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


6-27-2005

Cavicchia v. Phila Housing Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4606




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 03-4606


                              ANTHONY CAVICCHIA

                                                     Appellant

                                          v.

                    PHILADELPHIA HOUSING AUTHORITY




                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                (D.C. No. 03-cv-00116)
                     District Judge: Honorable Berle M. Schiller




                       Submitted under Third Circuit LAR 34.1(a)
                                on November 15, 2004

                 Before: ROTH, SMITH, and WEIS, Circuit Judges.

                                (Filed: June 27, 2005)




                                      OPINION




ROTH, Circuit Judge:

      In this wrongful employment termination case brought under 42 U.S.C. § 1981 and
the Pennsylvania Whistleblower Statute, 43 Pa. Stat. Ann. § 1423 et seq., Appellant

Anthony Cavicchia appeals from the District Court’s grant of summary judgment in favor

of Appellees Philadelphia Housing Authority (“PHA”) and several of its individual

employees. The detailed procedural and factual history of this case is presented in the

District Court’s opinion, Cavicchia v. Philadelphia Housing Auth., No. 03-0116, 2003

U.S. Dist. LEXIS 20311 (E.D. Pa., November 7, 2003). In this appeal, Cavicchia argues

that the District Court erred in striking, without an evidentiary hearing, Exhibit 7, an

allegedly incriminating memorandum that was not produced in discovery by either party.

Further, Cavicchia argues that the District Court’s grant of summary judgment on his

First Amendment and Whistleblower Act claims was in error because the District Court

incorrectly found that Cavicchia failed to show affirmative evidence of retaliation.

         Appellees argue that we should not consider Cavicchia’s arguments because

Cavicchia’s brief does not conform with the Federal and Local Rules of Appellate

Procedure. Specifically, Appellees argue that Cavicchia raises arguments in his brief

before this Court that were not raised before the District Court and, thus, cannot be

considered here. For the purposes of this case, we are not persuaded by Appellees’

argument. While Cavicchia’s brief is not the picture of clarity, it does conform to the

basic form prescribed in the relevant appellate rules. Further, the arguments Appellees

construe as new arguments address authenticity, an issue Cavicchia raised in the District

Court.



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I.     Motion to Strike

       The first item to address is Cavicchia’s claim that the District Court improperly

granted Appellees’ motion to strike Exhibit 7, an allegedly incriminating memorandum,

pursuant to Federal Rule of Civil Procedure 37(c)(1) without an evidentiary hearing. We

review the District Court’s decision to exclude evidence for an abuse of discretion.

Hurley v. Atlantic City Police Dep’t., 174 F.3d 95, 110 (3d Cir. 1999). Abuse of

discretion arises in evidentiary decisions when the district court has made a clearly

erroneous finding of fact, errant conclusion of law, or improper application of law to fact.

Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000). In this case, the District Court

did not abuse its discretion in excluding Exhibit 7 because the document was never

authenticated or produced. The District Court concluded that the circumstances

surrounding the document were highly suspect, specifically that Cavicchia’s only

evidence of its authenticity was that the contents of the memorandum were similar to the

contents of a previously produced document by a different author to different recipients.

Cavicchia v. Philadelphia Hous. Auth., No. 03-0116, 2003 U.S. Dist. LEXIS 20311, at

*21 (E.D. Pa., November 7, 2003). Thus, the District Court did not abuse its discretion in

striking Exhibit 7 without an evidentiary hearing.

II.    Summary Judgment

       Cavicchia also appeals the District Court’s grant of summary judgment against his

First Amendment and Whistleblower Act claims, on the basis that there was no



                                             3
circumstantial evidence to support these claims. This Court has plenary review over the

District Court’s grant of summary judgment. Watson v. Eastman Kodak Co., 235 F.3d

851, 854 (3d Cir. 2000).

       The District Court found that Appellees were entitled to summary judgment on

Cavicchia’s First Amendment retaliation claim because Cavicchia could not demonstrate

a pretext or an inference of retaliation. The District Court found that the stated reason for

terminating Cavicchia’s employment was that he was absent without leave for five work

days after a recent history of absenteeism. Cavicchia did not dispute that he was absent,

but argued to the District Court and argues here that this reason was pretextual because

Cavicchia should have been subjected to more progressive discipline under PHA’s

discretionary policy. The District Court found that, although a plaintiff can survive

summary judgment by discrediting an employer’s proffered reason as pretextual,

Cavicchia did not make such a showing in this case, as it is clear from the record that he

was terminated for absenteeism. The record supports the District Court’s conclusion that

Cavicchia has not shown that his termination for absenteeism was pretextual.

       The District Court also dismissed Cavicchia’s claim for municipal liability against

PHA, concluding that Cavicchia failed to show an underlying constitutional violation by

the individual Defendants, as discussed above, and failed to present any evidence

regarding a policy or practice at PHA. The District Court specifically noted that none of

the evidence presented indicated that there was a specific policy or practice at PHA to



                                              4
terminate or otherwise adversely act toward employees who were whistleblowers. The

District Court’s conclusions regarding this claim are wholly supported by the record,

which indicates no evidence of a policy or practice, or of a constitutional violation, in the

depositions of Cavicchia or fellow employees of PHA or other record evidence.

       The District Court also granted summary judgment against Cavicchia’s claim

under Pennsylvania’s Whistleblower Statute, 43 Pa. Stat. Ann. § 1423(a), noting that the

standard was more stringent than the one for a First Amendment retaliation claim. Again,

the record supports the District Court’s conclusion, as there is no evidence supporting a

causal connection between Cavicchia’s report of wrongdoing and his termination for

absenteeism.

       As the record supports the District Court’s conclusion that Cavicchia had not

sustained his burden at summary judgment and because the District Court’s evidentiary

decision was not in error, the District Court’s decision is affirmed.




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