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Precedential or Non-Precedential: Precedential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, 

(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, 

, 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., 

, 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, 

(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, 

, 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, 

, 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., 

, 247-48 (1986). Summary judgment is inappropriate
“if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” 

                                  9


employer and therefore gives rise to “ ‘special factors
counseling hesitation’ [that] militate against the creation of
a new [Bivens] damages remedy.” 

(quoting 

(quoting 

)). 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, 

, 707 (3rd
Cir. 1995), overruled on other grounds by Pontarelli v.
United States Dep’t of the Treasury, 

(3d Cir.
2002) (en banc).
   In Schweiker v. Chilicky, 

(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.” 

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, 

(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, 

(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.

  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., 

, 1576-77
(11th Cir. 1990) (CSRA held to preclude plaintiff ’s Bivens
claims for due process infractions); Berrios v. Dep’t. of the
Army, 

, 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.” 

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,

(1973); Stanziale v. Jargowsky, 

,
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, 

, 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

. 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 

. 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, 

, 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. 

McDonnell 

.
   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 

; Pivirotto v. Innovative
Sys., Inc., 

, 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., 

, 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 

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, 

, 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 

. 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

. 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 

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.’ 

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

, 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 

(quoting 

& 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., 

, 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. 

.
                             

, 764 (3d Cir. 1994); Sheridan v. E.I. DuPont de
Nemours & Co., 

, 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., 

, 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.’ ” 

(quoting

).
   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 

.
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., 

, 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

.

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. 

(quoting Robinson v.
SEPTA, 

, 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., 

, 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. 

,
858 (3d Cir. 1990), we may exercise jurisdiction of unspecified prior
orders related to a final order.