NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 2751

____________ UGORJI O. UGORJI, Appellant

v. NEW JERSEY ENVIRONMENTAL INFRASTRUCTURE TRUST; ROBERT BRIANT, Chairman of the Board, New Jersey Environmental Infrastructure Trust; DENNIS HART, Executive Director, New Jersey Environmental Infrastructure Trust; FRANK SCANGARELLA, Chief Operating Officer, New Jersey

Environmental Infrastructure Trust

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY ( D.C. No. 1

- 08

- cv - 05424 ) District Judge: The Honorable Joseph E. Irenas

_____________ Submitted Under Third Circuit L.A.R. 34.1(a)

May 23, 2013

_____________
Before: RENDELL and GREENAWAY , JR. , Circuit Judges,

and ROSENTHAL * , District Judge

* The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation.2 (Opinion Filed: June 18, 2013 )

_____________ O P I N I O N

_____________
ROSENTHAL , District Judge

. Dr. Ugorj i O. Ugorji , who is African

- American and from Nigeria , sued his employer, the New Jersey Environmental Infrastructure Trust (―NJEIT‖) , alleging race and national origin discrimination under Title VII of the Civil Rights Act of 1964 (―T itle VII‖), 42 U.S.C. § 2000e to 2000e

- 17. Ugorji also sued the chair of the NJEIT board of
t rustees , 1 the executive director, and the c hief o perating o fficer under 42 U.S.C. § 1983

. Ugorji appeals the District Court‘s grant of summary judgment for the defendants and the
ent ry of final judgment dismissing his claims

. We will affirm for substantially the same reasons stated by the District Court in its well

- reasoned decision

. I. Background Ugorji began working for the New Jersey D epartment of E nvironmental P rotection (―DEP‖) in 1986 and for the NJEIT in 1996 . At the NJEIT, he was classified as an Administrative Assistant 2, a clerical position. Ugorji frequently told his superv isors that he was interested in promotion to a managerial position and in assuming additional

1 This defendant died while th e appeal was pending.3

resp onsibilities. Ugorji pointed to his doctoral degree ( in educational administration ) and work experience in support of his requests.
In Jan uary 2007, the NJEIT hired Frank Scangarella as its C hief Operating Officer. Ugorji report ed to S cangarella

. Soon a fter Scangarella began working, U gorji
asked him for a promotion or reclassification to a managerial position

. Scangarella responded that because he had recently become COO and had supervised Ugorji for only a short time, he did not have e nough informatio n to decide whether to grant Ugorji ‘s request . Scangarella told Ugorji that he would support reclassification if U gorji‘s job
duties did not match his current classification . Scangarella suggested that Ugorji either request an external ― desk audit ‖

— a stu dy to determine whether his job classification accurately reflected his duties

— or provide Scangarella with other information showing he was improper ly classified

. In June 2007, before taking either step Scan g arella suggested , Ugorji filed an internal compl aint alleging discrimination in the failure to grant him a promotion or give him additional assignments that he believed himself qualified to perform. Scanga rella, who also served as the NJEIT‘s Affirmative Action Officer, investigated Ugorji‘s complaint and found it without basis

. The NJEIT board c hair, Robert Briant, relied on that investigation and concluded that the NJEIT had no t discriminated against Ugorji. In September 2007, Ugorji requested a desk audit by the New Jersey Department of Personnel (― DOP‖). T he desk audit included interviews with Ugorji and Scangarella4

and a review of Ugorji ‘ s job duties

. In January 2008 , t he DOP issued a preliminary finding that Ugorji should be reclassified as an Administrative Analyst 1, a managerial position.
Sca ngarella wrote a letter to the DOP dated February 13, 2008 , disagreeing with
its decision to reclassify Ugorji

. The letter stated that Ugorji ―currently does not perform [the] functions [of an Administrative Analyst 1]‖ and that he ―is subject to close

su pervision and frequent direction by the COO

. ‖ In a March 20, 2008 letter , the DOP issued its final decision reclassifying Ugorji as an Administrative Analyst 1. The DOP gave the NJEIT the option of maintain ing Ugorji‘s Administrative Assistant 2 classif ication by taking away the job duties that had led to the reclassification. In response, the NJEIT revised Ugorji‘s employment agreement to specify duties appropriate for an Administrative Assistant 2 but not an Administrative Analyst 1 . Based on these c hanges, t he DOP reclassified Ugorji back to

an Administrative Assistant 2. Ugorji allege d that the NJEIT discriminated against him when it failed to promote him and opposed his reclassification to a managerial position

. Ugorji also contended that he was s ubjected to other discriminatory acts between 2006 and 2010 . In December 2006, Dennis Hart reassigned Ugorji to an office that was noisy, moldy, and without windows. That lasted until J anuary 2009, when Ugorji was provided a different office , with window s, after he presented a doctor‘s note about the effects of the interior office on his health

. Ugorji alleged that after the DOP‘s first desk5

audit, Scangarella belittled his skills, contributions, and work product , and that after Ugorji refused to sign th e revised list of his job duties , Scangarella yelled at him

. Ugorji contended that Scangeralla discriminated against him on several other occasions , including by following h im outside the work area in a harassing manner; ordering U gorji
to remove a bag he had brought to work because Scangarella believed it contained a personal laptop; requir ing Ugorji to reorganize his office furniture so that his computer monitor faced the door ; check ing documents Ugorji was scanning or holding to see if they were in fact work

- related ; and confiscat ing a space heater from Ugorji‘s office

. In November 2008, Ugorji filed this suit. While it was pending, he requested a second desk audit and reclassification to a managerial position . The NJEIT again opposed Ugorji‘s reclas sification request. The successor agency to the DOP, the New Jersey Civil Service Commission ( ― CSC ‖ ) , did the desk audit and found that Ugorji was properly classified as an Administrative Assistant 2. The NJEIT offered Ugorji additional work responsibili ties , including work ing on the NJEIT‘s newspaper and a
reclassification to the position of Senior Standards and Procedures Technician , but Ugorji declined those offers

. In his third amended complaint, Ugorji alleged that the NJEIT and the individual defend ants , Briant, Hart, and Scangarella , were liable for race and national origin discrimination under Title VII and § 1983. After discovery, t he defend ants moved for summary judgment. T he District Court granted that motion

.6 II. The Legal Standard We have ju risdiction under 28 U.S.C. § 1291. The District Court‘ s decision granting summary judgment is reviewed de novo

. Alcoa, Inc. v. United States , 509 F.3d 173, 175 (3d Cir. 2007). Summary judgment is appropriate when the movant demonstrates ―that there is n o 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). We may affirm t he District Court on any ground supported by the record. Nicini v. Morra , 212 F.3d 798, 805 (3d Cir. 2000).

III . Discussion A. The District Court granted summary judgment on Ugorji‘s Title VII claims against the NJEIT on the ground that it had fewer than 15 employees during the relevant period. Title VII defines an ―employer‖ as ―a person engaged in an industry af fecting commerce who has fifteen or more employees for each working day in each of twenty or more cale ndar weeks in the current or preceding year . . . .‖ 42 U.S.C. § 2000e(b ). An ―industry affecting commerce‖ includes ―any governmental industry, busines s, or activity.‖ Id ., § 2000e(h ). A ―person‖ includes ―one or more . . . governments,7

governmental agencies, [or] political subdivisions . . . .‖ Id ., § 2000e( a). Ugorji argue s that the 15

- employee statutory requirement does not apply to public employ ers and, alternatively, that the NJEIT and DEP should be considered a single entity. As to the first argument, Title VII‘s 15

- employee requirement d oes not distinguish between public and private employers

. Ugorji argues that a Tenth Circuit opinion, Owen s v. Rush , 636 F.2d 283 (10th Cir. 1980), suggests that public employers are exempt from the 15

- employee requirement

. In Owens, t he court held that when an employee sues an employee or agent of a political subdivision, such as a county, the court should c ount all of the subdivision‘s employees in determining whether the 15

- employee threshold is satisfied. Id . at 287. Th e Owens court did not hold that the 15

- employee requirement was inapplicable. Owens does not support the argument that employees
outside the state agency (or, in that case, political subdivision) sued are to be counted in deciding whethe r it is a Title VII ―employer.‖ Cf

. Laurie v. Ala. Ct. Crim. Appeals , 256 F.3d 1266 , 1268 (11th Cir. 2001) (holding that a state court ‘s employees cannot be aggregated with employees of other courts or state agencies to meet the Title VII 15

- employee requirement ). Ugorji ‘s second argument, that the District Court should have considered the NJEIT and DEP as a single employer in deciding whether the 15

- employ ee threshold was
met , also lacks support. This C ourt has previously held that t wo corporate entities should be consider ed a single employer when: (1) one entity split itself into separate entities with8

fewer t han 15 employees to evade Title VII lia bility; (2) one entity directed another entity‘s discriminatory acts; or (3) the entities are so interconnected that they collectively caused the alleged discriminatory employment practice. Nesbit v. Gears Unlim., Inc ., 347 F.3d 72, 85

– 87 (3d Cir. 2003) . Ugorji did not point to record evidence of the first two elements . Instead, he contend s that the DEP and NJEIT are interrelated in ways that make them a single entity

. ―[S]ubstantive consolidation is an equitable remedy and is difficult to achieve.‖ Nesb it , 347 F.3d at 86. In deciding whether entities should be substantive ly consolidated,

w e apply an ―open

- ended, equitable inquiry , ‖ look ing to the following non exclusive factors: (1) ― the degree of unity between the entities with respect to ownership,

man agement (both directors and officers) , and business functions (e.g., hiring and personnel matters) ‖ ; (2) ― whether they present themselves as a single company such that third part ies dealt with them as one unit ‖ ; (3) ― whether a parent company covers the sal aries, expens es, or losses of its subsidiary ‖ ; and (4) ― whether one entity does business exclusively with the other. ‖ Id

. at 87

. Ugorji points out that the DEP provides personnel, payroll, and training services and handles labor relations for the NJEIT, and that the DEP‘s commissioner is an ex officio member of the NJEIT‘s board of directors, under N.J. Stat. Ann. § 58:11B

– 4(b). Ugorji also notes that it was the DEP that managed his desk audit requests. We agree with the District Court that Ugorji did n ot point to record evidence giving rise to a9

genuine factual dispute material to determining whether the NJEIT and DEP should be viewed as a single entity for Title VII purposes. The statute creating the NJEIT states: ―[t]here is established in, but not o f , the Department of Environmental P rotection a body corporate and politic, with corporate succession, to be known as the [NJEIT].‖ N.J. S tat

. A nn . § 58:11B

– 4 (a) (emphasis added)

. The NJEIT and DEP are separate entities under state law. W hile the DEP ma y provide some services to the NJEIT , that is not ordinarily sufficient for substantive consolidation

. Ugorji has not pointed to other evidence supporting an inference that the two agencies ―are so interconnected that they collectively caused the alleged discriminatory employment practice.‖ Nesbit , 347 F.3d at 86

. Summary judgment was properly granted for the NJEIT on Ugorji‘s Title VII claim. 2 Considering that claim on the merits does not alter the result.
B . Claims for an equal protection violation b ased on race and national origin under § 1983 , like a disparate treatment claim under Title VII, require a plaintiff to prove intentional discrimination. See Mandel v. M & Q Packaging Corp ., 706 F.3d 157, 169 (3d Cir. 2013) (Title VII); Doe ex rel. Doe v. Lower Merion Sch

. Dist ., 665 F.3d 524 ,

2 The individual d efendants cannot be held liable under Title VII. See Le v. Univ. of Pa. , 321 F.3d 403, 408 n.3 (3d Cir. 2003) (―  ̳ Congress did not intend to hold individual employees liable under Title VII. ‘ ‖ (quoting Sheridan v. EI DuPont de Nemours & Co ., 100 F.3d 106 1, 1078 (3d Cir. 1996) (en banc) ) ).10

543

– 44 (3d Cir. 2011) (equal protection)

. 3 Because Ugorji has not provided direct evidence o f discrimination, his claim s are governed by McDonnell Douglas Corp. v.
Green , 411 U.S. 792, 802

– 03 (1973). See Anderson v . Wachovia Mortg. Corp. , 621 F.3d
261 , 270 (3d Cir. 2010) (applying McDonnell Douglas to an equal protection claim brought under § 1981 ). Under the McDonnell Douglas framework, Ugorji had the initial burden of making a prima facie showing of discriminatio n . See McDonnell Douglas , 411
U.S. at 802. T he burden then shift ed to the defendants to ―articulate some legitimate, nondiscriminatory reason‖ for their actions

. I d

. The burden then returned to Ugorji to raise a factual dispute as to whether the legiti mate reasons the defendants pr offered were a pretext or whether discrimination was among the motives for the challenged employment action

. See Burton v. Teleflex , Inc. , 707 F.3d 417, 426

– 27 (3d Cir. 2013 ). Ugorji claims that the defendants discriminated against him on the basis of his race and national origin by failing to promote him or support his request for reclassification to a managerial position. 4 T he defendants pr offered several

3 Ugorji does not allege or argue that ―the discrimination he suffered was pursuant to an official policy or custom‖ of the NJEIT. McGovern v. City of Philadelphia , 554 F.3d 114, 121 (3d Cir. 2009)

. His § 1983 clai ms appear to be made solely against the individual d efendants

.

4 A prima faci e case of discrimination requires a showing of an adverse employment action. Burton , 707 F.3d at 426. An adverse employment action is ―  ̳ a significant change in employment st atus, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. ‘ ‖ Durham L ife Ins. Co. v. Evans , 166 F.3d 139, 152

– 53 (3d Cir. 1999) (quoting Burlington Indus. , Inc. v. Ellerth , 524 U.S. 742, 761 (1998)).11

nondiscriminatory reasons for their actions

. The defendants stated that they opposed reclassifying Ugorji‘s job title because they believed that the Administrative Assistant 2 title accurately reflected his duties. The defendants also stated that they did not need anyone, including Ugorji, perform ing the duties of an Ad ministrative Analyst 1

. To raise a fact ual dispute as to discrimination , Ugorji ―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) b elieve that an invidious discriminatory reason was more likely than not a motivating or determinative c ause of the employer‘ s action.‖ Burton , 707 F.3d at 427 (quoting Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994) )

. One approach is t o point to evid ence ― that the employer treated other, similarly situated persons not of his protected class more favorably.‖ Fuentes , 32 F.3d at 765. Evidence of disparate treatment must show that a comparator was similarl y situated to the plaintiff ―in  ̳ all relevant r espects. ‘ ‖ Keystone Redev. Partners LLC v. Decker , 631 F.3d 89, 109 (3d Cir. 2011) (quoting Nordlinger v. Hahn , 505 U.S. 1, 10 (1992)). ― I n order to determine who might qualify as a similarly situated employee we must look to the job function, level of s upervisory responsibility and salary, as well as other factors relevant to the particular workplace.‖ Monaco v. Am. Gen. Assurance Co ., Ugorji‘s allegations that the defendants assigned him to a noisy, moldy office without windows; belittled his skills, contributions, and work product; followed and yelled at him; ordered him to remove a bag he brought to work; required him to reorganize his office furniture; checked documents he was holding; and confiscated a space heater from his office are not adverse employment actions that give rise to a damages claim under Title VII or § 1983

.12

359 F.3d 296, 305 (3d Cir. 2004). The District Court found that the individuals Ugorji identified as comparator s held very different jobs than his , and that the record did not include the ir personnel files, resumes, or other admissible sources of information about their responsibilities , experience, and qualifications. On appeal, Ugorji argues that the District Court err ed in finding that the evidence as to these employees did not defeat summary judgment. Ugorji first points to evidence that the NJEIT supported reclassification efforts by Mary Claire D‘Andrea , a white employee

. Unlike Ugorji, D‘Andrea was a management

level employee and former acting NJEIT Executive Director

. Ugorji has failed to point
to evidence showing that he and D‘Andrea were similarly situated in any relevant respect aside from requesting a desk audit

. The promotion or reclassification of one em ployee
but not another , when those employee s have different job responsibilities , qualifications, and experience and their promotion or reclassification would fill different needs within the organization , does not c reate or support an inference of discrimi nation. Ugorji also pointed to Josephine Manzo , a white NJEIT employee who was promoted to the position of Senior Standards and Procedures Technician. But i n 2011, the NJEIT offered to support Ugorji ‘s reclassification to this same position, which would
h ave increased his salary and reduced his work hours

. Ugorji turned this offer down because the NJEIT refused to recommend a reclassification to Administrative Analyst 1 or Community Relations Manager , positions that would have paid him an even higher13

sala ry and given him management responsibilities

. The NJEIT‘s promotion of another employee to a job that Ugor ji was also offered does not support an inference that the NJEIT treated Manzo more favorably than Ugorji

. Ugorji finally argues tha t the District Co urt failed to consider his argument that another NJEIT employee, Trudy Edinger , was assigned responsibilities of an Alternative Affirmative Action Officer and was promoted to Executive Assistant 3, a clerical position. Ugorji asserts that he was qualified for promotion to the Affirmative Action Officer position , b ut he does not point to evidence of Edinger‘s q ualifications or experience

. There is no basis for an inference that Ugorji and Edinger were similarly situated or that her promotion evidence s disc rimination against Ugorji

. C . Ugorji argues that he had alleged a hostile work environment claim under Title VII and that the defendants failed to move for summary judgment on that claim. Although his third amended complaint mentions ―abusive conduct in t he workplace ,‖ Ugorji asserts only a single general count of discrimination under Title VII. The defendants moved for summary judgment on all of Ugorji‘s Title VII claims. At no point did Ugorji assert before the District Court that he had additional cla ims that were not covered by the motion. Ugorji did not clearly allege a hostile work environment claim, see Doe ex rel. Thomas v. Tsai , 648 F.3d 584, 587 (8th Cir. 2011), and the defendants moved for summary judgment on all the claims Ugorji asserted.14 IV. Conclusion We will affirm the District Court‘s judgment.