                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2007

Hart v. Hillside Twp
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1983




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Recommended Citation
"Hart v. Hillside Twp" (2007). 2007 Decisions. Paper 1331.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1331


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                                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                     No. 06-1983



                                  TIMOTHY HART,
                                            Appellant,

                                            v.

               TOWNSHIP OF HILLSIDE; HILLSIDE FIRE DEPT;
              CHRISTOPHER ALFANO; FRANK W. CASWELL, SR.;
                        KAREN MCCOY-OLIVER,



                  On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No. 03-cv-05841)
                 District Judge: Honorable Joseph A. Greenaway, Jr.



                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2007

    Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge



                                       OPINION
                                        ____
POLLAK, District Judge.


                  *
                   Hon. Louis H. Pollak, Senior Judge, United States District
           Court for the Eastern District of Pennsylvania, sitting by
           designation.
       Timothy Hart appeals the grant of summary judgment against him arising from

his non-selection as a firefighter with the Hillside Fire Department. The District of New

Jersey exercised jurisdiction under 28 U.S.C. § 1331; 38 U.S.C. § 4323(b)(3); and 28

U.S.C. § 1367. We have appellate jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. §

1367. For the reasons explained herein, we affirm.

                                            I.

       Because we write primarily for the parties, we discuss only those facts necessary

to our decision. On November 1, 2001, the Hillside Township Clerk wrote the New

Jersey Department of Personnel (NJ DOP) to ask for a certificate of eligible candidates1

for the position of firefighter in Hillside. In December 2001, Hart submitted his

application for employment as a firefighter with the Hillside Fire Department. At the

time, he was a member of the New Jersey Army National Guard, but did not provide any

information on his application concerning his current military obligation.

       In March 2002, Hart was invited to interview with the fire department. At the

interview, he mentioned that he was a member of the National Guard, prompting at least



                   1
                     The NJ DOP “certificate of eligibles” ranked candidates
            that were considered eligible for the position on the basis of their
            written and physical exams. The Hillside Fire Department was free
            to determine which of the candidates were preferred based on their
            own criteria, such as a psychological evaluation or criminal history
            check. Indeed, some candidates listed as eligible on the NJ DOP
            list were later removed from the list because, upon evaluation by
            the Hillside Fire Department, it was determined that they were
            actually not eligible.

                                            2
thirteen questions about his military obligation. Following his interview, Hart submitted

to a psychological evaluation, which was the next step in the hiring process.

       On April 19, 2002, the Firefighter Selection Committee submitted a memorandum

ranking the preferred eligible candidates for the firefighter position. The list read as

follows:

    1. Louis Whitaker
    2. Michael Moran
    3. Christopher Alfano
    4. John Kozar
    5. Jeffrey Barron
    6. Timothy Hart

A171. Hart was listed sixth in the list of six candidates.2 On May 13, 2002, Hillside

hired two new firefighters, Louis Whitaker and Michael Moran, who were listed as the

first and second choices on the Firefighter Selection Committee’s list of candidates.

       On May 15, 2002, the Firefighter Selection Committee issued an additional

memorandum listing in the preferred order those candidates recommended for the



                    2
                       On April 22, 2002, then-Fire Chief Frank Caswell issued
             a memorandum to the mayor explaining the recommendation of the
             Firefighter Selection Committee. This memorandum included an
             identical preference list of the candidates, and explained how the
             preference list was compiled after a review of “their application
             submittals, background checks, criminal history check, medical
             evaluation, drug testing[,] and psychological results.” A176. With
             regard to Hart, the memorandum noted: “One final candidate, Mr.
             Timothy Hart, who has finished sixth in the process due to his
             interview and background check, is not recommended for hiring
             at this time. He shall remain on the list for future consideration.”
             Id.

                                              3
firefighter position in the event that Hillside decided to hire a third new firefighter. This

list was:

    1. Christopher Alfano
    2. Jeffrey Baron
    3. Timothy Hart

A180.3 Based on this list, Hillside hired Christopher Alfano, effective February 24,

2003.

        On September 11, 2003, Plaintiff filed an appeal of his non-selection with the NJ

DOP, contending that he was bypassed for selection because of his membership in the

National Guard. On March 12, 2004, the NJ DOP issued a Final Administrative Action

of the Merit System Board, explaining that “the appointing authority did not treat the

appellant differently than the other applications” and that “there is no violation of any

Merit System law or rules.” A241.

        On December 5, 2003, prior to receiving the NJ DOP’s decision, Hart filed a four-

count complaint in the District Court for the District of New Jersey, contending that he

was bypassed for the Hillside firefighter position because of his membership in the

National Guard, in violation of the Uniformed Services Employment and Reemployment

Rights Act (USERRA), 38 U.S.C. § 4311 et seq., and the New Jersey Law Against




                    3
                      This list mirrors the memorandum of April 19, 2002,
             except that Jonathan Kozar was removed from consideration
             because it was determined that he had falsified information on his
             application. See A180.

                                              4
Discrimination (NJ LAD), N.J. Stat. Ann. 10:5-1 et seq.4 Both parties filed motions for

summary judgment on June 10, 2005.

       On March 17, 2006, the District Court granted defendants’ motion for summary

judgment. This appeal followed.

                                            II.

       Plaintiff appeals the grant of summary judgment against him on both the

USERRA claim and the NJ LAD claim. We will address each in turn. Our standard of

review of a grant of summary judgment is plenary. Gottshall v. Consol. Rail Corp., 56

F.3d 530, 533 (3d Cir. 1995). Summary judgment is only appropriate if there are no

genuine issues of material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In reviewing the District Court’s grant of summary judgment, we

view the facts in a light most favorable to the nonmoving party, and draw all reasonable

inferences in his favor. Gottshall, 56 F.3d at 533.

                                            A.

       Under the USERRA, “A person who is a member of . . . a uniformed service shall

not be denied initial employment . . . by an employer on the basis of that

membership . . . .” 38 U.S.C. § 4311(a). To establish a claim under the USERRA, the

plaintiff has the initial burden of production to show that, by a preponderance of the


                   4
                      Plaintiff additionally alleged a claim under the Open
            Records Act, N.J. Stat. Ann. 47:1A:1 et seq., and a claim for
            slander, but those were dismissed pursuant to a stipulation between
            the parties on February 27, 2006.

                                             5
evidence, “the employee’s military service was ‘a substantial or motivating factor’” in

the adverse employment decision. See Sheehan v. Dep’t of the Navy, 240 F.3d 1009,

1013 (Fed. Cir. 2001). “If this requirement is met, the employer then has the opportunity

to come forward with evidence to show, by a preponderance of the evidence, that the

employer would have taken the adverse action anyway, for a valid reason.” Id. The

statute is explicit that the defendant carries the burden of persuasion once plaintiff has

made his/her initial showing that military service was “a substantial or motivating

factor.” See 38 U.S.C. § 4311(c) (“An employer shall be considered to have engaged in

actions prohibited—(1) . . . if the person’s membership . . . in the uniformed services is a

motivating factor in the employer’s action, unless the employer can prove that the action

would have been taken in the absence of such membership . . . .”).

       In the case at bar, we will assume without deciding that Hart met his prima facie

burden of showing that his membership in the National Guard was “a substantial or

motivating factor” in his non-selection as a firefighter in Hillside Township. See

Sheehan, 240 F.3d at 1013. The burdens of production and persuasion then shift to the

defendants to show that the same action would have been taken anyway. Id. Here, the

defendants provided multiple legitimate, non-discriminatory reasons for Hart’s non-

selection. As the record shows:

    1. Hart seemed to take the interview too casually;5


                    5
                     Defendants contends that Hart used the word “gook”
             during his interview, but Hart claims that this never happened.

                                              6
    2. Hart was inappropriately dressed at the interview;

    3. Hart has a criminal history, including an incident with a BB gun and a
    disorderly persons offense related to an incident with his girlfriend;

    4. Hart has a subpar driving record, including three moving violations and four
    accidents;

    5. Hart’s psychological evaluation suggested that he was immature.

       Hart has put forth no evidence that would dispute any of the above contentions,

all of which constitute legitimate, non-discriminatory reasons for Hart’s non-selection.

Accordingly, we must affirm the District Court’s grant of summary judgment on Hart’s

USERRA claim.6

                                            B.

       Hart contends that the district court applied the wrong burden-shifting framework

to his NJ LAD claim. To this we will now turn.

       The New Jersey Law Against Discrimination (NJ LAD) prohibits an employer

from discriminating against an employee or prospective employee “because of the




            When considering summary judgment, we draw all reasonable
            inferences in favor of the nonmoving party, and therefore will not
            include Hart’s alleged racial slur as a legitimate, non-
            discriminatory reason for his non-selection.
                   6
                     Defendant further contends that his USERRA claim must
            be heard by a jury because there exist disputes of material fact.
            Because we find that defendants are entitled to summary judgment
            as a matter of law, even when all factual inferences are drawn in
            favor of the plaintiff, we conclude that this matter need not go
            before a jury.

                                            7
liability for service in the Armed Forces of the United States.” N.J. Stat. Ann. 10:5-

12(a). When analyzing cases under the NJ LAD, courts look to the closest analogous

federal statute and adopt its evidentiary framework. See Grigoletti v. Ortho Pharm.

Corp., 570 A.2d 903, 906–07 (N.J. 1990) (“The substantive and procedural standards

that we have developed under the State’s LAD have been markedly influenced by the

federal experience.”). In the employment-discrimination context, New Jersey courts

typically look to federal law and employ the burden-shifting framework set forth in

McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Lawrence v. Nat’l Westminster

Bank, 98 F.3d 61, 65 (3d Cir. 1996). “However, the Court has never embraced the

McDonnell Douglas test literally, invariably, or inflexibly.” Grigoletti, 570 A.2d at 907.

Rather, New Jersey courts recognize that the McDonnell Douglas framework “provide[s]

only a general framework for analyzing unlawful discrimination claims and must be

modified where appropriate.” Erickson v. Marsh & McLennan, 569 A.2d 793, 799 (N.J.

1990). Thus, New Jersey courts “have not hesitated to depart from the McDonnell

Douglas methodology if a rigid application of its standards is inappropriate under the

circumstances.” Grigoletti, 570 A.2d at 912.

       In situations where McDonnell Douglas does not fit the circumstances of the case,

New Jersey courts borrow standards from other federal employment discriminations

statutes that better fit the needs of the claims being raised under the NJ LAD. See, e.g.,

Anderson v. Exxon Co., 446 A.2d 486, 495 n.6 (N.J. 1982) (“Our decision . . . comports

with a similar shifting of the burden of proof of affirmative defenses to the employer in

                                             8
suits brought in federal courts under the Equal Pay Act. . . . as compared with litigation

under Title VII of the 1964 Civil Rights Act (42 U.S.C.A. § 2000e et seq.) in which the

burden remains on the plaintiff.”); Brosshard v. Hackensack Univ. Medical Cntr., 783

A.2d 731, 738 (N.J. Super. Ct. App. Div. 2001) (“[W]e take this opportunity to

incorporate the philosophy of sections 12114 and 12210 of the [Americans with

Disabilities Act] into the LAD.”).

       The federal statutory analog to Hart’s NJ LAD claim is the USERRA.

Accordingly, we agree with Hart that, in addressing his NJ LAD claim, the District Court

should have employed USERRA’s burden-shifting framework, as enunciated in

Sheehan, rather than the McDonnell Douglas framework. See Sheehan, 240 F.3d at

1012. As noted above, the key difference between the Sheehan and McDonnell Douglas

frameworks is that, under Sheehan, once the plaintiff has established his/her prima facie

case, the burdens of production and persuasion shift to the defendants to prove that the

adverse employment action would have been taken despite the plaintiff’s protected

status. Id. at 1013.

       However, while we find that the District Court should have applied the USERRA

burden-shifting framework (as explained in Sheehan) to Hart’s NJ LAD claim, rather

than the McDonnell Douglas framework, we also find that, under the correct Sheehan

standard, defendants are entitled to summary judgment. We applied the Sheehan burden-

shifting framework to Hart’s USERRA claim, supra, and affirmed the grant of summary

judgment to the defendants. Analyzing Hart’s NJ LAD claim under the USERRA

                                             9
framework yields the same result.

                                         III.

      For the reasons explained above, we will affirm.




                                          10
