ALD-078                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 10-3828
                                    ___________

                              CARMINE SAUCHELLI,
                                             Appellant

                                          v.

                             US POSTAL SERVICE;
                         FRANK POSTORINO, Supervisor
                     ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 08-cv-01682)
                    District Judge: Honorable Garrett E. Brown, Jr.
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 29, 2010
           Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                               (Filed: January 14, 2011)
                                       _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM.

      Carmine Sauchelli, proceeding pro se, appeals the District Court‟s order denying

his motion for summary judgment and granting the Postal Service‟s motion for summary

judgment. Also before the Court are Sauchelli‟s motion to proceed in forma pauperis
and motion for appointment of counsel.

                                              I

       From 1987 until 2005, Sauchelli was employed as a letter carrier with the United

States Postal Service. Defendant-Appellee Frank Postorino became Sauchelli‟s

supervisor in 2000. Beginning in 2001, Postorino disciplined Sauchelli on several

occasions, giving Sauchelli several warnings and suspending him at least twice.

Sauchelli believed Postorino had singled him out for harassment, and a co-worker heard

Postorino say: “I don‟t care how long it takes me, but I will get Carmine. He‟s sticking

it to me and I will get him.”

       In June 2004, Sauchelli received a notice of removal for “Failure to Properly

Perform Your Duties.” His union intervened, and, after the parties entered into a “Last

Chance Agreement,” the notice of removal was held in abeyance for a two-year period.

Thereafter, Sauchelli committed a handful of infractions, for which he received warnings

from Postorino. Then, in March 2005, Sauchelli received a second notice of removal,

which alleged that he had violated the last chance agreement. Sauchelli‟s union filed a

grievance, but Sauchelli‟s termination was upheld.

       Sauchelli then filed a complaint with the EEOC, alleging that he suffered

discrimination based on his disability (he has a back injury) and his sex (male). His

initial complaint was deemed meritless. On appeal, the EEOC Office of Federal

Operations affirmed the initial finding that no prohibited discrimination occurred.

       In 2008, Sauchelli filed this complaint in the District Court, alleging that his

                                              2
termination resulted from unlawful gender discrimination, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 The thrust of his claim was that he

was subjected to discipline for conduct that his female coworkers also committed, though

without consequence. Sauchelli also alleged that Frank Postorino created a hostile work

environment based on Sauchelli‟s gender. Each of the parties filed a motion for summary

judgment. The District Court denied Sauchelli‟s motion and granted the Postal Service‟s

motion. Sauchelli filed a timely notice of appeal from that order. He also requests that

we grant him in forma pauperis status and appoint counsel to represent him. The Postal

Service filed a motion requesting summary action, which Sauchelli opposes.

                                               II

        We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We turn first

to Sauchelli‟s in forma pauperis motion. Under 28 U.S.C. § 1915(a)(1), we may allow

Sauchelli to proceed without prepayment of fees. Our decision is based solely on

Sauchelli‟s economic eligibility. See Sinwell v. Shapp, 

, 19 (3d Cir. 1976).

Based on Sauchelli‟s supporting affidavit, we will permit him to proceed in forma

pauperis.

        We may summarily affirm the District Court‟s order if Sauchelli‟s appeal does not

raise a substantial question. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. “Our review of a

district court‟s grant of summary judgment is plenary, and we must apply the same

standard the district court was required to apply under Federal Rule of Civil Procedure


1
    In his deposition, Sauchelli explained that he no longer intended to pursue a disability
                                               3
56(c).” Spence v. ESAB Group, Inc., 

, 216 (3d Cir. 2010). “Thus, we can

affirm only „if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.‟” 

R. Civ. P. 56(c)(2)). “A

genuine issue of material fact exists if there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” 

the

evidence, we must view the facts in the light most favorable to the nonmoving party and

draw all inferences in that party's favor.” 

marks and citation

omitted).

       When direct evidence of discrimination is unavailable, a plaintiff alleging “reverse

discrimination” in a Title VII action makes out a prima facie case “by presenting

sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the

circumstances) that the defendant treated [him] „less favorably than others because of

[his] race, color, religion, sex, or national origin.‟” Iadimarco v. Runyon, 

,

163 (3d Cir. 1999) (quoting Furnco Constr. Corp. v. Waters, 

, 577 (1978)).

Likewise, a plaintiff alleging a hostile work environment claim under Title VII must

demonstrate that he suffered discrimination on account of his sex. See Huston v. Procter

& Gamble Paper Prods. Corp., 

, 104 (3d Cir. 2009). Here, the District Court

reasoned that Sauchelli‟s disparate treatment and hostile work environment claims

necessarily failed because Sauchelli did not present sufficient evidence for a reasonable


discrimination claim.
                                              4
fact finder to conclude that any adverse actions taken against Sauchelli were on account

of his sex. We agree.

       Sauchelli asserts that he was disciplined for certain conduct but that his female

coworkers were not necessarily disciplined for the same conduct. However, as the

District Court explained, the record shows that both male and female employees received

discipline, in various forms, for infractions of the Postal Service‟s rules. And although

Sauchelli was the only employee -- male or female -- who was terminated for infractions,

he was also the only employee who violated a Last Chance Agreement.2 In short,

Sauchelli did not present sufficient evidence for a reasonable fact finder to conclude that

he was treated less favorably than others based on his gender.

       Accordingly, we will grant the Defendant-Appellees‟ motion and summarily

affirm the judgment of the District Court. Sauchelli‟s motion for appointment of counsel

is denied. See Tabron v. Grace, 

, 156 (3d Cir. 1993).




2
  The Agreement, which was reached through the grievance process, provided that
Sauchelli would be removed from the Postal Service if he violated any Postal Service rule
or regulation during a two-year period. His grievance regarding the final notice of
removal was resolved by a finding that his removal for violation of the Last Chance
Agreement was for just cause.
                                             5