                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2008

Milham v. Cortiva Ed Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4468




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                                                                   NOT PRECEDENTIAL


                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT


                                           _________

                                          No.07-4468
                                          _________


                                    DONALD J. MILHAM,

                                                          Appellant
                                               v.

                                CORTIVA EDUCATION, INC.

                                    ___________________

                          Appeal from the United States District Court
                            for the Eastern District of Pennsylvania
                                     Case No. 06-CV-04226
                               (Honorable Michael M. Baylson)

                                     __________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    on October 30, 2008

                   Before: McKEE, NYGAARD, and SILER* Circuit Judges



                                  (Filed : December 12, 2008)


___________________

* Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
                                   OPINION OF THE COURT

McKEE, Circuit Judge

       Donald Milham appeals the district court’s grant of summary judgment in favor of

Cortiva Education, Inc on Milham’s ADEA claim and his state CEPA claim. For the reasons that

follow, we will affirm.

                                                  I.

       Because we write primarily for the parties who are familiar with this case, it is not

necessary to recite the factual or procedural background. In the thorough and thoughtful opinion

that was filed October 26, 2007, Judge Baylson details the allegations and evidence in this case

and explains why Cortiva is entitled to summary judgment pursuant to the burden-shifting

analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Milham v. Cortiva,

2007 U.S. Dist. Lexis 79793 (E. D. Pa. 2007). Judge Baylson explained that Milham did

establish a prima facie case, but he failed to “ present[] . . . evidence to create a genuine issue of

material fact regarding the credibility of Defendant’s legitimate non-discriminatory reason for

terminating him.” Id., at *21.

       The district court acknowledged that Milham did produce evidence that Wargo told him

that “wearing ties to work was ‘old school,’” and gave the perception of an “old professor” that

was “unapproachable” by students. Id., at *16. However, as the district court explained,

although comments by a decision-maker can constitute circumstantial evidence of discrimination,

see Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995), the comments of one manager

that are this attenuated from the decision to terminate are not enough to survive summary

judgment without more than appears on this record. See Waldron v. SL Indus., Inc., 56 F.3d 491,


                                                   2
502 (3d Cir. 1995). Accordingly, we will affirm the grant of summary judgment in favor of

Cortiva on Milham’s ADEA claim substantially for the reasons set forth by the district court.

                                                II.

       We also agree with the district court’s analysis of Milham’s CEPA claim under New

Jersey law. As the district court explained, Milham has failed to raise a genuine issue of material

fact about the causation element of his CEPA cause of action. The court noted: “Plaintiff can

show no causal link, beyond a temporal connection, between his alleged whistle-blowing

activities and his firing.” Milham, 2007 U.S. Dist. Lexis 79793. The district court thus

concluded that Milham “can provide absolutely no evidence . . . to rebut Defendant’s claim that

he was fired because of his job performance.” Id., at 27.

                                               III.

       For all of the above reasons, we will affirm the district court’s grant of Cortiva’s motion

for summary judgment for the ADEA claim and New Jersey CEPA claim.




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