                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                     No. 09-3637
                                    _____________

                               BEVERLY MENTOR,
                                     Appellant
                                        v.
                         HILLSIDE BOARD OF EDUCATION
                                  _____________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                           District Court No. 2-08-cv-01173
                 District Judge: The Honorable Dennis M. Cavanaugh
                                    ______________

                               Argued May 10, 2011

           Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges

                               (Filed: May 23, 2011 )


Daniel P. Craig, Esq. (Argued)
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15282

Adrian N. Roe, Esq.
Suite 1331
707 Grant Street
Gulf Tower
Pittsburgh, PA 15219
Counsel for Appellant
Victoria A. Cabalar, Esq.
Howard B. Mankoff, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
425 Eagle Rock Avenue, Suite 302
Roseland, NJ 07068-0000

Walter F. Kawalec, III, Esq. (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
200 Lake Drive East
Woodland Falls Corporate Park, Suite 300
Cherry Hill, NJ 08002

Stefani C. Schwartz, Esq.
Schwartz, Simon, Edelstein, Celso & Kessler
44 Whippany Road, Suite 210
P.O. Box 2355
Morristown, NJ 07960
Counsel for Appellee

                               _____________________

                                     OPINION
                               _____________________

SMITH, Circuit Judge.

       Beverly Mentor appeals from an order of the United States District Court for the

District of New Jersey, which granted a motion by her former employer, Hillside Board

of Education (Hillside), for summary judgment on her claims of racial discrimination in

violation of Title VII.   We exercise plenary review over a district court‟s grant of

summary judgment. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999). We

will affirm.

       Hillside‟s Calvin Coolidge Elementary School principal, Dr. Ellen Decker, hired

Mentor, an African-American woman, as a part-time cafeteria aide in November of 2003.

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Although Mentor was authorized to work two hours per day in this position, her hours

subsequently exceeded 20 hours per week as she also worked as a breakfast and bus aide.

During the 2005-2006 school year, Dr. Decker died. Her position was filled by Dr. Frank

Deo and Ms. Grace Conway. Before the end of the school year, both administrators had

concerns as to whether Mentor, whose daughter was in the third grade at the school,

should continue as a cafeteria aide at Calvin Coolidge. This concern arose because, inter

alia, Mentor, while working as a bus aide, confronted the parent of a student who

allegedly bullied Mentor‟s daughter in class. This resulted in a complaint from the

parent. After addressing the parent‟s complaint, Ms. Conway explained to Mentor that

she was not entitled, as a bus aide, to address with other parents her concerns about a

student‟s in-class behavior.

       In order to avoid future confrontations of this nature, Dr. Deo and Ms. Conway

proposed transferring Mentor to another school where Mentor could not interact with her

daughter or with other Calvin Coolidge students and parents. The Board of Education

approved the transfer. In the 2006-2007 school year, Mentor was assigned as a cafeteria

aide at Hurden Looker Elementary School. Near the end of the school year, faced with

fiscal cuts for the next school year, the administration at Hurden Looker reduced the

number of aides to be employed for the following year. Because Mentor was the last aide

assigned to the school, her position was terminated.

       Mentor filed several charges with the Equal Employment Opportunity

Commission (EEOC), alleging racial discrimination. On February 1, 2008, the EEOC

                                            3
terminated the administrative processing of Mentor‟s claims and provided her with right

to sue letters.   The following month, Mentor, proceeding pro se, filed a complaint

alleging that Hillside had violated Title VII by discriminating against her on the basis of

her race. Mentor requested an appointment of counsel. Hillside moved for summary

judgment. In a memorandum filed August 5, 2009, the District Court construed Mentor‟s

complaint as raising claims of racial discrimination and retaliation under Title VII. It

granted Hillside‟s motion for summary judgment on both of her claims and denied

Mentor‟s request for appointed counsel.

        This timely appeal followed.1 Thereafter, pro bono counsel was appointed.2

Mentor submits that the District Court erred in granting summary judgment on her Title

VII claim because she established a prima facie case of race discrimination and she

rebutted Hillside‟s proffered legitimate non-discriminatory reason for reducing her hours

and transferring her to the Hurden Looker school.3 We agree with Mentor that she

established a prima facie case of racial discrimination. See Jones, 198 F.3d at 411-12.

But because Hillside proffered legitimate, nondiscriminatory reasons for reducing

Mentor‟s hours and transferring her to the Hurden Looker school, Mentor was obligated



1
  The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise appellate
jurisdiction under 28 U.S.C. § 1291.
2
    We thank pro bono counsel for representing Mentor on appeal.
3
   Mentor has not challenged the District Court‟s grant of summary judgment on her Title
VII retaliation claim. The issue is therefore waived. Laborers’ Int’l Union v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises
it in its opening brief, and for those purposes „a passing reference to an issue . . . will not
                                              4
to show that these reasons were pretextual. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994). Our review of the record fails to reveal any evidence that discredits Hillside‟s

explanation that Mentor‟s hours were reduced consistent with the nature of her part-time

position as a cafeteria aide and because of budgetary restraints.

       As to Mentor‟s transfer to the Hurden Looker school, she contends that Hillside‟s

reason is unworthy of belief because other non-African-American employees raised

concerns about their children with the administration but were not transferred.

Presuming that to be true (although the record before us does not support it), this

allegation does not cast doubt on Hillside‟s proffered explanation.        First, Mentor‟s

transfer was not based on the fact that she voiced to the administration her private

concern about her daughter being bullied in class by another student. That concern was

promptly addressed by Ms. Conway, who spoke with the teacher and Dr. Deo. Mentor

acknowledged during her deposition that, after the teacher got involved, her daughter

stopped complaining about the other student. Rather, Mentor was transferred because,

despite the school‟s intervention and remediation of the bullying issue, Mentor

confronted the parent of the alleged bully. Mentor‟s status as a bus aide did not grant her

authority to address issues concerning in-class behavior with parents. Because Mentor

took the bullying issue into her own hands in her capacity as an employee, she was not

similarly situated to the other employees who brought concerns to the administration.

We conclude that Mentor has not demonstrated that Hillside‟s proffered reason was


suffice to bring that issue before this court.‟”).
                                                5
pretextual. Accordingly, we will not disturb the District Court‟s grant of summary

judgment for Hillside on Mentor‟s Title VII discrimination claim.

       In our order appointing counsel, we requested that counsel address whether the

District Court abused its discretion in denying Mentor‟s motion to appoint counsel. The

District Court focused on the analysis set out in Tabron v. Grace, 6 F.3d 147, 155-158

(3d Cir. 1993). This was error. Mentor sought counsel to assist her in prosecuting her

Title VII claims, and Title VII contains its own provision regarding appointed counsel.

See 42 U.S.C. § 2000e-5(f)(1); see also Ficken v. Alvarez, 146 F.3d 978, 979-80 (D.C.

Cir. 1998) (enumerating test to apply in ruling on a motion for counsel under § 2000e-

5(f)(1)). This error does not require reversal and remand, however. Regardless of

whether we review the District Court‟s order under Tabron or § 2000e-5(f)(1), Mentor

must show as a threshold matter that her claim had merit. Tabron, 6 F.3d at 155; Ficken,

146 F.3d at 980. As the foregoing discussion demonstrates, Mentor cannot satisfy this

requirement.

       Mentor contends, however, that the District Court erred in denying her motion for

the appointment of counsel because it failed to recognize that she had a meritorious First

Amendment retaliation claim.4 According to Mentor, her hours were reduced and she

was transferred to Hurden Looker because of her private complaint about her daughter


4
  Mentor also asserts that her right to due process was violated because the District Court
provided her with a form complaint for discrimination under Title VII, which “rendered
her incapable of drafting a complaint” asserting her claim for retaliation in violation of
her First Amendment rights. This novel argument does not warrant relief here as Mentor
has had a meaningful opportunity to be heard.
                                             6
being bullied and her persistence in requesting the bully‟s transfer to another classroom.

Mentor did not raise this claim below. “This court has consistently held that it will not

consider issues that are raised for the first time on appeal.” Harris v. City of Phila., 35

F.3d 840, 845 (3d Cir. 1994).5

       We will affirm the judgment of the District Court.




5
 We have relaxed this practice “where a gross miscarriage of justice would occur[.]”
Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976) (citing
Hormel v. Helvering, 312 U.S. 552 (1940)). We are not persuaded that a gross
miscarriage of justice would result here.
                                            7
