment, the plaintiff in those cases had
herself been a target of the discriminatory conduct at some point and
the evidence of such conduct toward other female employees was
used only to bolster the plaintiff’s case.” Cooper-Nicholas v. City of
Chester, No. No. 95-6493, 1997 U.S. Dist. LEXIS 20810, at *13

                                 36
         A reasonable jury believing Davis’ account of the
surrounding circumstances – that Valdora and McKee exhibited
racist tendencies, and that there was no real basis to think Davis
was paranoid – could have concluded that Valdora and McKee
wrote intentionally false memos and recommended him for
psychiatric treatment in order to harass him based on race. This at
least calls into question whether the District Court was correct in
finding that Davis failed as a matter of law to meet the
requirements of a Title VII or LAD hostile work environment
claim.

         However, we conclude that reversing the District Court’s
decision and remanding on this point would make little sense in
light of the jury’s factual findings in connection with Davis’
retaliation claims. Although the jury did not specifically rule on
hostile work environment, it did find, through the use of a special
verdict sheet, that the City was not liable for race-based retaliation.
The verdict sheet reflects the jury’s specific findings that Davis
failed to establish (1) “that the false memos written by Joseph
Valdora were done for racial motives” (Pa105); and (2) “that
Daniel McKee wrote intentionally false memos[.]” (Id. at 107.)

         Some courts have held that jury findings given in the form
of a special verdict should be given preclusive effect in subsequent
proceedings involving the same underlying issues “where the jury’s
verdict necessarily resolves an issue in the defendant’s favor.”
United States v. Ham, 58 F.3d 78, 85 (4th Cir. 1995); see also
Schiro v. Farley, 510 U.S. 222, 233-35 (1994) (a jury’s failure to
fill out a verdict sheet is not given preclusive effect “unless the
record establishes that the issue was actually and necessarily


(E.D. Pa. 1997) (citing Andrews, 895 F.2d at 1485; Barbetta v.
Chemlawn Servs. Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987)).

                                  37
decided in the defendant’s favor.”); RecoverEdge L.P. v. Pentecost,
44 F.3d 1284, 1290-94 (5th Cir. 1995) (looking to the jury’s
special verdict sheet to determine what issues were actually
litigated in a prior proceeding). We apply the reasoning of those
cases here because, in deciding Davis’ retaliation claims, the jury’s
special verdict conclusively determined the factual issues
underlying Davis’ hostile work environment claim in favor of the
City.

        The jury’s conclusion that Valdora and McKee did not
write intentionally false memos for racial motives was clearly
determinative of the race-based retaliation claim.18 This
conclusion would also be the determinative factual issue in
deciding a hostile work environment claim. Because that claim
could not be based solely on evidence of racist comments, flyers,
and graffiti that were not directed at Davis, it could not succeed
without a finding that the defendants were racially motivated when
they did act directly toward him. The jury heard all of the
testimony regarding the racist comments made by Valdora and
McKee and their other conduct toward Davis during meetings and



18
   The verdict sheet instructed the jury, “If you have answered ‘No’
to [questions] V1, or both V2A and B or V3 or both V4A and B, or
‘No’ to M1 or both M2A and B or M3 or to both M4A and B, and
‘No’ to G1, you have reached your verdict. Return to the
courtroom.” (Pa109) (emphasis added). The jury answered “No” to
question V2A (whether Valdora was racially motivated), questions
V4A and B (whether Valdora’s memos were a determinative factor
in the conclusions of Dr. Logue and Dr. Willard-Mack), question M1
(whether McKee wrote intentionally false memos), and question G1
(whether Deputy Chief Gauber retaliated against Davis based on his
filing of an EEOC complaint).

                                38
morning roll call and nevertheless found that Valdora and McKee
were not racially motivated.19

        Davis has pointed to no additional evidence of surrounding
circumstances that could have reasonably altered the jury’s
findings had it considered the hostile work environment claim.
The jury would have been faced with identical evidence in
deciding the identical underlying factual question, and it would
therefore be futile to remand the hostile work environment claim to
allow a fact-finder to make the same decision twice. A jury has
already conclusively determined that the actions toward Davis were
not racially motivated, and that finding is just as fatal to the hostile
work environment claim as it was to the race-based retaliation
claim.

         In sum, assuming, arguendo, that the District Court erred in
restricting the jury’s ability to consider hostile work environment,
that error would be harmless. We will therefore affirm the
judgment in favor of the City on the hostile work environment
claim.

19
   In his brief, Davis protests that the District Court erroneously
instructed the jury to disregard the evidence presented of racist
comments, flyers and graffiti. He claims, “the jury was being asked
to decide whether Captain McKee had written false reports about
Officer Davis for racial reasons but told to disregard his remarks. . .
.” Brief for Appellant at 36, n.5. However, the District Court merely
instructed the jury to disregard remarks “made by Trenton Police
Department officers other than Valdora and McKee.” (Pa621-22)
(emphasis added). Therefore, the jury was permitted to consider the
circumstances surrounding the conduct of Valdora and McKee that
might tend to show that their facially neutral actions were racially
motivated.

                                  39
E.     Evidentiary Challenges

        Davis contends that the District Court committed reversible
error by limiting his ability to present evidence that would tend to
undercut the accuracy of evaluations conducted by the City’s
mental health professionals. The District Court ruled that evidence
regarding whether the doctors’ evaluations were correct was
irrelevant to the ultimate issue of whether or not the City’s actions
were unlawful.

       1.      Standard of Review

        We review the District Court’s decision to exclude
evidence based on lack of relevance for abuse of discretion.
Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 781 (3d Cir.
1990).

       2.      Analysis

        As noted, the ultimate issue in this case is whether the
City’s adverse employment actions against Davis were racially
motivated or in retaliation for Davis’ protected whistle-blowing
activities. Accordingly, the District Court was correct to find that
the relevant inquiry is into the employer’s motivations and beliefs,
not the accuracy of the mental health opinions. In other words, the
issue is not whether Davis was actually paranoid and unfit for duty,
but whether the decision-makers legitimately believed that he was.
Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
146-47 (2000) (the “ultimate question” in a Title VII case is
whether the employer intentionally discriminated based on race);
Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (“[The
plaintiff’s] view of his performance is not at issue; what matters is



                                 40
the perception of the decision maker.”), overruled in part on other
grounds, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

        The reliability of the mental health professionals’ methods
is only relevant to this case insofar as the City’s psychologists
allegedly relied on the Valdora and McKee memos in lieu of
applying proven scientific methods. The District Court did not
actually prevent Davis from submitting evidence and questioning
the City’s psychologists on this issue. The District Court admitted
Dr. Krakoff’s report (declaring Davis to be fit for duty) into
evidence and permitted Dr. Whitehouse to testify on the issue of
whether the Valdora and McKee memos were determinative
factors in the decisions of Dr. Logue and Dr. Willard-Mack.
Specifically, the jury heard testimony from Dr. Whitehouse that
“There was a lot of speculation in Dr. Logue’s report” and that “the
only data that Dr. Logue was relying on was the fact that his,
Officer Davis’, supervisors had made complaints against him.”
(Da606-607.) As such, Davis was not denied his ability to present
evidence on these relevant issues.

        The court merely limited Davis’ ability to present evidence
that the psychologists’ conclusions were otherwise rendered
unreliable by faulty scientific methods. For example, Davis faults
the District Court for depriving him of the opportunity to show that
Dr. Willard-Mack inappropriately administered a Rorschach test.
We find no abuse of discretion in limiting the evidence in this way.
Had Davis shown that the Rorschach test was improperly
administered, this would have no impact on the ultimate question
of whether Dr. Willard-Mack’s conclusions were improperly
tainted by the retaliatory and discriminatory memos from Valdora
and McKee.




                                41
F.     The District Court’s Articulated Standard for the
       Retaliation Claims

        Finally, Davis asserts that the District Court committed
reversible error in adjudicating his retaliation claims by requiring
him to show that discrimination was “a determinative factor” rather
than applying a “substantial factor” test.20

       1.      Standard of Review

        Although Davis’ counsel expressed his view during a
sidebar conference that the “substantial factor” test was the correct
one to apply in a retaliation claim, it appears that counsel did not
object to the inclusion of “determinative factor” in the jury verdict
sheet. Therefore, we review the court’s selection of the standard
for plain error. Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876,
881 (3d Cir. 1991).

       2.      Analysis

       We find no error, let alone a plain error, in the District
Court’s determinative factor instruction. See Watson v. SEPTA,
207 F.3d 207, 215 (3d Cir. 2000) (applying a determinative factor

20
   Davis also asserts that “the District Court erred when halfway
through the trial it reinstated a limited retaliation claim based on a
complaint of racial harassment. . . .” Brief for Appellant at 2.
However, the District Court never “reinstated” a retaliation claim.
Count Sixteen of the Second Amended Complaint, which alleged
continued retaliation under Title VII, the CEPA and the LAD, was
alive at all times. We find nothing in the record to indicate that the
District Court intended to reinstate any portion of the dismissed
retaliation claims from Count Four.

                                 42
analysis to a Title VII retaliation claim); Donofry, 795 A.2d at 271
(“To prove a CEPA claim, the plaintiff must show that the
retaliatory discrimination was more likely than not a determinative
factor in the decision.” (internal quotations omitted) (emphasis
added)).

                                IV.

         For the foregoing reasons, we affirm the District Court in
all respects, including its orders of September 28, 2001 (granting
partial summary judgment in favor of the City), October 20, 2003
(denying Davis’ Motion to Amend the Final Pretrial Order),
February 12, 2004 (denying Davis’ Motion to Vacate the
September 28, 2001, summary judgment order), and March 25,
2004 (entering judgment on the jury’s verdict in favor of the City).




                                43
