Bernard Canete v. Barnabas Health System, et al

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, AMBRO and RESTREPO, Circuit Judges. Total Pages: 5. Judge: AMBRO Authoring.

Case: 17-1034

Document: 003112899905

Page: 1

Date Filed: 04/11/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-1034
________________
BERNARD T. CANETE,
Appellant
v.
BARNABAS HEALTH SYSTEM; NEWARK BETH ISRAEL MEDICAL CENTER;
JOHN BRENNAN, CEO; ZACHARY LIPNER; JOANNE REILLY; MARY ELLEN
WIGGINS; HELEN HARTNEY; JOHN DOES 1-10; JANE DOES 1-10; ABC
CORPORATIONS A THROUGH Z
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-12-cv-07222)
District Judge: Honorable Esther Salas
________________
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2018
Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges
(Opinion filed: April 11, 2018)
________________
OPINION*
________________
AMBRO, Circuit Judge

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1034

Document: 003112899905

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Date Filed: 04/11/2018

Bernard Canete is a retired Army Lieutenant Colonel and a registered nurse
employed in the Crisis Unit at the Newark Beth Israel Medical Center. He brought suit in
the District Court for the District of New Jersey against Defendants, his employers and
supervisors, for impermissible discrimination on the basis of his age under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), and the New
Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(a); his race
and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e2(a)(1), and the NJLAD, N.J. Stat. Ann. § 10:5-12(a); and his military status under the
Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”),
38 U.S.C. § 4311(a), and the NJLAD, N.J. Stat. Ann. § 10:5-12(a). He also claims
Defendants created a hostile work environment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the NJLAD, N.J. Stat. Ann. § 10:512(a). Finally, he claims Defendants aided and abetted each other in these discriminatory
practices in violation of the NJLAD, N.J. Stat. Ann. § 10:5-12(e).
Defendants moved for summary judgment. For each of Canete’s discrimination
claims to survive that motion, he must produce evidence of an adverse employment
action taken against him. See Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 761 (3d Cir.
2004) (adverse employment action necessary for Title VII claims); Sarullo v. U.S. Postal
Serv., 352 F.3d 789, 797 n.6 (3d Cir. 2003) (ADEA claim elements are “substantially the
same” as Title VII claims, including the adverse employment action requirement);
Carroll v. Del. River Port Auth., 843 F.3d 129, 131 (3d Cir. 2016) (adverse employment
action necessary for USERRA claims); Battaglia v. United Parcel Serv., Inc., 70 A.3d
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602, 619 (N.J. 2013) (adverse employment action necessary for NJLAD claims).
Similarly, for his hostile work environment claims, he must show evidence of
discrimination “sufficiently severe or pervasive to alter the conditions of [his]
employment . . . .” Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
The District Court granted Defendants’ motion because, among other things,
Canete failed to establish an adverse action or severe or pervasive discriminatory
conduct. Canete now appeals that ruling. He also argues that the District Court showed
bias against him by misapplying the summary judgment standard. We find no error in the
District Court’s reasoning or application of the law and thus affirm.1
An adverse employment action sufficient for Canete’s discrimination claims to
proceed must be “serious and tangible enough to alter an employee’s compensation,
terms, conditions, or privileges of employment . . . .” Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997); see also Staub v. Proctor Hosp., 562 U.S. 411, 416-17
(2011) (describing USERRA’s discrimination prohibition as “very similar to Title VII”);
ADEA, 29 U.S.C. § 623(a) (prohibiting discrimination with respect to employee’s
“compensation, terms, conditions, or privileges of employment”); NJLAD, N.J. Stat.
Ann. § 10:5-12(a) (proscribing discrimination “in compensation or in terms, conditions or
privileges of employment”). Likewise, a hostile work environment must involve “severe

1

The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1367. Our appellate
jurisdiction is under 28 U.S.C. § 1291, and our review of summary judgment
determinations is plenary. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 325 (3d Cir.
2015).
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or pervasive” harassment. Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017)
(emphasis omitted); see also Carver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)
(noting NJLAD hostile work environment claims require “severe or pervasive”
discriminatory conduct). “[S]ome harassment may be severe enough to contaminate an
environment even if not pervasive; other, less objectionable, conduct will contaminate the
workplace only if it is pervasive.” Castleberry, 863 F.3d at 264. (citation omitted).
Canete claims that his employers and supervisors caused him to miss lunches and
breaks and gave more favorable treatment to his co-workers, which he argues are adverse
actions and created a hostile work environment. However, the record fails to support
these assertions. At most, during the relevant timeframe:2 Canete missed only one lunch
break; a co-worker once noted that Canete was the only employee who did not know how
to use the office printer; he vaguely recalled some co-workers commenting that he should
retire but could not describe specific instances; he was monitored and retrained following
a supervisor’s concern about his technique for administering injections, but was subject
to no further action; he was retrained after he did not follow the correct protocol for
physically restraining a patient, but was subject to no further action; and once, when he
answered a phone call with “Colonel Canete,” the junior co-worker on the other line
giggled for unknown reasons.

2

Pursuant to a District Court Order that is unchallenged here, Canete’s claims may be
based only on events that occurred after June 13, 2012. See Order at 2, Canete v.
Barnabus Health Sys., No. 2:12-cv-07222 (D.N.J. Sept. 18, 2013).
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Even viewing these assertions in the light most favorable to Canete, see CarvalhoGrevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017), they do not raise a
genuine question as to whether he suffered a serious, tangible change in employment
status or whether Defendants intentionally discriminated against him in a severe or
pervasive manner. Because his underlying discrimination and hostile work environment
claims fail, Canete’s aiding and abetting claims must also. See Tarr v. Ciasulli, 853 A.2d
921, 929 (N.J. 2004).
Lastly, Canete’s argument that the District Court revealed a judicial bias against
him by misapplying the summary judgment standard has no merit, as the record reflects
that the Court carefully addressed each of his claims and properly applied the relevant
law.
We therefore affirm.

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