Vincent Sgro, Al Bassano, Vera Stek, Ann Walker v. BLOOMBERG L.P. On Appeal of a Decision of the United States District Court for the…

Honorable Louis H. Pollak, Senior Judge of the United States District Court for*
the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2333
VINCENT SGRO, AL BASSANO, VERA STEK, ANN WALKER,
Appellants
v.
BLOOMBERG L.P.
On Appeal of a Decision of the United States District Court
for the District of New Jersey (No. 3-05-CV-00731)
District Judge: Freda L. Wolfson
Argued Friday, March 6, 2009
Before: SLOVITER and HARDIMAN, Circuit Judges,
and POLLAK, District Judge.*
(Filed: August 20, 2009)
OPINION
________________
Neal Brickman, Esq. [ARGUED]

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In the complaint, plaintiff Walker also alleged discrimination on account of her1
disability, plaintiff Stek also alleged sexual harassment, and all plaintiffs also alleged the tort of
intentional infliction of emotional distress. On appeal, appellants press only their claims of age
discrimination (including their allegation that they were subject to a hostile work environment)
and retaliation.
2
Melinda M. Dus, Esq.
Law offices of Neal Brickman, P.C.
317 Madison Avenue, 21 Floorst
New York, NY 10017
Counsel for Appellants
Vincent Sgro, Al Bassano,
Vera Stek, and Ann Walker
Thomas H. Golden, Esq. [ARGUED]
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Counsel for Appellee
Bloomberg L.P.
POLLAK, District Judge
Plaintiffs Vincent Sgro, Albert Bassano, Vera Stek, and Ann Walker, invoking the
diversity jurisdiction of the United States District Court for the District of New Jersey,
brought suit against defendant Bloomberg L.P. on discrimination and retaliation claims
arising under the New Jersey Law Against Discrimination. The District Court granted1
summary judgment in favor of defendant. Plaintiffs appeal. We will affirm as to all but
Sgro’s claim of unlawful retaliation.
I

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3
Because we write solely for the parties, we summarize only the essential facts.
Bloomberg is an international media company that provides news and financial
information through a proprietary computer service known as the Bloomberg Professional
Service (“the Bloomberg”). Bloomberg News is a division of Bloomberg that makes
news articles available through the Bloomberg. Bloomberg’s other divisions include
Global Data, which provides content for the Bloomberg.
Bloomberg hired Sgro and Bassano in 1991. Both were 49 years old at the time.
Prior to being hired, Sgro and Bassano had been the owners of Petroleum Publications
since 1972. In that capacity, they wrote, edited, and published a weekly petroleum
pricing publication, the Oil Buyer’s Guide. In 1991, Bloomberg purchased Petroleum
Publications from Sgro and Bassano, and Bloomberg agreed to employ Sgro and Bassano
for three years. Sgro signed a three-year employment contract with Bloomberg that
specified that he would “be employed three days per week.”
For the first year of that contract, Sgro was not asked to do any actual work for
Bloomberg, while Bassano continued to work on the Oil Buyer’s Guide as a member of
Bloomberg’s Energy Department. After one year, however, Sgro began writing a column
on arts and collectables, with a focus on coins and stamps. After the three-year contract
term expired, Sgro and Bassano continued on at Bloomberg, with Sgro receiving his same
salary and working on the column and other cultural articles. At some point, Sgro began
to work four days per week. Bassano, meanwhile, began to write a column about wine

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for the Bloomberg.
In 1995, Bloomberg News hired Stek, who was 43 years old at the time, to work
part time editing news articles. She became a full-time employee in 2000.
In 1997, Sgro, Bassano, and others working on similar articles became the staff of
Bloomberg’s new Lifestyles department, a division independent of Bloomberg News that
produced items for the Bloomberg on subjects such as arts, collectables, and related
topics. Beginning around April 1997, plaintiffs Sgro, Bassano, and Stek were all
members of Bloomberg’s Lifestyles department, with Stek editing articles written by Sgro
and Bassano. All five members of the Lifestyles department were older than 40.
Around July 2001, after a Lifestyles employee (not one of the plaintiffs) published
an article with erroneous factual assertions, Bloomberg transferred the Lifestyles
department into Bloomberg’s larger News division, under the supervision of John
McCorry and Matt Winkler, both of whom were 46 years old at the time. Although Sgro
and Bassano continued to publish articles on lifestyles topics, they contend that their
responsibilities were restricted. At a meeting on September 5, 2001, McCorry criticized
the work produced by the Lifestyles staff, while Sgro, Bassano, and Stek complained that
they were receiving disparate treatment. As a result of these complaints, plaintiffs
contend, they were punished by being made to do tedious data entry work.
Later in 2001, Sgro, Bassano, and Stek were transferred to Bloomberg’s Data
department, under the supervision of Gail Gross. The News department, meanwhile,

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hired experienced journalists and art critics to report on lifestyles issues. Since 2004, a
group within News, called “Muse News,” has been responsible for reporting on culture
and the arts. Muse News is run by 59-year-old Manuela Hoelterhoff, the recipient of a
1983 Pulitzer Prize. In February 2004, Bloomberg reassigned Bassano’s wine column to
John Mariani, a well-known restaurant critic and food expert.
In the Data department, Sgro, Bassano, and Stek initially worked in the web
indexing group while also assisting Bloomberg’s New York office with the development
of lifestyles-related events and seminars (e.g. wine tastings and cooking demonstrations).
In June 2003, Beth Mazzeo, the director of the Data group, transferred complete control
of these seminars and events to Bloomberg’s New York office. Mazzeo was 44 years old
at the time. Throughout their time in the Data department, plaintiffs lodged complaints in
an unsuccessful attempt to be transferred to new positions within Bloomberg.
In May 2003, Stek left Bloomberg for health reasons. In July 2004, Sgro and
Bassano were transferred within the Data department to the Prospect/Products
Development (PROS) group, under the supervision of Ray Whitman. According to
Bloomberg, Sgro and Bassano were transferred due to PROS’s need for additional
resources; according to Sgro and Bassano, they were transferred as punishment for their
written complaints of having received disparate treatment on account of age.
That same summer, Sgro’s managers requested that he begin to work a full five-
day work week because, according to Bloomberg, the rest of the Global Data team was

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6
required to work five days per week. Sgro refused, and soon began a medical leave that
lasted until February 2005. When Sgro returned from his leave, he continued to refuse to
work five days per week. Sgro (along with the other plaintiffs) filed the complaint in this
case on February 7, 2005. Bloomberg terminated Sgro’s employment on March 21, 2005.
Bassano remains employed by Bloomberg.
Plaintiff Walker, meanwhile, had less involvement with her co-plaintiffs. In
October 2000, Bloomberg hired Walker, then 47 years old, as a full-time employee in its
Creative Services department in Princeton, New Jersey. Her role was to assist the
creative director and art director in creating sales and marketing materials for Bloomberg.
In the summer of 2001, the Creative Services department relocated to New York.
Bloomberg offered Walker a position with the Creative Services department in New
York, but she refused. Instead she accepted a position under the supervision of Gail
Gross in the Data department in Princeton, NJ, alongside Sgro, Bassano, and Stek. At
that point, all of Gross’s employees were over the age of fifty.
In the spring of 2002, Walker inquired about a new position in the Creative
Services department in New York. According to Walker, she was discouraged from
applying for that position. In October 2002, she joined the Creative Strategy team in the
Data group. In Creative Strategy, Walker worked on event planning and marketing for
the Data group. In September 2004, Creative Strategy was disbanded, and Walker was
left with no formal position within Bloomberg.

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7
Walker claims that someone told her that Mazzeo, the director of the Data group,
had commented, “Ann is going to have a heart attack” and that a Human Resources
employee at Bloomberg told Walker directly that she was “not a fit.” After losing her
position with Creative Strategy (but not her employment with Bloomberg), Walker
searched for jobs within Bloomberg using Bloomberg’s internal job postings bulletin.
Walker claims that two other Creative Strategy employees, both younger than Walker,
were offered new positions that had never been listed on the internal postings bulletin.
On November 9, 2004, Walker began a medical leave. She remains on leave.
II
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332(a)(1) and 1442,
and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the
same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.
2008). That is, we will view the evidence in the light most favorable to plaintiffs and
draw all justifiable, reasonable inferences in their favor. Id. We will affirm if “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that [Bloomberg] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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8
III
The New Jersey Law Against Discrimination (NJLAD), N.J. Stat. § 10:5-12(a),
makes it unlawful “[f]or an employer, because of the . . . age . . . of any individual . . . to
discriminate against such individual in compensation or in terms, conditions, or privileges
of employment[.]” Section 12(d) of the NJLAD prohibits retaliation against an employee
because that employee “has opposed any practices or acts forbidden under [the NJLAD]
or because that person has filed a complaint, testified or assisted in any proceeding under
[the NJLAD.]”
An NJLAD plaintiff may prove discrimination or retaliation according to the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a
prima facie case of unlawful discrimination. Id. at 802. If the plaintiff succeeds, the
burden of production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the employer’s action. Id. Once the employer meets its relatively light burden,
the burden of production returns to the plaintiff, who must show by a preponderance of
the evidence that the employer's proffered reason is pretextual. See id. at 804-05.
Accordingly, once an employer has proffered a legitimate, nondiscriminatory reason, the
plaintiff:
generally must submit evidence which: (1) casts sufficient doubt upon each of
the legitimate reasons proffered by the defendant so that a factfinder could
reasonably conclude that each reason was a fabrication; or (2) allows the
factfinder to infer that discrimination was more likely than not a motivating or

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9
determinative cause of the adverse employment action.
Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
A.
As a threshold matter, the District Court held that plaintiffs’ claims were barred by
the NJLAD’s two-year statute of limitations to the extent they sought compensation for
harms allegedly suffered prior to February 7, 2003. We agree.
New Jersey courts recognize that “[w]hen an individual is subject to a continual,
cumulative pattern of tortious conduct,” as is the case when a plaintiff is subject to a
hostile work environment, “the statute of limitations does not begin to run until the
wrongful action ceases.” Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999).
However, to qualify for the equitable continuing violations doctrine, “the plaintiff must
establish that the harassment is ‘more than the occurrence of isolated or sporadic acts of
intentional discrimination.’” West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir.
1995) (quoting Jewett v. Int’l Tel. and Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981), cert.
denied, 454 U.S. 969 (1981)).
Thus, discrete acts – such as the demotions, transfers, failures to promote, and
other adverse employment actions that plaintiffs allege they experienced due to their ages
– do not fall under the continuing violations doctrine and are subject to the NJLAD’s two-
year statute of limitations. Accordingly, the District Court did not err in holding that

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10
plaintiffs’ age discrimination claims, other than their claim of a hostile work environment,
are barred as to events that took place prior to February 7, 2003 (two years prior to the
filing of plaintiffs’ complaint).
B.
In order to make a prima facie case of age discrimination under the NJLAD, a
plaintiff must demonstrate that she (1) is a member of the protected class, (2) was
qualified for the position held, (3) suffered an adverse employment action, and (4)
“ultimately was replaced by a person sufficiently younger to permit an inference of age
discrimination.” Monaco v. American General Assur. Co., 359 F.3d 296, 300 (3d Cir.
2004) (holding that the elements of a prima facie case under the NJLAD are the same as
those under the federal ADEA). Defendant disputed only the fourth element.
The District Court held that plaintiffs did not provide sufficient evidence to prove
that they were replaced by younger employees, and also that, even if plaintiffs established
a prima facie case, they failed to rebut Bloomberg’s legitimate nondiscriminatory reasons
for its actions. Because we agree that the plaintiffs failed to rebut Bloomberg’s proffered
reasons, we need not consider whether plaintiffs made out a prima facie case.
Bloomberg pointed to several business needs that motivated their decisions
regarding the plaintiffs’ job placements, and none of the rebuttal evidence provided by
plaintiffs “demonstrate[d] such weaknesses, implausibilities, inconsistencies,

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We reject appellants’ general claim that the District Court engaged in improper fact-2
finding on this and other issues.
11
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ and
hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’”
Fuentes, 32 F.3d at 765 (citations omitted). The crux of plaintiffs’ pretext argument on
appeal is that defendants’ job placement decisions did not “make sense” in light of
plaintiffs’ salaries and capabilities. But plaintiffs must show more than that the
defendants’ business decisions were bad for business. Furthermore, the District Court did
not err in concluding, based on the evidence of record, that there was no meaningful
evidence to support plaintiffs’ claim that Bloomberg human resources employee Lori
Oliveri (whom plaintiffs allege was biased against older workers) had any direct
involvement in any of the plaintiffs’ adverse employment actions.2
C.
Under the NJLAD, a plaintiff makes out a prima facie case of retaliation by
showing “(1) that he engaged in a protected activity; (2) that he suffered an adverse
employment action; and (3) that there was a causal connection between the protected
activity and the adverse employment action.” Cardenas v. Massey, 269 F.3d 251, 263 (3d
Cir. 2001) (citations omitted). As the District Court rightly concluded, only Sgro can
make out a prima facie case of retaliation because only Sgro can point to any causal

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Sgro filed his complaint prior to his termination. At summary judgment, Sgro argued3
that his termination was retaliatory and violated the NJLAD. However, Sgro never filed an
amended complaint alleging retaliatory termination specifically. Bloomberg argues that Sgro’s
failure to file any pleadings alleging retaliatory termination should bar Sgro from raising this
argument on appeal.
Bloomberg is correct that, in this circuit, “we decline to permit a party to argue on appeal
causes of action that were not pleaded in district court.” Murray v. Commercial Union Ins. Co.,
782 F.2d 432, 437 (3d Cir. 1986). In Murray – the only Third Circuit case cited by appellee in
support of its position – we rejected appellants’ attempt to appeal its original and unsuccessful
trespass claim under the “newly developed theory of liability” of either wrongful discharge or, in
the alternative, tortious interference with contractual rights. Id. at 436-37.
In contrast, Sgro has appealed under the same theory of liability, retaliation, pled in the
complaint and argued to the District Court at the summary judgment stage. The precedential out-
of-circuit cases that appellee cites are all distinguishable; unlike the instant matter, they involve
situations in which the appellant did not raise an issue in the complaint and failed to raise the
issue until the appellate stage. Thus, appellees have cited no case on point that would prevent
this court from hearing Sgro’s retaliatory termination claim insofar as that claim is, as a legal
matter, equivalent to the complaint’s properly pled count of retaliation. Nor are there any policy
reasons that would urge us not to consider that claim, as the parties briefed and argued the
specific issue of retaliatory discharge to the court below at the summary judgment stage. In its
opinion, the District Court explicitly considered (and rejected) Sgro’s allegation of retaliatory
discharge. Because we are reviewing the outcome of that decision, we have no good reason not
to reach Sgro’s claim for retaliatory discharge.
12
connection between protected activity and an adverse employment action.
The protected activities relevant to Sgro’s retaliation claim are (1) complaints in
July of 2004 that the members of the Lifestyles group were being discriminated against
due to their age; and (2) Sgro’s filing this lawsuit. Sgro’s termination unquestionably
constituted an adverse employment action, and the District Court did not err in3
concluding that the temporal proximity between his filing suit and his termination was
sufficient to raise a presumption that a causal relationship existed between those two
events. See Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183, 189 (3d Cir. 2003)
(“The amount of time between the protected activity and the alleged retaliation is a

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13
circumstance to be considered by a fact-finder in determining if the plaintiff has
established the required causation.”). Thus, the relevant inquiry for the District Court was
whether Bloomberg proffered a legitimate nonretaliatory reason for firing Sgro that Sgro
could not rebut.
Bloomberg asserts that it fired Sgro because he refused to work five days per
week, which, on its face, is a legitimate nonretaliatory reason that shifts the burden to
Sgro. The District Court erred, however, in concluding that a reasonable jury could not
find that Bloomberg’s proffered reason was pretextual. Although there may not be
sufficient evidence on the record to demonstrate that age discrimination motivated
Bloomberg to require Sgro to work more, there is evidence on the record to suggest that
the timing of that request represented retaliation for his complaints.
According to the terms of his original employment contract with Bloomberg, Sgro
had worked fewer than five days per week from the moment he was hired in 1991 until
2004. After he was transferred to the PROS group, which was supervised by Ray
Whitman, Sgro had a number of meetings with Whitman. In his deposition, Sgro
described a meeting with Whitman that took place soon after Sgro went to work for
Whitman on July 6, 2004, but before Sgro went on medical leave in August 2004:
I told Ray Whitman personally before I went on medical leave that this
job was demeaning.
. . . This is being done to harass, to create a hostile work environment, to get
me out of here and the other people from the Lifestyles, that’s why it’s demeaning,
I resent it, and that’s what I told him.
. . . And I did say to Ray at one of these meetings, I said, “Ray, you

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We recognize that the precise timing of Sgro’s verbal complaints to Whitman is not4
entirely clear from the record, and that it may be the case that Sgro’s complaints came only after
he was told to increase his work schedule. That does not appear, however, to have been the case.
In any event, we construe the facts on summary judgment in the light most favorable to Sgro, and
thus any confusion about the precise sequence of events here should be resolved at trial.
14
should be ashamed of yourself because you’re doing the same thing to me that
you did to Marlene Lucas,” who went into depression for many, many months,
the same thing. Calling her out of her normal work. She was there 15 years,
had excellent reviews, all of a sudden she moved over to Whitman, and guess
what, the reviews were down to nothing and they switch her to a rogue job and
then they start comparing her to 25 year olds[.]
The foregoing verbal complaint – in which Sgro used the term “hostile work
environment” and specifically likened himself to another employee who was
disadvantaged in favor of a younger employee – constituted protected activity under the
NJLAD. Sometime on or around July 28, 2008, Bloomberg requested that Sgro begin4
working a full-time schedule of five days per week, for no extra compensation. Sgro
refused because he felt that a verbal agreement with Michael Bloomberg required Sgro to
work no more than three days per week.
The District Court concluded that Bloomberg asked Sgro to increase his work
schedule “since every other member of the Global Data group was working full time” and
therefore held that Sgro could not demonstrate pretext. Sgro, however, had been working
in Global Data since 2001, and it was only when he was transferred to PROS, a
workgroup within Global Data, that Bloomberg demanded he work five days per week.
While that increased work requirement might have been entirely justifiable for business
reasons, a reasonable jury could conclude that its suddenness points to retaliation by

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Bloomberg. See, e.g., Delli Santi v. CNA Ins. Companies, 88 F.3d 192, 200 (3d Cir.
1996) (holding that, under the NJLAD’s retaliation provision, the employer’s sudden
investigation of employee’s low gas mileage reports after years of employee submitting
these suspicious reports without incident indicated a retaliatory motive). Accordingly,
Sgro raised a material issue of fact about whether or not his termination was retaliatory,
and the court should not have granted summary judgment on this issue for Bloomberg.
D.
Unlike plaintiffs’ age discrimination and retaliation claims, hostile work
environment claims fall under the continuing violations exception to the NJLAD’s two-
year statute of limitations. See Shepherd v. Hunterdon Developmental Center, 174 N.J. 1,
20 (2002) (“It does not matter, for purposes of the statute, that some of the component
acts of the hostile work environment fall outside the statutory time period. Provided that
an act contributing to the claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the purposes of determining
liability.”). We agree with the District Court that plaintiffs’ claims alleged, for the
purposes of determining whether or not to apply the continuing violations theory, a hostile
work environment.
New Jersey courts treat hostile work environment claims under the NJLAD the
same as the Supreme Court treats hostile work environment actions under Title VII. See

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Shepherd, 174 N.J. at 20-21 (applying the analytical framework from National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). “When the workplace is permeated
with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment,’ Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993) (citations omitted). The Supreme Court has instructed courts about what
factors to consider when determining whether the standard for a hostile work environment
claim has been met:
In determining whether an actionable hostile work environment claim exists,
we look to “all the circumstances,” including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”
Morgan, 536 U.S. at 116 (citing Harris, 510 U.S. at 23).
The District Court held that plaintiffs’ hostile work environment claim could not
survive summary judgment for two reasons: (1) because plaintiffs “failed to establish that
any hostility towards them was motivated by their ages” and (2) because the conduct
alleged by plaintiffs was not sufficiently severe or pervasive. We agree with both
conclusions.
As the District Court noted, the crux of plaintiffs’ allegations is that they were
given demeaning job assignments that were incommensurate with their experiences and
abilities. Hostile work environment claims, however, are designed for work

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environments characterized by an excess of discriminatory ridicule or other intimidating
behavior. Plaintiffs’ evidence, even when taken in the light most favorable to them, does
not come close to demonstrating a work environment of this nature. On appeal,
appellants emphasize that these demeaning job assignments drove some appellants to seek
medical leaves for psychological reasons. A job assignment, however, is the type of
adverse employment action that can ground a claim of age discrimination in the terms of
employment, not the type of harassment or intimidation relevant to a hostile work
environment claim. Moreover, for reasons analyzed in Section III.B, supra, plaintiffs
cannot show that those employment actions were caused by age discrimination.
IV
The judgment of the District Court will be reversed insofar as it granted summary
judgment to Bloomberg on Sgro’s retaliation claim. It will be affirmed in all other
respects. This matter will be remanded to the District Court for further proceedings
consistent with this opinion.

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