NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1544
___________
SHERRY MOORE,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 1-13-cv-06614)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 1, 2017
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed: December 4, 2017)
___________
OPINION*
___________
PER CURIAM
Plaintiff Sherry Moore, proceeding pro se, appeals the District Court’s grant of
summary judgment for defendant, the Secretary of the Department of Homeland Security
(“DHS”). Moore alleges race discrimination and retaliation under Title VII of the Civil
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons that follow, we will affirm
the District Court’s decision.
I.
Moore is an African-American woman. During the period relevant to this lawsuit,
she served as an Immigration Enforcement Agent for DHS in Immigration and Customs
Enforcement in Marlton, New Jersey. Moore filed a complaint of discrimination against
two of her supervisors, Adam Garcia and Christopher Croteau, in 2004. She claims that
she was subjected to discrimination and retaliation after she did so.
Moore’s claims are based on four work assignments she received; her account of
them follows. First, in either March or May 2006, Croteau directed Moore and another
agent to release a detainee after hours to the detainee’s home in Camden, New Jersey.
Moore and the other agent drove to the home in a white van with a government license
plate. Both agents were armed. When they arrived, a number of people were present
outside of the home who were angry because of a raid conducted earlier that day in which
the detainee had been arrested. The group yelled at Moore and the other agent while they
were releasing the detainee. The home was in an area known for high gang, drug, and
criminal activity.
No law enforcement officers were notified that they were coming or called in for
backup, as was the usual policy. Both Moore and the other agent described the situation
as dangerous given the earlier arrest and the high-crime area where the detainee lived.
No one came physically close to either agent, however, and the agents left after the
2
detainee was released. Croteau went to the former detainee’s home the following day
with two other agents to complete her release paperwork. Moore believes this
assignment was discriminatory because “Croteau made the conscious decision to send
two female African-American [agents] alone into a city that is well-known for violence.”
Supp. App’x at SA309.
Croteau avers that he made a decision to return the detainee to her home that
evening because she was breastfeeding a six or seven month old baby and had not been
home in twelve hours. Croteau described her as distraught and crying profusely about
her baby. He testified that he had never before or since had a situation where officers had
arrested a woman who was still breastfeeding. He described it as “the most unique case
[he’d] had to date.” See id. at SA301 at 26:6-7. He stated that he had “waived all normal
paperwork for release in an effort to accelerate [the] ability to get the mother back . . .
with the [baby] to be fed.” Id. at SA318.
Croteau stated that he asked Moore and the other agent to release the detainee
because they were the first two people he saw after visiting the detainee, they were
experienced and compassionate officers with years of experience, and it was most
appropriate for female officers to transport the female detainee in what he identified as an
urgent situation. He added that he treated the situation as urgent because although he was
aware that the detainee was supplementing breastfeeding with formula, as a parent he
believed that the baby would prefer to be breastfed.
3
In May 2006, Moore conducted surveillance on an individual in Camden, New
Jersey on three occasions. She maintains that Croteau directed her immediate supervisor
to assign her to this task. She had previously placed an ankle bracelet on the individual
and was told to monitor his activity in case he violated the conditions of the ankle
bracelet program. She was paired with at least one other agent on each surveillance trip.
On the third trip, Moore and two other agents went to conduct surveillance in a
white government van which was identifiable by its DHS license plates. According to
Moore, she and the other agents left soon after arriving at the surveillance location
because when they arrived, residents of Camden pointed at the government vehicle
because they knew that they were immigration agents. Another agent who was present
for this last operation recounted leaving because all three agents decided that it would not
be safe to go into the intended building.
Croteau testified in a deposition that there was an “alternatives to detention”
program in place at the time where certain individuals were fitted with ankle bracelets
and, as part of their participation in the program, agents would supervise them to ensure
that they were home and complying with all program requirements. Croteau testified that
an agent named Aaron Bolden was the contact person for this program; he was with
Moore on the first two of the three visits.
Moore contends that after-hours assignments to Camden were only given to the
African-American women in her workplace. Another African-American woman agent
4
stated that she believed that other agents besides her and Moore “were given preferential
treatment.” Supp. App’x at SA271.
Finally, Moore provides allegations about a number of other incidents as
background information.1 See id. at SA141. Her annual performance rating was lowered
from “outstanding” to “excellent” in April 2004 and then changed to “fully successful” in
November 2007. She was suspended for 5 days in December 2004. Sometime before
2005, a junior agent was selected to attend a training and she was not. She was sent on
two dangerous escort assignments to Senegal in 2005. Between September 2006 and
May 2007, Moore was “not placed on the ‘CAP’ team.” Id. In December 2006, Moore
was assigned to a certain detail for only sixty days while another agent was assigned to
the same detail for ninety days and then promoted. In 2008, two agents who were junior
to Moore were selected for an intelligence training but she was not.
Moore filed a class complaint of employment discrimination with DHS in October
2006 alleging race discrimination and retaliation for her 2004 discrimination complaint.
In May 2008, two of her allegations were accepted for investigation by DHS. She did not
appeal the denial of numerous other allegations for investigation. In July 2013, an Equal
Employment Opportunity Commission administrative judge issued a decision finding that
Moore had failed to establish discrimination or retaliation. On July 26, 2013, the DHS
1
Moore made a few other allegations of discriminatory incidents in her amended
complaint. However, those allegations have no support in the record on summary
judgment. Moore has not referenced them on appeal and did not raise them in opposition
to defendant’s summary judgment motion in the District Court.
5
Office for Civil Rights and Civil Liberties issued a final order implementing the
administrative judge’s decision in full.
On October 31, 2013, Moore filed a complaint in the District Court. She later
obtained counsel and amended her complaint. Defendant moved for summary judgment,
and the District Court granted defendant’s motion on February 8, 2017. Moore timely
appealed the District Court’s decision.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s grant of summary judgment; thus, we apply the
same standard as the district court. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014). We will “grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is
sufficient for a reasonable factfinder to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In evaluating a motion for summary judgment, “all justifiable inferences are to be
drawn in . . . favor” of the non-moving party. Id. at 255. However, a mere “scintilla of
evidence” in support of the non-moving party does not create a genuine issue of material
fact. Id. at 252. Additionally, “the non-movant may not rest on speculation and
conjecture in opposing a motion for summary judgment.” Ramara, Inc. v. Westfield Ins.
Co., 814 F.3d 660, 666 (3d Cir. 2016).
6
III.
Moore argues on appeal that the District Court improperly granted summary
judgment in favor of defendant on her Title VII discrimination and retaliation claims.2
The District Court first discussed several issues with the administrative exhaustion of
Moore’s claims but decided the case on the merits. Supp. App’x at SA372-74. The
District Court concluded that even if Moore had properly exhausted her claims, she was
unable to show that there existed a genuine issue of material fact that she had faced
discrimination or retaliation by her employer. Id. at SA373-74. The District Court held
that Moore could not show that she had suffered an adverse employment action. Id. at
SA376-81. Additionally, the District Court concluded that she could not show that
defendant’s reasons for assigning her to four tasks in Camden were pretext for
discrimination or retaliation. Id. at SA381-83.
2
In the District Court, Moore argued in one sentence in her brief opposing summary
judgment that she had put forward sufficient evidence to establish a Title VII hostile
work environment claim. See Supp. App’x at SA227. The District Court did not address
this issue. Although Moore is proceeding pro se on appeal, her brief is well-written and
she clearly presents her issues with the District Court’s opinion. She focuses her
argument on the four discrete assignments in Camden rather than any pattern of racially
discriminatory harassment in the workplace to support her discrimination claim. See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“When the workplace is permeated
with ‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment, . . . Title VII is violated.”) (internal citations omitted). We note
that Moore has made no showing of “severe or pervasive” racially discriminatory
intimidation or harassment in her workplace on this record. However, because Moore
does not raise this issue on appeal and the District Court did not rule on it in the first
instance, we need not address it.
7
To prevail on a Title VII claim of discrimination or retaliation, a plaintiff must
first establish a prima facie case. A prima facie case of race discrimination requires a
plaintiff to establish that: (1) she is a member of a protected class; (2) she was qualified
for her position; (3) she suffered an adverse employment action; and (4) the adverse
employment action occurred under circumstances that give rise to an inference of
unlawful discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07
(1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A prima facie case of
retaliation requires a plaintiff to establish that: “(1) she engaged in activity protected by
Title VII; (2) the employer took an adverse employment action against her; and (3) there
was a causal connection between her participation in the protected activity and the
adverse employment action.” Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d
Cir. 2006).
If a plaintiff establishes a prima facie case of discrimination or retaliation, the
burden shifts to the defendant to articulate a legitimate non-discriminatory or non-
retaliatory reason for its conduct. See McDonnell Douglas, 411 U.S. at 802; Moore, 461
F.3d at 342. If the defendant can meet this standard, the burden shifts back to the
plaintiff to demonstrate that the employer’s proffered reasons were merely a pretext for
intentional discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 804;
Moore, 461 F.3d at 342.
8
We will assume, without deciding, that Moore’s discrimination and retaliation
claims were properly exhausted3 and that she can establish a prima facie case for both
claims. However, Moore cannot show that defendant’s proffered reasons for assigning
her to Camden were pretext for either discrimination or retaliation. To show pretext in
the discrimination context, Moore must point to evidence that (1) “casts sufficient doubt
upon each of the legitimate reasons proffered by the defendant so that a factfinder could
reasonably conclude that each reason was a fabrication;” or (2) permits a “factfinder to
infer that discrimination was more likely than not a motivating or determinative cause of
the adverse employment action.” See Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.
1994).
Croteau, who Moore claims directed her to perform each of her Camden
assignments, testified in a deposition that the detainee release assignment was both
unique and urgent. He stated that had never before or since had an actively breastfeeding
mother in custody without her baby, which led him to waive the usual paperwork
requirements to get her home quickly. He asserted that he chose Moore and the other
agent based on his assessment that it was most appropriate for female agents to return the
female detainee, as soon as possible, and because they were experienced and
compassionate agents. Although he acknowledged that the detainee had been
supplementing breastfeeding with formula feedings, he also testified that as a parent, he
3
Federal employees must properly exhaust their administrative remedies against their
employers before they can file a Title VII suit in federal court. See 42 U.S.C. § 2000e-
16(c).
9
believed that the baby would prefer to be breastfed, which is why he acted swiftly to have
her returned home after twelve hours away.
As for the three surveillance assignments, Croteau stated that an “alternatives to
detention” program existed at the time where individuals eligible for ankle bracelet
monitoring would be fitted with a bracelet and supervised by agents to ensure that they
were complying with program requirements. Croteau testified that the agent who was
with Moore on two of her three surveillance assignments was the contact person for that
program.
Moore argues that there was no legitimate business purpose for any of these
assignments because Croteau violated certain office policies when he made them. She
claims that “[t]here was no starving baby,” that the detainee’s baby was on formula, and
that thus the detainee did not need to be directly returned to her home. Appellant’s Br. at
7. Although she acknowledges that an agent’s job is dangerous, she argues that this
assignment was unnecessarily dangerous and therefore discriminatory or retaliatory. Id.
at 8. She does not address why the surveillance assignments were pretext for either
discrimination or retaliation, either in her appellate brief or in her arguments before the
District Court. See id. at 7-11; Supp. App’x at SA227-230. She therefore only
specifically argues that the reasons given for her assignment to return the breastfeeding
detainee to her home in Camden were pretext for discrimination.
Both Moore and Croteau have testified that the detainee release was an
extraordinary situation. However, there is no evidence in the record that this assignment
10
was beyond the scope of Moore’s job duties as an agent. As Moore admits, her job
description required her to “regularly enter[] hostile situations” and face exposure to “life
threatening situations,” sometimes “far from assistance.” Supp. App’x at SA207, 210.
The record also fails to indicate that the detainee was not actually breastfeeding
her baby. Moore’s insistence that she was not exclusively breastfeeding is insufficient to
establish that Croteau fabricated a potentially dangerous assignment to discriminate
against Moore. There is no other evidence that challenges Croteau’s assessment that the
detainee urgently needed to be returned home, based on his conversation with her.
Further, there is no evidence that any similarly situated agents were available to release
the detainee that evening, besides the agent who did accompany Moore. See Fuentes, 32
F.3d at 765 (stating that a plaintiff can show pretext by establishing “that the employer
treated other, similarly situated persons not of his protected class more favorably”).
Although Moore contends that Croteau violated office policy in making this
assignment, the question before us is not whether Croteau’s decision was in keeping with
policy; the question is whether there is sufficient evidence in the record to show that his
decision was motivated by racially discriminatory animus. See id. (“To discredit [an]
employer’s proffered reason . . . [a] plaintiff cannot simply show that the employer’s
decision was wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent.”). On this record, a factfinder would be unable to
11
conclude that racially discriminatory animus against Moore motivated the detainee
release assignment.4
As for Moore’s retaliation claim, a plaintiff claiming Title VII retaliation must
ultimately prove that her protected activity was a but-for cause of the adverse action
taken against her. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
It would be impossible for Moore to establish but-for causation here. Two years passed
between her 2004 complaint of discrimination and the 2006 Camden assignments. Even
if we accepted all of the events she lists as “background” as supported by the record,
those unrelated incidents do not sufficiently connect her protected activity to the Camden
assignments as a but-for cause. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503
F.3d 217, 232-33 (3d Cir. 2007) (“Where the temporal proximity between the protected
activity and the adverse action is . . . . not ‘unusually suggestive,’ we ask whether ‘the
4
In her appellate brief, Moore makes a number of new allegations that were never raised
in the District Court. See Appellant’s Br. at 5-7. All of them allegedly occurred well
before the District Court issued its opinion. Moore states that she attempted to present
her attorney with affidavits from other DHS agents supporting some of her allegations
and that “it would be unfair to be punished for [her] lawyer’s refusal to provide the court
with evidence [she] gave him.” Id. at 8 n.3. However, a litigant is bound by her lawyer’s
decisions. See Link v. Wabash R. Co., 370 U.S. 626, 634, 634 n.10 (1962) (holding that
a “party is deemed bound by the acts of his lawyer-agent” and noting that “if an
attorney’s conduct falls substantially below what is reasonable under the circumstances,
the client’s remedy is against the attorney in a suit for malpractice”).
We cannot consider evidence raised for the first time on appeal. See In re
Application of Adan, 437 F.3d 381, 388 n.3 (3d Cir. 2006) (“[W]e will not consider new
evidence on appeal absent extraordinary circumstances, such as those that render the case
moot or alter the appropriateness of injunctive relief, a change in pertinent law, or facts of
which a court may take judicial notice.”). Moore has not presented any extraordinary
circumstance that would lead us to consider any additional evidence, let alone several
unsubstantiated allegations, for the first time on appeal.
12
proffered evidence, looked at as a whole, may suffice to raise the inference.’”) (internal
citations omitted). Accordingly, the District Court properly granted summary judgment
for defendant on Moore’s Title VII retaliation and discrimination claims.
13