02-2611 Julia Cooper v. the Great Atlantic & Pacific Tea Co.

* The Hon. R. Barclay Surrick, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-2437; 02-2610; 02-2611
JULIA COOPER,
Appellant
v.
THE GREAT ATLANTIC & PACIFIC TEA CO.;
SUPER FRESH FOOD MARKETS, INC., NEW
JERSEY CORPORATIONS; UNITED FOOD &
COMMERCIAL WORKERS UNION, LOCAL 1360
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY
(Dist. Court No. 99-cv-03675)
District Court Judge: Hon. Joseph H. Rodriguez
Submitted Under Third Circuit LAR 34.1(a)
July 21, 2003
Before: ALITO and FUENTES, Circuit Judges, and SURRICK,* District Judge.
(Opinion Filed: July 31, 2003)
OPINION OF THE COURT

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ALITO, Circuit Judge:
Julia Cooper filed suit against her employer and union in state court, alleging
violations of the New Jersey Law Against Discrimination (LAD), N.J. Stat. Ann. §§ 10:5-1
et seq., as well as various common-law claims and a breach-of-contract claim against her
union which she later withdrew. The defendants, Great Atlantic & Pacific Tea Co. (“A&P”),
Super Fresh Food Markets, Inc., and United Food and Commercial Workers Union, Local
1360, removed the case to federal court pursuant to 28 U.S.C. § 1441. In 2000, the
District Court entered partial summary judgment in the defendants’ favor on the ground that
the NJLAD’s statute of limitations, as construed in Montells v. Haynes, 627 A.2d 654 (N.J.
1993), time-barred Cooper’s claims insofar as they alleged discriminatory conduct
between July 27, 1993, and June 8, 1997. In 2002, the District Court granted summary
judgment to the defendants on the remaining claims. Applying the burden-shifting
framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), to the
discrimination claims, the District Court found that Cooper (1) had not stated a prima facie
case for discrimination involving failure to promote; (2) had not established that the
defense against her claim of discrimination involving failure to train was pretextual; (3) had
not sufficiently alleged direct evidence of age discrimination, and had not, in any event,
carried her burden to establish pretext; (4) had not stated a prima facie case of retaliation
for exercising her NJLAD rights because she had not sought a promotion during the claims
period; (5) had failed to allege conduct sufficiently severe or pervasive as to constitute a
hostile work environment; and (6) had failed to allege conduct sufficiently outrageous to

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support a claim for intentional or reckless infliction of emotional distress. Additionally, in
both the 2000 and 2002 decisions, the District Court denied the defendants’ motion for
Rule 11 sanctions against Cooper on the ground that the allegedly improper material in her
briefs was arguably appropriate in a limited context.
On appeal, Cooper first contends that the District Court lacked subject-matter
jurisdiction because the parties were not diverse and because the notice of removal was
untimely under 28 U.S.C. § 1446(b). It should suffice to dispose of the latter argument to
note that the removal was timely, see FED. R. CIV. P. 6(a), and that an untimely removal
would not in any event affect the Court’s jurisdiction. McGlinchey v. Hartford Acci. &
Indem. Co., 866 F.2d 651, 653 (3d Cir. 1989). On the diversity issue, the appellees do not
allege diversity but argue that the District Court was entitled to assert supplemental
jurisdiction over Cooper’s state-law claims due to the withdrawn contract claim against her
union. Cooper acknowledges that the District Court could have retained jurisdiction
because her withdrawn breach-of-contract claim “arguably” presented a federal question
invoking jurisdiction under section 301 of the Labor Management Relations Act. See 29
U.S.C. § 185(a). However, she argues that the District Court’s assertion of jurisdiction was
nevertheless improper. Title 28 U.S.C., section 1367(c) is not written in obligatory
language, see 28 U.S.C. § 1367(c) (defining the circumstances in which a District Court
“may decline” jurisdiction) (emphasis added), and we accordingly review a District Court’s
decision whether or not to exercise supplemental jurisdiction for abuse of discretion. See
Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999). To warrant reversal on the ground

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Cooper asserts, the District Court’s exercise of jurisdiction must have been contrary to
“principles of judicial economy, convenience, fairness, and comity.” Id.
Cooper, citing Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995), acknowledges these factors but does not attempt to explain why the District Court’s
exercise of jurisdiction is in tension with any of them. Instead, she relies on another case
in which the same District Judge declined supplemental jurisdiction, and she postulates that
“but for its mistaken belief of diversity jurisdiction, the Court would have applied §
1367(c)(3) to dismiss the remaining State law claims.” Clearly, the mere fact that a case
happens to have been decided by a particular District Judge does not render it probative
(much less authoritative) as to how that Judge should deploy his discretion in another case
with its own unique circumstances and considerations. The District Court did rely on 28
U.S.C. § 1332 in asserting jurisdiction and was mistaken to do so if Cooper’s
representation of the citizenship of the parties is accurate. But the critical inquiry remains
whether “principles of judicial economy, convenience, fairness, and comity” militate in
favor of or against the assertion of supplemental jurisdiction. Annulli, 200 F.3d at 202.
Nothing in the record suggests that Cooper presented any argument to the District Court on
how it should exercise its discretion, and the District Court issued two comprehensive,
well-reasoned dispositions on the merits. To vacate these judgments in spite of the fact
that the Court was entitled to exercise jurisdiction on a discretionary basis would not serve
the interest of judicial economy. Therefore, on the particular facts of this case, we cannot
conclude that the District Court’s assertion of jurisdiction was inconsistent with a sound

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exercise of judicial discretion.
As Cooper’s remaining arguments address the propriety of the District Court’s grant
of summary judgment to the defendants, we apply a plenary standard of review. Pacitti v.
Macy’s, 193 F.3d 766, 772 (3d Cir. 1999).
First, Cooper argues that the District Court misapplied the NJLAD’s statute of
limitations. In Montells, the New Jersey Supreme Court prospectively held that NJLAD
claims are subject to a two-year personal-injury statute of limitations rather than a six-year
general statute of limitations. The dates significant to this case are therefore July 27,
1993, the date of the Montells decision, and June 8, 1999, the date on which Cooper filed
her complaint. In accord with Montells, the District Court applied a two-year statute of
limitations to claims based on operative facts arising after July 27, 1993 and a six-year
statute of limitations to claims whose operative facts arose prior to that date. Cooper
argues that only the six-year period applies because she alleged operative facts arising prior
to July 27, 1993. However, the only event which Cooper identifies as falling within the
critical period from June 8 to July 27 of 1993 is her submission of a grievance letter to her
union president on June 10 detailing her frustration at past perceived slights. This is an
action by Cooper, not by her employer or union, and is therefore not an operative fact
capable of contributing to acts of discrimination or “unlawful employment practices” under
the NJLAD. N.J. Stat. Ann. § 10:5-12. Ali v. Rutgers Univ., 765 A.2d 714 (N.J. 2000),
does not mandate application of the six-year period to all of Cooper’s claims, because its
limited exception to Montells would still require Cooper to allege operative facts between

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June 8 and July 27, 1993, and she has not done so. See id. at 717. Thus, the District
Court’s time-barring of Cooper’s claims was proper.
Next, Cooper claims that the District Court erroneously held that the continuing-
violations doctrine did not apply to defeat the time bar. The District Court, quoting Rush v.
Scott Specialty Gases, Inc., 113 F.3d 476, 482 (3d Cir. 1997), inquired whether the
purported continuing violations “‘should [have] trigger[ed] [Cooper]’s awareness of and duty
to assert . . . her rights,’” and concluded that her longstanding belief that she was enduring
discrimination imposed an affirmative obligation to assert her rights. Accordingly, it held
that “the equitable purpose underlying the continuing violation [doctrine] is no longer
implicated, and the exception does not apply.” Cooper’s main objection to this analysis is
the Court’s reliance on federal case law, and she claims that New Jersey case law does not
mirror the considerations of Rush identified by the District Court. We disagree. New
Jersey courts have recognized that the continuing-violation doctrine should not apply when
“the nature of the violations should trigger an employee’s awareness of the need to assert
her rights.” Bolinger v. Bell Atlantic, 749 A.2d 857, 861 (N.J. Super. 2000) (quoting
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999)). New Jersey
courts have also emphasized that “[t]he purpose of the continuing violation doctrine is to
permit a plaintiff to include acts whose character as discriminatory acts was not apparent at
the time they occurred.” Hall (Estate of Potoczak) v. St. Joseph’s Hosp., 777 A.2d 1002,
1010 (N.J. Super. 2001) (internal quotation marks omitted). These are the same
considerations underlying Rush. We therefore cannot accept Cooper’s contention that

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particularities of New Jersey law should have foreclosed the District Court’s application of
the continuing-violation doctrine.
Finally, Cooper argues, with no supporting case law of any kind, that the District
Court erred when it determined that Cooper had not carried her burden to come forward
with evidence that Super Fresh’s explanation of its denial of a training opportunity to her
was pretextual. Under the McDonnell-Douglas burden-shifting framework, once a plaintiff
states a prima facie case, the defendant “must offer a legitimate non-discriminatory reason
for the action,” at which time the plaintiff must “come forth with evidence indicating that
the defendant’s proffered reason is merely a pretext.” McNemar v. Disney Store, Inc., 91
F.3d 610, 619 (3d Cir. 1996). Cooper concedes that Super Fresh offered a legitimate non-
discriminatory reason, and she merely argues that the District Court should not have
believed it. Cooper may consider her employer’s explanation unsatisfactory, but she
cannot carry her burden under McDonnell-Douglas without identifying evidence in the
record which suggests that the explanation is a pretext. She did not do so before the
District Court and does not do so presently. We therefore discern no error in the District
Court’s application of the burden-shifting framework.
We have reviewed all of Cooper’s remaining arguments and see no grounds for
reversal. We have also considered the merits of the cross-appeal, and we cannot
characterize the District Court’s refusal to impose Rule 11 sanctions as an abuse of
discretion. We affirm the District Court in full.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Not Precedential Opinion.
/s/ Samuel A. Alito, Jr.
Circuit Judge

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