                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2007

Hamera v. Berks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3518




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-3518


                                 LEONARD HAMERA,
                                     Appellant

                                            v.

                                 COUNTY OF BERKS;
                               BERKS COUNTY PRISON


                      Appeal from the United States District Court
                        for the Eastern District Of Pennsylvania
                               (D.C. Civil No. 05-cv-02050)
                     District Judge: Honorable Lawrence F. Stengel


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 10, 2007

      Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges

                               (Filed: September 21, 2007)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

      Plaintiff-Appellant Leonard Hamera sought an award of damages, declaratory and

injunctive relief, and attorneys’ fees against Appellees County of Berks and Berks County

Prison for discrimination, retaliation and creation of a hostile work environment under
Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as discrimination under the

Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act

(“PHRA”).1 The District Court granted Appellees’ motion for summary judgment, and

Hamera now appeals that decision. We will affirm.

                                             I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “Our review

is plenary, and we view the facts in the light most favorable to the [non-moving party].”

Jensen v. Potter, 435 F.3d 444, 448 (3d Cir. 2006). “If a reasonable jury could find for

[the non-moving party], we must reverse.” Id. The plaintiff must offer a genuine issue of

material fact in order to survive summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

       Because we write primarily for the parties we will forgo a lengthy recitation of the

facts. Hamera was hired as a Correctional Officer for Appellees in February 1988.

During his hiring interview, Hamera informed the Deputy Warden and the Captain that he

was an ordained Catholic priest, but that he would like his status as a priest to remain

confidential. Shortly after commencing employment, the Captain began referring to

Hamera as “Reverend.” Hamera claims that throughout his employment he was the



  1
    Although Hamera’s Complaint brought a claim under the PRHA, the claim was not
put before the District Court, and Appellant’s opening brief fails to raise the issue. Thus,
the claim is waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is
well settled that an appellant’s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.”).

                                             2
subject of inappropriate comments regarding his religion, and, later, about his problems

with alcohol. Hamera twice complained to the prison warden in 1992 about being called

a homosexual or a pedophile, and twice more in March 2004. Furthermore, Hamera

claimed that when he complained about those comments made by his co-workers, the

comments got worse.

       The District Court found that Hamera failed to demonstrate genuine issues of

material fact regarding his hostile work environment retaliation and discrimination

claims. Specifically, it found that Hamera failed to show that the purported

discrimination was severe or pervasive enough to state an actionable claim under either

Title VII or the ADA.

       Hamera alleged that he was subjected to a hostile work environment based upon

retaliation because the comments grew worse when he complained to his superiors. The

District Court found that there was no evidence that subsequent offensive comments were

in any way related to Hamera’s complaints. Under Title VII, “[i]t shall be an unlawful

employment practice for an employer. . . to discriminate against any individual with

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

such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). To establish a hostile work environment claim for retaliation, the plaintiff must

prove: “(1) [he] suffered intentional discrimination because of [his] protected activity; (2)

the discrimination was severe or pervasive; (3) the discrimination detrimentally affected

[him]; (4) it would have detrimentally affected a reasonable person in like circumstances;

                                              3
and (5) a basis for employer liability is present.”2 Jensen, 435 F.3d at 449. There is no

evidence that any of the subsequent comments were in retaliation for complaining, and

thus, we affirm the grant of summary judgment with regard to retaliation claim.

       Hamera’s second claim was that he was subjected to a hostile work environment,

in violation of Title VII. The District Court found that Title VII’s statute of limitations

barred Hamera from making a claim on all but one of the allegedly harassing comments

because the comments did not represent a continuing violation. In order to bring a civil

action under Title VII, a plaintiff must first file a complaint with the EEOC. A plaintiff

has 180 days to file a charge of employment discrimination pursuant to Title VII with the

EEOC, or 300 days if proceedings were initiated with an appropriate local or state

authority. 42 U.S.C. § 2000e-5(e)(1). Hamera appropriately filed with the EEOC, and

received his right-to-sue letter. While most of the comments fell outside the filing period,

Hamera claimed that all of the alleged comments are actionable under a continuing

violation theory. A Title VII claim for comments prior to the filing period if it is possible

the claimant “can demonstrate that the act is part of an ongoing practice or pattern of

discrimination.” West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Hamera

needed to prove that at least one comment was made within the filing period, and he

“must establish that the harassment is ‘more than the occurrence of isolated or sporadic


  2
    The Third Circuit has “often stated that discriminatory harassment must be ‘pervasive
and regular.’ But the Supreme Court’s standard is ‘severe or pervasive.’ The difference
is meaningful and the Supreme Court’s word controls, so we use the severe or pervasive
standard here.” Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006).

                                              4
acts of intentional discrimination.’” Id. at 754-55 (citation omitted). However, given the

four-year gap between the allegedly discriminatory comments, we agree with the District

Court that “Hamera has failed to pose a genuine issue of material fact under a continuing

violation theory that the allegedly discriminatory comments that occurred during 2000 or

before, and related to Hamera’s religion, are actionable.” Hamera v. County of Berks,

No. 05-2050, 2006 WL 1985791, at *6 (E.D. Pa. 2006).

       Although the District Court found that because the 2004 religious comment could

potentially still be the basis for a claim, it determined that the comment did not represent

discrimination that was “pervasive and regular” enough to sustain an actionable Title VII

claim. Title VII is also violated when a work environment becomes abusive because of a

protected activity. West, 45 F.3d at 753. To establish a cause of action based on hostile

work environment, Hamera must demonstrate the five elements enumerated above.3 The

Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), noted that a

“recurring point in [harassment] opinions is that ‘simple teasing,’ offhand comments, and

isolated incidents (unless extremely serious) will not amount to discriminatory changes in

the ‘terms and conditions of employment.” Id. at 788. Thus, Hamera’s claim does not

satisfy the second element of “severe or pervasive” because the 2004 comment regarding


  3
    Although the District Court initially articulated all the elements correctly, when
examining Title VII claim based on religion, the District Court changed the second
element from the correct standard of “severe or pervasive” to the out-dated standard of
“pervasive and regular.” Hamera, 2006 WL 1985791, at *5. It is not a distinction
without a difference, see Jensen, 435 F.3d at 449 n.3, but it has not changed the outcome
in this case.

                                              5
the visiting priest–while inappropriate–does not rise to the requisite level of harassment

that a reasonable jury would find actionable.4 Therefore, his Title VII hostile work

environment claim was appropriately dismissed.

        Hamera also appealed the grant of summary judgment on his disability claim.

Prior to filing an employment discrimination action pursuant to the ADA, an employee

must file a timely charge of discrimination with the EEOC. See 42 U.S.C. § 12117(a) .

Again, Hamera appropriately filed with the EEOC, and only one of the disability-based

comments was made outside the filing period. The statute of limitations left Hamera with

nine comments for consideration based on violations of the ADA.

          The District Court again found that Hamera failed to show that the discrimination

was severe or pervasive enough to state a claim. To establish a hostile work environment

claim based on the ADA, the District Court explained that Hamera must show that: “(1)

[he] is a qualified individual with a disability under the ADA; (2) [he] was subject to

unwelcome harassment; (3) the harassment was based on his disability or a request for an

accommodation; (4) the harassment was sufficiently severe or pervasive to alter the

conditions of [his] employment and to create an abusive working environment; and (5)

[his employer] knew or should have known of the harassment and failed to take prompt

effective remedial action.” Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667




  4
      The 2004 comment was not specifically directed at Hamera.

                                              6
(3d Cir. 1999).5

       Hamera’s co-workers made nine comments over a year and four months.

Although the comments were insensitive, the District Court found that they did not rise to

an actionable level of harassment. We agree with the District Court. The harassment was

not “sufficiently severe or pervasive to alter the conditions of [his] employment and to

create an abusive working environment,” Walton, 168 F.3d at 667. Thus, the District

Court correctly concluded that “Hamera has failed to show a genuine issue of material

fact that the comments were pervasive or severe.” Hamera, 2006 WL 1985791, at *7.

                                             II.

       For the reasons set forth above, we will affirm the District Court’s grant of

summary judgment in favor of Appellees.




  5
    The District Court again articulated the appropriate standard of severe or pervasive in
the beginning of the section, and then changed the language for the analysis. For this
claim, the District Court utilized a severe and pervasive standard, and found that
“although the comments may have been humiliating to Hamera when made, they were
relatively infrequent, non-threatening, and were likely mere offensive utterances.”
Hamera, 2006 WL 1985791, at *7. Again, it has not changed the outcome.

                                             7
