Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2002

Johnson v. Diamond State Port
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4031




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                                                          NOT PRECEDENTIAL

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                          No. 01-4031
                         ____________

       KERRY W. JOHNSON,
                                Appellant

                                v.

       DIAMOND STATE PORT CORPORATION
                   ____________

           Appeal from the United States District Court
                    For the District of Delaware
                      D.C. No.: 99-cv-00153
           District Judge: Honorable Gregory M. Sleet
                          ____________

             Argued: Wednesday, October 16, 2002

Before: BECKER, Chief Judge, ROTH and ROSENN, Circuit Judges.

                    (Filed October 30, 2002)

                                Jeffrey K. Martin, Esq. (Argued)
                                Jeffrey K. Martin, P.A.
                                1509 Gilpin Avenue
                                Wilmington, DE 19806
                                            Counsel for Appellant

                                Donald E. Reid, Esq. (Argued)
                                Morris Nichols, Arsht & Tunnell
                                1201 North Market Street
                                P.O. Box 1347
                                Wilmington, DE 19899
                                           Counsel for Appellee

                         ____________
                                      OPINION OF THE COURT
                                           ____________

ROSENN, Circuit Judge.

         Kerry Johnson, an African-American crane operator, suffered an injury in an off-

duty car accident in 1995. Johnson alleges that his employer Diamond State Port

Corporation (DSPC or Company) denied him temporary light-duty reassignment because of

his race. The District Court granted summary judgment for DSPC based on the Court’s

conclusion that Johnson had not made out a prima facie case of discrimination under Title

VII of the Civil Rights Act of 1964, as amended. See 42 U.S.C. § 2000e (2002). The Court

concluded that the allegations contained in Johnson’s affidavit failed to provide a genuine

issue of material fact as to whether similarly-situated non-minority employees were

granted light-duty assignments while injured. Because Johnson’s affidavit fails to state facts

of which he had personal knowledge with sufficient specificity, we see no error in the

Court’s judgment.

         The District Court also denied plaintiff’s motion for reargument or reconsideration

and refused to allow post-judgment consideration of an affidavit from a former supervisor

that corroborates some of the allegations made by Johnson. Johnson’s counsel argues that

it would be a “manifest injustice” to exclude the affidavit and he urges this Court to

overturn the District Court’s denial of plaintiff’s motion for reargument or reconsideration.

The District Court found that plaintiff’s counsel’s carelessness was solely responsible for

the failure to submit the affidavit before summary judgment was entered in favor of the



                                                     2
defendant. See Dist. Ct. op. at A 010. Mr. Johnson’s attorney had every opportunity to

timely submit the Jenkins affidavit. We hold that the District Court did not abuse its

discretion in denying reconsideration or reargument.1

                                                       I.

         Following Johnson’s accident, Johnson’s doctor informed him that he could return

to work in any position that did not require “lifting, pulling[,] . . . excessive walking or

climbing.” At that time, Johnson attempted to return to work, but DSPC advised him that no

light-duty work was available to him. In February 1996, Johnson again attempted to return

to work and was again refused light-duty work. On August 19, 1996, Johnson’s doctor lifted

his medical restrictions and Johnson returned to work.

         On November 18, 1997, Johnson filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC), alleging that DSPC denied him temporary

light-duty reassignment because of his race. The EEOC conducted an investigation, denied

Johnson’s claims, and issued a right to sue notice.

         Having duly exhausted his administrative remedies, Johnson filed a pro se

complaint against his employer in the U.S. District Court for the District of Delaware.2 The


   1
    The District Court entered an order granting summary judgment for the defendant on
August 2, 2001 and a separate order denying the plaintiff’s motion for reargument or
reconsideration on October 5, 2001. Johnson only properly appealed the October 5, 2001
order.
   2
     The District Court had jurisdiction under 28 U.S.C. § 1331 (2002) because plaintiff’s
complaint presents a federal question. See 42 U.S.C. § 2000e (2002). Although DSPC is an
instrumentality of the State of Delaware, Title VII validly abrogates Delaware’s sovereign
immune from suit by state employees. See Fitzpatrick v. Bitzer, 

, 456-57
                                                     3
complaint alleged that he had been denied light-duty work discriminatorily on several

occasions because of his race. The defendant filed a brief in support of a motion for

summary judgment, claiming that Johnson had failed to establish a prima facie case of

discrimination because he had not shown that similarly-situated non-minority employees

received light duty. Johnson had meanwhile retained counsel who filed a brief opposing the

motion for summary judgment.

          In an affidavit submitted with the brief, Johnson alleged that light-duty positions

were offered to injured non-minority employees both prior to his return to work on August

19, 1996 and subsequently. He specifically identified nine non-minority workers who were

either given light duty when injured or allowed to continue in their previous jobs despite

medical restrictions. On June 15, 2001, defendant filed a reply brief, including affidavits

from those non-minority employees. With one exception, the non-minority employees’

affidavits acknowledged the injuries set forth by plaintiff, but denied light duty or any other

status different from the defendant. The one exception was Swann, whose special training

and experience qualified him for available work in the Company’s mechanic’s storeroom.

          Apparently due to plaintiff’s counsel’s error, plaintiff’s counsel did not read

defendant’s brief and affidavits until after the District Court granted defendant’s motion to

dismiss on August 2, 2001. Plaintiff concedes that defendant’s counsel did in fact deliver

the brief and affidavits to plaintiff’s counsel’s office on June 15, 2001, but asserts that his

counsel did not actually become aware of the affidavits until August 2, 2001.



(1976).
                                                      4
         Judge Sleet’s August 2 order granted defendant’s motion for summary judgment on

the ground that plaintiff had failed to provide a genuine issue of material fact as to one of

the necessary elements of plaintiff’s prima facie case: that similarly-situated non-minority

employees received the benefit of light-duty work.

         Plaintiff filed a motion for reargument, including an affidavit of Arthur Jenkins,

who was the only African-American exempt administrator at DSPC. Jenkins was the Acting

Safety Director and Human Resource Personnel Administrator for Casual Employees from

1993 through 1997. His affidavit disputes some of the claims made in the affidavits

submitted along with defendant’s brief and asserts that Jenkins believes that Johnson was

denied light duty because of his race. On October 5, the District Court denied plaintiff’s

motion for reargument and disallowed the introduction of Jenkins’ affidavit because it was

untimely. Plaintiff timely appealed to this Court. We have jurisdiction under 28 U.S.C. §

1291 (2002) because the District Court’s order denying reargument or reconsideration is a

final order. We affirm the judgment.

                                                     II.

         The standard for our review of the District Court’s decision to grant summary

judgment is plenary. See Beers-Capital v. Whetzel, 

, 130 n.6 (3d Cir. 2001).

We view the facts in the light most favorable to Johnson and we draw all reasonable

inferences in his favor. 

Court may grant summary judgment for the defendant when the

plaintiff has failed to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c);

                                                      5
Krouse v. Am. Sterilizer Co., 

, 500 n.2 (3d Cir. 1997). The initial burden is on

the defendant to establish the non-existence of any genuine issue of material fact. See

Handeen v. Lemaire, 

, 1346 (8th Cir. 1997). Once the defendant discharges

this burden, the plaintiff must set forth affirmative evidence and specific facts showing that

there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 

, 256

(1986). Once the burden has shifted, the plaintiff cannot simply rest on the allegations and

denials in his pleadings but must produce significant probative evidence tending to support

the complaint. 

standard for evaluating whether the plaintiff has established his

prima facie case is articulated in McDonnell Douglas Corp. v. Green, 

, 802

(1973). Johnson must show: (1) that he belongs to a racial minority; (2) that he requested

and was qualified for a job benefit; (3) that, despite his qualifications, he was rejected; and

(4) that, after his rejection, similarly-situated DSPC employees outside the protected class

received that benefit. Johnson has satisfied the first three prongs. The District Court held

that Johnson’s affidavit alone does not provide a genuine issue of material fact with regard

to the fourth prong because it rests upon “mere allegations and not specific facts.” See

Dist. Ct. op. at 6.

                                                     III.

         Johnson claims that since he was employed by DSPC, he was in a position to

observe the light-duty work of others. Closer scrutiny of Johnson’s affidavit reveals,

however, that his assertions are conclusory. Assuming he was in a position to observe

                                                      6
similarly-situated employees working light-duty jobs, he failed to express his direct

observations in the affidavit submitted to the District Court. At oral argument before this

Court, Johnson’s attorney attributes this failing to poor drafting and attorney error. Be that

as it may, on the record before this Court Johnson, as we explain, has failed to provide a

genuine issue of material fact that is sufficient to justify reversal of summary judgment.

         Johnson correctly avers that the Company gave Ken Swann light duty when he

suffered from a heel spur in his foot, but DSPC asserts that Swann was not a similarly-

situated employee because he had special skills to discharge the duties assigned to him in

the mechanic’s storeroom. DSPC’s Director of Human Resources, Philip Intermediato,

described Swann’s reassignment as “a unique, one-time situation.” Swann’s light duties

consisted of a manual inventory of the mechanic’s storeroom. Johnson claims that no

special skills were needed in the light-duty job to which Swann was assigned. Johnson does

not specifically describe the basis for his knowledge about Swann’s duties, but his brief

generally asserts that since he was employed by DSPC at that time, he was in a position to

observe the light-duty work of others. Intermediato avers that Swann’s light duty did require

computer skills and technical knowledge of mechanical parts in the inventory. Markow took

over the position of Store Room Clerk in August 1997, as Swann was finishing up the

inventory. Markow claims to have observed Swann’s work directly. He states that Markow’s

experience as a mechanic was critical to the accurate labeling of the parts. Because there is

no record evidence that the inventory job was available at the time Johnson sought light-

duty work or that Johnson had the relevant mechanical knowledge of the parts in the

                                                      7
mechanic’s storeroom required for the assignment given to Swann, there is no genuine

issue of material fact as to whether Swann was a similarly-situated employee who was

granted a benefit that was denied to Johnson.

        Johnson alleges that after Andrew Markow injured his back DSPC allowed him to

continue working as a crane operator with restrictions on heavy lifting, pulling, or pushing

from May 19, 1997 to May 23, 1997. Intermediato admits that Markow had back problems

and was medically restricted by his doctor, but denies that DSPC gave him light-duty work.

Markow claims that he was not on any medical restrictions for his back during the period

referred to in Johnson’s affidavit. Markow states that he did pull a muscle in his back in the

fall of 1997, but returned to work without restrictions.3 Johnson claims that Markow was

allowed to continue working with restrictions but he does not point to any specific instance

or instances when he directly observed Markow working with restrictions. He does not

state that he had any personal knowledge of Markow’s situation. What we are left with is

Johnson’s bare allegation unsupported by specific evidence.

        Johnson alleges that DSPC gave Donald Zimmerman, a fork lift operator, light duty

in a storeroom as a result of a back injury. Zimmerman concedes that he injured his back in

June 1998 and that he was off work until February 1999. However, he avers that when he



   3
     DSPC contends that Johnson’s affidavit does not claim Markow, Walls, Hill, Peltz,
Reese, and Cutler were assigned light-duty. Instead, in DSPC’s view, Johnson’s claim is
merely that they were allowed to work with various ailments and injuries. However, we see
no material difference between being reassigned to light duty and being permitted to work
in one’s original job with restrictions. Either way, the employee is able to obtain paid
employment without exacerbating his injury or disobeying his doctor’s order.
                                                       8
returned to work he did not receive light duty. Johnson does not state any particular

instance in which he observed Zimmerman working in a storeroom rather than as a fork lift

operator. Therefore, Johnson’s affidavit adds little to his initial allegation that Zimmerman

was a similarly-situated employee who was treated differently.

         Johnson alleges that after Arthur Walls injured his arm, he was assigned to his

regular position as a crane operator but exempted from lifting. Intermediato claims that

Walls missed over two months of work, but returned to work without restrictions and was

never given light-duty work. Again, Johnson fails to state that he observed Walls during the

time that he was recuperating and fails to submit any other direct evidence that supports his

allegations.

         Cathcart, a crane operator, injured his neck in 1996. Johnson claims that DSPC

reassigned Cathcart to light maintenance while he was taking medication after his injury.

Cathcart concedes that he sprained his neck in 1996, but disputes Johnson’s allegation that

DSPC gave him light duty or a light maintenance position.4 Johnson’s statements to the

contrary are too conclusory to serve as evidence rather than mere allegations.

         Johnson alleges that after Charles Hill injured his hand with a saw, DSPC

reassigned him from operating a forklift to a floating position. Intermediato admits that

Hill did have a work-related injury in 1999 and was forced to miss three months of work.



   4
    Intermediato claims that Cathcart did not miss any work and was not given any light
duty. However, Intermediato did not have any direct knowledge of Cathcart’s assignments
during that time because he did not begin working as Director of Human Resources until
January 27, 1997.
                                                    9
However, Intermediato avers that Hill only returned once his doctor cleared him to work

without restrictions and denies that Hill was given any light-duty work. Hill acknowledges

the injury, but denies that he was ever given any light-duty work. Johnson does not state that

he directly observed Hill perform his duties and whether he operated a forklift or not after

he injured his hand. Therefore, there is no genuine issue of material fact as to whether Hill

was a similarly-situated employee.

         Johnson claims that when James Peltz broke his ankle, he was reassigned from his

job as a warehouse clerk to a seated office position. Intermediato concedes that Peltz had

an injury that was not work-related and that he used crutches for a period of time. However,

Intermediato asserts that Peltz fully performed his job and was not given any special

assignments. Intermediato explains that Peltz was offered a full-time job as an office clerk

in March 1997, but avers that this reassignment occurred as a result of his application for a

new job and without regard to his injury. Furthermore, Intermediato avers that Peltz’s injury

did not interfere with his ability to perform his duties as an office employee. An employee

such as Johnson who requests temporary light-duty work is not similarly-situated to an

employee such as Peltz who applied for and obtained permanent light-duty work. Cf. Ross

v. GTE Directories Corp., 

, 1350 (M.D. Fla. 1999) (holding that an

African-American employee who requested permanent light duty was not similarly situated

to a non-minority employee who obtained temporary light-duty work while recovering from

knee surgery).

         Johnson avers that when John Reese had foot surgery, he was allowed to work as a

                                                    10
port engineer despite having to wear a surgical shoe. Reese acknowledges that he did have a

non-work-related foot injury in March, 2000, but avers that the soft cast he wore did not

interfere with the performance of his duties as a Port Engineer without restrictions.

Intermediato confirms that Reese was never assigned light duty. Johnson did not state that

he observed Reese’s cast interfering with his duties. Thus, there is no genuine issue of

material fact as to whether Reese received a benefit which Johnson was denied.

         Malcolm Cutler was not a similarly-situated employee because his injury occurred

ten years before DSPC took over operation of the Port.

         A genuine issue of material fact exists when the record, taken as a whole, contains

such evidence that a reasonable jury could return a verdict for the nonmoving party. See

. DSPC met its burden of establishing the non-existence of any

genuine issue of material fact. On the other hand, Johnson’s affidavit contains mere

allegations rather than significant probative evidence tending to support the complaint.

                                                    IV.

         Plaintiff argues that the District Court erred in denying its motion for reargument

or reconsideration. We disagree and therefore we do not reach the closer question of

whether the Johnson affidavit and the Jenkins affidavit jointly would establish a prima facie

case under McDonnell Douglas.

         Upon discovering that the District Court had entered summary judgment in the

defendant’s favor based in part upon affidavits Johnson’s lawyer had neglected to address,

plaintiff’s counsel moved for reargument and reconsideration under Delaware District

                                                    11
Court Rule 7.1.5 and Federal Rule of Civil Procedure 59(e).

         The standard for obtaining relief under Rule 59(e) is difficult for plaintiffs to meet.

The purpose of a motion for reconsideration is to correct manifest errors of law or fact or

to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 

, 909 (3d

Cir. 1985). Motions for reargument or reconsideration may not be used “as a means to

argue new facts or issues that inexcusably were not presented to the court in the matter

previously decided.” Brambles USA, Inc. v. Blocker, 

, 1240 (D. Del.

1990). However, reargument may be appropriate where “the Court has patently

misunderstood a party, or has made a decision outside the adversarial issues presented to

the Court by the parties, or has made an error not of reasoning but of apprehension. 

(internal quotations and citations omitted).

         A court may grant a motion for reconsideration if the moving party shows one of

the following: (1) an intervening change in the controlling law; (2) the availability of new

evidence that was not available when the court issued its order; or (3) the need to correct a

clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros,

, 677 (3d Cir. 1999). Plaintiff does not claim there has been a change in the

prevailing law. Likewise, Jenkins’ affidavit was previously obtainable and Johnson could

have submitted it earlier. Therefore, Johnson’s only remaining argument is the implausible

claim that his motion for reargument or reconsideration should be granted because it is

necessary “to correct a clear error of law or fact or to prevent manifest injustice.”

         The District Court held that Johnson’s counsel failed timely to submit Jenkins’

                                                     12
affidavit. See Dist. Ct. op. at A 010. DSPC proved that it properly served plaintiff’s counsel

with its reply brief and accompanying affidavits on June 15, 2001, seven weeks before the

District Court’s summary judgment order. Jenkins was identified as a potential witness in

Johnson’s March 6, 2001 interrogatory answers, about two months prior to plaintiff’s brief

contesting DSPC’s summary judgment motion. 

not established that the District Court’s abused its discretion when it

denied the motion for reargument or reconsideration. We conclude that the District

Court’s exclusion of the Jenkins affidavit did not cause “manifest injustice.”

                                                     V.

         Accordingly, we affirm the District Court’s order denying plaintiff’s motion for

reargument or reconsideration. Costs taxed against appellant.




                                                    13
TO THE CLERK:

Please file the foregoing opinion.




                                          /s/ Max Rosenn
                                          Circuit Judge




                                     14