Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-24-1995

Nelson v Upsala College
Precedential or Non-Precedential:

Docket 94-5453




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                       No. 94-5453


                     JOHNETTA NELSON,

                                      Appellant

                            v.

                      UPSALA COLLEGE;
                    ROBERT E. KARSTEN;
                  GEORGE W. FREYBERGER;
                       WARREN H. FUNK


    On Appeal from the United States District Court
            for the District of New Jersey
                (D.C. Civil No. 92-1851)


                 Argued February 14, 1995

BEFORE:   STAPLETON, GREENBERG, and COWEN, Circuit Judges

                (Filed:   March 24,   1995)


                             Charles A. Sullivan (argued)
                             One Newark Center
                             Newark, N.J. 07102
                             Mark P. Denbeaux
                             3 Werimus Road
                             Woodcliff Lake, N.J. 07675

                                  Attorneys for Appellant

                             Nicholas J. Taldone
                             Peter O. Hughes (argued)
                             Shanley & Fisher
                             131 Madison Avenue
                             Morristown, N.J. 07962-1979

                                  Attorneys for Appellees
                        OPINION OF THE COURT


GREENBERG, Circuit Judge.



          I.    FACTUAL BACKGROUND AND PROCEDURAL HISTORY

          Johnetta Nelson appeals from the district court's order

of June 24, 1994, granting summary judgment to Upsala College and

certain of its officials in this action alleging unlawful

employment retaliation pursuant to section 704(a) of Title VII of

the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-3(a),

and state-law defamation.    In addition, Nelson challenges the

district court's refusal to exercise supplemental jurisdiction

over her claims that Upsala and its representatives engaged in

conduct constituting unlawful employment retaliation contrary to

the New Jersey Law Against Discrimination, N.J. Stat. Ann. §

10:5-12(d) (West Supp. 1994), and the New Jersey Conscientious

Employee Protection Act, 

(West Supp. 1994).

          The germane facts are not in dispute.1   Upsala is a

small, private liberal arts college with a campus in East Orange,

New Jersey.    Defendants Robert E. Karsten, Warren H. Funk, and

George W. Freyberger are, respectively, the president, provost,

and dean of students of Upsala.    As a matter of convenience we

1
 . We largely take the facts from the district court opinion.
Nelson v. Upsala College, No. 92-1851 (D.N.J. June 24, 1994).
usually will refer to the college and the individual defendants

collectively as Upsala.

            Upsala first employed Nelson, an African-American, in

1979 as its part-time Gospel Choir Director.   In addition, Upsala

has employed Nelson as a secretary in the Office of Dean of

Students and the College Center Office.    At the beginning of the

1990-1991 academic year, Upsala announced its intention to

eliminate the position of choir director for budgetary reasons.

When the choir's student participants objected, Upsala decided to

fund the choir, but to convert it to an elective course for which

students could receive academic credit.    This conversion meant

that Upsala could not retain Nelson as the choir director because

she did not possess a college degree, as required under Upsala's

policy for faculty members teaching an accredited course.

Consequently, Upsala terminated Nelson's employment as of October

16, 1990.

            Nelson then filed a discrimination charge with the

Equal Employment Opportunity Commission ("EEOC") against Upsala

alleging race discrimination.    Nelson and Upsala settled that

claim, and on or about November 9, 1990, Upsala agreed to

reinstate Nelson to a terminal contract for the 1990-91 academic

year.   The EEOC then dismissed Nelson's claim.

            In accordance with the settlement agreement, Upsala

designated Nelson as director of the "extra-curricular

designated" Gospel Choir, and she continued in that position

until her terminal contract expired on May 3, 1991.    During the

spring of 1991 a search committee chose Beverly Owens, an
African-American with both a bachelor degree and master of arts

degree in music performance, as the new choir director.   Upsala

planned that the choir would become a course for credit during

the 1991-1992 academic year.

          Following the expiration of Nelson's terminal contract

a number of incidents led to this action.   On or about September

18, 1991, Nelson attended a gathering on the Upsala campus.

Freyberger was at the meeting and saw Nelson.   However, neither

Freyberger nor anyone else asked Nelson to leave the campus or

forcibly removed her.

          Nevertheless by letter dated September 19, 1991, Funk

wrote to Nelson stating that she was no longer permitted on

campus due to her termination as an Upsala College employee.2
2
.   The letter stated:

          Please understand that Upsala College has a
          properly constituted Gospel Choir under the
          direction of a newly appointed adjunct
          faculty member.

          No other singing groups concentrating upon
          gospel music have been, or will be,
          authorized. Your presence, last evening, in
          Christ Chapel constituted a trespass of
          College property.

          The meeting, consisting at least of Upsala
          students, was clearly for religious and
          musical purposes, and, whether or not it
          might have been called a rehearsal, or a
          gospel choir, was the equivalent of a gospel
          choir rehearsal. The result was that the
          meeting constituted an unauthorized rehearsal
          of an unauthorized group conducted by an
          unauthorized trespasser.

          Under the terms and conditions of your
          separation agreement from last year, you have
Freyberger also wrote Nelson that she was no longer permitted on

campus and that it would be necessary for her to obtain prior

approval from Upsala before entering its campus.

          Despite the letters, Nelson visited the Upsala campus a

number of times after September 1991.   For instance, in October

of 1991, Nelson accompanied Gospel Choir members and other

students in a protest against the Upsala administration over

several issues, including her termination as choir director.

Nelson also appeared on campus without authorization in February

1992 to lead the "Former Upsala College Gospel Choir" in a

"Gospel Sing Fest."   Funk attended this event and saw Nelson.

Upsala, however, did not remove Nelson from the campus or take



(..continued)
          agreed to 'do everything within (your) power
          to effect the spirit and intent of this
          agreement.' This included your renunciation
          of all future employment, and it remains the
          intention of the college that you not be
          involved here in any way.

          You have also agreed that you 'will not at
          any time disparage Upsala . . . or (its)
          officers.'

          Under no circumstances are you to return to
          the campus except by my explicit invitation.

          The security force has been instructed to
          remove you should you appear again.

Appellees' app. at 19ABa. Funk wrote this letter after
discussing Nelson's appearance with Karsten and Freyberger.
According to Funk, he wrote the letter because he viewed Nelson's
actions as a deliberate attempt to interfere with Beverly Owens'
direction of the choir and as a breach of the settlement
agreement.
other actions against her when she appeared on campus after her

termination.

           On September 27, 1991, Nelson filed a second

discrimination charge with the EEOC alleging that Upsala

retaliated against her for filing the earlier charge with the

EEOC.   The EEOC dismissed the second charge on February 14, 1992.

Nelson then filed a complaint in the district court alleging that

Upsala engaged in conduct constituting unlawful retaliation under

section 704(a) of Title VII, the New Jersey Law Against

Discrimination, and the New Jersey Conscientious Employee

Protection Act.   Furthermore, Nelson asserted a state-law cause

of action for defamation alleging that during Nelson's last year

of employment at Upsala Freyberger told a student or students

that Nelson stole money from Upsala and defrauded it by

submitting a false petty cash voucher.   After Nelson filed the

district court complaint, Freyberger made a similar statement to

his secretary and members of his professional staff.   By

stipulation Nelson in effect amended her complaint to add a

defamation claim predicated on this republication.   Nelson also

asserted a state-law claim that the alleged retaliatory conduct

constituted a material breach of the settlement agreement by

Upsala.

           Upsala ultimately moved for summary judgment.    On June

24, 1994, the district court granted this motion on the claims of

defamation and unlawful employment retaliation under Title VII.

The court, however, refused to exercise supplemental jurisdiction

over Nelson's remaining state-law claims.   The court concluded
that Nelson did not demonstrate a prima facie case of unlawful

retaliation under Title VII because she failed to demonstrate

that she suffered an adverse employment action.           Additionally,

the court determined that Nelson's defamation claim was barred by

the New Jersey statute of limitations.            N.J. Stat. Ann. § 2A:14-3

(West 1987).

          Nelson has appealed from the order of June 24, 1990.

The district court had subject matter jurisdiction pursuant to 42

U.S.C. § 2000e-5(f) and 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.


                          II.   STANDARD OF REVIEW

          When considering an appeal from the grant of summary

judgment, we exercise plenary review.         See Petruzzi's IGA

Supermarkets, Inc. v. Darling-Delaware Co., 

, 1230

(3d Cir.), cert. denied, 

(1993).            Therefore we must

determine whether the pleadings, depositions, answers to

interrogatories, admissions, and affidavits demonstrate that

there is no genuine issue of material fact and that Upsala is

entitled to judgment as a matter of law.           See Allegheny Int'l,
Inc. v. Allegheny Ludlum Steel Corp., 

, 1423 (3d Cir.

1994).


                                III.   ANALYSIS

               A.    Nelson's Unlawful Retaliation Claim

                    1.   The "Pre-Approval" Requirement
          Nelson argues that Upsala's requirement for prior

approval for her to visit the campus was an unlawful retaliation

for the first charge she filed with the EEOC.   She then contends

that the district court erred in ruling that she failed to make

out a prima facie case of retaliation on the basis of its

conclusions that she did not demonstrate that she suffered an

"adverse employment action," which the court defined as "any

action which already has impaired or which might impair the

employee in future employment situations."   Nelson maintains that

she can establish a retaliation case without demonstrating that

she suffered an adverse employment action as defined by the

district court.   She contends that actionable retaliation

includes all conduct that "arises out of or is related to the

employment relation."   Thus, in her view, the conduct need not

impair an "employment situation."   Brief at 11.

          Upsala counters that the requirement that Nelson

receive prior approval for campus visits does not constitute an

adverse employment action within section 704 and that a plaintiff

must suffer an adverse employment action to establish a

successful retaliation case.   Moreover, Upsala asserts that

Nelson failed to produce evidence demonstrating that there was a

causal connection between her filing of the original EEOC charge

and the alleged retaliation.

          Section 704(a) of Title VII provides in pertinent part:
               It shall be an unlawful employment
               practice for an employer to
               discriminate against any of his
               employees . . . because he has made
               a charge, testified, assisted, or
               participated in any manner in an
               investigation, proceeding, or
               hearing under this subchapter.


42 U.S.C. § 2000e-3(a).

          To establish discriminatory retaliation under Title

VII, a plaintiff must demonstrate that: (1) she engaged in

activity protected by Title VII; (2) the employer took an adverse

employment action against her; and (3) there was a causal

connection between her participation in the protected activity

and the adverse employment action.   Charlton v. Paramus Bd. of
Educ., 

, 201 (3d Cir.), cert. denied, 

(1994); Weiss v. Parker Hannifan Corp., 

, 1128

(D.N.J. 1990); see also Robinson v. Southeastern Pa. Transp.

Auth., 

, 895 n.1 (3d Cir. 1993).   Nelson's proofs

clearly satisfy the first of the above-named elements, for it is

settled that a cause of action exists pursuant to Title VII when

an employer has retaliated against an employee for filing a

charge with the EEOC.   Tomkins v. Public Serv. Elect. & Gas Co.,

(3d Cir. 1977); Fuchilla v. Prockop, 

(D.N.J. 1987).

          The district court, however, held that Upsala did not

violate Title VII because Nelson did not present proofs

satisfying the second element.   In other words, Nelson failed to

show that she suffered an adverse employment action.

Accordingly, the court ruled that Nelson failed to demonstrate a

prima facie case of unlawful retaliation under Title VII.    The

court reached this conclusion because (1) Upsala imposed its pre-
approval requirement after Nelson's employment had ended, and (2)

Upsala's actions did not affect Nelson's prior or future

employment.    Moreover, the court indicated that Upsala did not

enforce the requirement even when its representatives saw Nelson

on campus.

           In support of her contention that she suffered an

adverse employment action, Nelson relies on our opinion in

Charlton v. Paramus Bd. of 

.    In Charlton, a

school teacher who claimed that she was terminated from her

employment because of sexual discrimination filed a Title VII

action in the district court.    Subsequently, the school board

initiated proceedings to have her state teaching certificate

revoked.     The teacher then advanced a retaliation claim alleging

that the board initiated the revocation proceeding in response to

her original Title VII complaint.    The district court dismissed

the retaliation claim, ruling that the teacher was not an

"employee" at the time the board initiated the revocation

proceedings.    Consequently, it held that she was not entitled to

protection under section 704.    

.

           On appeal, we reversed the district court and

determined that a former employee may sue for retaliation under

Title VII.    In doing so we stated in pertinent part:
                 [A]n ex-employee may file a
                 retaliation action against a
                 previous employer for retaliatory
                 conduct occurring after the end of
                 the employment relationship when
                 the retaliatory act is in reprisal
                 for a protected act within the
                 meaning of section 704 and arises
                 out of or is related to the
                 employment relationship.

   Nelson relies on this holding to support her

assertion that she suffered an adverse employment action.

           Nelson, however, misconstrues Charlton.   That case does

not hold that all post-employment activity of an employer aimed

at a former employee in response to her having brought or

participated in a Title VII proceeding is actionable under

section 704.    Rather, Charlton simply holds that a former

employee has standing to bring a retaliation suit under section

704.3   Thus, Nelson is incorrect when she asserts that Charlton
"in sweeping terms" prohibited all retaliation "which 'arises out

of or is related to the employment relationship.'"    Brief at 18.

Indeed, if anything, Charlton suggests that post-employment

conduct, to give rise to a retaliation complaint, must relate to

an employment relationship.    Charlton makes this implication by

indicating that "courts . . . have extended anti-retaliation

protection . . . where the retaliation results in discharge from

a later job, a refusal to hire the plaintiff, or other

professional or occupational harm."    

.

But as Charlton is not conclusive on this point we look beyond




3
 . Charlton holds that there should be a two-step analysis to
determine whether an allegation of post-employment retaliation is
actionable under section 704. Such an analysis inquires whether
the post-employment retaliatory conduct is (1) in reprisal for a
protected activity and (2) arises out of or is related to the
employment relationship. 

.
that case to determine the type of an employer's post-employment

conduct prohibited under Title VII.4

          The Supreme Court has stated that "[t]he objective of

Congress in the enactment of Title VII . . . was to achieve

equality of employment opportunities . . . ."   Griggs v. Duke

Power Co., 

, 429, 

, 853 (1971).     See

Shehadeh v. Chesapeake and Potomac Tel. Co., 

, 721

(D.C. Cir. 1978).   Therefore, for Title VII protections to apply,

there should be some connection between the allegedly retaliatory

conduct and an employment relationship.   Although "[t]he

connection with employment need not necessarily be direct,"5 it

does not further the purpose of Title VII to apply section 704 to

conduct unrelated to an employment relationship.   As the court

indicated in Reed v. Shepard, 

, 493 (7th Cir. 1991),


4
 . In her brief Nelson sets forth that she "believes that the
actions taken against her have had adverse employment
consequences in the sense the district court meant." She
indicates that she did not develop the facts along these lines as
Upsala did not seek summary judgment on the basis on which the
district court granted it. Thus, she contends that the district
court "erred in failing to provide [her with] an opportunity to
address the facts suddenly made dispositive by the new rule [the
court] fashioned." Brief at 12 n.8.

          We reject this contention. While it is true that
Upsala filed its brief in the district court on its motion for
summary judgment before we decided Charlton and that it contended
in the brief that the termination of Nelson's employment in
itself barred this action, Upsala also argued that Nelson was not
adversely affected by Upsala's conduct. Thus, Nelson had an
incentive to demonstrate that Upsala had injured her in
employment relationships.
5
 . Lutcher v. Musicians Union Local 47, 

, 883 (9th
Cir. 1980).
section 704 requires that the employee demonstrate some type of

"employment impairment that evidences actionable retaliation."

          In view of Congress's objective in enacting Title VII,

it is not surprising that cases dealing with unlawful retaliation

under Title VII typically involve circumstances in which the

defendant's conduct has impaired or might impair the plaintiff in

employment situations.     See Lazic v. University of Pennsylvania,

, 765, 767-69 (E.D. Pa. 1981) (deletion of

positive references from personnel file after EEOC charge filed);

Bailey v. USX Corp., 

, 1507-08 (11th Cir. 1988)

(unfavorable reference for a former employee by former employer

after EEOC filed);    Rutherford v. American Bank of Commerce, 

, 1163-64 (10th Cir. 1977) (potential future employer

informed of circumstances of discharge and a letter of reference

modified to reflect that the former employee had filed sexual

discrimination charges);    EEOC v. Cosmair, Inc., 

,

1087 (5th Cir. 1987) (discontinuance of severance benefits after

EEOC charge filed);   Pantchenko v. C.B. Dolge Co., 

,

1054 (2d Cir. 1978) (former employer refuses to issue letter of

recommendation and made negative and untrue remarks about

plaintiff to prospective employer); Sherman v. Burke Contracting,
Inc., 

, 1529 (11th Cir.) (former employer persuaded

subsequent employer to terminate former employee who had filed

EEOC charge), cert. denied, 

, 

(1990).

Furthermore, Charlton itself involved activity which would have

impaired the employee in future employment situations inasmuch as
a teacher needs a state certificate to teach in the public

schools in New Jersey.6

          Our reading of section 704 does mean that a former

employee will be without a remedy for an employer's significant

wrongful post-employment conduct not touching an employment

relationship.   For instance, if an employer physically assaults a

former employee or burns down her house in retaliation for the

employee having brought a Title VII charge, relief might not be

available under section 704.   However, in such cases the former

employee could assert a state-law damage claim.7    In fact,

Nelson's defamation claims are an example of a former employee

seeking relief in a common law action for conduct which the

employee herself characterizes as retaliatory.     Thus, if

Freyberger really defamed her she does not need a section 704(a)

retaliation action to obtain relief.

6
 . Thus, in Charlton we indicated that the school board's act of
pursuing decertification amounted to an adverse employment action
because the board attempted to influence the administrative
process "to the detriment of Charlton's employment
opportunities." 

. Accordingly, Charlton
also supports the view that an adverse employment action involves
some harm to an employee's employment opportunities.
7
 . See, e.g., Reed v. Shepard, 

, 492-93 (7th Cir.
1991) (reviewing plaintiff's allegations that her former employer
physically attacked, shot at, and threatened her). We recognize
that it might be argued that it is necessary to permit
retaliation claims for actions unrelated to an employment
relationship so that employees are not discouraged from bringing
Title VII claims or assisting in their prosecution. We believe,
however, that the possibility that the denial of a retaliation
claim for conduct not related to an employment relationship will
discourage Title VII activity is slight because serious
retaliatory conduct unrelated to an employment relationship will
be actionable under state law.
           Our holding is consistent with the language of section

704 as that section interdicts "an unlawful employment practice"

rather than conduct in general which the former employee finds

objectionable.   The words "employment practice" suggest that the

retaliatory conduct must relate to an employment relationship.

Upsala's pre-approval requirement was not an "employment

practice" inasmuch as Nelson was not Upsala's employee when the

requirement was imposed and the requirement had no impact on

Nelson's actual or proposed employment anywhere else.

           Nelson cites Passer v. American Chem. Soc'y, 

(D.C. Cir. 1991), and Baker v. Summit Unlimited, Inc., 855 F.

Supp. 375 (N.D. Ga. 1994), in support of her position.    But these

cases do not help her.   In Passer the court ruled that under the

retaliation provision contained in the Age Discrimination in

Employment Act, 29 U.S.C. § 623(d), the cancellation of an

honorary symposium in retaliation for the filing of an EEOC

charge was not only humiliating, but also would hamper the

plaintiff in procuring future employment.   

.   Thus, a cause of action for retaliation was appropriate.

Therefore, Passer supports a holding that an adverse employment
action within section 704 requires a harm which impedes

plaintiff's employment situation.

           In Baker, the district court ruled that an employer's

denial of access to its child care center to the plaintiff was an

adverse employment action.   The plaintiff, a former employee of

the defendant, apparently was employed by parents to pick up

children at the defendant's premises.   Central to the district
court's decision was the fact "that the refusal to allow

[p]laintiff to pick up children in the same manner as other

parents may constitute an adverse employment action since it may

impact on her ability to perform this service and thereby

decrease her income correspondingly."    

(emphasis supplied).    This language is consistent with the long

line of cases suggesting that the challenged conduct in a section

704(a) retaliation case must affect the plaintiff's employment

situation.

          In view of the foregoing analysis, we hold that the

district court correctly concluded that Upsala's requirement that

Nelson obtain its approval before entering its campus could not

give rise to a retaliation claim as the requirement had no impact

on any employment relationship that Nelson had, or might have in

the future.    Thus, we will affirm the order for summary judgment

on the section 704 retaliation claim to the extent Nelson based

the claim on the pre-approval requirement.


                       2.   Defamatory Remarks

          Nelson next contends that two allegedly defamatory

remarks by Freyberger constitute an adverse employment action.

The first was in December 1990 when Freyberger received a petty

cash voucher which Nelson submitted but which a student

delivered.    The following conversation, which Nelson

characterizes as the first defamatory publication, followed the

submission of the voucher:
                    .                     .              .
          FREYBERGER:    What do you want from me?

          STUDENT: Well they won't take [the voucher]
          at the business office.

          FREYBERGER: First of all, I am no longer
          responsible for the gospel choir. And,
          second of all, when somebody signs [the
          voucher] as recommended, . . . if they are
          not entitled to sign, it is tantamount to
          stealing from the college.


Appellant's app. at 98 (emphasis added).

          The second remark, an alleged republication of the

above emphasized language, occurred in early 1993 after this

action was filed.   Nelson contends that Freyberger discussed the

allegations contained in her complaint with his staff, thereby

republishing the allegedly defamatory remarks.8

8
 . Freyberger summarized the circumstances of the republication
in an affidavit:

          Sometime subsequent to the commencement of
          this lawsuit by plaintiff, in connection with
          preparation for and scheduling my deposition,
          I discussed plaintiff's allegation in her
          complaint with my secretary, Beth Smucker.
          In connection with preparing for my
          deposition, I also had to review documents,
          including petty cash vouchers, and
          information maintained in the offices of
          Director of College Center Craig Allard and
          (former Chaplain now) Dean of Residents
          Charles Leonard. I advised them that I was
          accused of calling the plaintiff a thief but
          denied I did so. I may have told one or more
          of them that what I actually stated was what
          I set forth in paragraph [four of my
          affidavit], i.e. that her act was tantamount
          to stealing from another College budget to
          benefit the Choir.

Appellee's app. at 23.
          The district court rejected Nelson's claim that

Freyberger's remarks gave rise to an actionable claim for

unlawful retaliation under Title VII.   In doing so, the court

noted that Nelson failed to offer any evidence that these remarks

had any adverse effect on her future employment.    We agree with

the conclusion of the district court and, in view of our earlier

discussion, we need not consider this claim further.


            B.   Nelson's Supplemental State-Law Claims

          Nelson pleaded a number of claims under New Jersey law

but the district court in the exercise of its discretion under 28

U.S.C. § 1367(c) declined to exercise jurisdiction over most of

them.   The court did consider one of Nelson's defamation claims

but granted Upsala summary judgment on it because the action was

barred by the statute of limitations.   The record, however,

indicates that the parties entered into a stipulation providing

that although the first publication apparently was time barred,

the claim predicated on Freyberger's republication was timely.

The district court may not have been aware of this stipulation as

it seems only to have considered Freyberger's original remarks.

Upsala argues that we nevertheless should affirm the summary

judgment on the defamation claims on the merits.9

           We decline to consider the defamation claims.    The

district court seems to have exercised supplemental jurisdiction

9
 . We probably could affirm the summary judgment on the first
publication but because Upsala does not distinguish between the
two publications in its argument that we should affirm on the
merits we will not do so.
over the defamation claim arising from the first remark because

the proper disposition of the claim appeared rather obvious.

Indeed, the court disposed of the claim in a short paragraph in

its opinion.   Now, however, Upsala urges that we affirm the

summary judgment on more complex grounds.    While Upsala's

substantive contentions might be correct, we conclude that there

is no reason for the exercise of supplemental jurisdiction in

this case as summary judgment is being granted on the federal

claim.10


                          IV.   CONCLUSION

           For the aforementioned reasons, we will affirm the

district court's order of summary judgment of June 24, 1994, on

the unlawful retaliation claim arising under Title VII.       However,

we will vacate the summary judgment on the defamation claim and

will remand the case to the district court to dismiss that claim

without prejudice.   Finally, we will affirm the order of the

district court declining to exercise jurisdiction over the
remaining state law claims.




10
 . Nelson urges us to reverse the district court's order
declining to exercise supplemental jurisdiction over the
remaining state-law claims if we reverse the summary judgment on
the retaliation claim. This point is now moot.