                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-1-2002

DeVito v. Bd Ed Cty Newark
Precedential or Non-Precedential:

Docket 1-2047




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Recommended Citation
"DeVito v. Bd Ed Cty Newark" (2002). 2002 Decisions. Paper 143.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/143


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                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                          No.   01-2047


                         PETER DEVITO,

                                              Appellant

                                v.

                  BOARD OF EDUCATION OF THE
                        CITY OF NEWARK



          Appeal from the United States District Court
                 for the District of New Jersey
              (D.C. Civil Action No. 99-cv-05558)
           District Judge: Honorable John W. Bissell


           Submitted Under Third Circuit LAR 34.1(a)
                        February 5, 2002

          Before: SLOVITER, and AMBRO, Circuit Judges
                    POLLAK*, District Judge

                (Opinion filed March 1, 2002)



                            OPINION


     *Honorable Louis H. Pollak, United States District Judge for the
Eastern District
of Pennsylvania, sitting by designation.

AMBRO, Circuit Judge:

     On July 2, 1999, Peter DeVito ("DeVito") filed a complaint alleging
racially and
politically motivated discrimination by his employer, the Board of
Education of the City
of Newark (the "Board"), in violation of the New Jersey Law Against
Discrimination
("NJLAD"), 42 U.S.C.   1983, and the New Jersey and United States
Constitutions. In its
March 26, 2001 judgment and order, the United States District Court for
the District of
New Jersey granted summary judgment in favor of the Board and dismissed
DeVito's
complaint with prejudice. We now affirm.
                               I.
     The District Court had jurisdiction under 28 U.S.C.     1331, 1343,
and 1367. We
exercise appellate jurisdiction pursuant to 28 U.S.C.    1291, and the
applicable standard
of review is plenary. Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).
Summary judgment is appropriate if there are no genuine issues of material
fact and the
Board is entitled to judgment as a matter of law. Id. We must view all
facts and draw all
reasonable inferences in DeVito's favor. Id. However, DeVito may not
rely on the
allegations in his pleadings; instead, through "more than a scintilla" of
evidence, he must
present "specific facts showing that there is a genuine issue for trial."
Id.; see Fed. R.
Civ. P. 56.


                              II.
     Because we write exclusively for the parties, a full recitation of
the facts is
unnecessary. DeVito, a Caucasian male, alleges that the Board committed a
series of
discriminatory employment acts in violation of the NJLAD.
     1.   In June 1990, the Board demoted him from the position of
          Coordinator of Maintenance Services to electrician.

     2.   In 1991, he applied for the position of Assistant Director of
Repair
          and Maintenance and was denied the job.

     3.   In 1993-1994, he applied for, and was denied, the same position.
     4.   In April 1995, the Board created the position of Director of
Repair
          and Maintenance and established hiring criteria that only one
person
           could fulfill.
     5.    In January 1996, the Board created the positions of Acting
Assistant
           Director of Maintenance Services for Administration and Acting
           Associate Director of Maintenance Services for Operations.
           According to DeVito, the Board created these positions to
promote
           favored employees. DeVito did not apply for either position.
     6.    In March or April 1997, DeVito was reassigned from the
electrical
           shop to the field.
      7.   In 1999, the Board posted the positions of Building Manager and
           Engineer in Charge, although DeVito did not apply for either.
      8.   In May 1999, DeVito was reassigned to the night shift. Despite
his
           requests, the Board did not return him to the day shift.

The District Court ruled that DeVito's NJLAD claim is time-barred with
respect to the
majority of these acts. A two-year statute of limitations applies to an
NJLAD claim in
which the operative facts arose after July 27, 1993, while a six-year
statute of limitations
applies if the events occurred before this date. Cardenas v. Massey, 269
F.3d 251, 255
(3d Cir. 2001) (citing Montells v. Haynes, 627 A.2d 654 (N.J. 1993)).
     Although the District Court properly held that the claim survives to
the extent it
relies on acts Seven and Eight, it erred in holding that act Three
satisfies the statute of
limitations. DeVito alleges that in 1993 he applied for, and was denied,
the position of
Assistant Director. Nevertheless, the record reflects two specific dates
that we could
consider in determining the timeliness of the allegation. On June 30,
1993, Joseph
Richardson resigned from this position. See PA174. At the same time,
DeVito's
deposition testimony suggests that Richardson's replacement, Vincent
Lupiano, began
serving as Assistant Director sometime between April and December 1994.
See PA80;
PA91. DeVito claims that the Board discriminated against him by placing
Lupiano in this
position in violation of the applicable Eligibility List. See PA158.
     Regardless which time period is considered determinative, the statute
of
limitations would bar DeVito's claim based on this employment decision.
If we consider
June 30, 1993 as the date of the alleged discriminatory act, a six-year
statute of
limitations, expiring on June 30, 1999, would apply; in contrast, if we
rely on the April to
December 1994 time range, a two-year statute of limitations, expiring in
1996, would
apply. Under either scenario, DeVito's NJLAD claim, filed July 2, 1999,
would fail to
satisfy the time bar to the extent it relies on the allegedly
discriminatory hiring of
Lupiano.
     Despite this slight error, the District Court correctly held the
"continuing violation"
theory for equitable tolling inapplicable under the facts presented. We
apply three factors
in determining whether a series of alleged discriminatory acts constitute
a continuing
violation: (1) whether the acts involve the same type of discrimination;
(2) whether the
acts are "recurring . . . or more in the nature of an isolated work
assignment or
employment decision;" and (3) whether each act has a "degree of permanence
which
should trigger an employee's awareness of and duty to assert his or her
rights." Rush v.
Scott Specialty Gases, Inc., 113 F.3d 476, 480 (3d Cir. 1997). In
evaluating the third and
most important factor, the District Court properly held that each alleged
act of
employment discrimination had a degree of permanence which, at the time of
its
occurrence, should have triggered DeVito's awareness of a possible
violation of his rights.
Id. at 483 ("Rush's failure to promote and train claim addresses discrete
instances of
alleged discrimination that are not susceptible to a continuing violation
analysis."). This
holding is buttressed by the fact that these acts actually did trigger
such awareness, as
evidenced by DeVito's 1995 complaint that alleged a NJLAD claim based on
the
employment decisions involved in this case.
                              III.
     To the extent it relies on employment decisions that do satisfy the
statute of
limitations, DeVito's NJLAD claim cannot survive summary judgment.
Establishing a
discrimination claim under this statute involves the well-recognized
burden shifting
analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See
Erickson v. Marsh & McLennan Co., 569 A.2d 793, 798 (N.J. 1990). However,
the
prima facie stage is slightly modified in a reverse discrimination context
where, as here,
the plaintiff is part of a majority group. Accordingly, DeVito must
present "background
circumstances" suggesting that the Board is "the unusual employer who
discriminates
against the majority." Id. at 799.
     The District Court held that DeVito failed to produce evidence of
those
"background circumstances," and we agree. In support of his various
allegations of
discrimination, DeVito's only evidence is that the individuals who
allegedly granted or
received preferential employment treatment were African-American. Without
more, such
evidence is insufficient. See id. at 800 (pointing to the minority status
of favored
employees, without more, is insufficient evidence of "background
circumstances"); see
also Iadimarco v. Runyon, 190 F.3d 151, 156 (3d Cir. 1999) ("[T]he race of
the selecting
officials is not a sufficient circumstance to establish a prima facie case
of discrimination
by itself.").
                              IV.
     DeVito's complaint also alleges that the Board engaged in political
retaliation
against him in violation of   1983. The District Court properly rejected
this claim as
well. The Board cannot be held vicariously liable under    1983. Monell
v. New York
City Dep't of Social Services, 436 U.S. 658, 694 (1978). Instead,
liability only arises if
the Board adopted a policy, custom, or practice that resulted in DeVito's
constitutional
injury. Id.; see Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)
(defining what
action constitutes a policy or custom). DeVito failed to produce any
evidence
establishing such a policy, custom, or practice, and thus, summary
judgment in the
Board's favor is appropriate.
                          * * * * *
     For the foregoing reasons, we affirm the District Court's grant of
summary

judgment.

TO THE CLERK:
     Please file the foregoing Opinion.
                              By the Court,

                             /s/ Thomas L. Ambro
                                           Circuit Judge
