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


6-23-2005

Viggiano v. New Jersey
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3625




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CPS-188                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 04-3625
                                  ________________

                               MICHAEL VIGGIANO,
                                        Appellant

                                             v.

            STATE OF NEW JERSEY; NEW JERSEY DEPARTMENT
          OF CORRECTIONS; CHARLES MORRIS; STEVEN PARKELL;
                        GEORGE BLASKEWICZ

                              _______________________

                    On Appeal From the United States District Court
                           For the District of New Jersey
                            (D.C. Civ. No. 99-cv-02630)
                          District Judge: William J. Martini
                    _______________________________________

 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 31, 2005

                  Before:    Alito, McKee and Ambro, Circuit Judges

                                (Filed: June 23, 2005)
                               ____________________

                                      OPINION
                              _______________________
PER CURIAM

      Michael Viggiano appeals pro se the order of the United States District Court for

the District of New Jersey granting summary judgment to the State of New Jersey, the
New Jersey Department of Corrections (“DOC”), Charles Morris, Steven Parkell, and

George Blaskewicz (collectively, “defendants”) in his employment discrimination action.

Because no substantial question is presented by this appeal, we will summarily affirm the

District Court’s order. See Third Circuit LAR 27.4 and I.O.P. 10.6.

       As we write for the parties, we need only review the pertinent facts and procedural

history of the underlying matter. Viggiano was hired as a corrections officer by the DOC

in 1983. In January 1997, Viggiano, along with seventeen other DOC employees, filed a

charge of national origin discrimination with the Equal Employment Opportunity

Commission (“EEOC”). The January 1997 charge alleged that the DOC discriminated

against Italian-Americans by using the term “WOP” as an acronym to describe “leave

without pay.” The parties entered into a settlement agreement on May 20, 1997, which

provided, inter alia, that the DOC would remove the term “WOP” from its documents

and administrative system, not tolerate the use of the term in the workplace, and not

discriminate or retaliate against Viggiano because of the filing of the charge or his

national origin.

       In September 1997, Viggiano filed additional charges with the EEOC alleging

retaliation and national origin discrimination. In February and September 1999, the

EEOC issued two determinations in which it found “reason to believe” that violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) had

occurred.



                                              2
       On June 8, 1999, Viggiano filed the underlying counseled complaint in the District

Court. In his complaint, Viggiano alleged that the defendants retaliated against him in

violation of Title VII after he engaged in protected activity, and discriminated against him

because of his national origin in violation of the New Jersey Law Against Discrimination

(“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq. While his complaint was pending in the

District Court, the DOC Special Investigations Division (“SID”) concluded that Viggiano

had accepted and used the legal services of an inmate, George Riley, in violation of the

Law Enforcement Personnel Rules and Regulations.1 As a result, Viggiano was

terminated effective February 2, 2000.

       On August 18, 2004, the District Court granted the defendants’ motion for

summary judgment in the underlying case.2 Viggiano timely appealed. Viggiano has

been granted leave to proceed in forma pauperis and has filed a motion for appointment

of counsel.



   1
     A total of six officers were charged with undue familiarity with an inmate stemming
from the SID’s investigation. One other officer had been a party to the January 1997
EEOC charge. The remaining four officers are African-American.
   2
      In the meantime, Viggiano and twenty-three other DOC employees filed a complaint
in the District Court for the District of New Jersey alleging that the DOC’s continued use
of the acronym “WOP” violated Title VII. See Decibus, et al. v. State of New Jersey
Department of Corrections, et al., D. NJ. 00-cv-03261. The plaintiffs subsequently
amended their complaint to allege that they were subjected to a hostile work environment
in violation of Title VII and the NJLAD. In June 2001, the District Court dismissed the
amended complaint without prejudice, and the plaintiffs’ motion for reconsideration was
subsequently denied. This Court dismissed the plaintiffs’ appeal for failure to prosecute
in November 2003. See C.A. No. 03-2981.

                                             3
       We exercise plenary review of an order granting summary judgment. See McLeod

v. Hartford Life & Acc. Ins. Co., 372 F.3d 618, 623 (3d Cir. 2004). A grant of summary

judgment will be affirmed if our review reveals that “there is no genuine issue as to any

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

R. Civ. P. 56(c). We view the facts in the light most favorable to the party against whom

summary judgment was entered. See Coolspring Stone Supply, Inc. v. American States

Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993). We may affirm the District Court on any

grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000)

(en banc).

       To establish a prima facie case of unlawful retaliation under Title VII, a plaintiff

must show that: (1) he engaged in protected activity; (2) the employer took an adverse

employment action against him; and (3) a causal link exists between the protected activity

and the adverse employment action. See Weston v. Commonwealth of Pennsylvania, 251

F.3d 420, 430 (3d Cir. 2001); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d

Cir. 1997). If the plaintiff establishes a prima facie case of retaliation, the employer must

come forward with a legitimate, non-retaliatory reason for the adverse employment

action. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 & n. 2 (3d Cir. 1997). If the

employer is able to meet this burden, then the plaintiff must demonstrate that the

proffered reason was merely a pretext for unlawful retaliation. See id. Here, the District

Court concluded that Viggiano established a prima facie case of retaliation, but that he



                                              4
failed to show that the defendants’ proffered reasons for its actions were a pretext for

unlawful retaliation.

       Title VII prohibits action which would “deprive or tend to deprive any individual

of employment opportunities or otherwise adversely affect his status as an employee.” 42

U.S.C. § 2000e-2(a). Retaliatory conduct other than discharge or refusal to hire is

proscribed by Title VII “only if it alters the employee’s compensation, terms, conditions,

or privileges of employment, deprives him . . . of employment opportunities, or adversely

affects his status as an employee.” Robinson, 120 F.3d at 1300 (internal quotations

omitted). In short, not everything that makes an employee unhappy qualifies as

retaliation. See id.

       Viggiano alleged in the District Court that the defendants retaliated against him by:

verbally reprimanding him for wearing an improper belt; ordering him to wear a

protective vest which exacerbated a skin condition;3 denying him time off for personal

and medical reasons; verbally reprimanding him in front of other officers; disciplining

him for failing to call off duty; and terminating his employment. Although the District

Court seemed to find otherwise, we conclude that Viggiano failed to establish how, with

the exception of his termination, these alleged “retaliatory” acts effected the terms or

conditions of his employment. See Weston, 251 F.3d at 431; Robinson, 120 F.3d at 1301.



   3
     Viggiano, however, conceded at his deposition that, although he was being fitted for
the vest at the time of his termination, he was never actually required to wear it. Viggiano
Dep. at 124.

                                              5
Viggiano has not alleged that he was demoted, had his work schedule changed, was

reassigned to a different position or location within the DOC, had his hours changed or

altered, or was denied a pay raise or promotion as a result of the defendants’ alleged

actions. See Weston, 251 F.3d at 431. We cannot, therefore, characterize these alleged

incidents as adverse employment actions. As such, we will focus only on whether the

defendants retaliated against Viggiano when they terminated his employment in February

2000.

        Assuming arguendo that Viggiano established a prima facie case of retaliation as

to his February 2000 termination, the District Court properly granted summary judgment

to the defendants on this claim. The defendants asserted that they terminated Viggiano’s

employment because he engaged in unduly familiar activities with an inmate and they

introduced ample evidence in the District Court to support this assertion, including the

report and supplementary report detailing the SID’s investigation and Hearing Officer

Mary Wirth’s report sustaining Viggiano’s termination. Moreover, for the reasons fully

discussed by the District Court, Viggiano failed to demonstrate that this reason was

actually a pretext for retaliation. See Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994)

(concluding that to survive summary judgment a plaintiff must produce evidence which

either discredits an employer’s articulated reason or shows that retaliation was more likely

than not a motivating or determinative cause of the employer’s action). Thus, the District

Court did not err in granting summary judgment to the defendants on Viggiano’s



                                             6
retaliation claim.

       Likewise, the District Court did not err in granting summary judgment to the

defendants on Viggiano’s claim of national origin discrimination.4 The NJLAD makes it

unlawful for an employer to discriminate against an employee because of his national

origin. See N.J.S.A. § 10:5-1(a). In analyzing claims under the NJLAD, courts apply the

familiar burden-shifting framework articulated by the Supreme Court in McDonnell-

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Erikson v. March & McLennan Co.,

Inc., 569 A.2d 793, 798-99 (N.J. 1990); Williams v. Pemberton Twp. Public Schools, 733

A.2d 571, 575-76 (N.J. Super. Ct. Div. 1999). To set forth a prima facie case of

discriminatory discharge under the NJLAD, it was incumbent upon Viggiano to show

that: (1) he is a member of a protected class; (2) he was qualified for the position from

which he was discharged; and (3) others not in the protected class were treated more

favorably. See McDonnell, 411 U.S. at 802. Here, the District Court assumed that

Viggiano could establish a prima facie case of national origin discrimination, but granted

the defendants summary judgment because he failed to raise a genuine issue of fact as to



   4
     It appears as though Viggiano may have attempted to allege in the District Court a
claim of hostile work environment under the NJLAD based upon the DOC’s continued
use of the term “WOP.” The District Court did not address this claim. However, we note
that Viggiano, represented by counsel, failed to develop this claim either factually or
legally in the District Court. See, e.g., Lehman v. Toys ‘R’ Us, Inc., 626 A.2d 445, 453-
54 (N.J. 1993) (it is the plaintiff’s burden to establish that the complained-of conduct: (1)
would not have occurred but for the employee’s protected status, and was (2) severe or
pervasive enough to make a (3) reasonable person believe that (4) the conditions of
employment have been altered and that the working environment is hostile or abusive).

                                              7
whether their reason for terminating his employment was merely a pretext for

discrimination. For the reasons already discussed herein and by the District Court, we

agree that Viggiano failed to show that the defendants’ legitimate, non-discriminatory

reason for his termination (i.e., an internal investigation conclusion of undue familiarity

with an inmate) was a pretext for discrimination.

       For the foregoing reasons, we will summarily affirm the judgment of the District

Court. Viggiano’s motion for appointment of counsel is denied. See Tabron v. Grace, 6

F.3d 147, 155-56 (3d Cir. 1993).




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