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


7-13-2005

Khazzaka v. Univ Scranton
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1521




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-1521
                                   ________________

                                 JOSEPH KHAZZAKA,

                                                 Appellant

                                            v.

                             UNIVERSITY OF SCRANTON

                                   ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civil No. 01-cv-00211)
                        District Judge: Honorable Yvette Kane
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 14, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                   (Filed July 13, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

       Joseph Khazzaka appeals the grant of defendant’s motion for summary judgment

by the District Court for the Middle District of Pennsylvania.
                                             I.

       In 1994, Khazzaka was hired as a faculty member by the University of Scranton

for the 1994-1995 academic year. Khazzaka’s contract was repeatedly renewed, and in

1996 he was appointed Director of Secondary Education. In February 1997, Khazzaka

was granted tenure, and in the summer of 1997 re-appointed as director. The following

year Khazzaka was not re-appointed as director, and in February 1999 was suspended

until further notice. In September 1999, the University terminated Khazzaka’s

employment.

       Meanwhile, in May 1999 Khazzaka filed a complaint with the Equal Employment

Opportunity Office (“EEOC”) alleging discrimination on the basis of national origin

(Lebanese) and retaliation for expressing an opinion about the discrimination case of

another faculty member. On December 14, 1999, the EEOC dismissed the complaint and

issued a right-to-sue letter, which Khazzaka claims he did not receive. On December 16,

1999 and in May and June 2000, Khazzaka sent letters to the EEOC attempting to amend

his complaint to challenge his suspension and termination. The EEOC apparently did not

respond to his requests. In November 2000, in response to his counsel’s Freedom of

Information Act (“FOIA”) request, Khazzaka received a copy of the right-to-sue letter.

       On February 1, 2001, Khazzaka filed a counseled complaint against the University

alleging (1) discrimination based on national origin under Title VII § 706(g) of the Civil

Rights Act of 1964 (“Title VII”); (2) age discrimination under the Age Discrimination in

Employment Act of 1967 (“ADEA”); (3) breach of contract; (4) breach of the covenant

                                             2
of good faith and fair dealing; (5) violation of public policy; and (6) fraud, deceit and

misrepresentation. Khazzaka also raised allegations of retaliation under Title VII §

704(a) for having expressed an opinion about another professor’s discrimination case.

The District Court granted the University’s motion to dismiss counts 5 and 6 for failure to

state a claim.1 The District Court subsequently granted the University’s motion for

summary judgment as to the remaining claims.

                                             II.

       As a preliminary matter, the University argues that we lack jurisdiction because

Khazzaka’s notice of appeal was untimely. When, as in this case, the Rules of Civil

Procedure require the judgment to be set forth on a separate document, see Fed. R. Civ. P.

58(a)(1), the judgment is not entered for purposes of a timely notice of appeal until the

earlier of either the judgment being set forth on a separate document or 150 days after the

judgment is entered on the docket under Fed. R. Civ. P. 79(a). Fed. R. App. P.

4(a)(7)(A)(ii); Cf. Gregson & Assoc. Architects v. Gov’t of the V.I., 675 F.2d 589, 592-

93 (3d Cir. 1982). The District Court’s judgment was entered on the docket on

November 15, 2004, but was not and has not been set forth on a separate document.

Thus, the 30-day time period for filing the notice appeal did not begin to run until April

2005. Fed. R. App. P. 4(a)(1)(A). Accordingly, Khazzaka’s notice of appeal filed in




  1
    The University’s motion to dismiss was denied as to the remaining claims. Khazzaka
does not appeal this order.

                                              3
February is deemed timely, see Fed. R. App. P. 4(a)(2), 4(a)(7)(B),2 and we will deny the

University’s motion to dismiss the appeal.

                                             III.

       Our review of the District Court’s grant of summary judgment is plenary. Saldana

v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment is proper only if

there is no genuine issue of material fact and if, viewing the facts in the light most

favorable to the nonmoving party, the moving party is entitled to judgment as a matter of

law. Id. at 232. When opposing summary judgment, the nonmovant may not rest upon

mere allegations, but rather must “identify those facts of record which would contradict

the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co.,

311 F.3d 226, 233 (3d Cir. 2002) (quotation omitted).

                                              A.

       A Title VII complaint must be filed in the District Court within 90 days of the

complainant’s receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1);

Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001).

The University argues that Khazzaka’s claim that he did not receive the letter until

November 2000 is “not worthy of credence” and that the evidence shows that Khazzaka

received the right-to-sue letter in November 1999, and therefore the complaint filed in

January 2001 was untimely. Brief in Support of Defendant’s Motion for Summary

  2
     We also reject the University’s argument that Khazzaka’s filing of a defective brief
waived his arguments on appeal. Cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam).

                                              4
Judgment at 4-8. We reject this argument. Viewing the evidence in the light most

favorable to Khazzaka, we conclude that the evidence regarding Khazzaka’s

communications with the EEOC, see Complaint, Exhs. I, J and K, raises a question of

material fact as to when he received the letter and thus whether his complaint is timely.

See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (stating that in

considering a summary judgment motion the court “may not make credibility

determinations or engage in any weighing of the evidence”). However, for the reasons

stated below we will affirm the grant of summary judgment on other grounds.

                                             B.

       In the case of an adverse employment action under Title VII and the ADEA, the

employee has the initial burden of establishing a prima facie case of unlawful

discrimination. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Keller v. Orix Credit

Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997) (citing Fuentes for ADEA

standard). If the employee satisfies this burden, then the burden shifts to the employer to

produce evidence of a nondiscriminatory reason for its action. Fuentes, 32 F.3d at 763.

To survive summary judgment, the employee must then “point to some evidence, direct

or circumstantial, from which a factfinder could reasonably 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.” Id. at 764. Similarly, in a case alleging retaliation, the employee must establish

a prima facie case of retaliation, and to survive summary judgment must raise a genuine

                                             5
issue of material fact as to whether the employer’s proffered explanation was a pretext for

retaliation. Krouse v. American Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997).

       We assume, without deciding, that Khazzaka set forth a prima facie case of

discrimination based on national origin and age, and a prima facie case of retaliation.

Upon review of the record, we find that the University satisfied its burden by producing

evidence indicating that its actions were taken because of changes in Khazzaka’s conduct.

See Defendant’s Motion for Summary Judgment, Exh. 1, Passon Affidavit at ¶¶ 9-14, 18-

21, 81-83; id., Exh. 2, Adams Affidavit at ¶¶ 9-22; id., Exh. 3, Wiley Affidavit at ¶¶ 28-

54. Although Khazzaka disputes some of this evidence, see Plaintiff’s Response to

Defendant’s Statement of Material Facts, he has not presented any evidence from which a

factfinder could disbelieve the University’s asserted reasons and/or believe that

discrimination or retaliation was a motivating cause for the actions.3 See Fuentes, 32 F.3d

at 764; Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (recognizing that

non-moving party “must present affirmative evidence . . . to defeat summary judgment”)

(emphasis omitted). Consequently, the University is entitled to summary judgment on the

discrimination and retaliation claims.4


  3
     Several of Khazzaka’s factual assertions in his appeal brief and attached exhibits
were not presented in the District Court, and thus can not be considered on appeal. See
OSHA Data/CIH, Inc. v. U.S. Dept. of Labor, 220 F.3d 153, 169 n.35 (3d Cir. 2000)
(“Our role as a Court of Appeals is to review the decision made by the District Court; we
will do so based on the evidence presented to the District Court.”).
  4
    Khazzaka’s reliance on Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133
(2000) is inapposite. Unlike the plaintiff in Reeves, Khazzaka did not set forth any
evidence suggesting that his employer’s explanation was false, compare Reeves, 530 U.S.

                                             6
       The University is also entitled to summary judgment on the breach of contract and

breach of covenant of good faith and fair dealing claims for the reasons set forth by the

District Court. See Dist. Ct. Memorandum at 19-22; Defendant’s Motion for Summary

Judgment, Exh. 1, Passon Affidavit Exh. F (Handbook); id., Exh. 1, Passon Affidavit

Exh. G (Statement of Charges).

       We decline to address Khazzaka’s motions for return of his personal property and

for return of his legal file as these claims were not raised in the District Court. See Lloyd

v. Hovensa, LLC., 369 F.3d 263, 272-73 (3d Cir. 2004). We have also considered

Khazzaka’s remaining motions, and will deny them without further discussion.

       In conclusion, for the reasons stated we will affirm the District Court’s order

granting summary judgment in favor of the University.




at 144-45, and thus provided no evidence from which a trier of fact could find unlawful
discrimination.

       Also, counsel’s alleged failure to adequately represent Khazzaka, see Appellant’s
Brief at 14-16, does not provide a basis for reversing the judgment, see MacCuish v.
United States, 844 F.2d 733, 735-36 (10th Cir. 1988).

                                              7
