2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-1-2002

DeVito v. Bd Ed Cty Newark

Precedential or Non-Precedential:

Docket 1-2047

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Recommended Citation

"DeVito v. Bd Ed Cty Newark" (2002). 2002 Decisions. Paper 143.

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 NOT PRECEDENTIAL 

 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 No. 01-2047 

 

 PETER DEVITO, 

 Appellant 

 v. 

 BOARD OF EDUCATION OF THE 

 CITY OF NEWARK 

 

 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil Action No. 99-cv-05558) 

 District Judge: Honorable John W. Bissell 

 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 February 5, 2002 

 

 Before: SLOVITER, and AMBRO, Circuit Judges 

 POLLAK*, District Judge 

 

 (Opinion filed March 1, 2002) 

 

 OPINION 

 *Honorable Louis H. Pollak, United States District 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 employer, the Board of 

Education of the City 

of Newark (the "Board"), in violation of the New Jersey Law Against 

Discrimination 

("NJLAD"), 42 U.S.C.  1983, and the New Jersey and United States 

Constitutions. In its 
March 26, 2001 judgment and order, the United States 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 genuine 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. However, DeVito may not 

rely on the 

allegations in his pleadings; instead, through "more than a scintilla" of 

evidence, he must 

present "specific facts showing that there is a genuine 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 that 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 electrician. 

 

 2. In 1991, he applied for the position of Assistant Director of 

Repair 

 and Maintenance and was denied the job. 

 

 3. In 1993-1994, he applied for, and was denied, the same position. 

 4. In April 1995, the Board created the position of Director of 

Repair 

 and Maintenance and established hiring criteria that only one 

person 

 could fulfill. 

 5. In January 1996, the Board created the positions of Acting 

Assistant 

 Director of Maintenance Services for Administration and Acting 

 Associate Director of Maintenance Services for Operations. 

 According to DeVito, the Board created these positions to 

promote 

 favored employees. DeVito did not apply for either position. 

 6. In March or April 1997, DeVito was reassigned from the 

electrical 

 shop to the field. 
 7. In 1999, the Board posted the positions of Building Manager and 

 Engineer in Charge, although DeVito did not 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 limitations 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. Cardenas 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 applied for, and was denied, 

the position of 

Assistant Director. Nevertheless, the record reflects two specific dates 

that we could 

consider in determining the timeliness of the allegation. On June 30, 

1993, Joseph 

Richardson resigned from this position. See PA174. At the same time, 

DeVito's 

deposition testimony suggests that Richardson's replacement, Vincent 

Lupiano, began 

serving as Assistant Director sometime between April and December 1994. 

See PA80; 

PA91. DeVito claims that the Board discriminated against him by placing 

Lupiano in this 

position in violation of the applicable Eligibility List. See PA158. 

 Regardless which time period is considered determinative, 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 discriminatory 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 limitations, 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 factors 
in determining whether a series of alleged discriminatory acts constitute 

a continuing 

violation: (1) whether the acts involve the same type 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 permanence which, at the time of 

its 

occurrence, should have triggered DeVito's awareness of a possible 

violation of his rights. 

Id. at 483 ("Rush's failure to promote and train claim 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 actually 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 decisions that do satisfy the 

statute of 

limitations, DeVito's NJLAD claim cannot survive summary judgment. 

Establishing a 

discrimination claim under this statute involves the 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. Accordingly, DeVito must 

present "background 

circumstances" suggesting that the Board is "the unusual 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 support of his various 

allegations of 

discrimination, DeVito's only evidence is that the individuals who 

allegedly granted or 

received preferential employment treatment were African-American. Without 

more, such 
evidence is insufficient. See id. at 800 (pointing to the minority status 

of favored 

employees, without more, is insufficient evidence of "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 establish 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 (1978). Instead, 

liability only arises if 

the Board adopted a policy, custom, or practice that resulted in DeVito's 

constitutional 

injury. Id.; see Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) 

(defining what 

action constitutes a policy or custom). DeVito failed to produce any 

evidence 

establishing such a policy, custom, or practice, and thus, summary 

judgment in the 

Board's favor is appropriate. 

 * * * * * 

 For the foregoing reasons, we affirm the District Court's grant of 

summary 

judgment. 

 

TO THE CLERK: 

 Please file the foregoing Opinion. 

 By the Court, 

 /s/ Thomas L. Ambro 

 Circuit Judge