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   John Doe said:

   Aug 23, 08 at 2:54 pm

   NOT PRECEDENTIAL
   UNITED STATES COURT OF APPEALS
   FOR THE THIRD CIRCUIT
   No. 05-4350
   MICHAEL R. MOSCA,
   Appellant
   v.
   AVIS COLE; BILLIE MOORE; LORENZO LANGFORD;
   BENJAMIN R. FITZGERALD; CITY OF ATLANTIC
   CITY; JOHN DOES 1-10, Jointly,
   Severally and in the Alternative
   On Appeal from the United States District Court
   for the District of New Jersey
   District Court No. 03-cv-00168
   District Judge: Honorable Joseph E. Irenas
   Submitted under Third Circuit LAR 34.1 (a)
   September 26, 2006
   Before: RENDELL, CHAGARES, and ROTH, Circuit Judges
   (Filed: February 14, 2007)
   O P I N I O N
   2
   ROTH, Circuit Judge:
   Michael Mosca sued his former employer, the City of Atlantic City, its Mayor, and
   other individuals for racial discrimination and other violations of federal and state law. The
   District Court granted partial judgment against Mosca on his federal claims and declined to
   exercise supplemental jurisdiction on the state claims. For the reasons set forth below, we
   will affirm the judgment of the District Court.
   I. Background and Procedural History
   Because the parties are familiar with the facts and procedural posture, we will provide
   only a brief synopsis of the events leading up to this appeal.
   From 1992 to February 2002, Mosca, a Caucasian attorney, was employed under a
   series of term contracts by the Municipal Prosecutor’s Office of the City of Atlantic City.
   In 1999-2000, while working as a prosecutor for the City, Mosca was involved in the
   prosecution of the Reverend Al Sharpton for acts of civil disobedience. The prosecution
   resulted in a ten-day sentence, of which Sharpton served only a few hours. Mosca claims
   that two African-American Atlantic City councilmen, defendant Lorenzo Langford and nonparty
   Ernest Coursey, attempted to pressure him into dropping the case and apologizing for
   the prosecution, but Mosca refused to do so.
   In November 2001, Langford was elected Mayor of Atlantic City and immediately
   began to plan the replacement of certain at-will municipal employees with individuals of his
   choice. In mid-December, he notified all four attorneys of the Municipal Prosecutor’s
   Office, including Mosca, that they would be terminated on December 31, 2001 (the day
   3
   before Langford’s swearing-in). Later, Mosca was told instead that his contract would not
   be renewed when it expired in February 2002.
   Mosca spread the word that he wanted to continue working for the city, but nothing
   materialized until April of 2002, when a long-time social acquaintance, Stephen Smoger,
   took the position of City Solicitor. Smoger was short-staffed and believed Mosca’s
   experience at the Municipal Prosecutor’s office made him a good candidate for a part-time
   position as police liaison in the Solicitor’s office. He approached Langford at a social event
   and proposed Mosca’s appointment. Langford agreed but made clear that the decision could
   be reevaluated. Langford claims he considered Mosca’s appointment a temporary measure
   and that he expected to hire a candidate of his choice later; Smoger recalls being told that he
   should stress to Mosca that he served at Langford’s pleasure and would be reevaluated within
   the year.
   According to Smoger, he then contacted Mosca and spoke to him about what he
   considered a significant obstacle to his hiring, namely the rapidly spreading rumor that
   Mosca had made a derogatory and possibly racist remark about Langford – reportedly that
   Langford was a “bow-tie-wearing, bean-pie-eating Muslim.” Smoger recalls that Mosca
   denied he had made the remark, pointing out that he was married to a minority.
   On May 13, 2002, Mosca, Smoger, and now-Deputy Mayor Coursey met in Smoger’s
   office for Mosca’s interview. According to Smoger and Coursey, Coursey raised the issue
   of the derogatory comment and Mosca denied making it. Mosca, in contrast, remembers
   being asked only about his political ties to the previous city administration. Eventually,
   4
   Coursey left the room, then returned and told Smoger he could hire Mosca. It is not clear
   whether Coursey consulted Langford during his absence or whether Langford knew of the
   rumor at this point.
   Mosca started part-time employment in the Solicitor’s Office two days later. His
   termination and new hiring were processed as a transfer so he could keep his benefits. Mosca
   was listed as an “Unclassified Employee” with no civil service protection; he understood that
   he served at the pleasure of the mayor and was subject to termination without cause.
   Some time later, Langford apparently became interested in learning more about
   Mosca’s alleged derogatory statement. Langford summoned Smoger, told him he had
   completed his investigation of the Mosca matter, and instructed him to terminate Mosca’s
   employment. Smoger did so on June 10, 2002. Subsequently, an African-American attorney,
   Jackie Abdur Razzaq, was appointed to a full-time position in the Solicitor’s Office, with
   duties different from the ones Mosca performed. Langford claims he had decided to
   terminate Mosca mainly to open up a position for a Caucasian campaign worker who,
   however, declined the appointment; he acknowledges that the rumor of the alleged statement
   was also a factor in his decision.
   Mosca filed an action in state court against the City of Atlantic City, Langford,
   Fitzgerald (Langford’s chief of staff), Avis Cole, Billie Moore, and ten “John Does.” The
   action was removed to federal court, and Mosca filed an amended complaint alleging
   violation of equal protection, under 42 U.S.C. §1983; violation of procedural due process,
   under 42 U.S.C. § 1983; conspiracy, under 42 U.S.C. § 1983 and § 1985; racial
   1 Mosca presents no argument about the dismissal of the conspiracy count (Count XI);
   thus, this opinion discusses only the claims of racial discrimination, procedural due
   process, equal protection, and failure to train.
   5
   discrimination, under 42 U.S.C. § 1981; violation of Mosca’s First Amendment rights; and
   “refusing or neglecting to prevent” (i.e., failure to train) under 42 U.S.C. § 1983, and a
   number of state law claims.
   Upon the defendants’ motion, the District Court granted summary judgment against
   Mosca on all the federal law claims and declined to exercise supplemental jurisdiction over
   the state claims. Mosca appealed.1
   II. Jurisdiction and Standard of Review
   The District Court had jurisdiction over this case under 28 U.S.C. §1331, with
   supplemental jurisdiction over Mosca’s claims based on state law. We have jurisdiction to
   review the District Court’s grant of partial summary judgment under 28 U.S.C. § 1291.
   Our review of a grant of summary judgment is plenary. Gottshall v. Consol. Rail
   Corp., 56 F.3d 530, 533 (3d Cir.1995). Summary judgment is only appropriate if there are
   no genuine issues of material fact and the movant is entitled to judgment as a matter of law.
   Fed. R. Civ. P. 56(c). In reviewing the District Court’s grant of summary judgment, we view
   the facts in a light most favorable to the non-moving party. Gottshall, 56 F.3d at 533.
   However, to survive summary judgment, the non-moving party must present more than a
   mere scintilla of evidence supporting its claims. See Anderson v. Liberty Lobby, Inc., 477
   U.S. 242, 251 (1986).
   6
   III. Analysis
   On appeal, Mosca argues the District Court erred in finding he had not presented
   sufficient evidence to survive summary judgment on (1) a prima facie case of employment
   discrimination on the basis of race, (2) a violation of his First Amendment rights, (3) a prima
   facie case of denial of equal protection, and (4) failure to train in violation of 42 U.S.C. §
   1983.
   A. Employment Discrimination
   We apply a modified version of the familiar McDonnell Douglas burden-shifting
   analysis to claims of reverse discrimination in employment. Iadimarco v. Runyon, 190 F.3d
   151, 158 (3d Cir. 1999); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
   Under this analysis, the plaintiff must first establish a prima facie case of discrimination by
   presenting “sufficient evidence to allow a fact finder to conclude that the employer is treating
   some people less favorably than others based on a trait that is protected under Title VII.”
   Iadimarco, 190 F.3d at 161. Once the plaintiff makes this showing, the burden shifts to the
   employer to articulate some legitimate, non-discriminatory reason for its adverse action. See
   id. at 157. If the employer meets its burden of production by offering some evidence of a
   legitimate, non-discriminatory reason, the plaintiff can survive summary judgment by
   showing that the stated reason was a pretext. In order to show pretext, the plaintiff must
   point to “some evidence, direct or circumstantial, from which a fact finder could reasonably
   either (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious
   discriminatory reason was more likely than not a motivating or determinative cause of the
   7
   employer’s action.” Id. at 166 (emphasis in original; internal citation and quotation marks
   omitted).
   Mosca contends that he has made out a prima facie case of reverse racial
   discrimination because he was qualified for his position in the City Solicitor’s Office, he
   suffered an adverse employment action by being terminated, and there was evidence from
   which a factfinder could believe that Mosca was treated differently because of his race,
   namely, an African American attorney (Razzaq) was hired to replace him even though she
   was less qualified and Mosca was terminated without a formal investigation.
   Although there is very little evidence in the record that Razzaq interviewed for
   Mosca’s position or in fact replaced Mosca, the District Court assumed for purposes of
   deciding the motion for summary judgment that she did. We will do the same.
   Just as “the race of the selecting officials is not a sufficient circumstance to establish
   a prima facie case of discrimination by itself,” Iadimarco, 190 F.3d at 156, the fact that a
   plaintiff’s replacement is of a different race, without more, is not enough. Although Smoger,
   Mosca’s Caucasian superior and long-time social acquaintance, believed Mosca to be a
   stronger addition to the office than Razzaq, the record contains no evidence that Razzaq was
   objectively less qualified than Mosca for a position in the Solicitor’s Office, particularly in
   a situation where one of the required qualifications was enjoying the Mayor’s trust. Mosca’s
   own theory is that “Razzaq was not a mere African-American who happened upon a job in
   . . . Atlantic City, but rather, was an African-American with unquestionable [social] ties to
   Defendant Moore, who was alleged to have defamed Mosca.” Under Mosca’s own scenario,
   8
   Billie Moore and Avis Cole, two African-American attorneys, started a false rumor about
   Mosca to favor a friend. However, even if this were true, Mosca’s employment
   discrimination claim would still fail.
   Mosca also fails in his contention that the absence of a formal investigation into the
   alleged rumor shows his employer’s tendency to treat Caucasians less well than others.
   Mosca grounds his allegation of discriminatory treatment on the fact that three city
   employees, two Caucasians and one African-American, had earlier been afforded more
   formal investigations. In the case of the two Caucasians, they were accused of harassment
   of their subordinate administrative staff; the African-American employee had been accused
   of calling a co-worker an “old lady.” However, Mosca’s alleged comment – a remark
   disrespectful to a superior, made outside the workplace to witnesses who were not, at the
   time, employed by the City – is not equivalent to the allegations of sexual harassment and
   other discrimination that he claims underwent formal investigations.
   Even if Mosca could establish a prima facie case, the City has proffered legitimate,
   non-discriminatory reasons for his discharge, Langford’s desire to create a position for a
   Caucasian campaign worker and Mosca’s alleged derogatory comment. To defeat summary
   judgment, Mosca would have to point to some evidence from which a fact finder could
   reasonably either disbelieve the employer’s articulated legitimate reasons, or believe that an
   invidious discriminatory reason was more likely than not a motivating or determinative cause
   of the employer’s action. Iadimarco, 190 F.3d at 165-66.
   Mosca attempts to prove pretext by arguing that he did not make the alleged remark,
   2 Mosca no longer argues that he had a property interest in his at-will employment.
   9
   but this is immaterial. The question is whether the Mayor believed Mosca had made it.
   Mosca can point to nothing in the record that suggests otherwise. See Abramson v. William
   Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001) (“it is not enough for a plaintiff to
   show that the employer’s decision was wrong or mistaken, because the issue is whether the
   employer acted with discriminatory animus”). Mosca also does not attempt to rebut the
   City’s contention that Langford intended to open a position for a campaign worker, who
   eventually declined the offer. There is no evidence that Mosca’s replacement was motivated
   by anything other than Langford’s desire to surround himself with people he trusted.
   B. Constitutional Violations Under 42 U.S.C. § 1983
   “To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must demonstrate a
   violation of a right secured by the Constitution and the laws of the United States [and] that
   the alleged deprivation was committed by a person acting under color of state law.” Mark v.
   Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). For purposes of the motion for
   summary judgment, Langford and Fitzgerald do not dispute that they are persons acting
   under color of state law. The issue, then, is whether Mosca can establish that there is a
   genuine issue of fact as to whether they violated his constitutional rights. He cannot.
   1. Procedural Due Process
   Mosca contends that the City deprived him of a liberty interest without due process
   of law in violation of the Fourteenth Amendment of the Constitution of the United States.2
   10
   He relies on our opinion in Anderson v. City of Philadelphia, 845 F.2d 1216, (3d Cir. 1988).
   In Anderson, we wrote that
   an employment action implicates a fourteenth amendment liberty interest only if it (1)
   is based on a charge against the individual that might seriously damage his standing
   and associations in the community[,] for example, by implying that he had been guilty
   of dishonesty, or immorality, or (2) imposes on him a stigma of other disability that
   forecloses his freedom to take advantage of other employment opportunities. We
   have also held that to state a valid claim of a protected liberty interest, a plaintiff must
   plead that the allegedly stigmatizing information was ‘published’ or otherwise
   disseminated by his government employer to the public.
   Id. at 1221-22 (citations, quotation marks, and alterations omitted). See also Bishop v. Wood,
   426 U.S. 341, 348 (1976) (the discharge of a public employee whose position is terminable
   at the will of the employer does not violate the employee’s liberty interests when there is no
   public disclosure of the reasons for the discharge).
   Mosca contends Langford, Fitzgerald, and the City deprived him of the liberty interest
   described in Anderson by disseminating the information that he was terminated for making
   a version of the alleged comment that included the word “nigger.” However, there is no
   evidence that Langford or Fitzgerald told anyone that Mosca was terminated for making the
   comment in any form, let alone one that apparently had not reached their ears at all. In fact,
   Mosca himself told a number of people about the alleged comment and stated to potential
   employers and eventually a newspaper that he believed it was the reason for his termination.
   Because there is no issue of fact as to whether Langford, Fitzgerald, or the City “published”
   the alleged remark, summary judgment was appropriate as to Mosca’s due process claim.
   3 This is essentially a restatement in equal protection terms of Mosca’s claim of denial
   of procedural due process.
   4 Mosca’s own references are to Levenstein v. Salafsky, 164 F.3d 345, 352 (7th Cir.
   1998).
   11
   2. Equal Protection
   Mosca contends he was denied the benefit of the equal protection of the laws when
   he was “singled out for selective treatment” by being denied a formal investigation into the
   allegation that he had made a derogatory remark about the incoming Mayor.
   “The Equal Protection Clause of the Fourteenth Amendment commands that no State
   shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
   essentially a direction that all persons similarly situated should be treated alike.” City of
   Cleburne v. Cleburne Living Ctr, 473 U.S. 432, 439 (1985). Mosca’s theory appears to be
   that regulations requiring the investigation of allegations of harassment or discrimination
   were selectively not applied to him.3 He does not allege he is a member of a suspect class,
   but rather invokes the“class of one” theory announced in Village of Willowbrook v. Olech,
   528 U.S. 562 (2000) (per curiam).4 Under that theory, a plaintiff states a claim for violation
   of the Equal Protection clause when he “alleges that he has been intentionally treated
   differently from others similarly situated and that there is no rational basis for the difference
   in treatment.” Id. at 564. As this Court has recently noted, “at the very least, to state a claim
   under that theory, a plaintiff must allege that (1) the defendant treated him differently from
   others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational
   basis for the difference in treatment.” Hill v. Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
   5 Langford, at whose pleasure Mosca served when he was terminated, appears to have
   taken whatever steps he believed sufficient to satisfy himself of the truth of the rumor.
   12
   Mosca’s claim fails because he cannot identify a similarly situated individual who was
   treated differently. He points most forcefully to one Caucasian attorney who “was City
   Solicitor after Langford was elected and . . . received a thorough and complete investigation
   into allegations of sexual harassment made against him.” Mosca was not accused of sexual
   harassment by a coworker; he was alleged to have made a derogatory comment about the
   incoming Mayor, outside the workplace, to individuals who were not at the time employed
   by the City. As the District Court correctly noted, “this hardly translates into [a] charge of
   workplace discrimination requiring some kind of fact-finding investigation.” Mosca v. Cole,
   384 F. Supp. 2d 757, 769 (D.N.J. 2005).5
   3. First Amendment Right to Free Speech
   Mosca argues the City, Langford and Fitzgerald retaliated against him for his 1999-
   2000 prosecution of Sharpton, which they opposed.
   In order to establish that an employer retaliated against him for exercising his First
   Amendment right to free speech, a plaintiff must prove (1) that his speech was protected, (2)
   that he suffered an adverse employment action, and (3) that his protected speech was a
   substantial or motivating factor for the adverse employment action. Swineford v. Snyder
   County Pennsylvania, 15 F.3d 1258, 1270 (3d Cir. 1994). If the plaintiff meets this burden,
   the employer can still defeat the claim by establishing that it would have taken the same
   action even absent the plaintiff’s exercise of free speech. Id.
   13
   Mosca can establish the first two elements of this claim but cannot produce sufficient
   evidence that his exercise of free speech was a cause of his termination. First of all, the
   prosecution of Sharpton occurred before he was hired into the Solicitor’s office; he fails to
   explain why those who wanted to punish him for prosecuting Sharpton would not simply
   have refused to hire him to begin with. Second, there is no evidence that his involvement
   with the Sharpton prosecution played any role in his termination. Summary judgment was
   properly granted on this claim.
   4. Failure To Train
   Mosca argues the District Court erred in granting summary judgment on his Monell
   claim against the City based on its alleged failure to train Langford and Fitzgerald with
   regard to its anti-discrimination policies, thus allowing the alleged constitutional violations.
   See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (holding that there is no respondeat
   superior liability under § 1983, but municipalities can be held liable if officials act pursuant
   to policy or custom); Berg v. County of Allegheny, 219 F.3d 361 (3d Cir. 2000) (recognizing
   that a municipality’s failure to train that results in a constitutional violation can establish a
   Monell claim).
   Since Mosca has not established any constitutional violations, his Monell claim fails
   as a matter of course. The District Court committed no error.
   IV. Conclusion
   For the reasons set forth above, we will affirm the judgment of the District Court.

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