                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1063
                                      ____________

                                      SOON PARK,
                                                       Appellant

                                             v.

    SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
                  JOHN DOES 1-10; JANES DOES 1-10
                          ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D. C. No. 2-10-cv-06762)
                   District Judge: Honorable Dickinson R. Debevoise
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 19, 2014

              Before: SMITH, HARDIMAN and BARRY, Circuit Judges.

                                (Filed: December 4, 2014)
                                      ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.

       Soon Park appeals the District Court’s summary judgment on her Title VII claim


       This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
       *

not constitute binding precedent.
for national origin discrimination. We will affirm, essentially for the reasons stated by

Judge Debevoise in his thoughtful opinion.

                                              I

       Park works as a medical technologist at the James J. Peters VA Medical Center in

Bronx, New York (the VA), where she has been employed since 1992. Originally from

South Korea, Park has somewhat limited fluency in English. She alleged that she has

been the target of workplace harassment over the course of her employment with the VA.

Although a few of the incidents she cited have no arguable connection to her national

origin, some do. Specifically, she claimed that one of her supervisors, Darryl Williams,

was “against her” and tried to “sabotage” her, would pretend not to understand her

English, and once scolded her for failing to distinguish between the words “order” and

“odor.” She also alleged that Williams asked her whether all Koreans were infected by

“that special fungus” when she had an infection. Finally, Park experienced situations in

which other VA personnel told her they could not understand her English.

       According to Park, the harassment did not cease when she left work. She claimed

that she saw Williams inside her bedroom at home (although the bedroom door was

locked from the inside). Park also believed that she was occasionally followed home

from work. On one occasion, Park called another supervisor, Dr. Azra Shahidi, late at

night to advise that if she did not report to work the next morning, “something happened

to me.” Dr. Shahidi recommended that Park see a therapist, but Park refused, worried

                                              2
that doing so might harm her reputation in the Korean community.

       The alleged sabotage and harassment culminated with Park’s involuntary

commitment to the psychiatric ward of the VA hospital in 2008. One morning that year,

Park had a conversation with a coworker, Luis Benabe, during which he told her that the

VA knew many personal things about her and that there were cameras installed in her

home. Park responded that these issues would continue until she died and asked why she

had to die to make them stop; Benabe told her if she wanted to die, she should starve

herself to death. Park, believing that the conversation was in jest, responded that she

could not kill herself, but instead would have to die in a tragic accident. She also asked

whether Benabe knew anyone planning to blow up an airplane.1

       Benabe subsequently reported the conversation to Williams, telling him that Park

had asked about suicide methods. Williams reported the conversation to Dr. Shahidi, who

decided that they needed to take action to prevent a possible suicide by Park, and

summoned a VA supervisor and a mental health care worker to meet with Park. Id. Park

then was brought into an office with the mental health worker, who attempted to ask her

about the conversation with Benabe. Park repeatedly said that she had “no comment.”

Finally, after she relented and began conversing with the mental health worker,

psychiatrist Dr. James Chou came to speak with Park. Dr. Chou eventually coaxed Park


       1
        Benabe recalls the tone and content of his conversation with Park differently, but for
the purposes of her appeal, we construe the facts in the light most favorable to Park.

                                              3
into the emergency room of the VA hospital to conduct a complete evaluation. At the

conclusion of the evaluation (and after many statements of extreme paranoia by Park),

Park told Dr. Chou that if she were actually suicidal, she would not tell anyone.

       At that point, Dr. Chou decided that Park was mentally ill and was exhibiting

“suicidal ideation.” She was not allowed to leave the emergency room in spite of her

energetic protestations and was eventually admitted to the VA’s psychiatric ward, where

she was supposed to be monitored for 72 hours on suicide watch. Park was released after

just one night, however, after her cousin (a lawyer) convinced the hospital to release her.

Park returned to work the following day without incident. She was subsequently asked to

take a leave of absence, returning to work six months later, in April 2009, after another

psychiatrist deemed her fit for work.

       A year and a half later, Park filed suit in the United States District Court for the

District of New Jersey, alleging national origin discrimination in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The District Court entered

summary judgment against Park on December 16, 2013, holding that she could not make

out a prima facie case of discrimination. This timely appeal followed.2

                                              II

       We review the District Court’s summary judgment de novo and apply the same



       2
          The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              4
standard as the District Court. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.

2010).

         Central to Park’s case is the notion that her involuntary commitment was the result

of national origin discrimination. The District Court, after correctly explaining the

analytical framework for a Title VII claim based on adverse employment action, held that

Park failed to establish a prima facie case under Title VII because she could not show the

required nexus between her national origin and her involuntary commitment. Park v.

Shinseki, 2013 WL 6627604, at *6 (D.N.J. Dec. 16, 2013). Park contends that this

decision was incorrect because it “ignored the surrounding harassment leading up to [her]

involuntary commitment.” Appellant’s Br. 23. We disagree.

         As the District Court aptly stated, “the record suggests that [Park’s commitment]

had everything to do with the fact that she suffered from paranoid delusions and had been

mentioning the notion of suicide to her coworkers,” and nothing to do with her status as a

Korean immigrant. Park, 2013 WL 6627604, at *6. Park repeatedly shared paranoid

thoughts with her coworkers and supervisors (including believing that she was being

followed home, and that she had seen Williams inside her bedroom). She engaged in a

lengthy, albeit joking, conversation with Benabe about how she might bring about her

own death in order to make her problems go away. The record shows that these events led

to Park’s involuntary commitment. By contrast, the alleged discriminatory conduct is

unrelated to her commitment because Dr. Chou, who convinced Park to go to the

                                              5
emergency room, had no connection whatsoever to the alleged harassment. There is no

evidence to suggest that Dr. Chou harbored any discriminatory animus toward Koreans.

Because Park failed to show any nexus between her national origin and her involuntary

commitment, the District Court did not err when it held that she did not establish a prima

facie case. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 & n.6

(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13 (1973) (noting

that while the elements of a prima facie case of employment discrimination vary based on

the facts of a case, a plaintiff must show circumstances giving rise to an inference of

discrimination—that is, a nexus between the plaintiff’s protected trait and the adverse

employment action).

       Park argues on appeal that the District Court improperly found that “it was in fact

medically necessary to commit” her and insists that her commitment was unnecessary.

Appellant’s Br. 23. This argument misses the mark for two reasons. First, Park is simply

incorrect that the District Court found that her commitment was medically necessary—the

District Court made no such finding (nor did it need to). Instead, it ruled only that there

was no connection between her commitment and her national origin. And second,

whether or not the commitment was medically necessary is irrelevant. The critical

question under McDonnell Douglas and its progeny is whether Park has cited facts

sufficient to give rise to an inference that her commitment was based on her status as a

Korean immigrant. 411 U.S. at 802. She failed to do so, primarily because the

                                              6
connections she attempts to make between her alleged harassment and her commitment

lack support in the record. Even if her commitment was medically unnecessary, it was

still based upon her perceived mental instability and suicidal ideation, not her national

origin, as the District Court rightly noted. Thus, she failed to show the required elements

of a prima facie case under McDonnell Douglas.

       Park also argues on appeal that she was discriminated against under a hostile work

environment theory. To make out this claim, Park must show that the harassment she

suffered was “sufficiently severe or pervasive” that it effectively altered the terms and

conditions of her employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

Most of the incidents Park cites as harassment stem from her limited fluency in English.

These incidents fall far short of the “severe or pervasive” standard required to make out a

hostile environment claim. A language barrier between coworkers may cause difficulties

in the workplace, but as the District Court noted, accounting for a language barrier does

not amount to unlawful discrimination. Park, 2013 WL 6627604, at *6.

       Park does point to one incident—when Williams asked her whether all Koreans

were infected by a fungus—that supports her claim of intentional national origin

discrimination. But that comment was neither severe nor pervasive enough to support a

hostile environment claim because “Title VII is not violated by the ‘mere utterance of

an . . . epithet which engenders offensive feelings in an employee’ or by mere

‘discourtesy or rudeness . . . .’” Abramson v. William Paterson Coll. of N.J., 260 F.3d

                                              7
265, 280 (3d Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998)). The inappropriate fungus remark was a classic stray comment and is insufficient

to establish a hostile work environment. See, e.g., Faragher, 524 U.S. at 788 (“[S]imple

teasing, offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of employment.” (internal

quotation marks and citations omitted)); Caver v. City of Trenton, 420 F.3d 243, 262 (3d

Cir. 2005) (“[W]e are mindful that ‘offhanded comments, and isolated incidents (unless

extremely serious)’ are not sufficient to sustain a hostile work environment claim.”

(quoting id.)).

       Finally, Park makes a procedural argument, namely, that the District Court should

not have granted summary judgment because the VA failed to furnish a statement of

material facts not in dispute with its motion for summary judgment as required by the

District of New Jersey’s Local Civil Rule 56.1. Park claims that she was prejudiced by the

VA’s failure to file a Rule 56.1 statement because she was forced to use the VA’s brief to

ascertain which facts were undisputed and because, more importantly, there was no clear

factual record on which the District Court could rule. We disagree because Park’s

argument ignores the procedural context of the case. The VA moved to dismiss Park’s

claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (a motion for which no

statement of undisputed material facts is required) or, alternatively, for summary

judgment pursuant to Rule 56. The District Court correctly decided that, because it was

                                             8
asked to consider evidence outside the pleadings, it would treat the motion as one for

summary judgment. Park, 2013 WL 6627604, at *5 n.6.

       Moreover, although the VA did not submit a Rule 56.1 statement, it did submit a

“Statement of Relevant Facts,” to which Park responded with her own “Statement of

Genuine Issues.” Park’s Statement of Genuine Issues contains 57 numbered paragraphs

responding to each fact asserted in the VA’s Statement of Relevant Facts, and noting

which facts were undisputed. Thus, between the VA’s and Park’s submissions, the

District Court had a clear record of the facts on which to rule. Accordingly, we find no

prejudice caused by the absence of a Rule 56.1 statement. Given that the VA made its

Rule 56 motion in the alternative to its Rule 12(b)(6) motion, it was within the District

Court’s discretion to convert the VA’s motion to dismiss into a motion for summary

judgment. And we conclude that its decision not to require a separate Rule 56.1

statement—especially given that the VA substantially complied with Rule 56.1 via its

Statement of Relevant Facts—did not constitute error.

                                             III

       The District Court aptly addressed the arguments raised by Park. Because we are

unpersuaded by Park’s substantive and procedural arguments, we will affirm the

judgment of the District Court.




                                             9
