Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-18-2009
Kanal Gaston v. US Postal Ser
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3349
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3349
___________
KANAL V. GASTON,
Appellant
v.
UNITED STATES POSTAL SERVICE, Office of Inspector General (OIG);
JOHN E. POTTER, Postmaster General of the United State Postal Service
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 05-CV-05286)
District Judge: Honorable William J. Martini
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: March 18, 2009)
___________
OPINION
___________
PER CURIAM
Kanal Gaston appeals from an order of the United States District Court for the
District of New Jersey, which granted the Defendant’s 1 summary judgment motion in
Gaston’s employment discrimination action. We will affirm the District Court’s
judgment.
I.
As an initial matter, we must consider the scope of this appeal. The Appellee,
John E. Potter, Postmaster General, has filed a motion to strike those portions of
Appellant’s informal brief and appendix “that deal with matters not considered by or
properly brought before the district court.” That motion is granted. This Court “cannot
consider material on appeal that is outside of the district court record.”
In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d
89, 96 (3d Cir. 1990). Gaston insists in his informal brief that two complaints he filed,
docketed in the District Court at 06-CV-00261 and 06-CV-01513, were consolidated with
the underlying case in this appeal (05-CV-05286). Gaston claims that a July 17, 2006
order by Judge William J. Martini stated that “Gaston’s complaint from the Southern
District of New York be combined or consolidated with Gaston’s New Jersey complaints
into one complaint citing that the matters were identical.” Appellant’s Informal Br. at 3, ¶
6. The Order of July 17 is noted in the docket of 06-CV-00261, consolidating that case
with O6-CV-01513, but it is no comfort to Mr. Gaston because that order did not
1
We agree with the District Court that the only proper defendant was the Postmaster
General. See 42 U.S.C. § 2000e-16(c).
2
consolidate those cases with 05-CV-05286, the underlying case in the instant action.2
Further, the District Court denied Gaston’s application to proceed in forma pauperis in
06-CV-00261, and the docket does not reflect that Gaston paid the fee to proceed or
served defendants with the complaint in that matter. Thus, any allegations that may have
been part of complaints filed in 06-CV-01513 and 06-CV-00261 are not relevant here.
To the extent Gaston raises issues that were not presented before the District Court in the
instant case, we do not consider them. Ross v. Hotel Employees and Restaurant
Employees International Union, 266 F.3d 236, 242 (3d Cir. 2001) (Generally, “absent
compelling circumstances an appellate court will not consider issues that are raised for
the first time on appeal.”).
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s decision to grant summary judgment.
McGreevey v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is
appropriate when the “pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a
summary judgment motion must evaluate the evidence in the light most favorable to the
2
The fact that Defendant may have misread this order, see Attachment A to
Appellant’s Reply Brief, does not change the fact that 05-CV-05286 was not consolidated
with the other cases.
3
nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v.
Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, “When a motion
for summary judgment is properly made and supported, an opposing party may not rely
merely on allegations or denials in its own pleading; rather, its response must--by
affidavits or as otherwise provided in this rule--set out specific facts showing a genuine
issue for trial.” Fed. R. Civ. P. 56(e)(2). The Rule further provides that “If the opposing
party does not so respond, summary judgment should, if appropriate, be entered against
that party.” Id.
Gaston’s complaint, liberally construed, alleged that he was retaliated against for
previously complaining about employment discrimination. To establish a prima facie
case of retaliation in such a case, a plaintiff must show that (1) he engaged in a protected
activity under Title VII; (2) the employer took an adverse action against him; and (3)
there was a causal connection between the employee’s participation in the protected
activity and the adverse employment action. Wilkerson v. New Media Technology
Charter School Inc., 522 F.3d 315, 320 (3d Cir. 2008).
The allegations of Gaston’s complaint may be summarized as follows. Gaston
worked as an Evaluator/Auditor for the United States Postal Service, Office of Inspector
General (OIG). From March 10, 2004 to June 13, 2004, a former supervisor for OIG
made racial slurs and threats against Gaston, threatened to kill him and to burn his new
car, and took away his pay increase without cause or authority. As a result, OIG
4
management signed a mediation agreement with Gaston on June 14, 2004, which, inter
alia, stated that “for a period of eighteen (18) months from date of this signed agreement,
Kanal Gaston will be granted an interview for any new internal/external published
vacancy for which he is qualified, subject to the terms and conditions of employment set
forth in the announcement. These interviews will apply to the Florida and Denver
locations only.” Complaint, dkt. #1, Exh. C-2. Gaston’s complaint alleges that he
applied for a position under Vacancy Announcement 04-38 (for a Criminal Investigator
position in Florida, see Exh. C-3), but received a letter dated October 6, 2004 denying
him the position, “in direct violation of the Agreement.” Complaint, dkt. #1, and
documents attached at Exh. C-3. Gaston also refers to “many other[]” violations, and
cites Exhibit C-4, which contains Vacancy Announcement 04-45 for a “Forensic Auditor”
position in Florida. Complaint, dkt. #1. The complaint alleges that the OIG “continues to
retaliate against Plaintiff because of the complaint he filed.” Id.
In October 2007, the Defendant filed a motion to dismiss, and asked that the
District Court alternatively treat the motion as one for summary judgment. The
Defendant argued that portions of the complaint should be dismissed because Gaston had
failed to timely raise the issues in administrative proceedings, and that the remaining
portions should be dismissed for failure to state a claim upon which relief could be
granted. The District Court treated the motion as one for summary judgment, determined
that Gaston had failed “to present sufficient evidence to create a genuine issue of material
5
fact with respect to his claims,” and thus granted the motion for summary judgment and
dismissed Gaston’s complaint with prejudice.
The District Court could have dismissed Gaston’s complaint for failure to state a
claim upon which relief may be granted. In Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 1965 (2007), the Court noted that “stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest” the elements of a cause
of action. Stated differently, the “[f]actual allegations [of the complaint] must be enough
to raise a right to relief above the speculative level.” Phillips v. County of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008); see also Wilkerson, 522 F.3d at 321. Gaston’s complaint
does not contain factual matter supporting the elements of a prima facie case of
retaliation.
First, the complaint does not directly allege that Gaston engaged in any protected
activity, such as complaining about employment discrimination. Exhibit C-2 to the
complaint, the mediation agreement, does refer to “EEO complaints resolved by this
agreement,” so we will assume, arguendo, as did the District Court, that Gaston engaged
in some protected activity.3 But Gaston’s complaint does not contain allegations
supporting the second and third requirement. Gaston claims he was not hired or promoted
to certain positions. In a failure-to-hire case, the plaintiff must show inter alia, that he
3
In his informal brief, however, Gaston states that the “Mediation Agreement had
nothing to do with settling past claims of employment discrimination . . . .” Informal Br.
at 18.
6
applied and was qualified for a job for which the employer was seeking applicants. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Gaston’s complaint does
not allege that he was qualified for either of the positions for which he applied.4 Gaston
cannot show that his employer took an adverse action against him by failing to promote
him unless he was qualified for the positions.5 We further agree with the District Court
that the complaint does not contain factual matter supporting the element of causation.
The time that passed between the signing of the Mediation Agreement and the rejection of
Gaston for the first job, about six months, is not suggestive of retaliation. Further, it is
not clear from Gaston’s complaint whether the personnel involved in the Mediation
Agreement had any connection to the later decisions to deny Gaston interviews or
promotions.
The District Court looked beyond the allegations of the complaint and considered
documents filed by both parties. In his brief, Gaston appears to argue that he lost in the
District Court because he was not allowed to complete discovery before the District Court
made its decision on summary judgment. However, if Gaston believed that he required
additional discovery, he was required to file an affidavit pursuant to Federal Rule of Civil
4
The Postmaster General also argued in his summary judgment motion that the
Forensic Auditor position was never filled. See McDonnell Douglas, 411 U.S. at 802
(plaintiff in failure-to-hire case must show that the position remained open and the
employer continued to seek applicants from persons of complainant’s qualifications).
5
We note that the Mediation Agreement does not state that Gaston would be placed in
a new position, but only states that he would be given interviews for certain positions for
which he was qualified.
7
Procedure 56(f) identifying “with specificity what particular information is sought; how,
if uncovered, it would preclude summary judgment; and why it has not previously been
obtained.” Bradley v. United States, 299 F.3d 197, 206-07 (3d Cir. 2002) (internal
quotation and citation omitted).6 The docket does not reflect any such filing. We have
stated that “in all but the most exceptional cases, failure to comply with Rule 56(f) is fatal
to a claim of insufficient discovery on appeal.” Id. In fact, Gaston did not respond at all
to the Defendant’s motion for summary judgment. Because Gaston did not meet his
burden of “set[ting] out specific facts showing a genuine issue for trial,” summary
judgment was appropriately granted. Fed. R. Civ. P. 56(e)(2).
As we agree with the District Court that Gaston failed to meet his burden in
opposing summary judgment, we likewise do not reach the issue of whether Gaston
properly exhausted his administrative remedies. For the foregoing reasons, we will affirm
the judgment of the District Court.
6
We agree with the District Court that the Defendant’s request that the Court
alternatively treat its motion as one for summary judgment sufficiently put Gaston on
notice that the Court might consider the motion as one for summary judgment.