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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-2047

PETER DEVITO,

Appell ant

v.

BOARD OF EDUCATION OF THE CITY OF NEWARK

Appeal from the United States District Co urt for the District of New Jersey (D.C. Civil Action No. 99-cv-05558) District Judge: Honorable John W. Bissel l

Submitted Under Third Circuit LAR 34.1(a ) February 5, 2002

Before: SLOVITER, and AMBRO, Circuit Judg es POLLAK*, District Judge

(Opinion filed March 1, 2002)

OPINION

*Honorable Louis H. Pollak, United States Dist rict Judge for the Eastern District of Pennsylvania, sitting by designation.

AMBRO, Circuit Judge:

On July 2, 1999, Peter DeVito ("DeVito") filed a complaint alleging racially and politically motivated discrimination by his employe r, the Board of Education of the City of Newark (the "Board"), in violation of the New Je rsey Law Against Discrimination ("NJLAD"), 42 U.S.C.  1983, and the New Jersey and United States Constitutions. In itsMarch 26, 2001 judgment and order, the United State s District Court for

the District of New Jersey granted summary judgment in favor of the Board and dismissed DeVito's complaint with prejudice. We now affirm. I. The District Court had jurisdiction under 28 U .S.C.  1331, 1343, and 1367. We exercise appellate jurisdiction pursuant to 28 U.S. C.  1291, and the applicable standard of review is plenary. Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). Summary judgment is appropriate if there are no gen uine issues of material fact and the Board is entitled to judgment as a matter of law. Id. We must view all facts and draw all reasonable inferences in DeVito's favor. Id. Howe ver, DeVito may not rely on the allegations in his pleadings; instead, through "mor e than a scintilla" of evidence, he must present "specific facts showing that there is a gen uine issue for trial." Id.; see Fed. R. Civ. P. 56.

II. Because we write exclusively for the parties, a full recitation of the facts is unnecessary. DeVito, a Caucasian male, alleges tha t the Board committed a series of discriminatory employment acts in violation of the NJLAD. 1. In June 1990, the Board demoted him from the position of Coordinator of Maintenance Services to el ectrician.

2. In 1991, he applied for the position of A ssistant Director of Repair and Maintenance and was denied the job.

3. In 1993-1994, he applied for, and was den ied, the same position. 4. In April 1995, the Board created the posi tion of Director of Repair and Maintenance and established hiring cr iteria that only one

person could fulfill. 5. In January 1996, the Board created the po sitions of Acting Assistant Director of Maintenance Services for Admi nistration and Acting Associate Director of Maintenance Service s for Operations. According to DeVito, the Board created th ese positions to promote favored employees. DeVito did not apply for either position. 6. In March or April 1997, DeVito was reassi gned from the electrical shop to the field.7. In 1999, the Board posted the positions o f Building Manager and

Engineer in Charge, although DeVito did n ot apply for either. 8. In May 1999, DeVito was reassigned to the night shift. Despite his requests, the Board did not return him to the day shift.

The District Court ruled that DeVito's NJLAD claim is time-barred with respect to the majority of these acts. A two-year statute of limi tations applies to an NJLAD claim in which the operative facts arose after July 27, 1993 , while a six-year statute of limitations applies if the events occurred before this date. C ardenas v. Massey, 269 F.3d 251, 255 (3d Cir. 2001) (citing Montells v. Haynes, 627 A.2d 654 (N.J. 1993)). Although the District Court properly held that the claim survives to the extent it relies on acts Seven and Eight, it erred in holding that act Three satisfies the statute of limitations. DeVito alleges that in 1993 he applie d for, and was denied, the position of Assistant Director. Nevertheless, the record refle cts two specific dates that we could consider in determining the timeliness of the alleg ation. On June 30, 1993, Joseph Richardson resigned from this position. See PA174. At the same time, DeVito's deposition testimony suggests that Richardson's rep lacement, Vincent Lupiano, began serving as Assistant Director sometime between Apri l and December 1994. See PA80; PA91. DeVito claims that the Board discriminated a gainst him by placing Lupiano in this position in violation of the applicable Eligibility List. See PA158. Regardless which time period is considered det erminative, the statute of limitations would bar DeVito's claim based on this employment decision. If we consider June 30, 1993 as the date of the alleged discrimina tory act, a six-year statute of limitations, expiring on June 30, 1999, would apply ; in contrast, if we rely on the April to December 1994 time range, a two-year statute of lim itations, expiring in 1996, would apply. Under either scenario, DeVito's NJLAD claim , filed July 2, 1999, would fail to satisfy the time bar to the extent it relies on the allegedly discriminatory hiring of Lupiano. Despite this slight error, the District Court correctly held the "continuing violation" theory for equitable tolling inapplicable under the facts presented. We apply three factorsin determining whether a series of alleged discrimi natory acts constitute

a continuing violation: (1) whether the acts involve the same ty pe of discrimination; (2) whether the acts are "recurring . . . or more in the nature of an isolated work assignment or employment decision;" and (3) whether each act has a "degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights." Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 480 (3d Cir. 1997). In evaluating the third and most important factor, the District Court properly held that each alleged act of employment discrimination had a degree of permanenc e which, at the time of its occurrence, should have triggered DeVito's awarenes s of a possible violation of his rights. Id. at 483 ("Rush's failure to promote and train cl aim addresses discrete instances of alleged discrimination that are not susceptible to a continuing violation analysis."). This holding is buttressed by the fact that these acts a ctually did trigger such awareness, as evidenced by DeVito's 1995 complaint that alleged a NJLAD claim based on the employment decisions involved in this case. III. To the extent it relies on employment decision s that do satisfy the statute of limitations, DeVito's NJLAD claim cannot survive su mmary judgment. Establishing a discrimination claim under this statute involves th e well-recognized burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Erickson v. Marsh & McLennan Co., 569 A.2d 793, 798 (N.J. 1990). However, the prima facie stage is slightly modified in a reverse discrimination context where, as here, the plaintiff is part of a majority group. Accordi ngly, DeVito must present "background circumstances" suggesting that the Board is "the un usual employer who discriminates against the majority." Id. at 799. The District Court held that DeVito failed to produce evidence of those "background circumstances," and we agree. In suppo rt of his various allegations of discrimination, DeVito's only evidence is that the individuals who allegedly granted or received preferential employment treatment were Afr ican-American. Without more, suchevidence is insufficient. See id. at 800 (pointing to the minority status

of favored employees, without more, is insufficient evidence o f "background circumstances"); see also Iadimarco v. Runyon, 190 F.3d 151, 156 (3d Cir . 1999) ("[T]he race of the selecting officials is not a sufficient circumstance to estab lish a prima facie case of discrimination by itself."). IV. DeVito's complaint also alleges that the Board engaged in political retaliation against him in violation of  1983. The District Court properly rejected this claim as well. The Board cannot be held vicariously liable under  1983. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1 978). Instead, liability only arises if the Board adopted a policy, custom, or practice tha t resulted in DeVito's constitutional injury. Id.; see Kneipp v. Tedder, 95 F.3d 1199, 1 212 (3d Cir. 1996) (defining what action constitutes a policy or custom). DeVito fai led to produce any evidence establishing such a policy, custom, or practice, an d thus, summary judgment in the Board's favor is appropriate. * * * * * For the foregoing reasons, we affirm the Distr ict Court's grant of

summary

judgment.

TO THE CLERK: Please file the foregoing Opinion. By the Court,

/s/ Thomas L. Ambro Circuit Judge