Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-15-2004
Barber v. Univ Medicine
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2033
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2033
RICHARD E. BARBER,
Appellant
v.
UNIVERSITY OF MEDICINE AND DENTISTRY
OF NEW JERSEY; JAMES A. ARCHIBALD;
LOUIS C. GOETTING; ELLEN M. CASEY;
RONA ZORN; LINDA LUCIANO; BRUCE KENNY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 01-cv-02836
District Judge: The Honorable Jose L. Linares
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2004
Before: ALITO, BARRY, and FUENTES, Circuit Judges
(Opinion Filed: December 15, 2004 )
OPINION
BARRY, Circuit Judge
I.
Appellant Richard Barber filed a complaint in the United States District Court for
the District of New Jersey against the University of Medicine and Dentistry of New
Jersey (“UMDNJ”) and several UMDNJ employees, alleging, as relevant here, violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The District
Court granted appellees’ motion for summary judgment and Barber appealed. We have
jurisdiction under 28 U.S.C. § 1291, and will affirm.
II.
We will set forth only those facts necessary to our decision. Barber is an African-
American male who was hired in 1993 to serve as Director of the Purchasing Department
at UMDNJ. The Purchasing Department was responsible for the procurement of goods
and services for UMDNJ. In 1998, Barber applied for the newly-created position of
Executive Director of Material Management (“Executive Director”). The Executive
Director was to be responsible for the supervision of several UMDNJ departments,
including the Purchasing Department, and would report to James Archibald. UMDNJ
interviewed Barber for the position, but ultimately hired Louis Goetting, a white male. In
the spring of 1999, the Executive Director position again became vacant. Although
Barber reapplied and was reinterviewed, UMDNJ hired Ellen Casey, a white female.
Barber alleges that Casey acted antagonistically towards him, while appellees
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argue that Barber failed to follow directives and was repeatedly insubordinate. Barber
further claims that Archibald evaded UMDNJ’s bidding procedures for the purchase of
copiers, and that he was punished for exposing this alleged misdeed.
In late 1999, Barber filed two internal discrimination complaints with the
UMDNJ’s Office of Affirmative Action/Equal Opportunity. On March 28, 2000, the
Office determined that none of Barber’s claims could be substantiated. On April 10,
2000, UMDNJ terminated his employment. He timely appealed.
III.
We review the District Court's grant of summary judgment de novo. Sempier v.
Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1995). Summary judgment is proper “if
there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment will be
warranted only if the record contains insufficient evidence to allow a reasonable jury to
find in favor of the non-moving party at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). All facts and reasonable inferences therefrom are viewed in the light
most favorable to the non-moving party. Eddy v. V.I. Water & Power Auth., 369 F.3d
227, 228 n.1 (3d Cir. 2004).
A. Failure to Promote
The shifting burdens in employment discrimination cases are well understood. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Applying these
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burdens here, the District Court found that Barber had set forth a prima facie case, and
this finding does not appear to be in dispute. Next, in response to the prima facie
showing, appellees satisfied their burden to “produce evidence that the plaintiff was
rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). Specifically,
appellees provided evidence that both Goetting and Casey had past governmental
experience superior to that of Barber. The burden of production then shifted back to
Barber to “prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimination.” Jones
v. School Dist., 198 F.3d 403, 410 (3d Cir. 1999) (citing Burdine, 450 U.S. at 252-53).
The discrimination Barber alleges is discrimination based on race.
Barber heavily emphasizes his nuclear safety background, and argues that
appellees changed or ignored their own hiring criteria regarding the need for the
Executive Director to have knowledge of radioactive material. Citing to Stern v. Trustees
of Columbia Univ., 131 F.3d 305 (2d Cir. 1997), Barber argues that such “deviation from
hiring standards” is “subject to scrutiny” under Title VII. Stern does not help Barber if
for no other reason than that the very powerful facts of Stern are readily distinguishable
from the facts here. The plaintiff in Stern was highly qualified and highly regarded non-
Hispanic Professor of Spanish who applied for, but did not receive, a position as Director
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of the Spanish Language Program at Columbia University. As relevant to Barber’s
“deviation from hiring standards” argument, the Court of Appeals for the Second Circuit
found evidence that the successful candidate was selected through the University’s
“unprecedented appointment of an interdepartmental search committee a majority of
whose members . . . were not competent to assess crucial skills of candidates for the
director position [and] that this atypical committee was created because of the belief that
Stern would likely win the position if normal procedures were followed . . . .” 131 F.3d
at 313. No such evidence of deviation is seen here.
Even assuming, arguendo, that Barber’s background in nuclear safety was superior
to that of Goetting and Casey, it is uncontroverted that they possessed qualifications that
Barber lacked. Indeed, at his deposition, Barber testified that “I am an African-American,
whether that entered into that thinking [concerning the hiring decision], I don’t know, but
the fact suggests to me that I was not selected because I’m African-American
notwithstanding the fact that my credentials were ideally suited for the position . . . .”
Appendix (“A”) at 363. Barber may speculate that this is so, but he failed to produce any
evidence that appellees’ proffered reasons for not promoting him were a pretext for
discrimination based on race. As the District Court put it, Barber “has not put forth any
evidence from which the Court can infer that a frank evaluation of qualifications did not
fully motivate the decision to hire Goetting and then Casey.” A10-11.
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B. Hostile Work Environment
In order to successfully bring an action under Title VII for a hostile work
environment, Barber was required to prove the following: (1) he suffered intentional
discrimination because of his race; (2) the discrimination was pervasive and regular; (3)
the discrimination detrimentally affected him; (4) the discrimination would detrimentally
affect a reasonable person of the same race in that position; and (5) the existence of
respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir. 1990) (citing Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir.
1986)).
Viewing all the facts and the reasonable inferences therefrom in the light most
favorable to Barber, we agree with the District Court that Barber failed to prove these
elements. He complains that he was treated rudely by Casey, and that Casey employed
“divisive managerial tactics” which undermined his authority, including an incident
where Goetting and Casey met privately with the only white subordinate on Barber’s
three-person staff. While there was clearly friction between Casey and Barber, there is no
evidence that Casey’s behavior stemmed from any racial animus. Instead, the friction
between them appears to be simply the result of clashing managerial styles, which do not
give rise to a cause of action under Title VII.
C. Retaliation
Barber also contends that the District Court erred in granting summary judgment
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on his retaliation claim. To establish a prima facie case of retaliation, Barber was
required to demonstrate that: (1) he engaged in a protected employee activity; (2) the
employer took an adverse employment action after or contemporaneous with the protected
activity; and (3) a causal link exists between the protected activity and the adverse action.
Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001).
If he established a prima facie case, the McDonnell Douglas burden-shifting framework
discussed above applied.
All parties agree that Barber satisfied the first two prongs of the prima facie case.
Barber failed, however, to provide any evidence of a causal link between the adverse
action he received and the internal discrimination complaints he filed. Although he was
terminated only a few months after he filed his internal complaints, “temporal proximity
alone will be insufficient to establish the necessary causal connection when the temporal
relationship is not ‘unusually suggestive.’” Farrell v. Planters Lifesavers Co., 206 F.3d
271, 280 (3d Cir. 2000). Instead, “each case must be considered with a careful eye to the
specific facts and circumstances encountered.” Id. at 279 n.5. There is nothing
“unusually suggestive” here. Rather, what is seen are numerous incidents involving
clashes with Casey and insubordination by Barber, albeit occurring after he filed his
internal complaints, but with no causal link shown between those complaints and his
termination.
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D. Retaliation under CEPA and New Jersey Common Law
The District Court correctly held that any claim Barber may have had under the
Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et seq., was time-
barred pursuant to CEPA’s one-year statute of limitations, and that he failed to
demonstrate any basis for equitable tolling. With respect to his common law whistle-
blower claim, Barber failed to demonstrate that appellees’ actions ran contrary to a “clear
mandate of public policy,” as required under New Jersey law. Ballinger v. Delaware
River Port Authority, 172 N.J. 586, 605 (2002).
E. Wage Discrimination
Barber also appeals the District Court’s dismissal of his claim for wage
discrimination under Title VII. As the District Court correctly noted, Barber failed to
produce any evidence that he received less compensation than his white counterparts.
IV.
We will affirm the March 12, 2004 order of the District Court granting appellees’
motion for summary judgment.
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