Nyema v. County of Mercer ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-12-2006
Nyema v. County of Mercer
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1120
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"Nyema v. County of Mercer" (2006). 2006 Decisions. Paper 913.
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APS-237 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1120
________________________
JOSEPHUS T.Y. NYEMA, SR.,
Appellant
v.
COUNTY OF MERCER; ROBERT D. PRUNETTI, as former county of
Mercer and Mercer County Board of Chosen Freeholders;
JOHN F. RICCI; HARRY G. PARKIN; HARRIS A. KLINE;
DENNIS J. CUNNINGHAM; WILLIAM LAND; THOMAS P. O'DONNELL;
LISA SCHOFIELD; ERIC L. BONE; ARTHIR WILSON; CHERYL A.
MENDENHALL; CHAMAIN AUSTIN; BRIAN M. HUGHES
On Appeal From the United States District Court
For the District of New Jersey
(D.N.J. Civ. No. 04-cv-00506)
District Judge: Honorable Mary L. Cooper
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 25, 2006
Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES
(Filed: June 12, 2006)
OPINION
PER CURIAM
Josephus T. Y. Nyema, Sr., appeals pro se from an order of the United States
District Court for the District of New Jersey granting summary judgment against him in
his employment discrimination suit. Nyema, who is Liberian-American, was employed as
a corrections officer for Mercer County, New Jersey. Nyema brought this action pro se
alleging that Defendants, Mercer County and individual Mercer County employees,
discriminated against him on the basis of his race, color, national origin, age, and
disability, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age
Discrimination in Employment Act (“ADEA”), and the Americans With Disabilities Act
(“ADA”). Nyema’s amended complaint alleges that Defendants failed to interview him
for the position of Warden, rejected him for training and advancement opportunities in the
Mercer Emergency Response Team (“MERT”), gave him less favorable work
assignments than those given to co-workers, disciplined him more harshly than fellow
employees, and retaliated against him for filing internal grievances about the alleged
discrimination.
The District Court granted Defendants’ motion for summary judgment, holding
that Nyema had failed to demonstrate the existence of a genuine issue of material fact
with respect to each of his claims. Nyema has been granted permission to proceed in
forma pauperis on appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Summary judgment
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is appropriately granted where there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A party
opposing a summary judgment motion cannot rest upon the “mere allegations or denials
of the adverse party’s pleading,” but must respond with affidavits or depositions setting
forth “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
Our close review of the District Court record reveals no basis on which Nyema could
withstand Defendants’ motion for summary judgment.
As to his Title VII claims, Nyema provided no evidence that he was qualified for
the position of Warden and did not demonstrate that Defendants’ reason for not choosing
him for the MERT position (his unhealed back injury) was pretextual. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 507-08 (1993); Kautz v. Met-Pro Corp., 412 F.3d 463, 467-68 (3d Cir. 2005).
We agree with the District Court that Nyema’s retaliation claims fail, because there is no
evidence of a causal link between Nyema’s protected activity of filing grievances and his
suspensions and eventual termination. See Woodson v. Scott Paper Co., 109 F.3d 913,
920 (3d Cir. 1997). To the contrary, the record clearly shows that Defendants’ actions
stemmed from a series of disciplinary problems arising from Nyema’s poor performance,
as well as from his indictment and conviction for forgery in state court.1
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The District Court did not address Nyema’s claim that he was given worse work
assignments than his co-workers on the basis of his race, color, or national origin. Such a
claim is cognizable under Title VII, which prohibits discrimination with respect to
“compensation, terms, conditions, or privileges” of employment. See 42 U.S.C. § 2000e-
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Finally, we agree with the District Court that, even if Nyema had followed the
proper procedure for his age and disability claims by presenting them to the E.E.O.C.
prior to raising them in his federal suit, he failed to make out a prima facie case under
either the ADEA or ADA. Nyema’s back injury made him unqualified for the MERT
position, thus preventing him from fulfilling the “qualification” element of the ADEA.
See Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). Moreover,
although the back injury disqualified him for the MERT position, it did not render him
“disabled” within the ADA. See 42 U.S.C. § 12102(2)(A) (a disability is “a physical or
mental impairment that substantially limits one or more of the major life activities...”).
Title 28 U.S.C. § 1915(e)(2)(B)(i) instructs us to dismiss any appeal brought in
forma pauperis that lacks an arguable basis in law or in fact. Neitzke v. Williams, 490
U.S. 319 (1989). We have carefully reviewed the record. As the District Court’s
judgment was clearly correct, Nyema had no arguable legal basis upon which to appeal.
Accordingly, Nyema’s appeal will be dismissed under § 1915(e)(2)(B). Appellant’s
motion for the appointment of counsel is denied.
2(a)(1); Tharp v. Iowa Dep’t of Corr., 68 F.3d 223, 226 (8th Cir. 1995) (shift assignments
are a privilege of employment which can implicate Title VII). However, as Nyema
provides no evidence which would permit an inference of discriminatory intent, this claim
must fail. See E.E.O.C. v. Metal Service Co., 892 F.2d 341, 348 (3d Cir. 1990).
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