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


3-11-2005

Coefield v. GPU
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2081




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 04-2081


                                  JAMES COEFIELD

                                                       Appellant

                                            v.

                    GPU, FIRST ENERGY, DENNIS McGINNIS,
                      ROBERT SHERMAN, LARRY HAYES




                    On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 02-cv-2000)
                     District Judge: Honorable Stanley R. Chesler


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 8, 2005

   Before: SCIRICA, Chief Judge, ROTH, and VAN ANTWERPEN, Circuit Judges.

                                (Filed: March 11, 2005)


                                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

      Before us is an appeal of an order by the United States District Court for the

District of New Jersey granting summary judgment in favor of Appellees. For the
foregoing reasons, we affirm the decision of the District Court.

                                          I. Facts

       Because we write only for the parties, we shall only restate the facts pertinent to

our analysis. James Coefield (“Appellant”) is an African-American who at all times

relevant to this lawsuit was employed by Jersey Central Power and Light Company

(“JCP&L”).1 In June 2001, JCP&L posted a job opening for the position of Senior Relay

Technician. After a more senior Caucasian employee withdrew his bid for this posting,

Appellant applied for, and was awarded, the position over two other Caucasian employees

who had also applied.

       Appellant was a member of Local Union 1289 of the International Brotherhood of

Electrical Workers, and was also a member of a different local covered by the same

collective bargaining agreement at all times relevant to this suit. Sometime in 2000, these

organizations met with JCP&L management and agreed that the JCP&L’s Central New

Jersey Region (where Appellant worked) would adopt the same testing procedure that had

been used in the Northern Region for approximately 20 years to test candidates for

promotion to Senior Relay Technician. All future candidates for the Senior Relay

Technician position in the Central Region would be required to take this test, which

included the “230 kV line trip test.”

       Appellant thereafter began the 90-day qualification period mandated by the

   1
    Appellee FirstEnergy Corp. is a holding company that purchased JCP&L. JCP&L
previously did business under the name GPU Energy.

                                             2
collective bargaining agreement. During this time, JCP&L did not schedule the tests

required to promote Appellant, nor did it inform him he would be subject to the additional

testing. At the end of this period, Appellant was informed that he would have to pass five

categories of testing criteria, including the 230kV line trip test. In order to prepare for

this test, Appellant was scheduled to work with a senior relay technician for

approximately one week. He also prepared with another relay technician (who was

assigned to assist him on the actual test) for two or three days.

       Appellant was tested on November 15, 2001. He made five errors, and failed the

test. Appellant then filed a union grievance, which JCP&L denied, citing a clause in the

collective bargaining agreement giving it exclusive authority to determine promotions.

       It was thereafter decided that Appellant’s qualification period would be extended

so as to allow him another opportunity to pass the required tests. Appellant disagreed

with this course of action, arguing that, because there was no signed agreement between

JCP&L and his union relating to testing, the entire process was unfair. Despite his

protests, Appellant was given a document detailing the five testing criteria he would have

to pass. He was also informed in January 2002 that, if he qualified for the promotion

after the next test, he would receive back-pay retroactive to the end of his initial

qualifying period.

       Appellant retook his test on February 4, 2002. At its conclusion, he was

immediately informed that he had passed. On February 21, 2002, his promotion became



                                              3
official, and JCP&L confirmed that the promotion was retroactive to the end of his initial

qualifying period. He was also paid all promised back-pay.2

       Appellant brought suit in the Superior Court of New Jersey, Law Division, Ocean

County Division, alleging ten causes of action based on the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (“NJLAD”), and various common law

torts. Appellees timely removed the case to federal district court. Thereafter, Appellant

was granted permission to file a second amended complaint, in which he omitted all

employment claims implicating federal law. He moved for remand to the New Jersey

Superior Court, but was denied. Following discovery, Appellees moved for summary

judgment on all remaining counts. A motion hearing was held on October 21, 2003, and

the District Court granted Appellees’ motion on March 25, 2004. This appeal followed.

                        II. Jurisdiction and Standard of Review

       The District Court originally had jurisdiction over this case pursuant to 28 U.S.C.

§§ 1331, 1367 and 1441.3 Our review of the District Court’s summary judgment order in


   2
     After Appellant’s promotion, two Caucasian males also applied for a promotion to
the position of Senior Relay Technician. Both were required to pass the same tests that
had been administered to Appellant. One applicant passed the examination, while the
other failed. The latter candidate was given another opportunity to retake the test similar
to the one offered to Appellant.
   3
    Several of Appellant’s original state law claims required the interpretation of
provisions of the relevant collective bargaining agreement between his union and JCP&L,
and hence were preempted by the Labor Management Relations Act of 1947, 29 U.S.C. §
185, et. seq. See Antol v. Esposto, 100 F.3d 1111, 1117-18 (3d Cir. 1996). Following
Appellant’s amendment of his complaint (purging it of all claims implicating federal
law), the District Court had the discretion to retain or remand the remaining state law

                                             4
favor of Appellees is plenary. Torres v. McLaughlin, 163 F.3d 169, 170 (3d. Cir. 1998).

In reviewing grants of summary judgment, we apply the same test employed by a district

court under Rule 56. See Kelley v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir.

1988). Accordingly, we will find the District Court’s grant of summary judgment in favor

of Appellees to have been proper only if it appears “that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). In reviewing all evidence in the record, we are required “to view

the inferences to be drawn from the underlying facts in the light most favorable to the

party opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999). A

plaintiff cannot resist a properly supported motion for summary judgment merely by

restating the allegations of his complaint – rather, he must point to concrete evidence in

the record that supports each and every essential element of his case. Celotex v. Catrett,

477 U.S. 317, 322 (1986). It is in this regard that Appellant, by and through his counsel,

misapprehends his obligation as a non-movant responding to a motion for summary

judgment.

                                      III. Discussion

       Appellant asserted three state law claims before the District Court: (1) Failure to

Promote Based on Plaintiff’s Race; (2) Hostile Work Environment and Discrimination;

and (3) Intentional Infliction of Emotional Distress. “Except in matters governed by the



claims. Carnegie-Melon Univer. v. Cohill, 484 U.S. 343, 357 (1988).

                                             5
Federal Constitution or by acts of Congress, the law to be applied in any case is the law of

the State.” Erie R. R. v. Tompkins, 304 U.S. 64, 78 (1938). “In so doing, we are not free

to impose our own view of what state law should be; we are to apply state law as

interpreted by the state’s highest court. In the absence of guidance from that court we are

to refer to decisions of the state’s intermediate appellate courts for assistance in

determining how the highest court would rule.” McKenna v. Pacific Rail Service, 32

F.3d 820, 825 (3d Cir. 1994) (citations omitted). Our determination today is therefore

governed by the laws of the State of New Jersey and the rulings of its courts. We shall

discuss the District Court’s disposition of each claim in turn.

A. Failure to Promote Based on Appellant’s Race

       The District Court concluded that Appellant had failed to put forth evidence that

established a prima facie case for failure to promote due to race discrimination. The

Supreme Court of New Jersey has adopted the methodology of the United States Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “as a starting point in

actions brought under the [NJLAD].” Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 490

(N.J. Sup. Ct. 1982). Under this methodology, a court must first determine whether or not

a plaintiff has established a prima facie case of discrimination, demonstrating by a

preponderance of the evidence that he (1) belongs to a protected class, (2) applied for and

was qualified for a position for which the employer was seeking applicants, (3) was

denied promotion, and (4) others with similar or lesser qualifications achieved promotion.



                                               6
Dixon v. Rutgers, The State Univ. of New Jersey, 541 A.2d 1046, 1051-52 (N.J. Sup. Ct.

1988).

         Appellant is clearly a member of a protected class, and the District Court presumed

that he was qualified for the Senior Relay Technician position. Where his first claim

stumbles is with regard to whether he was actually denied promotion. It is undisputed

that Appellant’s promotion was delayed during the second 90-day probationary period

following his failure of his qualification exam. However, it is also undisputed that, upon

passing the second examination, he was in fact promoted to the position of a Senior Relay

Technician, and received the pay raise commensurate with such a promotion that was

applied retroactively to the end of his first probationary period. We fail to see how this

situation can be described as a “denial of promotion.” At most it was, as the District

Court described it, a “delayed promotion.” Contrary to Appellant’s suggestion that such a

characterization is “absurd and offensive,” the fact remains that the particular position

Appellant applied for was essentially reserved for him while he prepared to retake the

qualification exam, since no other applicants were considered. Moreover, several courts

have held that a delayed promotion with retroactive pay does not constitute an adverse

employment action. See Pennington v. Huntsvile, 261 F.3d 1262, 1267 (11th Cir. 2001);

see also Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46 (6th Cir. 1999);

Benningfield v. The City of Houston, 157 F.3d 369, 377-78 (5th Cir. 1998). Finally, even

if we were to construe this as denial within the meaning of the test, there is no evidence in



                                              7
the record that any other applicant with similar or lesser qualifications was promoted in

his place. We therefore conclude that the District Court properly granted summary

judgment in favor of Appellees as Appellant did not establish a prima facie case of

employment discrimination.

B. Hostile Work Environment

       A plaintiff who alleges hostile work environment racial discrimination under the

NJLAD must prove that a defendant’s conduct (1) would not have occurred but for the

employee’s race; and that the conduct was (2) severe or pervasive enough to make a (3)

reasonable person of plaintiff’s race believe that (4) the conditions of employment are

altered and the working environment is hostile or abusive. Taylor v. Metzger, 706 A.2d

685, 688-89 (N.J. Sup. Ct. 1998) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445,

453 (N.J. Sup. Ct. 1993)). The District Court cited Appellant’s failure to present

evidence demonstrating that harassment took place because of his race, and concluded

summary judgment was appropriate as to this claim.

       We agree. Appellant has not pointed us to a single fact suggesting that any

Appellee has acted in any particular way because of his race, nor could we find one

during our independent review. It is undisputed that the qualification exam had been in

place in the JCP&L’s North Region for some time, and that the decision to apply it to

employees of the Central Region predated Appellant’s application for promotion.

Appellant presents nothing to support his argument that race played any part whatsoever



                                             8
in the adoption of the North Region’s testing scheme by the Central Region. There is no

evidence that the employee who first applied for the position, a Caucasian, would not

have been subject to the same test. Finally, the same test was given to the next two

applicants for Senior Relay Technician, both of whom were Caucasian. The mere

existence of new testing criteria is insufficient to satisfy Appellant’s burden.4 As such,

summary judgment was properly granted here as well.

C. Intentional Infliction of Emotional Distress

       To establish a claim for intentional infliction of emotional distress, a party must

demonstrate that (1) a defendant acted intentionally or recklessly; (2) this conduct was

extreme and outrageous; (3) this conduct was the proximate cause of plaintiff’s emotional

distress; and (4) the distress was severe. Buckley v. Trenton Savings, 544 A.2d 857, 863

(N.J. Sup. Ct. 1988). The District Court concluded as a matter of law that Appellees’

conduct was neither extreme nor outrageous.

       This conclusion was correct. “Examples of conduct found to be extreme and

outrageous by New Jersey courts include, when a physician, knowing it to be false, told

parents their son was suffering from cancer; spreading a false rumor that plaintiff’s son

   4
     Appellant’s accusation that his supervisor was “vindictive” toward him gets him no
further. He testified that the supervisor was also vindictive to Caucasians, and “no
NJLAD violation [lies] if the same conduct would have occurred regardless of [a]
plaintiff’s [race].” Lehmann, 626 A.2d at 454. Despite his repeated assertions that his
supervisor told racial jokes, we note that Appellant testified that his supervisor never
made a racial joke in his presence. Further, nothing in the record suggests that any party
to this claim ever made any racial joke regarding African-Americans, in or outside of
Appellant’s presence.

                                              9
had hung himself; bringing a mob to plaintiff’s door with a threat to lynch him if he did

not leave town; and wrapping up a gory dead rat inside a loaf of bread for a sensitive

person to open.” McConnell v. State Farm Mut. Ins. Co., 61 F. Supp. 2d 356, 363

(D.N.J.1999) (citing Hume v. Bayer, 428 A.2d 966, 968 (N.J. Super Ct. Law Div. 1981))

(internal quotation marks omitted). The acts that Appellant claims are extreme and

outrageous are the exact same acts he cites in support of his NJLAD discrimination

claims, which, as we have discussed, are without merit. “As [he] is unable to make a

prima facie case for unlawful discrimination, [he] is perforce unable to prevail on [his]

claim for emotional distress damages based upon the same conduct.” Rosario v. Cacace,

767 A.2d 1023, 1030 (N.J. Super. Ct. App. Div. 2001); see also Griffin v. Tops Appliance

City, Inc., 766 A.2d 292, 297 (N.J. Super. Ct. App. Div. 2001) (holding that, except in the

case of aggravated discriminatory conduct, “it is extremely rare to find conduct in the

employment context that will rise to the level of outrageousness necessary to provide a

basis for recovery for the tort of intentional infliction of emotional distress”). Therefore,

summary judgment was appropriately granted as to this third cause of action.

                                      IV. Conclusion

       Because Appellant has failed to support the essential components of each claim

with record evidence, the District Court properly concluded that Appellees were entitled

to summary judgment as to each of the three causes of action. We therefore affirm the

decision of the District Court.



                                             10
