Nelson v. Upsala College, 94-5453

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation51 F.3d 383
Docket NumberNo. 94-5453,94-5453
Parties67 Fair Empl.Prac.Cas. (BNA) 525, 66 Empl. Prac. Dec. P 43,494, 63 USLW 2614, 99 Ed. Law Rep. 91 Johnetta NELSON, Appellant, v. UPSALA COLLEGE; Robert E. Karsten; George W. Freyberger; Warren H. Funk.
Decision Date24 March 1995

Charles A. Sullivan (argued), Newark, NJ, Mark P. Denbeaux, Woodcliff Lake, NJ, for appellant.

Nicholas J. Taldone, Peter O. Hughes (argued), Shanley & Fisher, Morristown, NJ, for appellees.

Before: STAPLETON, GREENBERG, and COWEN, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Johnetta Nelson appeals from the district court's order of June 24, 1994, granting summary judgment to Upsala College and certain of its officials in this action alleging unlawful employment retaliation pursuant to section 704(a) of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec. 2000e-3(a), and state-law defamation. In addition, Nelson challenges the district court's refusal to exercise supplemental jurisdiction over her claims that Upsala and its representatives engaged in conduct constituting unlawful employment retaliation contrary to the New Jersey Law Against Discrimination, N.J.Stat.Ann. Sec. 10:5-12(d) (West Supp.1994), and the New Jersey Conscientious Employee Protection Act, id. Sec. 34:19-3(c) (West Supp.1994).

The germane facts are not in dispute. 1 Upsala is a small, private liberal arts college with a campus in East Orange, New Jersey. Defendants Robert E. Karsten, Warren H. Funk, and George W. Freyberger are, respectively, the president, provost, and dean of students of Upsala. As a matter of convenience we usually will refer to the college and the individual defendants collectively as Upsala.

Upsala first employed Nelson, an African-American, in 1979 as its part-time Gospel Choir Director. In addition, Upsala has employed Nelson as a secretary in the Office of Dean of Students and the College Center Office. At the beginning of the 1990-91 academic year, Upsala announced its intention to eliminate the position of choir director for budgetary reasons. When the choir's student participants objected, Upsala decided to fund the choir, but to convert it to an elective course for which students could receive academic credit. This conversion meant that Upsala could not retain Nelson as the choir director because she did not possess a college degree, as required under Upsala's policy for faculty members teaching an accredited course. Consequently, Upsala terminated Nelson's employment as of October 16, 1990.

Nelson then filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") against Upsala alleging race discrimination. Nelson and Upsala settled that claim, and on or about November 9, 1990, Upsala agreed to reinstate Nelson to a terminal contract for the 1990-91 academic year. The EEOC then dismissed Nelson's claim.

In accordance with the settlement agreement, Upsala designated Nelson as director of the "extra-curricular designated" Gospel Choir, and she continued in that position until her terminal contract expired on May 3, 1991. During the spring of 1991 a search committee chose Beverly Owens, an African-American with both a bachelor degree and master of arts degree in music performance, as the new choir director. Upsala planned that the choir would become a course for credit during the 1991-92 academic year.

Following the expiration of Nelson's terminal contract a number of incidents led to this action. On or about September 18, 1991, Nelson attended a gathering on the Upsala campus. Freyberger was at the meeting and saw Nelson. However, neither Freyberger nor anyone else asked Nelson to leave the campus or forcibly removed her.

Nevertheless by letter dated September 19, 1991, Funk wrote to Nelson stating that she was no longer permitted on campus due to her termination as an Upsala College employee. 2 Freyberger also wrote Nelson that she was no longer permitted on campus and that it would be necessary for her to obtain prior approval from Upsala before entering its campus.

Despite the letters, Nelson visited the Upsala campus a number of times after September 1991. For instance, in October 1991, Nelson accompanied Gospel Choir members and other students in a protest against the Upsala administration over several issues, including her termination as choir director. Nelson also appeared on campus without authorization in February 1992 to lead the "Former Upsala College Gospel Choir" in a "Gospel Sing Fest." Funk attended this event and saw Nelson. Upsala, however, did not remove Nelson from the campus or take other actions against her when she appeared on campus after her termination.

On September 27, 1991, Nelson filed a second discrimination charge with the EEOC alleging that Upsala retaliated against her for filing the earlier charge with the EEOC. The EEOC dismissed the second charge on February 14, 1992. Nelson then filed a complaint in the district court alleging that Upsala engaged in conduct constituting unlawful retaliation under section 704(a) of Title VII, the New Jersey Law Against Discrimination, and the New Jersey Conscientious Employee Protection Act. Furthermore, Nelson asserted a state-law cause of action for defamation alleging that during Nelson's last year of employment at Upsala, Freyberger told a student or students that Nelson stole money from Upsala and defrauded it by submitting a false petty cash voucher. After Nelson filed the district court complaint, Freyberger made a similar statement to his secretary and members of his professional staff. By stipulation Nelson in effect amended her complaint to add a defamation claim predicated on this republication. Nelson also asserted a state-law claim that the alleged retaliatory conduct constituted a material breach of the settlement agreement by Upsala.

Upsala ultimately moved for summary judgment. On June 24, 1994, the district court granted this motion on the claims of defamation and unlawful employment retaliation under Title VII. The court, however, refused to exercise supplemental jurisdiction over Nelson's remaining state-law claims. The court concluded that Nelson did not demonstrate a prima facie case of unlawful retaliation under Title VII because she failed to demonstrate that she suffered an adverse employment action. Additionally, the court determined that Nelson's defamation claim was barred by the New Jersey statute of limitations. N.J.Stat.Ann. Sec. 2A:14-3 (West 1987).

Nelson has appealed from the order of June 24, 1990. The district court had subject matter jurisdiction pursuant to 42 U.S.C. Sec. 2000e-5(f) and 28 U.S.C. Sec. 1331, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II. STANDARD OF REVIEW

When considering an appeal from the grant of summary judgment, we exercise plenary review. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993). Therefore we must determine whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate that there is no genuine issue of material fact and that Upsala is entitled to judgment as a matter of law. See Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1423 (3d Cir.1994).

III. ANALYSIS
A. Nelson's Unlawful Retaliation Claim
1. The "Pre-Approval" Requirement

Nelson argues that Upsala's requirement for prior approval for her to visit the campus was an unlawful retaliation for the first charge she filed with the EEOC. She then contends that the district court erred in ruling that she failed to make out a prima facie case of retaliation on the basis of its conclusions that she did not demonstrate that she suffered an "adverse employment action," which the court defined as "any action which already has impaired or which might impair the employee in future employment situations." Nelson maintains that she can establish a retaliation case without demonstrating that she suffered an adverse employment action as defined by the district court. She contends that actionable retaliation includes all conduct that "arises out of or is related to the employment relation." Thus, in her view, the conduct need not impair an "employment situation." Brief at 11.

Upsala counters that the requirement that Nelson receive prior approval for campus visits does not constitute an adverse employment action within section 704 and that a plaintiff must suffer an adverse employment action to establish a successful retaliation case. Moreover, Upsala asserts that Nelson failed to produce evidence demonstrating that there was a causal connection between her filing of the original EEOC charge and the alleged retaliation.

Section 704(a) of Title VII provides in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. Sec. 2000e-3(a).

To establish discriminatory retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); Weiss v. Parker Hannifan Corp., 747 F.Supp. 1118, 1128 (D.N.J.1990); see also Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 895 n. 1 (3d Cir.1993). Nelson's proofs clearly satisfy the first of the above-named elements, for it is settled that a cause of action exists pursuant to ...

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