Maryann Cottrell v. Nicholson Properties LLC ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-3088
____________
MARYANN COTTRELL; RICHARD G. HOLLAND,
Appellants
v.
NICHOLSON PROPERTIES LLC, d/b/a/ Hollybush Car Wash, d/b/a Hollybush
Laundromat; GEORGE NICHOLSON, SR.; GEORGE NICHOLSON, JR.; JOHN and
JANE DOES
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-12-cv-02128)
District Judge: Honorable Noel L. Hillman
____________
Submitted April 4, 2019
Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District
Judge.*
(Filed: April 11, 2109)
*
The Honorable Mitchell S. Goldberg, District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
____________
OPINION**
____________
HARDIMAN, Circuit Judge.
Maryann Cottrell and Richard Holland, now proceeding pro se, appeal the District
Court’s summary judgment in favor of Nicholson Properties, George Nicholson, Sr., and
George Nicholson, Jr. We will affirm.
I1
Nicholson, Sr. banned Cottrell and Holland from his commercial property after
they recorded (and reported) vehicles illegally parked in handicap spots on several
occasions. Cottrell and Holland sued Nicholson Properties, Nicholson, Sr., and
Nicholson, Jr. for retaliating against them in violation of the Americans with Disabilities
Act (ADA) and the New Jersey Law Against Discrimination (NJLAD). In response to
Defendants’ motion for summary judgment, Cottrell and Holland filed a “Cross-Motion
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
The District Court had jurisdiction over the ADA claim under 28 U.S.C. § 1331
and supplemental jurisdiction over the New Jersey Law Against Discrimination claim
under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291. Our review of the
District Court’s summary judgment is plenary, and we apply the same standard as the
District Court. E.g., Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
We review for abuse of discretion the denial of an adverse spoliation inference, Jutrowski
v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018), and a district court’s
determination on attorney’s fees and costs, Templin v. Independence Blue Cross, 785
F.3d 861, 864 (3d Cir. 2015).
2
for Adverse Inference and Attorneys’ Fees.” The District Court granted Defendants’
summary judgment motion and denied Plaintiffs’ cross-motion. Cottrell and Holland now
claim the District Court erred because they: (1) are entitled to adverse inferences because
the Nicholsons withheld video evidence and names of witnesses; (2) demonstrated that
the Nicholsons’ legitimate nondiscriminatory reason for the ban was pretext for
discriminatory animus; and (3) deserve attorney’s fees under the catalyst theory because
Defendants withdrew the ban during litigation.
A
We begin with Cottrell and Holland’s contention that they were entitled to adverse
inferences as to some videos the Nicholsons allegedly withheld, and as to witnesses the
Nicholsons failed to identify. Appellants argue the District Court should have presumed
that “whatever was on those videotapes and whatever would have been said at the witness
depositions would [have] support[ed] Plaintiffs’ position.” Cottrell Br. 18.
The District Court disagreed, finding that an adverse inference was inappropriate
for the videos because Cottrell and Holland failed to demonstrate the Nicholsons actually
suppressed any videos, which were made at least two years before the suit was filed. The
Court also denied their request for an adverse inference as to the unidentified witnesses
because Cottrell and Holland provided no legal support for it, and the Nicholsons
identified those witnesses when prompted by Plaintiffs in depositions.
The District Court did not abuse its discretion on either front. Spoliation occurs
when: “the evidence was in the party’s control; the evidence is relevant to the claims or
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defenses in the case; there has been actual suppression or withholding of evidence; and,
the duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United
Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). As noted by the District Court, there
was no evidence the Nicholsons suppressed or withheld the video recordings of events
happening several years before the litigation was filed. And their argument about the
unidentified witnesses is unavailing because the Nicholsons provided their names during
deposition testimony.
B
We next consider whether Appellants demonstrated that the Nicholsons’ proffered
reason for the ban—the duo’s harassment of customers—was simply a pretext for
discriminatory animus. Cottrell and Holland contend the video evidence supports their
pretext argument, as a jury might conclude after viewing the footage that they were not
disruptive and the Nicholsons displayed animus against them. They also argue the Court
erred by concluding that Nicholson, Jr.’s later treatment of them—which included
harassment and efforts to interfere with Cottrell’s parental rights over her disabled
daughter—did not establish pretext for retaliation.
The District Court granted summary judgment in favor of Defendants after
applying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).2 The Court found that while Cottrell and Holland established a prima facie
2
The McDonnell-Douglas burden-shifting framework applies to both ADA and
NJLAD claims once a prima facie case of retaliation is established. See McDonnell
4
case of retaliation under the ADA and NJLAD, Defendants provided a legitimate
nondiscriminatory reason for banning them from the property. The Court cited the
Nicholsons’ testimony that they decided to ban Cottrell and Holland because their
behavior was alarming customers. Plaintiffs then had the burden of showing that the
Nicholsons’ stated reason “was not the ‘true reason’ but was instead a pretext.” Cottrell v.
Nicholson Props. LLC, 2018 WL 4062723, at *11 (D.N.J. Aug. 24, 2018) (citing Fuentes
v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). But Plaintiffs’ pretext argument “focuse[d]
on why Defendants’ proffered reason should be disbelieved,” alleging that the video
evidence shows they did not engage in misconduct. Id. After considering the video—as
well as the duo’s contention that Nicholson, Jr. harassed them—the District Court found
that Plaintiffs “failed to proffer sufficient evidence from which a reasonable factfinder
could conclude it was more likely than not that a ‘discriminatory animus’ motivated
Defendants in banning Plaintiffs.” Id. at *11, *12 n.13.
We perceive no error in the District Court’s analysis. To establish pretext under
Fuentes v. Perskie, plaintiffs must “point to some evidence . . . from which a factfinder
could reasonably either (1) disbelieve the [Defendant’s] articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a motivating
or determinative cause of the [Defendant’s] action.” 32 F.3d at 764. By merely pointing
to the video evidence and their harassment claims against Nicholson, Jr., Appellants
Douglas Corp., 411 U.S. at 802; Jansen v. Food Circus Supermarkets, Inc., 541 A.2d
682, 691 (N.J. 1988).
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made neither showing. We agree with the District Court that the video undercuts their
argument, as “a reasonable factfinder would find the video entirely consistent with
Defendants’ proffered reason” because it shows Cottrell and Holland irritated customers
and disrupted business. Cottrell, 2018 WL 4062723, at *11.
Nor did the District Court err in concluding that Cottrell and Holland’s harassment
claims against Nicholson, Jr. were “insufficient to show that Defendants’ decision to ban
Plaintiffs from their property was motivated by anything other than unwarranted
disruptions to Defendants’ businesses and third parties.” Id. at *12 n.13. According to
Cottrell and Holland’s Second Amended Complaint, the harassment occurred about two
years after the Nicholsons instituted the ban. Because the claims against Nicholson Jr.
arose long after the Nicholsons banned Appellants, a reasonable factfinder could not
conclude that discriminatory animus motivated the earlier decision to ban them from the
property.3
In sum, the District Court did not err in granting summary judgment in favor of
Defendants because Cottrell and Holland failed to show that Defendants’ legitimate
nondiscriminatory reason for banning them was pretextual.
3
To the extent Appellants contend that the District Court abused its discretion or
otherwise erred by not considering whether Nicholson Jr.’s harassment was itself
actionable retaliation, Appellants present no legal support or citation to the record for this
contention. We therefore decline to address it further. See Fed. R. App. P. 28(a)(8);
United States v. Fattah, 914 F.3d 112, 189 n.38 (3d Cir. 2019).
6
C
Finally, Cottrell and Holland seek attorney’s fees under the catalyst theory, which
applies when there is a “factual causal nexus between plaintiff’s litigation and the relief
ultimately achieved,” so long as that relief “had a basis in law.” Singer v. State, 472 A.2d
138, 142 (N.J. 1984). According to Appellants, “the nexus between the litigation and the
relief is obvious” because they sought an injunction against the ban, which Defendants
rescinded after learning Cottrell and Holland obtained counsel. Cottrell Br. 26.
The District Court rightly rejected this argument because the Supreme Court has
held “that the ‘catalyst theory’ is not a permissible basis for the award of attorney’s fees
under the . . . ADA.” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 610 (2001). Although the District Court did not address the theory’s
applicability to the NJLAD claim, this avenue is also unavailing because the relief gained
here—lifting the ban—did not have “a basis in law.” Singer, 472 A.2d at 142. While
Cottrell and Holland ultimately received their desired outcome, Defendants’ decision to
lift the ban was not required by law because Appellants did not establish a legal basis for
an injunction under these facts. See id. So there was no abuse of discretion to deny
attorney’s fees.
* * *
For the reasons stated, we will affirm the District Court’s order.
7