                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 13-4430
                                 _____________

                             MCDONALD JOSEPH,

                                         Appellant

                                        v.

            NEW JERSEY TRANSIT RAIL OPERATIONS INC.;
      NEW JERSEY TRANSIT, INC; PAUL DECOLA; LELAND PARSONS;
                           WILLIAM TIDD
                           ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY
                       (D.C. Civ. Action 2:12-cv-01600)
                   District Judge: Honorable Jose L. Linares
                               ______________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                              September 11, 2014
                               ______________

       Before: McKEE, Chief Judge, SMITH, and SHWARTZ, Circuit Judges.

                           (Filed: September 24, 2014)

                                 ______________

                                    OPINION
                                 ______________

MCKEE, Circuit Judge

     Plaintiff McDonald Joseph appeals the District Court’s grant of summary
judgment for defendants in the action Joseph filed against them alleging racially

motivated employment discrimination. For the reasons that follow, we will affirm the

judgment of the District Court.1

                                                        I.

         As we write only for the parties who are familiar with the facts and procedural

history, we will set forth only those facts necessary to our conclusion.

         A two-day disciplinary hearing was held following an incident relating to Joseph’s

alleged misuse of a machine, called the 801, which was designed to construct and

maintain railroads. Joseph’s union represented him during that hearing. The Chief Track

Engineer, Bruce Wigod (not a defendant in this case), made the decision to terminate

Joseph after reviewing the hearing transcript and consulting with Tidd and Parsons.2

Wigod explained that he made the decision based on the following factors: 1) Joseph’s

disciplinary history of insubordination, 2) the current charge of insubordination (Joseph

was asked for a statement about the incident and refused to provide it), 3) unauthorized

use of a cell phone, 4) leaving the machine unattended, and 5) accusing his supervisor of

sabotaging the machine. The last factor was considered the most egregious.




1
  The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction
under 28 U.S.C. § 1291.
2
    Joseph was replaced with a Hispanic male.



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        Joseph filed this suit against NJ Transit, DeCola, Parsons and Tidd3 for violation

of 42 U.S.C. § 1981, and violations of the New Jersey Law Against Discrimination (“NJ

LAD”). He alleged that he was discriminated against and retaliated against on the basis

of race.

                                                      II.

        Summary judgment is proper if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. We review

the facts in the light most favorable to the non-moving party. Montone v. City of Jersey

City, 709 F.3d 181, 189 (3d Cir. 2013). Our review of the District Court’s grant of

summary judgment is plenary. Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d

220, 224 (3d Cir. 2000).

                                                     III.

        Joseph raises several issues on appeal. He argues that the District Court erred by

misapplying the law by ignoring a subordinate bias or “cat’s paw” theory of liability that

his termination was set into motion by DeCola’s sabotage of the 801, improperly making

a factual determination that the 801 machine rolled because Joseph left it unattended, and

applying the wrong standard in considering claims against the individual defendants.

Joseph also argues that the record supports a finding of retaliation, that the fact that he

was replaced with a Hispanic male helps him prove his prima facie case, and that the

individual defendants should be personally liable under the NJ LAD for aiding and


3
 DeCola was the Track Supervisor at NJ Transit. Parsons was a Production Engineer supervised by Williams Tidd,
Director of Rail Infrastructure Construction.


                                                      3
abetting discrimination. However, all of these arguments boil down to whether Joseph

presented evidence of discriminatory or retaliatory motive by any defendant. We

conclude that he did not produce such evidence and that the District Court did not err in

granting summary judgment in favor of all defendants on all claims.

       New Jersey uses the McDonnell Douglas framework to assess discriminatory

discharge claims under the NJ LAD. Viscik v. Fowler Equip. Co., 800 A.2d 826, 833

(N.J. 2002). To establish a prima facie case of discriminatory discharge under the NJ

LAD or §§ 1981 & 1983, Joseph must demonstrate: (1) that he is a member of a protected

class; (2) that he was otherwise qualified and performing the essential functions of the

job; (3) that he was terminated; and (4) that the employer thereafter sought similarly

qualified individuals for the job who were not members of his protected class. Victor v.

State, 4 A.3d 126, 141 (N.J. 2010).

       Joseph argues that the District Court failed to consider a “cat’s paw” or

subordinate bias theory of discrimination, and that Wigod’s decision to terminate Joseph

was tainted by DeCola’s racially motivated conduct towards him. “[W]e have held that

discriminatory comments by nondecisionmakers . . . may properly be used to build a

circumstantial case of discrimination.” Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d

Cir. 1995). However, because there is no evidence that DeCola was motivated by

discriminatory animus, there is no evidence that Wigod’s decision to terminate was

tainted by discrimination.

       The only evidence that could even suggest racial animus is evidence that Tidd

said, “I don’t know what’s wrong with you people.” Tidd was not involved in the


                                             4
incident with the rolling 801 machine. Some courts “have determined that the phrase

‘you people’ is too ambiguous to constitute direct evidence of discrimination when used

in isolation, as it was here.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 269 (3d

Cir. 2010). Although we do not doubt that racial animus will sometimes lurk beneath the

surface of this phrase, something more than speculation is needed to connect those dots.

Here, “[e]ven if we were persuaded that the use of the phrase ‘you people’ in this context

would constitute direct evidence . . . [Joseph] ha[s] not shown that [NJ Transit]’s

decisionmaker[—Wigod—]relied on [Joseph’s] race” in deciding to terminate him. Id. at

270.

       Joseph’s retaliation claim is also flawed. Both Title VII and the NJ LAD “make[]

retaliatory discrimination an unlawful employment practice.” Delli Santi v. CNA Ins.

Cos., 88 F.3d 192, 198 (3d Cir. 1996). Retaliation claims under Title VII and the NJ LAD

require the plaintiff to satisfy the same elements. See Aman v. Cort Furniture Rental

Corp., 85 F.3d 1074, 1087-88 (3d Cir. 1996) (holding that the same analysis applied to

plaintiffs’ retaliation claims under Title VII and the NJ LAD). “To establish a prima

facie case of retaliation, an employee must show by a preponderance of the evidence that

(1) he or she ‘engaged in protected activity known to the employer;’ (2) he or she

thereafter was ‘subjected to an adverse employment decision by the employers;’ and (3)

there was a ‘casual link’ between the protected activity and adverse employment

decision.” Delli Santi, 88 F.3d at 198. (quoting Jamison v. Rockaway Twp. Bd. of Educ.,

577 A.2d 177, 182 (N.J. Super. Ct. App. Div. 1990)).




                                             5
       The District Court assumed that Joseph engaged in a protected activity, but it

concluded that there was no evidence to show causation. “[O]ur case law has focused on

two main factors in finding the casual link necessary for retaliation: timing and evidence

of ongoing antagonism.” Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288

(3d Cir. 2001). We agree with the District Court that there is no evidence to show

causation, because there is no evidence that links Joseph’s question to DeCola, “is it

because I’m Black?” to the incident involving the 801 that led to Joseph’s disciplinary

hearing.

       According to Joseph, DeCola never responded to this statement, and there is no

evidence suggesting that DeCola or anyone else acted on it. The only evidence of

causation was the timing between that conversation and the incident with the 801

machine. That is not enough on its own to establish causation, and Joseph has presented

no other evidence of discriminatory animus to suggest causation. Furthermore, Wigod

made the decision to terminate Joseph several months later, and he was not even aware

that Joseph asked DeCola that question. There is simply no evidence that the decision to

terminate Joseph was related to what Joseph said to DeCola. Finally, Joseph’s arguments

regarding antagonism are similarly unavailing because he was unable to work on the 801

machine both before and after he engaged in the protected activity.

                                            III.

       For the reasons set forth above, we will affirm the judgment of the District Court.




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