NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-1034

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BERNARD T. CANETE,

Appellant

v.

BARNABAS HEALTH SYSTEM; NEWARK BETH ISRAEL MEDICAL CENTER;

JOHN BRENNAN, CEO; ZACHARY LIPNER; JOANNE REILLY; MARY ELLEN 

WIGGINS; HELEN HARTNEY; JOHN DOES 1-10; JANE DOES 1-10; ABC 

CORPORATIONS A THROUGH Z

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Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-12-cv-07222)

District Judge: Honorable Esther Salas

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Submitted Under Third Circuit LAR 34.1(a)

March 9, 2018

Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges

(Opinion filed: April 11, 2018)

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OPINION*

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AMBRO, Circuit Judge

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Bernard Canete is a retired Army Lieutenant Colonel and a registered nurse

employed in the Crisis Unit at the Newark Beth Israel Medical Center. He brought suit in 

the District Court for the District of New Jersey against Defendants, his employers and 

supervisors, for impermissible discrimination on the basis of his age under the Age 

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), and the New 

Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(a); his race 

and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e2(a)(1), and the NJLAD, N.J. Stat. Ann. § 10:5-12(a); and his military status under the 

Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 

38 U.S.C. § 4311(a), and the NJLAD, N.J. Stat. Ann. § 10:5-12(a). He also claims 

Defendants created a hostile work environment in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the NJLAD, N.J. Stat. Ann. § 10:5-

12(a). Finally, he claims Defendants aided and abetted each other in these discriminatory 

practices in violation of the NJLAD, N.J. Stat. Ann. § 10:5-12(e).

Defendants moved for summary judgment. For each of Canete’s discrimination 

claims to survive that motion, he must produce evidence of an adverse employment 

action taken against him. See Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 761 (3d Cir. 

2004) (adverse employment action necessary for Title VII claims); Sarullo v. U.S. Postal 

Serv., 352 F.3d 789, 797 n.6 (3d Cir. 2003) (ADEA claim elements are “substantially the 

same” as Title VII claims, including the adverse employment action requirement); 

Carroll v. Del. River Port Auth., 843 F.3d 129, 131 (3d Cir. 2016) (adverse employment 

action necessary for USERRA claims); Battaglia v. United Parcel Serv., Inc., 70 A.3d 
3

602, 619 (N.J. 2013) (adverse employment action necessary for NJLAD claims). 

Similarly, for his hostile work environment claims, he must show evidence of 

discrimination “sufficiently severe or pervasive to alter the conditions of [his]

employment . . . .” Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994) (quoting Harris v. 

Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

The District Court granted Defendants’ motion because, among other things,

Canete failed to establish an adverse action or severe or pervasive discriminatory 

conduct. Canete now appeals that ruling. He also argues that the District Court showed 

bias against him by misapplying the summary judgment standard. We find no error in the 

District Court’s reasoning or application of the law and thus affirm.1

An adverse employment action sufficient for Canete’s discrimination claims to 

proceed must be “serious and tangible enough to alter an employee’s compensation, 

terms, conditions, or privileges of employment . . . .” Robinson v. City of Pittsburgh, 120 

F.3d 1286, 1300 (3d Cir. 1997); see also Staub v. Proctor Hosp., 562 U.S. 411, 416-17 

(2011) (describing USERRA’s discrimination prohibition as “very similar to Title VII”); 

ADEA, 29 U.S.C. § 623(a) (prohibiting discrimination with respect to employee’s 

“compensation, terms, conditions, or privileges of employment”); NJLAD, N.J. Stat. 

Ann. § 10:5-12(a) (proscribing discrimination “in compensation or in terms, conditions or 

privileges of employment”). Likewise, a hostile work environment must involve “severe 

 

1 The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1367. Our appellate

jurisdiction is under 28 U.S.C. § 1291, and our review of summary judgment 

determinations is plenary. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 325 (3d Cir. 

2015).
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or pervasive” harassment. Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) 

(emphasis omitted); see also Carver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) 

(noting NJLAD hostile work environment claims require “severe or pervasive” 

discriminatory conduct). “[S]ome harassment may be severe enough to contaminate an 

environment even if not pervasive; other, less objectionable, conduct will contaminate the 

workplace only if it is pervasive.” Castleberry, 863 F.3d at 264. (citation omitted).

Canete claims that his employers and supervisors caused him to miss lunches and 

breaks and gave more favorable treatment to his co-workers, which he argues are adverse 

actions and created a hostile work environment. However, the record fails to support

these assertions. At most, during the relevant timeframe:

2 Canete missed only one lunch 

break; a co-worker once noted that Canete was the only employee who did not know how 

to use the office printer; he vaguely recalled some co-workers commenting that he should 

retire but could not describe specific instances; he was monitored and retrained following 

a supervisor’s concern about his technique for administering injections, but was subject 

to no further action; he was retrained after he did not follow the correct protocol for

physically restraining a patient, but was subject to no further action; and once, when he 

answered a phone call with “Colonel Canete,” the junior co-worker on the other line 

giggled for unknown reasons.

 

2 Pursuant to a District Court Order that is unchallenged here, Canete’s claims may be 

based only on events that occurred after June 13, 2012. See Order at 2, Canete v. 

Barnabus Health Sys., No. 2:12-cv-07222 (D.N.J. Sept. 18, 2013).
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Even viewing these assertions in the light most favorable to Canete, see CarvalhoGrevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017), they do not raise a 

genuine question as to whether he suffered a serious, tangible change in employment 

status or whether Defendants intentionally discriminated against him in a severe or 

pervasive manner. Because his underlying discrimination and hostile work environment 

claims fail, Canete’s aiding and abetting claims must also. See Tarr v. Ciasulli, 853 A.2d 

921, 929 (N.J. 2004).

Lastly, Canete’s argument that the District Court revealed a judicial bias against 

him by misapplying the summary judgment standard has no merit, as the record reflects 

that the Court carefully addressed each of his claims and properly applied the relevant 

law.

We therefore affirm.