NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3940

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JOSEPH J. CAMPBELL,

 Appellant

v.

WEST PITTSTON BOROUGH; 

BRIAN THORNTON; PETER MUSINSKI; 

KEVIN LESCAVAGE; JOHN HOOD; 

PETER ALBANO; TERRI BUGELHOLL; 

JAMES ROSE

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-09-cv-00303)

District Judge: Honorable John E. Jones, III

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Submitted Under Third Circuit LAR 34.1(a)

July 13, 2012

Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges.

(Filed: August 15, 2012)

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Joseph J. Campbell appeals the District Court’s summary judgment on his civil 
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rights claims. We will affirm.

I

Because we write for the parties, who are well acquainted with the case, we recite 

only the essential facts and procedural history.

In 1982, Campbell began working as a police officer in the Borough of West 

Pittston. He was terminated in 2005 but reinstated in 2006. That year, Campbell became 

Officer in Charge when the Borough’s Chief of Police was injured. In February 2006, 

Campbell filed his first federal lawsuit against the Borough, raising claims of age 

discrimination, and the parties resolved that dispute in a July 2008 settlement agreement. 

In March 2008, the Borough passed over Campbell, then forty-six years old, when it 

appointed forty-four-year-old Paul Porfirio as its new Chief of Police.

In February 2009, Campbell brought suit under 42 U.S.C. § 1983 against the 

Borough and its council members: Brian Thornton, Peter Musinski, Kevin Lescavage, 

James Rose, John Hood, Peter Albano, and Terri Bugelholl (collectively, Defendants). 

Campbell alleged causes of action for: First Amendment retaliation, hostile work 

environment, failure to promote and retaliation in violation of the Age Discrimination in 

Employment Act (ADEA), 29 U.S.C. § 621, violation of the Pennsylvania Human 

Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. § 951, and civil conspiracy.1

 1 Although Campbell’s notice of appeal references a February 2010 order 

dismissing some of his constitutional claims, his intentional infliction of emotional 

distress claim, and all damages claims brought against the individual council members in 

 In 
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September 2011, the District Court granted Defendants’ motion for summary judgment on

Campbell’s First Amendment retaliation and ADEA claims and dismissed his 

supplemental state-law claims for civil conspiracy and violations of the PHRA. This 

timely appeal followed.2

II

We have jurisdiction over an appeal from a final decision of a district court under 

28 U.S.C. § 1291. “We review an award of summary judgment de novo, applying the 

same test on review that the District Court should have applied” and construing facts in 

the light most favorable to the nonmoving party. MBIA Ins. Corp. v. Royal Indem. Co., 

426 F.3d 204, 209 (3d Cir. 2005). Summary judgment is appropriate 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 dispute is genuine if “the 

 

their official capacities, Campbell does not include any arguments challenging that order 

in his opening brief. Where an appellant fails “to set forth the issues raised on appeal and 

to present an argument in support of those issues in [his] opening brief . . . [he] normally 

has abandoned and waived th[ose] issue[s] on appeal and [they] need not be addressed by 

the court of appeals.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); see also

Simmons v. City of Phila., 947 F.3d 1042, 1065 (3d Cir. 1991) (“[A]bsent extraordinary 

circumstances, briefs must contain statements of all issues presented for appeal, together 

with supporting arguments and citations.”). Consequently, we will not review the 

February 2010 order.

2 In November 2009, while this case was before the District Court, the Borough 

terminated Campbell for misreporting and accepting payment for his involvement with 

the Drug Abuse Resistance Education program between 2002 and 2007 in violation of 

both his official duties and Pennsylvania law. In February 2011, a jury convicted 

Campbell of five counts of theft in connection with that conduct.
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evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

We evaluate each of Campbell’s six arguments in turn.

A

Campbell first contends that the District Court erred in accepting as true 

Defendants’ statement of material facts and ignoring his own counterstatement of 

material facts. A review of the District Court’s order and the Magistrate Judge’s report 

on which it was based, however, reveals that the Court carefully considered both 

Campbell’s counterstatement of material facts and Defendants’ submission. Our review 

of those findings leads us to conclude—as did the District Court—that there existed no 

genuine dispute as to any material fact.

B

Campbell next claims that the District Court erred by determining that his July 

2008 settlement agreement with the Borough barred him from alleging a cause of action

for failure to promote him to Chief of Police. This argument is factually incorrect; the 

record clearly indicates that the District Court addressed Campbell’s claim that the 

Borough discriminated and retaliated against him by failing to promote him.

C

In his third argument, Campbell asserts that the District Court erred by concluding 

that he did not provide sufficient detail concerning his hostile work environment and 
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retaliation claims. According to Campbell, the District Court ignored evidence of a 

conversation in which council member Musinski reportedly called Campbell a “greedy 

bastard.” The record, however, indicates that the District Court did consider the 

comment. Furthermore, like the District Court, we find that the two isolated incidents in 

which council members spoke with Campbell about his prior lawsuit are insufficient to 

support his retaliation claim. “[T]he key question in determining whether a cognizable 

First Amendment claim has been stated is whether ‘the alleged retaliatory conduct was 

sufficient to deter a person of ordinary firmness from exercising his First Amendment 

rights.’” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 

203 F.3d 228, 235 (3d Cir. 2000)). While “[t]he effect of the alleged conduct on the 

employee’s freedom of speech ‘need not be great in order to be actionable,’ . . . it must be 

more than de minimis.” Id. (quoting Suppan, 203 F.3d at 235). Campbell, who after 

suing the Borough in 2006 nonetheless continued to hold a position of considerable 

authority as Officer in Charge, had only a few brief interactions with council members, 

and the District Court properly concluded that those interactions would not have deterred 

a person of ordinary firmness from exercising his First Amendment rights.

D

Fourth, Campbell claims the District Court improperly granted summary judgment 

on his First Amendment retaliation claim. We disagree. “To state a First Amendment 

retaliation claim, a plaintiff must allege two things: (1) that the activity in question is 
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protected by the First Amendment, and (2) that the protected activity was a substantial 

factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 

(3d Cir. 2006). A public employee’s statement is protected activity only where (1) the 

employee spoke as a citizen (2) about a matter of public concern and (3) “the government 

employer did not have ‘an adequate justification for treating the employee differently 

from any other member of the general public’ as a result of the statement he made.” Id. at 

241–42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

Insofar as Campbell’s retaliation claim is based on his request that the Borough 

award him additional compensation or benefits during the course of his employment, it 

fails because his speech did not involve a matter of public concern. See Connick v. 

Myers, 461 U.S. 138, 147 (1983) (“[W]hen a public employee speaks . . . upon matters 

only of personal interest, absent the most unusual circumstances, a federal court is not the 

appropriate forum in which to review the wisdom of a personnel decision taken by a 

public agency allegedly in reaction to the employee’s behavior.”).

To the extent Campbell alleges retaliation for his prior federal lawsuit, that suit 

does not constitute protected activity. The Supreme Court has stated that when “a public 

employee petitions as an employee on a matter of purely private concern, the employee’s 

First Amendment interest must give way, as it does in speech cases.” Borough of Duryea, 

Pa. v. Guarnieri, 131 S. Ct. 2488, 2500 (2011). “[W]hether an employee’s petition 

relates to a matter of public concern will depend on ‘the content, form, and context of [the 
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petition], as revealed by the whole record.’” Id. (quoting Connick, 461 U.S. at 147–48). 

Accordingly, “[a] petition that ‘involves nothing more than a complaint about a change in 

the employee’s own duties’ does not relate to a matter of public concern.” Id. at 2501 

(quoting United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 466 (1995)). 

Because nothing in the record suggests that Campbell’s prior lawsuit touched upon a 

matter of public concern, we conclude that it does not qualify as protected activity.

In sum, because Campbell failed to make out a prima facie case of First 

Amendment retaliation, the District Court properly granted summary judgment in favor of 

Defendants with respect to that claim.

E

In his fifth argument, Campbell contends that the District Court erred in its 

disposition of his ADEA claims. Discrimination claims under the ADEA are analyzed 

under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). See Keller v. ORIX Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 

1997) (en banc). “A plaintiff must first produce evidence sufficient to convince a 

reasonable factfinder as to all of the elements of a prima facie case of discrimination.” 

Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000). To establish a prima facie 

case, a plaintiff must show that “(1) he is over 40, (2) he is qualified for the position in 

question, (3) he suffered an adverse employment decision, and (4) he was replaced by a 

sufficiently younger person to create an inference of age discrimination.” Sempier v. 
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Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). Once a plaintiff establishes a prima 

facie case, “[t]he burden of production (but not the burden of persuasion) shifts to the 

defendant, who must then offer evidence that is sufficient, if believed, to support a 

finding that the defendant had a legitimate, nondiscriminatory reason for the [adverse 

employment decision].” Keller, 130 F.3d at 1108. “The employer’s burden at this stage 

is ‘relatively light: it is satisfied if the defendant articulates any legitimate reason for the 

[adverse employment action].’” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 

1997) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997)). To 

defeat summary judgment after an employer has articulated a legitimate, 

nondiscriminatory reason for the adverse action, the employee “must point to some 

evidence, direct or circumstantial, from which a factfinder could reasonably either (1) 

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious 

discriminatory reason was more likely than not a motivating or determinative cause of the 

employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Campbell has failed to demonstrate a prima facie case of age discrimination. He 

offers no evidence to suggest that age was a factor in the Borough’s personnel decisions 

generally or in its treatment of him in particular. Indeed, the only evidence Campbell 

does present—the eighteen-month age difference between himself and Porfirio—does not 

by itself give rise to an inference of age discrimination. See Narin v. Lower Merion Sch. 

Dist., 206 F.3d 323, 333 n.9 (3d Cir. 2000) (noting that an age difference of seven years 
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was insufficient to create an inference of discrimination). Consequently, the District 

Court did not err in granting summary judgment to Defendants on Campbell’s ADEA 

claims.

F

Finally, Campbell claims that the District Court should have exercised 

supplemental jurisdiction over his state-law claims for PHRA violations and civil 

conspiracy. Because the District Court’s summary judgment with respect to Campbell’s 

federal claims was proper, the Court did not err by declining jurisdiction over the 

remaining state-law claims. See 28 U.S.C. § 1367(c); see also Borough of W. Mifflin v. 

Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (“[W]here the claim over which the district 

court has original jurisdiction is dismissed before trial, the district court must decline to 

decide the pendent state claims unless considerations of judicial economy, convenience, 

and fairness to the parties provide an affirmative justification for doing so.”).

III

For the foregoing reasons, we will affirm the judgment of the District Court.