Sarullo v. United States Postal Service

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

12-19-2003

Sarullo v. US Postal Ser

Precedential or Non-Precedential: Precedential

Docket No. 01-4203

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PRECEDENTIAL

Filed December 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4203

PATRICK SARULLO,

Appellant

v.

UNITED STATES POSTAL SERVICE; WILLIAM

HENDERSON, POSTMASTER GENERAL;* WILLIAM

BROWN, MANAGER HUMAN RESOURCES UNITED

STATES POSTAL SERVICE; THOMAS L. MODAFERRI;

MARTIN C. DUBINSKI; BARBARA HIGGINS, POSTAL

INSPECTORS; LINDA WYATT, POSTMASTER; JEFFREY

KERKEN, SUPERVISOR; MARTIN SPIELMAN,

SUPERVISOR; WILMA MEDERO

On Appeal for the United States District Court

for the District of New Jersey

(D.C. No. 96-cv-03241)

District Judge: Honorable Nicholas H. Politan

Argued: September 18, 2002

Before: BECKER, Chief Judge,** SCIRICA*** and

McKEE, Circuit Judges

* William Henderson is substituted for his predecessor, Marvin Runyon,

as Postmaster General of the United States Postal Service, pursuant to

Fed. R. App. P. 43(c)(2).

** Judge Becker’s term as Chief Judge ended on May 4, 2003.

*** Judge Scirica became Chief Judge on May 4, 2003.

2

(Filed: December 19, 2003)

ANNE M. PERONE, ESQ. (Argued)

Perone & Perone

490 Somerset Street

North Plainfield, NJ 07060

Attorney for Appellant

CHRISTOPHER J. CHRISTIE

United States Attorney

SUSAN HANDLER-MENAHEM, ESQ.

(Argued)

Assistant United States Attorney

970 Broad Street

Suite 700

Newark, NJ 07102

Attorney for Appellee

United States Postal Service

ERIC TUNIS, ESQ. (Argued)

Kirkpatrick & Lockhart, LLP

The Legal Center

One Riverfront Plaza, Seventh Floor

Newark, NJ 07102

Attorney for Appellee

Linda Wyatt

OPINION OF THE COURT

PER CURIAM.

Patrick Sarullo, a former employee of the United States

Postal Service, was arrested for dealing drugs at work and

was subsequently discharged. Sarullo, denying the charge,

brought a Bivens action for malicious prosecution arising

out of the arrest and also a claim against the Postal Service

under Title VII for discrimination based on age and national

origin and retaliation for a previous EEO claim. The District

Court granted summary judgment for the Postal Service,

holding (1) that Sarullo’s allegations could not defeat the

individual defendants’ qualified immunity with respect to

the Bivens claim; and (2) that Sarullo had not established

3

a prima facie case of employment discrimination or

retaliation. We affirm with respect to the discrimination and

retaliation claims. With respect to the Bivens claim, we

dismiss for lack of subject matter jurisdiction on the

grounds that the Civil Service Reform Act affords Sarullo

the exclusive remedy for his malicious prosecution claim.

We therefore need not reach the question of qualified

immunity discussed by the District Court.

I. BACKGROUND

In the fall of 1992, Sarullo became the focus of an

investigation being conducted by agents of the United

States Postal Service (“USPS”). Postal Inspector Thomas

Modaferri received information from Postmaster Zeevalk of

the Westfield Post Office that a postal employee named

“Pat” who lived on Cherry Street, was selling drugs to postal

employees inside the South Plainfield post office (“South

Plainfield”). Based on this information, Inspector Modaferri

initiated an investigation. He first spoke with South

Plainfield Postmaster Linda Wyatt to determine if an

employee named “Pat” lived on Cherry Street in South

Plainfield. She informed Modaferri that Pat Sarullo was the

only employee named “Pat” in South Plainfield and

confirmed that Sarullo lived on Cherry Street. Modaferri did

not inform Wyatt why he was inquiring.

Shortly thereafter, Wilma Medero was hired at South

Plainfield as a casual clerk. Medero had worked as a police

informant in Plainfield on over 125 investigations, and was

highly recommended by the Plainfield Police Department.

Medero was asked to assist in Modaferri’s investigation

even though (or perhaps because) Medero had a criminal

record.1 While assisting in the investigation, Medero was

expected to appear for work and perform her assigned

1. Although Sarullo faults Modaferri for relying upon someone with a

criminal record, Modaferri may well have reasoned that someone with

Medero’s criminal background would know how to learn if illegal drugs

were being sold. Medero would presumably also be sufficiently familiar

with the culture surrounding illicit sales of controlled substances to

know how to win the confidence of the seller without arousing the

suspicion of the seller.

4

duties while simultaneously trying to learn about any drug

sales inside the post office. She was not told that an

employee named “Pat” was targeted or under suspicion, nor

was she given any other information about the

investigation. Nevertheless, based upon information she

learned while working at South Plainfield, Medero soon

identified Sarullo as a source for narcotics inside the post

office.

On December 15, 1992, Medero informed Modaferri that

she had arranged to purchase drugs from Sarullo the next

day. Modaferri then asked two Postal Inspectors, Karen

Higgins and Martin Dubinski, to assist with the controlled

buy that Medero had arranged. On December 16,

Modaferri, Higgins, and Dubinski met with Medero.

Modaferri searched Medero and her car and then gave her

a tape recorder to record her transaction with Sarullo.

Modaferri then watched as Medero entered the post office.

She came back less than an hour later and told the

investigators that Sarullo did not have the drugs.

Medero made arrangements to buy drugs from Sarullo

again on January 11, 1993, after Sarullo had shown her

$120 worth of cocaine. On January 11, Modaferri and

Higgins met Medero near the post office. Medero was again

searched, then given a recording device and $130 in cash,

and the inspectors watched as she entered the post office.

Medero returned about 40 minutes later and gave Modaferri

a foil package, ten remaining dollars, and the recording

device. The recorder did not contain any drug related

conversations.

Medero arranged another buy from Sarullo on January

14, 1993. On that date, Medero telephoned Modaferri and

told him that Sarullo had an “eight ball” (1/8th of an ounce

of cocaine) for sale for $180. A short time later, Medero met

with Modaferri, Higgins, and Dubinski. Medero was

searched, then given the tape recorder, and $190 cash.

This time, Dubinski attempted to watch the transaction

from the upstairs gallery of the post office. However, his

view was obstructed and he was not able to see Medero or

Sarullo below neck level. Shortly thereafter, Medero

informed Modaferri that she had purchased cocaine from

Sarullo. At approximately 9:48 a.m., Medero met Modaferri

5

and gave him a foil package filled with a white powdery

substance. Modaferri then searched Medero and retrieved

ten dollars remaining from the transaction as well as the

tape recorder. However, once again, the recorder contained

no drug related conversations. Medero arranged a final

transaction for February 18, 1993. On that date, as before,

Modaferri met Medero in the parking lot outside the post

office. Medero was searched and given a recorder and $170,

then she went into the post office. When she returned, she

told the investigators that she had gone to Sarullo’s station

in the post office and obtained a brown paper napkin and

a plastic baggy containing a white powdery substance from

Sarullo’s drawer. Medero gave Modaferri the powdery

substance and the recording device and she was once again

searched.

Chemical analysis confirmed that the powder Medero

claimed to have obtained from Sarullo during each

controlled buy was cocaine. Accordingly, on July 14, 1993,

Modaferri and officers from the South Plainfield Police

Department arrested Sarullo. Less than three weeks later,

Sarullo received a Notice of Removal from the USPS

informing him that he was being terminated effective

August 7, 1993 as a result of his criminal activity.

Apparently undaunted by this notice, Sarullo filed a union

grievance contesting his removal. On September 15, 1994,

after a hearing and testimony from all relevant witnesses,

an arbitrator issued an opinion upholding the termination.

The arbitrator credited Medero’s testimony about Sarullo’s

drug sales and concluded that USPS was therefore justified

in terminating him.

Sarullo was subsequently indicted and tried for

possession and distribution of a controlled substance.

However, the jury was unable to reach a unanimous verdict

and the prosecution subsequently moved to dismiss the

indictment rather than attempt a retrial.

On January 20, 1995, Sarullo sought counseling from an

Equal Employment Opportunity (“EEO”) Counselor on his

claim that he had been terminated from the post office

because of his Native American ancestry. The Equal

Employment Opportunity Commission (“EEOC”) dismissed

that claim because Sarullo had not contacted an EEOC

6

counselor within forty-five days of his termination as

required by regulations. Sarullo had waited a year and a

half after his termination before contacting an EEO

Counselor. Sarullo had previously made an EEO claim

during his employment with the USPS. In 1989, Sarullo

entered into a settlement with Steve Kubala, Sarullo’s

supervisor at that time, for Sarullo’s EEO claim of

employment discrimination and harassment based on

Sarullo’s race. The circumstances surrounding this

settlement are the basis for Sarullo’s claim that his

discharge from the USPS was in retaliation for prior EEO

activity.

Sarullo wrote Postmaster Wyatt on March 29, 1995,

requesting reinstatement to his position with USPS. That

letter was forwarded to William Brown, District Manager of

Human Resources for the Northern New Jersey District,

who was responsible for reinstatement decisions. Brown

denied Sarullo’s request pursuant to a USPS policy

prohibiting rehiring persons who have been removed for

cause. Brown was the only person involved in the decision

not to reinstate Sarullo, and it is uncontested that Brown

had no knowledge of Sarullo’s race, age, or prior EEO

activity when he made the decision.

II. PROCEDURAL HISTORY

On July 1, 1996, Sarullo filed suit in the United States

District Court for the District of New Jersey against the

USPS, Postmaster General Marvin Runyon,2 and eight

current or former USPS employees. Sarullo asserted claims

for discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000a et seq. and the Age Discrimination

in Employment Act of 1967, 29 U.S.C. § 626 et seq. (the

“ADEA.”). The Court also interpreted Sarullo’s complaint to

include a cause of action for a constitutional tort under

Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971).

The District Court dismissed all Title VII and ADEA

2. Postmaster General Henderson was thereafter substituted as

Postmaster Runyon’s successor.

7

claims against all defendants except Postmaster General

Runyon and USPS based upon its conclusion that Sarullo

could only maintain an action for job discrimination against

his employer, not against other employees. However, the

District Court determined that Sarullo’s Bivens claim

against USPS survived a Rule 12 (b) (6) motion.3 The

District Court based its determination that Sarullo had

asserted a cause of action under Bivens for malicious

prosecution on its conclusion that Albright v. Oliver, 510

U.S. 266, 269-71 (1994), permitted a claim for malicious

prosecution to rest on a Fourth Amendment right.

The individual defendants then moved for

reconsideration, arguing that the Civil Service Reform Act of

1978 (“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111 (codified

as amended in scattered sections of Title 5, United States

Code), provides the only remedy for any employment related

causes of action and that the District Court therefore

lacked subject matter jurisdiction over Sarullo’s claim of

malicious prosecution. The District Court dismissed

Sarullo’s claim against Brown because Sarullo had not

alleged that Brown was involved in the actions underlying

the alleged malicious prosecution. However, the Court

refused to dismiss any of the remaining claims. The Court

concluded that Sarullo had alleged a Bivens action that

“does not constitute an adverse employment action under

the CSRA.”

Thereafter, however, the Court granted the remaining

individual defendants’ motions for summary judgment

based upon its conclusion that each was entitled to

qualified immunity. In the alternative, the District Court

found that Sarullo’s malicious prosecution claim failed on

3. In his complaint, Sarullo characterized his constitutional claim as

arising under § 1981. The District Court recharacterized it as asserting

a Bivens claim because the defendants were federal rather than state

officers. Cf. Brown v. Phillip Morris, Inc., 250 F.3d 789, 800 (3d Cir.

2001) (“A Bivens action, which is the federal equivalent of the § 1983

cause of action against state actors, will lie where the defendant has

violated the plaintiff ’s rights under color of federal law.”). The defendants

do not object and both parties address the constitutional claim under

Bivens. We will do the same.

8

the merits because the defendants had probable cause to

institute criminal proceedings against him.

The District Court also granted the Postmaster General

summary judgment on Sarullo’s claims of discrimination

because there was no evidence that failure to rehire Sarullo

was based on discriminatory animus or Sarullo’s prior

EEOC activity. The District Court concluded that the

proffered reason for not rehiring Sarullo was a legitimate

nondiscriminatory purpose. This appeal followed.4

III. DISCUSSION

A. Subject Matter Jurisdiction Under The CSRA

The CSRA provides a comprehensive statutory scheme

which enables federal employees to obtain remedies for

prohibited personnel practices engaged in by federal

agencies. The defendants, relying upon Bush v. Lucas, 462

U.S. 367 (1983), argue that the CSRA affords Sarullo the

exclusive remedy for his malicious prosecution claim and

that the District Court therefore lacked jurisdiction over his

claim for malicious prosecution as it “relate[d] to his

employment relationship with the postal service . . . .”

In Bush, the Supreme Court held that “the history and

structure of the CSRA spoke with sufficient clarity to

preclude the creation of a new Bivens claim.” Mitchum v.

Hurt, 73 F.3d 30, 35 (3d Cir. 1995). In Mitchum, we held

that the CSRA affords the exclusive remedy for damage

claims of federal employees seeking redress for alleged

constitutional violations arising out of the employment

relationship. We noted that the employment relationship

underlying disputes between federal employees and the

government implicates the interest of the government as

4. We examine the evidence in the light most favorable to Sarullo and

resolve all reasonable inferences in his favor. See Stewart v. Rutgers, 120

F.3d 426, 431 (3d Cir. 1997). We affirm a grant of summary judgment

if there is “no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). Summary judgment is inappropriate

“if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. at 248.

9

employer and therefore gives rise to “ ‘special factors

counseling hesitation’ [that] militate against the creation of

a new [Bivens] damages remedy.” Mitchum, 73 F.3d at 34

(quoting Bush, 462 U.S. at 377 (quoting Bivens, 403 U.S. at

396)). Accordingly, we must at the outset determine

whether we have subject matter jurisdiction to resolve the

merits of Sarullo’s Bivens claim for damages based upon

the alleged malicious prosecution. See Rice v. United States

Dep’t of Alcohol, Tobacco & Firearms, 68 F.3d 702, 707 (3rd

Cir. 1995), overruled on other grounds by Pontarelli v.

United States Dep’t of the Treasury, 285 F.3d 216 (3d Cir.

2002) (en banc).

In Schweiker v. Chilicky, 487 U.S. 412 (1988), the

Supreme Court announced a very broad rule, holding that

a Bivens action for an alleged constitutional tort will not lie

“[w]hen the design of a Government program suggests that

Congress has provided what it considers adequate remedial

mechanisms for constitutional violations that may occur in

the course of its administration.” Id. at 423. We agree with

the government that, under Chilicky, this is a case arising

out of the employment context and that the CSRA therefore

provides the full scheme of remedies available to Sarullo.

Sarullo allegedly engaged in illegal drug activity at his place

of employment during regular business hours. His

supervisors, alerted to this possibility, understandably

became concerned and launched an internal investigation

into these alleged wrongdoings. Sarullo was discharged

after the investigation revealed that he was dealing drugs at

work.

A commonsense reading of the CSRA and of the

jurisprudence it has generated forces us to conclude that

measures designed to investigate an employee who is

dealing drugs at work are actions arising out of the

employment context.5 True, those same actions could have

5. The CSRA contains a number of lengthy definitions of personnel

actions and the circumstances under which they become “prohibited

personnel practices,” including the requisite motive, most of which are

unhelpful here. See, e.g., 5 U.S.C. §§ 2302 (a)-(b), 7512. As the Ninth

Circuit noted in Saul v. United States, 928 F.2d 829 (9th Cir. 1991),

Bush holds squarely that the CSRA prevents federal employees from

10

taken place in a wide variety of places: Sarullo’s home, the

street corner, a local bar. But under the facts of this case,

these alleged actions took place at work, and Sarullo was

discharged because of his alleged drug dealings at work —

not because of alleged illegal activity taking place in the

privacy of his own home — or elsewhere — outside of

working hours. There is no reasonable explication of the

CSRA which would have us decide that dealing drugs at

work is not related to the employment context.

This conclusion is supported by the jurisprudence of

other circuits. In Lombardi v. Small Business

Administration, 889 F.2d 959 (10th Cir. 1989), the plaintiff,

an intern at the Small Business Administration, filed a

Bivens claim after his termination. The intern sought

damages and injunctive relief alleging violation of his

constitutional rights by the Small Business Administration

and its officials. The Court held that the intern could not

pursue a Bivens claim because:

the violations complained of by the Appellant occurred

only as a result of the employment relationship with

the Small Business Administration. His position as a

federal employee is central to his complaints, and it is

this employment relationship that the Supreme Court

emphasized in Bush and its progeny, rather than the

nature of the specific violation involved. This Court can

find no facts in the case at bar that sufficiently

distinguish it from the numerous other cases finding

no Bivens remedies in similar situations, especially in

light of the Supreme Court’s clear directive in Chilicky.

Id. at 961.

Just as in Lombardi, Sarullo’s status as a federal

employee is central to his complaint, and the CSRA

therefore precludes his claim. In addition to the initial bar

bringing Bivens actions to job-related wrongs and the specification of

“covered actions” clearly reflects a congressional intent to extend the

CSRA to the kind of decisions that are endemic in the daily dynamics of

the employee/employer relationship. We have no doubt that a discharge

of an employee is such a personnel action.

11

announced in Bush v. Lucas where the CSRA was held to

preclude a Bivens claim for the abridgment of the plaintiff ’s

First Amendment rights, our sister circuits have found

Bivens claims to be similarly barred by the CSRA under a

number of different circumstances. See, e.g., Stephens v.

Dep’t of Health & Human Servs., 901 F.2d 1571, 1576-77

(11th Cir. 1990) (CSRA held to preclude plaintiff ’s Bivens

claims for due process infractions); Berrios v. Dep’t. of the

Army, 884 F.2d 28, 30-33 (1st Cir. 1989) (CSRA held to

preempt plaintiff ’s defamation suit against former

supervisors).

Sarullo argues that his claim for malicious prosecution

does not fall within the scheme of remedies provided by the

CSRA and that he is entitled to prosecute a Bivens claim

because “[n]ot all personnel actions are covered by [the

CSRA]. . . . [C]ertain actions by supervisors against federal

employees, such as wiretapping, warrantless searches, or

uncompensated takings, would not be defined as ‘personnel

actions’ within the statutory scheme.” Bush, 462 U.S. at

386 n.28. Based on this dicta, Sarullo claims that the

investigation initiated against him by his supervisors was

not a “personnel action” within the statutory scheme and

that the CSRA therefore does not provide a remedy. We

disagree.

While it is true that Sarullo’s supervisors placed a tape

recorder on their informant, an action that bears a

similarity to wiretapping, and that such an activity did not

itself constitute a “personnel action” within the CSRA’s

statutory scheme, Sarullo did not prosecute a statutory or

Fourth Amendment damages claim because of the

interception, but rather a claim for malicious prosecution.

Under the facts of this case, the attempted tape recording

was one of the actions that Sarullo’s supervisors (clumsily)

took during the investigation they conducted to determine

whether Sarullo was engaged in illegal drug sales at the

work place, but it was certainly not the central factor that

led to his arrest and prosecution. As we have noted, no

conversations relating to drugs were actually recorded

during these alleged drug transactions. Despite the failed

recording, Sarullo was nevertheless indicted and tried for

possession and distribution of a controlled substance.

12

Thus, although the recording itself does not qualify as a

“personnel action” within the statutory scheme

implemented by the CSRA, the recording constitutes only a

small part of the overall investigation, and a botched one at

that.

Because Sarullo’s claim for malicious prosecution clearly

arises in the employment context, in light of the broad rule

of Chilicky and its progeny, we conclude that the CSRA

provides him with his sole remedy. For these reasons, we

hold that the District Court lacked subject matter

jurisdiction to hear Sarullo’s Bivens claim as such a claim

was barred by the comprehensive statutory scheme

provided in the CSRA, and should have dismissed the

Bivens claim for lack of subject matter jurisdiction.

B. Discrimination

In addition to his malicious prosecution claim, Sarullo

alleges employment discrimination based on his race, and

age, as well as illegal retaliation for his prior EEO

complaint. However, Sarullo has not established a prima

facie case of discrimination or retaliation and the District

Court therefore properly granted summary judgment on

these claims.

The familiar McDonnell Douglas burden shifting analysis

applies to Sarullo’s claims of discrimination under both

Title VII and the ADEA. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Stanziale v. Jargowsky, 200 F.3d 101,

105 (3d Cir. 2000). Accordingly, Sarullo bears the initial

burden of establishing a prima facie case by a

preponderance of the evidence. St. Mary’s Honor Ctr v.

Hicks, 509 U.S. 502, 506 (1993).6 When a plaintiff

establishes a prima facie case of discrimination, the burden

shifts to the employer to “articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.”

6. The requirements for a prima facie case of Title VII race discrimination

and age discrimination under the ADEA are substantially the same. See

Stanziale, 200 F.3d at 105. The only real distinction is that for age

discrimination, an individual is a member of a protected class if he is

forty years of age or older. See 29 U.S.C. § 631.

13

McDonnell Douglas, 411 U.S. at 802. If the defendant meets

this burden, the presumption of discriminatory action

raised by the prima facie case is rebutted. Tex. Dep’t. of

Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). The

plaintiff then must establish by a preponderance of the

evidence that the employer’s proffered reasons were merely

a pretext for discrimination, and not the real motivation for

the unfavorable job action. Id. at 253; McDonnell Douglas,

411 U.S. at 804.

The existence of a prima facie case of employment

discrimination is a question of law that must be decided by

the Court. It requires a showing that: (1) the plaintiff

belongs to a protected class; (2) he/she was qualified for

the position; (3) he/she was subject to an adverse

employment action despite being qualified; and (4) under

circumstances that raise an inference of discriminatory

action, the employer continued to seek out individuals with

qualifications similar to the plaintiff ’s to fill the position.

McDonnell Douglas, 411 U.S. at 802; Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 348 n.1, 352, 356 (3d Cir. 1999).7

However, the prima facie test remains flexible and must be

tailored to fit the specific context in which it is applied.

Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir.

1996).

7. The facts necessary to establish a prima facie case of discrimination

under Title VII vary depending on the particular circumstances of each

case. McDonnell Douglas, 411 U.S. at 802 n.13. The defendants suggest

that the fourth element requires a showing that “other similarly situated

employees outside [Sarullo’s] protected class were more favorably treated

under similar circumstances.” While a number of our decisions suggest

such a showing was required in the past, see, e.g., Lawrence v. Nat’l.

Westminster Bank, 98 F.3d 61, 68 (3d Cir. 1996) (plaintiff must prove

he/she was replaced by person outside protected class to create an

inference of discrimination), that is not the current law in this or the

majority of the circuits. See Pivirotto, 191 F.3d at 354. In Pivirotto, we

explicitly rejected a requirement that a plaintiff prove he was replaced by

someone outside the protected class to prove a prima facie case of

discrimination. 191 F.3d at 352. We require only that the plaintiff show

that the employer continued to seek out individuals with similar

qualifications after refusing to rehire the plaintiff under circumstances

that raise an inference of unlawful discrimination. See id. (“Nowhere did

the [Supreme Court] describe the fourth element as hiring of (or, by

implication, replacement by) a person outside the plaintiff ’s class.”)

14

The first three elements of Sarullo’s prima facie case are

not disputed. He is of Native American ancestry, and more

than forty years old. He is therefore a member of a

protected class under Title VII (his ethnicity) and the ADEA

(his age), and his qualifications are not in dispute.8 He

suffered an adverse employment action when he was

terminated and not rehired. However, Sarullo can not

establish that USPS’s failure to rehire him raises an

inference of discriminatory animus. The “central focus” of

the prima facie case “is always whether the employer is

treating ‘some people less favorably than others because of

their race, color, religion, sex, or national origin.’ ” 191 F.3d

at 352 (quoting Int’l Bhd. of Teamsters v. United States, 431

U.S. 324, 335 n.15 (1977)). Sarullo’s evidence of race

discrimination consists solely of his own assertion that he

was not rehired because he is Native American. He

attempts to support that allegation using his own

deposition and affidavits suggesting that most of his

coworkers and supervisors knew that he was Native

American and some of them called him derogatory

nicknames referencing his Native American heritage.

However, he has not claimed that employees who are not

Native American have been rehired after having criminal

charges dismissed. Although he need not establish that

precise kind of disparate treatment to establish a claim of

discrimination, he must establish some causal nexus

between his membership in a protected class and the

decision to not rehire him.

In addition, USPS suggests that Sarullo does not meet

the second prong of the test because he was terminated for

cause (his arrest and grand jury indictment for possession

and distribution of a controlled dangerous substance). We

agree. Sarullo’s drug activity fatally undermines his

suggestion that USPS’s actions raise the inference of

discrimination necessary to his prima facie case.

8. In 1989 and 1990, Sarullo received a number of disciplinary letters

from the USPS, two of them in lieu of seven-day suspensions, for failure

to follow official instructions and for working in an unsafe manner.

Neither of these past disciplinary actions lead to the inference that he

was unqualified for his position.

15

Moreover, USPS offered uncontradicted evidence that

William Brown, the Manager of the Human Resources

Department for the Northern New Jersey District,

independently decided that Sarullo was not entitled to

reinstatement. While Sarullo alleges that his supervisors

and coworkers knew of his Native American ancestry, those

individuals were not involved in the decision to deny

reinstatement. Sarullo has provided no evidence to rebut

Brown’s affidavit stating that when he denied Sarullo’s

reinstatement he was unaware of Sarullo’s “race, color,

national origin, age, or prior EEO activity” or that Sarullo

had made allegations of name calling and improper

language in the workplace. Furthermore, nothing here

supports an inference that Brown heard of Sarullo’s Native

American heritage through an office “grapevine.” Brown’s

office was located in Newark, many miles from the South

Plainfield facility.

It is undisputed that Brown was unaware of any ethnic

name-calling,9 and there is no evidence that he knew

Sarullo’s “race, color, national origin, age or prior EEO

activity.” Brown simply followed a USPS policy of denying

“reemployment to former employees who had been removed

from their position for cause.” App. at 636a. Sarullo’s

attempt to state a cause of action against Brown is

therefore meritless.

Sarullo’s “evidence” of age discrimination is also

speculative. It consists solely of his claim that USPS has

hired nine younger employees since his termination. Even

assuming arguendo that is true, it does not raise an

inference that Sarullo’s age was a factor in USPS refusing

to rehire him. Sarullo fails to offer anything to counter

Brown’s testimony that he (Brown) did not know Sarullo’s

age. Although an employee’s physical appearance might

suggest that he/she is more than forty years of age,

nothing on this record suggests Sarullo’s appearance

conveys knowledge that he is over forty, and Sarullo has

9. Sarullo claims that Wyatt and Spielman knew of the alleged name-

calling as well as of his “age, race, national origin, current grievances

and complaints and prior EEO activity.” Sarullo makes no similar claim

with respect to Brown’s knowledge.

16

not alleged the contrary. Absent knowledge of Sarullo’s age,

Brown’s decision not to reinstate him does not raise an

inference of age discrimination.

Moreover, even if Sarullo could establish that his age was

known by the relevant decision makers at USPS, he would

not automatically prevail. Rather, as explained above, the

burden would simply shift to USPS to offer a non

discriminatory explanation for its failure to rehire him.

USPS would have to “ ‘clearly set forth, through the

introduction of admissible evidence,’ reasons for its actions

which, if believed by the trier of fact, would support a

finding that unlawful discrimination was not the cause of

the employment action.” St. Mary’s Honor Center, 509 U.S.

at 507 (quoting Burdine, 450 U.S. at 254-55 & n.3)

(emphasis in original).10

Sarullo does not dispute that William Brown was the

appropriate person to decide if he should be reinstated.

Brown concluded that reinstating an employee who had

been terminated because of an arrest for selling drugs

inside a post office facility was not in the best interest of

USPS even though the criminal charges were subsequently

dismissed following a mistrial. It is hard to find fault with

that rationale, and nothing on this record raises doubts

about his true motivation.

Sarullo must produce sufficient evidence to allow a

reasonable fact finder to conclude that the proffered

reasons for not rehiring him are a pretext for illegal

discrimination or retaliation. He may meet this burden and

defeat a motion for summary judgment by providing

evidence that would allow a fact finder reasonably to “(1)

disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was

more likely than not the motivating or determinative cause

of the employer’s action.” Jones v. Sch. Dist. of Phila., 198

F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes v. Perskie, 32

10. Within the McDonnell Douglas burden-shifting framework, the

defendant only has the burden of production because the burden of

proof in a discrimination claim remains with the plaintiff. Burdine, 450

U.S. at 253.

17

F.3d 759, 764 (3d Cir. 1994); Sheridan v. E.I. DuPont de

Nemours & Co., 100 F.3d. 1061, 1067 (3d Cir. 1996)).

Sarullo can accomplish this by showing that the

defendants’ proffered reasons are weak, incoherent,

implausible, or so inconsistent that “a reasonable factfinder

could rationally find them unworthy of credence.” Keller v.

Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir.

1997). He can also meet this burden with evidence that “the

employer’s articulated reason was not merely wrong, but

that it was ‘so plainly wrong that it could not have been the

employer’s real reason.’ ” Jones, 198 F.3d at 413 (quoting

Keller, 130 F.3d at 1109).

Sarullo has not produced sufficient evidence to refute the

defendants’ explanation of why he was not rehired. He

alleges that his supervisors and coworkers were out “to get

him.” He attempts to explain Brown’s independent decision

against reinstatement by arguing that USPS had erected a

“glass wall” between Brown and the rest of Sarullo’s former

supervisors and coworkers. However, no evidence is offered

to contradict Brown’s statement that he made the

reinstatement decision without knowledge of Sarullo’s

ethnicity or age. Sarullo merely claims that the proffered

explanation for not rehiring him is a “sham.” Absent

countervailing proof, that is nothing more than Sarullo’s

personal view of his employer’s explanation and falls far

short of establishing pretext. See Jones, 198 F.3d at 414.

Sarullo’s response is thus insufficient to defeat a motion for

summary judgment.

C. Retaliation

In 1989, Sarullo entered into an EEO settlement with

Steve Kubala who was then his supervisor at USPS. Sarullo

had claimed that Kubala had discriminated against him

and harassed him based upon race. Sarullo now argues

that the decision to not reinstate him following dismissal of

the criminal charges was motivated, at least in part, by a

desire to retaliate for having filed an EEOC complaint

against USPS in the past.

A plaintiff alleging that an unfavorable job action is based

upon an illegal retaliatory motive in violation of Title VII

18

must first establish that “(1) he was engaged in protected

activity; (2) he was [subject to an adverse job action]

subsequent to or contemporaneously with such activity;

and (3) there is a causal link between the protected activity

and the [subsequent adverse job action].” Woodson v. Scott

Paper Co., 109 F.3d 913, 920 (3d Cir. 1997).

Sarullo can establish the first prong of this test because

he engaged in protected activity in 1989. The events giving

rise to the present case occurred in 1992. He also satisfies

the second part of the inquiry as USPS obviously failed to

rehire him after that 1989 complaint.11 However, Sarullo’s

attempt to establish a prima facie case of retaliation fails

because there is nothing in the record to suggest a

relationship between the decision to not rehire and the

prior EEOC activity. As noted above, it is undisputed that

USPS has a policy against rehiring an employee who is

terminated with cause and nothing here suggests that the

policy was enforced so inconsistently as to support an

inference that it was invoked here merely as a pretext for

retaliation. We conclude that no reasonable fact finder

could conclude anything other than that USPS would have

made exactly the same decision regarding Sarullo’s rehiring

if he had never filed an EEOC complaint. We can not accept

his argument that the record here would allow a reasonable

fact finder to conclude that the decision not to rehire him

was somehow tainted by EEOC activity. Moroever, Sarullo

has provided no evidence to rebut Brown’s declaration that

he was unaware of Sarullo’s prior EEO activity when he

made his decision not to reinstate Sarullo. Thus, the

District Court properly granted summary judgment. See

Jones, 198 F.3d at 415.

11. The fact that the prior complaint was filed in 1989 weakens Sarullo’s

claim, but is not fatal to it. We have held that “ ‘the mere passage of time

is not legally conclusive proof against retaliation,’ ” particularly when the

plaintiff is subject to a continuous pattern of harassment following the

protected activity. Woodson, 109 F.3d at 920 (quoting Robinson v.

SEPTA, 982 F.3d 892, 894 (3d Cir. 1993)). Sarullo does allege a

continuing pattern of harassment.

19

IV. CONCLUSION

For the reasons set forth above, we will affirm the District

Court’s grant of summary judgment in favor of the

defendants with respect to the discrimination and

retaliation claims. The Bivens claim will be dismissed for

lack of subject matter jurisdiction.12

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

12. Sarullo also argues that the District Court abused its discretion in

refusing to allow him to amend his complaint under Fed. R. Civ. P. 15(a).

However, the District Court explained that such an amendment would be

futile and properly exercised its discretion to deny the amendment. We

agree. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434

(3rd Cir. 1997). Accordingly, the Court did not abuse its discretion in

denying the attempt to amend this complaint.

Sarullo also complains that the District Court erred in granting

summary judgment even though discovery was not yet complete. We

assume that this refers to the Court’s denial of his motion to compel

discovery under Fed. R. Civ. P. 37(a). However, the District Court

explained why that motion was improper, and we affirm the Court’s

decision substantially for the reasons set forth by the District Court.

Finally, we also deny the government’s motion to dismiss Sarullo’s

appeal because the Notice of Appeal failed to specify the orders Sarullo

was appealing. Under Drinkwater v. Union Carbide, Corp. 904 F.2d 853,

858 (3d Cir. 1990), we may exercise jurisdiction of unspecified prior

orders related to a final order.