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


11-12-2008

Cisco Hunter v. Rowan Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2300




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                                     NOT PRECEDENTIAL
   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 07-2300
                    _____________

               LINDA CISCO HUNTER,

                                Appellant,
                           v.

    ROWAN UNIVERSITY; DIANNE DORLAND,
     Dean, Individually; JANE ROE; JOHN DOE
                   _____________

     On Appeal from the United States District Court
              for the District of New Jersey
                  (D.C. No. 04-cv-1498)
       District Judge: Honorable Renee M. Bumb
                    _______________

       Submitted Under Third Circuit LAR 34.1(a)
                    July 22, 2008

Before: McKEE, FUENTES, and JORDAN, Circuit Judges
                 _____________

              (Filed: November 12, 2008)
                   _______________

              OPINION OF THE COURT
                  _______________
JORDAN, Circuit Judge.

         Linda Cisco Hunter appeals the District Court’s grant of summary judgment in

favor of Rowan University, Dianne Dorland, and John and Jane Doe defendants

(collectively, “Appellees”). Hunter alleges that the District Court erred in granting

summary judgment because she had adduced sufficient evidence for a reasonable jury to

find that Appellees discriminated against her on the basis of race and age. We will

affirm.1

I.       Background

         Hunter is a Caucasian female who was born on September 18, 1947. She began

full-time employment at Rowan in 1994. In 1995, James Tracey, the Dean of the College

of Engineering, hired her to work in the Office of the Dean as an “Administrative

Assistant 1” (“AA1”). (App. at 73A.) Her employment contract called for periodic

reviews to determine if her contract would be renewed. Hunter served as an AA1 through

the remainder of Dean Tracey’s tenure at the College, which ended with his departure in




     1
    The District Court had jurisdiction over Hunter’s federal claims pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1343. The District Court had supplemental jurisdiction over her
state law claims pursuant to 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. §
1291. Our review of the District Court’s grant of summary judgment is plenary. Egolf v.
Witmer, 526 F.3d 104, 106 (3d Cir. 2008). Accordingly, we inquire whether the record,
viewed in the light most favorable to the non-moving party, “show[s] that there is no
genuine issue as to any material fact and that the [moving party] is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c).

                                             2
July 2000. While serving as an AA1 to Dean Tracey, Hunter received positive

performance reviews.

      Shortly after arriving in 2000, the new dean of the College of Engineering, Diane

Dorland, told Hunter that, rather than serving in the Deans’ office, Hunter would serve

with the College’s Outreach Coordinator. Her status, pay, and benefits as an AA1 did not

change. Hunter moved to her new responsibilities in August 2000. Shortly thereafter, the

Outreach Coordinator, Melanie Basantis, went on maternity leave and Hunter assumed

many of her duties as well. After Hunter expressed concerns about her workload to Dean

Dorland, Assistant Dean Steven Chin agreed to assume the functions of the Outreach

Coordinator and became Hunter’s immediate supervisor. Dean Dorland, however,

retained ultimate supervisory authority over Hunter and was also responsible for making

recommendations to Rowan about whether to renew her contract.

      On February 6, 2001, Chin evaluated Hunter for the first time. He concluded that

the quality and quantity of Hunter’s work, as well as her compliance with deadlines, was

unsatisfactory. Hunter’s union representative answered the evaluation by suggesting that

Hunter’s performance was a result of the lack of a job description and poor feedback. In

response, Rowan provided Hunter with a job description clarifying her responsibilities.

      On April 22, 2001, Chin evaluated Hunter again and concluded that she still

needed improvement. Within days, however, Melanie Basantis gave Hunter a positive

performance review. Similarly, Dr. Ralph Dusseau, a member of the College faculty who



                                            3
had also worked with Hunter, submitted a positive review of her work. Chin re-evaluated

Hunter on September 24, 2001 and November 27, 2001. Both evaluations noted

continued deficiencies in Hunter’s work, and attached specific examples. In response,

Hunter, asserted that she was “certainly trying to do the best [that she] c[ould].” (App. at

539A.) On December 6, 2001, Dean Dorland recommended that Rowan not renew

Hunter’s contract, and Rowan accepted that recommendation.

       Aware that the Dean did not intend to recommend renewing her contract, Hunter

negotiated a settlement agreement with Rowan before issuance of a formal

recommendation.2 That agreement provided that Hunter would receive a one year

appointment outside the College of Engineering after her contract expired. Hunter’s work

at Rowan concluded on July 9, 2003, with the end of that appointment. In May 2003,

Dean Dorland hired Maria Perez-Colon, a Hispanic woman born on August 29, 1958, as

an AA1 to work in the Office of the Dean at the College of Engineering.

       On March 31, 2004, Hunter filed a complaint against Rowan, Dean Dorland, and

unnamed others, alleging various forms of unlawful discrimination based on race and age.

Hunter asserted that the defendants had engaged in reverse racial and national origin

discrimination, in violation of 42 U.S.C. §§ 1981 and 1983 and the New Jersey Law

Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (the “NJLAD”). She also alleged

that the defendants had engaged in a conspiracy to carry out racial discrimination in

  2
   No one has suggested that the terms of the settlement agreement were such as to
prevent the filing of the present suit.

                                              4
violation of 42 U.S.C. § 1985. Hunter further alleged that the defendants had unlawfully

discriminated against her because of her age, in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”) and the NJLAD.3 Finally, she

alleged that the defendants had unlawfully retaliated against her, in violation of the

NJLAD and federal law.

             Following discovery, the District Court granted summary judgment for Appellees

on Hunter’s federal claims for retaliation and for race, age, and national origin

discrimination. The District Court also granted summary judgment for Appellees on

Hunter’s state law claims for race and age discrimination. The Court then declined to

exercise jurisdiction over Hunter’s remaining state law claims for national origin

discrimination and retaliation. On April 26, 2007, Hunter filed this timely appeal.

II.          Discussion

             Hunter contests the District Court’s decision to grant summary judgment on her

federal race and retaliation claims, and on her state law claims for race and age

discrimination.4 Our analysis of all of those claims is governed by the burden-shifting


      3
          Hunter abandoned her ADEA claim on appeal. (Appellant’s Br. at 40 n.6.)
      4
    In her brief, Hunter argues that the District Court failed to address her federal
retaliation claim, but she does not further explain or argue that claim on the merits,
merely stating that it is the same as a state law retaliation claim that she is “presently
pursuing in the New Jersey courts after the district court declined to exercise
supplemental jurisdiction.” (Appellant’s Br. at 52.) Hunter’s cursory reference to her
federal retaliation claim is insufficient to adequately raise it on appeal, and we do not
address it in the discussion that follows. See In re Suprema Specialities, Inc. Securities
Litig., 438 F.3d at 256, 286 n.17 (3d Cir. 2006) (explaining that claims are waived when

                                                 5
test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stewart

v. Rutgers, 120 F.3d 426, 432 (3d Cir. 1997) (explaining that McDonnell Douglas applies

to federal discrimination claims under §§ 1981 and 1983); Peper v. Princeton Univ. Bd.

of Trs., 389 A.2d 465, 479 (N.J. 1978) (noting that McDonnell Douglas is “a starting

point in actions brought under the [New Jersey] Law Against Discrimination”). Under

McDonnell Douglas, Hunter must first establish a prima facie case of discrimination. 411

U.S. at 802. If she meets that burden, Rowan must then “articulate some legitimate,

nondiscriminatory reason for the [adverse action.]” Id. The burden then shifts back to

Hunter to show that Rowan’s reason is a mere “pretext for the ... discrimination.” Id. at

804. This showing must be such that a “factfinder could reasonably either (1) disbelieve

[Rowan’s] articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of [Rowan’s]

action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations omitted). In

conducting our analysis, we must be aware that “federal courts are not arbitral boards

ruling on the strength of ‘cause’ for discharge. The question is not whether the employer

made the best, or even a sound, business decision; it is whether the real reason is

discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997)

(quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).




they are not adequately explained in a party’s opening brief).

                                             6
       A.     The District Court Did Not Err by Granting Summary Judgment for
              Appellees With Respect to Hunter’s Race Discrimination Claims.

       Hunter first argues that the District Court erred by granting summary judgment in

favor of Appellees on her federal and state law reverse race discrimination claims.

Among other things, to establish her prima facie case of racial discrimination, Hunter

must “present[] sufficient evidence to allow a reasonable fact finder to conclude ... that

the defendant treated plaintiff ‘less favorably than others because of [her] race.’”

Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (quoting Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978)). Because we agree with the District Court that Hunter

has failed to meet that initial burden, we do not consider the other elements of her prima

facie case, nor do we consider the remainder of the McDonnell Douglas burden shifting

framework.

       Hunter argues that a reasonable jury could find that Rowan’s decision not to renew

her contract was a product of discrimination because, first, the College of Engineering’s

administrative staff was exclusively white and a new Dean would want to diversify the

staff; second, Chin was Asian-American, and Rowan’s Provost and its President, who

made the final decision not to renew her contract, were African-American; third the

College’s affirmative action guidelines were used to hire Perez-Colon; and fourth, Rowan

surreptitiously recreated Hunter’s extinguished AA1 position after her departure. Each

and all of those assertions are inadequate on this record.




                                              7
       Hunter’s first assertion, that Dean Dorland “might [sic] particularly eager to satisfy

Rowan’s ... need to ‘diversify’ its staff,” (Appellant’s Br. at 34), is purely speculative.

See Ridgewood Bd. of Ed. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999) (noting that

“speculation and conclusory allegations” are insufficient to survive summary judgment).

As to the second assertion, neither Chin’s race, nor the race of Rowan’s Provost and

President, establish that the decision to fire Hunter was motivated by racial animus. See

Iadimarco, 190 F.3d at 156 (explaining that “the race of the [evaluating] officials [does

not] establish a prima facie case of discrimination by itself”). Third, although affirmative

action guidelines may have been considered when Perez-Colon was hired, which was

months after Hunter’s transfer out of the College of Engineering and two years after she

left the office of the Dean, Hunter has adduced no evidence suggesting that those

guidelines were used at her expense. See id. at 164 (noting that a diversity memo does

not, in itself, suggest discrimination). Finally, the notion that the timing of an opening in

the Dean’s Office was suspicious is not supported by the record. Rowan advertised for

the administrative assistant position long after Hunter had last served in that office. In

short, Hunter has adduced only her speculation and disappointment to meet her initial

McDonnell Douglas burden.5 That is insufficient.



  5
   Because no reasonable jury could find for Hunter on her race discrimination claims,
her 42 U.S.C. § 1985 claim also fails because that claim requires that the purported
conspiracy be motivated by racial discrimination. See Farber v. City of Paterson, 440
F.3d 131, 135 (3d Cir. 2006) (explaining that a § 1985 conspiracy must be “motivated by
discriminatory animus against an identifiable class”).

                                              8
         B.    The District Court Did Not Err by Granting Summary Judgment for
               Appellees with Respect to Hunter’s NJLAD Age Discrimination Claim.

         Next, Hunter argues that the court erred by granting summary judgment for

Appellees on her state law age discrimination claim. A prima facie case for that claim

requires her to demonstrate that she “(1) belongs to a protected class, (2) was qualified for

the position held, (3) was terminated despite adequate qualifications, and (4) was ...

replaced with a candidate sufficiently younger to permit an inference of age

discrimination.” Monaco v. American Gen. Assurance Co., 359 F.3d 296, 301 (3d Cir.

2004).

         Assuming arguendo that Hunter has established a prima facie case, Appellees have

articulated a “legitimate, nondiscriminatory reason for the [adverse action].” McDonnell

Douglas, 411 U.S. at 802. They have done so by producing evidence that Hunter’s

performance had become unsatisfactory. Thus, to prevail, Hunter must show that a

reasonable jury could either “(1) disbelieve the employer’s articulated legitimate reasons;

or (2) believe that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d

759, 764 (3d Cir. 1994).

         Hunter argues that she has met her burden because she received positive

evaluations from some of her other supervisors, and because she had no performance

issues prior to Dean Dorland’s arrival, and further because she did not receive negative

evaluations until after she complained about her workload in the Outreach Office.

                                             9
However, on this record, none of those reasons “casts doubt on [Rowan’s] contention that

there was a legitimate business justification for letting [her] go.” Turner v. Schering-

Plough Corp., 901 F.2d 335, 344 (3d Cir. 1990) (citation omitted). Indeed, Hunter

herself has never meaningfully disputed the substance of Chin’s negative performance

reviews. Instead, when asked to respond to his concerns, she stated that she was

“certainly trying to do the best [that she] c[ould].” (App. at 539A.) Such an assertion is

not enough to survive summary judgment. Keller, 130 F.3d at 1109 (explaining that a

plaintiff alleging unlawful age discrimination “cannot survive summary judgment ...

simply by pointing to evidence that could convince a reasonable factfinder that [she] did

as well as [she] could under the circumstances.”)

       Hunter’s second argument also fails. The mere existence of positive evaluations

by a supervisor does not give rise to the inference that negative evaluations from another

supervisor were a pretext. See id. (explaining that to survive summary judgment a

plaintiff must show that the defendant’s proffered reason for a termination is “so plainly

wrong that it cannot have been the employer’s real reason”). Similarly, even if Chin’s

negative evaluations were initially prompted by Hunter’s complaints about her workload

– and it is sheer speculation that they were – Hunter has failed to create a genuine issue of

material fact about whether the ultimate decision to not renew her contract was based on

discriminatory animus. She has thus brought forth no evidence that would provide a

reasonable jury with grounds to believe that her repeated poor evaluations by her direct



                                             10
superior were a pretext for age discrimination or that those who decided against renewing

her contract were discriminating against her because of her age.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment in favor of Appellees.




                                           11
