                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

Davis v. Newark
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4806




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                                                       NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                         __________

                             No. 06-4806
                             __________

                          SHARON DAVIS,

                                           Appellant

                                   v.

 CITY OF NEWARK; CITY OF NEWARK POLICE DEPARTMENT;
      ANTHONY F AMBROSE, III, individually and under color
         of State law as Police Director for the City of Newark;
    IRVING BRADLEY, JR., individually and under color of State
               law as Police Chief for the City of Newark;
   LIEUTENANT JOHN SCOTT-BEY, individually and under color
   of State law as Captain for the City of Newark Police Department;
      ADOLPH VASQUEZ, individually and under color of State
      law as Sergeant for the City of Newark Police Department;
            JOHN AND JANE DOES 1-99, Fictitious names;
XYZ CORPORATIONS 1-10; municipal or governmental entries and their
                    supervisors, agents and employees




            On Appeal from the United States District Court
                     for the District of New Jersey
                        (D. C. No. 04-cv-05317)
              District Judge: Hon. Garrett E. Brown, Jr.




              Submitted under Third Circuit LAR 34.1 (a)
                         on January 18, 2008


  Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges
                              (Opinion filed: August 5, 2008)




                                       OPINION


ROTH, Circuit Judge:

       Sharon Davis appeals the dismissal of her claims alleging racial discrimination and

impermissible retaliation under Title VII and the New Jersey Law Against Discrimination.

The District Court dismissed her claims pursuant to Federal Rule of Civil Procedure 12(b)(6).

We will affirm the dismissal of Davis’s claims based on a hostile work environment and

racial discrimination. We will reverse the dismissal of Davis’s claim based on impermissible

retaliation, and remand for further proceedings.

I. BACKGROUND

       Davis filed a seven count complaint on October 28, 2004. Count One alleges race

discrimination and a hostile work environment in violation of Title VII of the Civil Rights

Act of 1964; Count Two alleges retaliation for complaints of race discrimination in violation

of Title VII; Counts Three, Four, and Five were brought pursuant to 42 U.S.C. § 1983; Count

Six alleges race discrimination in violation of the New Jersey Law Against Discrimination,

N.J.S.A. 10:5-1 et seq.; and Count Seven alleges retaliation in violation of the NJLAD. The

District Court dismissed Counts One, Two, Six, and Seven on September 6, 2006, pursuant

to a Rule 12(b)(6) motion. Davis voluntarily dismissed the remaining Counts Three, Four,




                                             2
and Five on October 13, 2006.1 Davis now appeals the dismissal of Counts One, Two, Six,

and Seven.

         The District Court had federal question jurisdiction pursuant to 28 U.S.C. § 1331. We

have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Because this is an appeal from a

dismissal pursuant to rule 12(b)(6), our review is plenary. Tyler v. Armstrong, 365 F.3d 204,

208 (3d Cir. 2004). In considering a motion for dismissal under 12(b)(6), we “accept all

factual allegations as true, construe the complaint in the light most favorable to the plaintiff,

and determine whether, under any reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

         Davis began her full time employment with the City of Newark as a police officer on

September 30, 1994. She alleges that between November 1994 and April of 2004, various

events occurred that she felt were a result of racial discrimination and retaliation for previous

complaints of discrimination. Specifically, she alleges that (1) partners tended to be of like

race and national origin; (2) she was required to drive the police vehicle at all times during

her training; (3) she was given a warning for excessive sick leave that was in error; (4) she

was reprimanded after being involved in a dispute with a radio dispatcher; (5) she observed

that white, male officers who did not show up for work would have others cover for them by

writing in the blotter that they were on-duty; (6) after filing a report that another officer had



     1
      Davis claims this dismissal was agreed to by her previous counsel without her
knowledge. The issue is moot, as she now elects to stand on the dismissal of those claims
and pursue the instant appeal.

                                               3
referred to her as “a pain in my balls,” she was investigated for improper use of a city gas

card, pled guilty, and was issued a written reprimand; (7) she was investigated on charges of

insubordination and theft and was found not guilty of insubordination while the accusation

of theft was recanted; (8) after reporting another officer for a violation of police department

regulations, a tire on her car was slashed and the incident was not investigated; (9) after she

reported smoking in the precinct and fellow officers discovered she was the source of the

complaint, they only spoke Spanish around her; (10) when she took a sick day on New Year’s

Eve, a city doctor came to her home to verify her illness; (11) a fellow officer requested to

be removed from the squad because of her presence, but later apologized; and (12) Davis was

transferred from her squad, she believes in retaliation for an earlier complaint about her

commanding officer having described her as a “pain in the ass.”

       In addition, Davis alleges that on January 14, 2004, Davis submitted a report regarding

offensive comments made about a fellow officer, that no remedial action was taken because

of the report, and that she was subsequently subjected to retaliation by a higher ranking

officer as he consistently sent Davis to stand duty at the hospital to guard prisoners, which

is generally considered to be an extremely poor detail.

       On April 2, 2004, Davis submitted a complaint to the Equal Employment Opportunity

Commission and the New Jersey Division on Civil Rights regarding the retaliation and race

discrimination that she had allegedly suffered. Thereafter, she submitted reports regarding

discrimination, retaliation against her and preferential treatment of others on April 11, 2004,



                                              4
April 30, 2004, and September 26, 2004. On October 4, 2004, Davis was called to a meeting

to discuss her reports and was specifically questioned regarding her failure to follow the

chain of command. She contends that discriminatory and retaliatory actions continue to

occur against her.

II. DISCUSSION

       A. Hostile Work Environment

       This Court has articulated five factors that must be proven in order to establish the

existence of an actionable hostile work environment under Title VII. To do so, Davis must

prove: (1) that she suffered intentional discrimination because of her race; (2) that the

discrimination was severe and pervasive; (3) that the discrimination detrimentally affected

her; (4) that the discrimination would detrimentally affect a reasonable person of the same

race in that position; and (5) the existence of respondeat superior liability. See Weston v.

Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001), Jensen v. Potter, 435 F.3d 444, 449 n.3

(3d Cir. 2006), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006).

       We must consider the totality of the circumstances when determining whether the

alleged harassment is sufficiently severe or pervasive to constitute a hostile work

environment. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). Factors

we must look at include “the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it



                                             5
unreasonably interferes with an employee's work performance.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993).

       Here, Davis fails the first two prongs of the test described above. It is not clear that

any of the incidents alleged in the complaint were motivated by racial discrimination and,

even assuming that they were, they do not rise to the level of severe and pervasive

harassment.

       While it is not necessary for a Title VII defendant to use words that overtly implicate

racial animus to create a hostile work environment, comments that cannot be reasonably

construed as invoking any racial feeling do not support Title VII liability. The only directly

race conscious behavior alleged by Davis is the tacit consent to the grouping of officers by

race and national origin when assigning partners, an action that is not in and of itself

discriminatory. The remaining incidents described by Davis implicate her personality,

temperament, and the other various factors that tend to cause favor or disfavor between co-

workers rather than racial issues. Davis cannot sustain a claim simply by asserting an event

and then asserting that it was motivated by racial bias.

       Even assuming that the alleged incidents were racially motivated, the frequency and

severity of the conduct is not sufficient to sustain a hostile work environment claim. The

frequency of the conduct was minimal, as the events alleged to have occurred took place over

a period of more than ten years. In addition, Davis has not claimed that any of the alleged




                                              6
events involved physical threats or humiliations, or unreasonably interfered with her work

performance.

       For the foregoing reasons, the dismissal of Davis’s hostile work environment claim

under Title VII was proper.

       As to Davis’s claims under NJLAD, this Court has held that the elements for a hostile

work environment claim under NJLAD “closely resemble the first four elements of [a] Title

VII hostile work environment claim.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.

2001). Accordingly, the reasoning above regarding Title VII liability applies to NJLAD

liability as well, and Davis’s failure to show racial motivation or severe and pervasive

discrimination on the part of the police department mandated the dismissal of her claim.

       B. Racial Discrimination

       Discrimination claims brought under Title VII and NJLAD must be analyzed

according to the burden-shifting framework set forth by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and later clarified in Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993). See Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) (“Analysis

of a claim made pursuant to the NJLAD generally follows analysis of a Title VII claim”).

The framework consists of three steps. First, a plaintiff must present sufficient evidence to

support a prima facie case of discrimination. Hicks, 509 U.S. at 506. Once the plaintiff

establishes a prima facie case, the burden of production then shifts to the defendant, who



                                             7
must articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506-

07. If the defendant satisfies this burden, the reviewing court proceeds to the third step. At

this stage, the burden shifts back to the plaintiff to show that the defendant’s proffered reason

was not the true reason for the employment decision, but was merely a pretext for

discrimination. Hicks, 509 U.S. at 507-08. The “ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against the plaintiff remains at all times

with the plaintiff.” Burdine, 450 U.S. at 253.

       To establish a prima facie case of discrimination, the plaintiff must prove that she

belongs to a protected class; that she was qualified for the position; that she suffered an

adverse employment action; and the adverse action occurred under circumstances that give

rise to an inference of discrimination. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410-

12 (3d Cir. 1999); See Burdine, 450 U.S. at 253-54 & n. 6, McDonnell Douglas, 411 U.S. at

802.

       In order to give rise to a claim of racial discrimination under Title VII, an adverse

employment action must be “sufficiently severe as to alter the employee’s ‘compensation,

terms, conditions, or privileges of employment,’ or to ‘deprive or tend to deprive [him or her]

of employment opportunities or otherwise adversely affect his [or her] status as an

employee.’” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296-97 (3d Cir. 1997),

abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006) (quoting 42 U.S.C. § 2000e-2(a)(1) and (2)).             Not every “insult, slight, or



                                               8
unpleasantness gives rise to a valid Title VII claim.” Id. at 1297.

       Here, Davis has failed to make a prima facie case of discrimination because she has

not demonstrated that she suffered an adverse employment action. None of the incidents that

Davis alleges to have been racially motivated were sufficiently severe as to alter her

“compensation, terms, conditions, or privileges of employment.”

       Even assuming arguendo that the alleged incidents were sufficiently severe as to

constitute adverse employment actions, there is nothing within the surrounding circumstances

that give rise to an inference of racial discrimination.              Procedural errors were

administratively addressed, employees were visited to confirm sickness during the New

Year’s Eve shift, fellow co-workers fraudulently assisted other co-workers with shift

attendances, and negative but non-discriminatory comments were made. None of these

events provide any inference of racial discrimination.

       C. Retaliation

       To establish a prima facie case of retaliation under Title VII, a plaintiff must show that

“(1) she engaged in activity protected by Title VII; (2) the employer took an adverse

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

participation in the protected activity and the adverse employment action.” Nelson v. Upsala

Coll., 51 F.3d 383, 386 (3d Cir.1995). Once a prima facie case is established, “the familiar

McDonnell Douglas approach applies.” Moore v. City of Philadelphia, 461 F.3d 331, 342

(3d Cir. 2006).



                                               9
       In a claim of retaliation, the standard required to show an “adverse employment

action” differs from the standard used for claims of discrimination. Id. at 341 (3d Cir. 2006).

Here, an “adverse action” is one that “well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted).

       The District Court applied the pre-Burlington standard for determining when an

adverse employment action takes place, requiring that an          act “alter[] the employee's

compensation, terms, conditions, or privileges of employment, deprive[] him or her of

employment opportunities, or adversely affect[] his or her status as an employee” to be an

adverse employment action. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.

1997) (internal quotation marks omitted), abrogated by Burlington N. & Sante Fe Ry. Co.

v. White, 548 U.S. 53 (2006). Burlington, which was decided shortly before the District

Court issued its opinion in this case, resolved a circuit split on this issue and replaced the

standard described in Robinson. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 60-61,

67-68; Moore, 461 F.3d at 341-42. Because the question of whether Davis alleged an

adverse employment action is central to her retaliation claim, we will remand this case for

a determination of the issue in the first instance by the District Court.

III. CONCLUSION

       We will affirm the District Court’s order dismissing Counts One and Six of Davis’s

complaint. The voluntary dismissal of Counts Three, Four, and Five is not before us, as



                                              10
Davis has elected to stand on her dismissal. We will vacate the order dismissing Counts Two

and Seven and remand this case for further proceedings consistent with this opinion, applying

the standard established in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)

and Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006).




                                             11
