Boogher v. Pennsylvania Department of Revenue

BRIEF IN SUPPORT re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.May 2, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GINA BOOGHER, : No. 1:17-CV-0057 Plaintiff : : Honorable Yvette Kane v. : Magistrate Judge Mehalchick : PENNSYLVANIA DEPARTMENT OF REVENUE, : : Electronically Filed Document Defendant : Complaint Filed 1/9/17 BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PROCEDURAL HISTORY Plaintiff commenced this action on January 9, 2017. Doc. 1. She alleges she was discriminated and retaliated against because of her gender in violation of Title VII of the Civil Rights Act of 1964. Doc. 1, II and III. Plaintiff filed a Memorandum of Law in support of her complaint on January 23, 20171. Doc. 4. Defendant waived 1 The information contained in Plaintiff’s Memorandum of Law (Doc. 4) should not be considered in deciding this motion. The Federal Rules of Civil Procedure do not allow for the filing of a Memorandum of Law or other Brief in Support of a Complaint. Rather, Federal Rule of Civil Procedure 7(a) provides that the only pleadings allowed are the following: a complaint, an answer to a complaint; and answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and, if the court orders one, a reply to an answer. See Fed.R.Civ.P. 7(a). In furtherance of this rule, this Court routinely reminds pro se litigants that a complaint shall be complete, in and of itself, without reference to other documents. However, even if the Court were to consider Plaintiff’s Memorandum, it does not change the arguments set forth herein. Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 1 of 11 2 service of the summons on March 16, 2017. Doc. 9. Defendant filed a Motion to Dismiss on April 24, 2017. Doc. 10. This brief is submitted in support thereof. STATEMENT OF FACTS Without admitting the truth of the averments, the facts can be summarized as follows: Plaintiff began employment as an auditor with the Pennsylvania Department of Revenue in July 2015. Plaintiff’s employment was subject to a twelve (12) month probationary period. In October 2015, Plaintiff had a meeting with a taxpayer during which his pants fell down several times. Plaintiff subsequently requested that the audit be transferred to another auditor but her request was denied. In March 2016, Plaintiff advised she believed that being forced to continue working on the audit constituted sexual harassment. The audit was then transferred to another auditor. Plaintiff was subsequently assigned a new supervisor. In July 2016, the Department of Revenue indicated its desire to extend Plaintiff’s probationary period for an additional six (6) months. Plaintiff refused this offer and was subsequently terminated. Plaintiff seeks compensatory and punitive damages. ISSUES PRESENTED I. WHETHER PLAINTIFF HAS STATED A CLAIM FOR DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT? II. WHETHER PLAINTIFF HAS STATED A CLAIM FOR RETALIATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT? Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 2 of 11 3 ARGUMENT A complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “Though a complaint ‘does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.’” DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n. 14 (3d Cir. 2013) (internal citations and quotation marks omitted). A. Discrimination Claim Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 3 of 11 4 against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (1). The statute is not a “general civility code” and does not provide relief for “unpleasantness” in the workplace. Onscale v. Sundowner Offshore Svcs., Inc., 523 U.S 75, 80 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Barnees v. Nationwide Mut. Ins. Co., 598 F.App’x 86, 90 (3d Cir. 2015); Walker v. Centocor Ortho Biotech, Inc., 558 F.App’x 216, 219 (3d Cir. 2014). “Claims of discrimination in violation of Title VII are analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination. See Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999). To do so, a plaintiff must demonstrate that [s]he (1) was a member of a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) the circumstances of the adverse employment action imply discrimination. Id. at 410-11.” Peake v. Pennsylvania State Police, 644 F. App’x 148, 151 (3d Cir. 2016). Whether Plaintiff has established a prima facie case of employment discrimination is a question of law for the Court. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d. Cir. 2003) (citing St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 506 (1993)). Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 4 of 11 5 For purposes of this motion only, Defendant will concede that Plaintiff’s Complaint asserts enough facts to establish she is a member of a protected class and suffered an adverse employment action. Plaintiff’s Complaint does not, however, set forth any facts to demonstrate that Plaintiff was qualified for the position or that the circumstances of her termination imply discrimination. In fact, Plaintiff specifically admits that Defendant wanted to extend her probationary period and only terminated her when she refused to agree to the extension. Doc. 1, III.E. Establishing a plaintiff's qualifications for purposes of proving a prima facie case are evaluated under an “objective standard.” Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990)). Here, Plaintiff has not set forth a single fact to demonstrate she was qualified for permanent employment as an auditor; therefore, she has failed to meet this prong of the test for discrimination. To establish that the circumstances under which Plaintiff was terminated imply discrimination, “Plaintiff must either: (1) introduce evidence of comparators (i .e., similarly situated employees who (a) were not members of the same protected class and (b) were treated more favorably under similar circumstances); or (2) rely on circumstantial evidence that otherwise shows a causal nexus between her membership in a protected class and the adverse employment action.” Peake v. Pennsylvania State Police, No. CIV.A. 12-1761, 2015 WL 3646446, at *3 (W.D. Pa. Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 5 of 11 6 June 10, 2015), reconsideration denied, No. CIV.A. 12-1761, 2015 WL 3825432 (W.D. Pa. June 19, 2015), and aff'd, 644 F. App’x 148 (3d Cir. 2016). Plaintiff has done neither. In fact, she has not asserted a single fact to support her claim that her termination was related to her gender. Accordingly, she has failed to state a claim for gender discrimination. B. Retaliation Claim To prove a prima facie case of retaliation, plaintiff must demonstrate that (1) she engaged in activity protected by Title VII, (2) the employer took adverse employment action against her, and (3) there was a causal connection between her protected activity and the adverse employment action. Moore v. City of Phila., 461 F. 3d 331, 340-41 (3d. Cir. 2006). Here, Plaintiff alleges she suffered “[r]etaliation after complaint about being forced to work with a taxpayer who repeatedly exposed himself during a meeting in his home.” Doc. 1, III.D. The Supreme Court has summarized the law as follows: Title VII forbids actions taken on the basis of sex that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim's] employment and create an abusive working environment.’ ” Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 6 of 11 7 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Only harassing conduct that is “severe or pervasive” can produce a “constructive alteratio[n] in the terms or conditions of employment”); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (Title VII “forbids only behavior so objectively offensive as to alter the ‘conditions' of the victim's employment”). Workplace conduct is not measured in isolation; instead, “whether an environment is sufficiently hostile or abusive” must be judged “by ‘looking at 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.’ ” Faragher v. Boca Raton, supra, at 787-788, 118 S.Ct. 2275 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Hence, “[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. Boca Raton, supra, at 788, 118 S.Ct. 2275 (citation and internal quotation marks omitted). Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S. Ct. 1508, 1509-10, 149 L. Ed. 2d 509 (2001). The narrative of Plaintiff’s Complaint reveals that the offensive encounter with the taxpayer was an isolated incident during October 2015. See Doc. 1, III.E. This isolated incident is not sufficient to support a claim of sexual harassment under Title VII. Even if the conduct is found to be pervasive enough to support a claim for sexual harassment under Title VII, the Complaint does not establish a causal Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 7 of 11 8 connection between her protected activity and an adverse employment action. An adverse employment action is one which “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). The Third Circuit has clarified that, to be adverse, the employment action must be “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Moore, 461 F.3d at 34 (retaining “serious and tangible” standard outside retaliation context). See also, Jones v. Southeastern PA Transp. Authority, 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)). Plaintiff alleges the retaliation took the form of “a transfer, denial of promotion and finally termination.” Doc. 1, III.D. Plaintiff’s Complaint does not contain any facts to support the contention that the transfer to a new supervisor resulted in a significant change in her employment status. She then alleges that four (4) months after she complained that working with the taxpayer was sexual harassment, Defendant offered to extend her probationary period. Doc. 1, III.E. This temporal proximity alone is not enough to establish a causal connection in support of a retaliation claim. Plaintiff’s twelve (12) month probationary period was set to expire in July 2016; therefore, Defendant was compelled to make a decision regarding Plaintiff’s employment status. See Cardenas v. Massey, 269 F.3d Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 8 of 11 9 251, 264 (3d Cir.2001) (“temporal proximity alone will be insufficient to establish the necessary causal connection when the temporal relationship is not ‘unusually suggestive.’”)(quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000) (internal citations omitted)); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997) (“[T]he mere fact that adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events.” (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997) abrogated on other grounds by Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006))). Indeed, Defendant offered to extend Plaintiff’s probationary period an additional six (6) months at her current employment status. This offer to continue Plaintiff’s current employment status cannot be construed as adverse action. It was only after Plaintiff refused to work under continued probationary status that she was terminated. Defendant had no way of knowing that Plaintiff would refuse to accept its terms for continued employment. Thus, there is no causal connection between Plaintiff’s alleged protected activity and her termination. As Plaintiff has failed to set forth a prima facie case for discrimination or retaliation, her Complaint must be dismissed. Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 9 of 11 10 Respectfully submitted, JOSH SHAPIRO Attorney General By: s/ Karen M. Romano KAREN M. ROMANO Office of Attorney General Deputy Attorney General 15th Floor, Strawberry Square Attorney ID 88848 Harrisburg, PA 17120 Phone: (717) 787-2717 KENNETH L. JOEL Fax: (717) 772-4526 Chief Deputy Attorney General kromano@attorneygeneral.gov Chief, Civil Litigation Section Date: May 2, 2017 Counsel for Defendant Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 10 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GINA BOOGHER, : No. 1:17-CV-0057 Plaintiff : : Honorable Yvette Kane v. : Magistrate Judge Mehalchick : PENNSYLVANIA DEPARTMENT OF REVENUE, : : Electronically Filed Document Defendant : Complaint Filed 1/9/17 CERTIFICATE OF SERVICE I, Karen M. Romano, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on May 2, 2017, I caused to be served a true and correct copy of the foregoing document titled Brief in Support of Defendant’s Motion to Dismiss to the following: VIA US MAIL: Gina M. Boogher P.O. Box 7562 York, PA 17404 Pro Se Plaintiff s/ Karen M. Romano KAREN M. ROMANO Deputy Attorney General Case 1:17-cv-00057-YK-KM Document 11 Filed 05/02/17 Page 11 of 11 Barnees v. Nationwide Mut. Ins. Co., 598 Fed.Appx. 86 (2015) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 598 Fed.Appx. 86 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of Appeals 3rd Cir. App. I, IOP 5.1, 5.3, and 5.7. United States Court of Appeals, Third Circuit. Tameka BARNES, Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY; Victor M. Verbeke, Esquire. No. 14-1771. | Submitted Under Third Circuit L.A.R. 34.1(a) Jan. 21, 2015. | Filed: Jan. 23, 2015. Synopsis Background: African-American employee brought action against her employer and former supervisor, alleging that she was subjected to disparate treatment because of her race in violation of § 1981 and the Pennsylvania Human Relations Act (PHRA). The United States District Court for the Eastern District of Pennsylvania, Anita B. Brody, J., 11 F.Supp.3d 477, granted defendants' motion for summary judgment. Plaintiff appealed. Holding: The Court of Appeals, Jordan, Circuit Judge, held that plaintiff failed to show that she suffered an adverse employment action. Affirmed. West Headnotes (1) [1] Civil Rights Particular cases African-American employee failed to show that she suffered an adverse employment action as a result of alleged mistreatment by supervisor, as required to establish a prima facie case of race discrimination under § 1981; although employee alleged that supervisor subjected her to repeated “disciplinary accusations,” she received overall favorable evaluations and appropriate raises and bonuses, was not subjected to any type of discipline or formal warning, and was not placed on a performance improvement plan. 42 U.S.C.A. § 1981. 8 Cases that cite this headnote *87 On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cv- 02438) District Judge: Hon. Anita B. Brody. Attorneys and Law Firms Wayne A. Ely, Esq., Timothy M. Kolman, Esq., W. Charles Sipio, Esq., Kolman Ely, Penndel, PA, for Appellant. Joseph J. Centeno, Esq., Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, PA, for Nationwide Mutual Insurance Company; Victor M. Verbeke, Esquire. Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges. OPINION * JORDAN, Circuit Judge. Tameka Barnes challenges the District Court's entry of summary judgment against her on claims she brought pursuant to 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act (“PHRA”). She specifically argues that she can establish a prima facie case of disparate treatment based on her race because, contrary to the District Court's conclusion, she suffered an adverse employment action. Because the District Court's ruling about a lack of adverse employment action was correct, we will affirm. I. Background A. Employment Overview In 2002, Nationwide Mutual Insurance Company (“Nationwide”) hired Barnes, who is an African American Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 1 of 23 Barnees v. Nationwide Mut. Ins. Co., 598 Fed.Appx. 86 (2015) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 woman, as an office manager at one of its offices in Philadelphia, Pennsylvania. In October 2005, she applied for a position as a legal secretary in Nationwide's Trial Division Office in Philadelphia. She was given that position. Barnes testified at her deposition that she received favorable performance evaluations and appropriate bonuses and raises throughout her time as a legal secretary in the Philadelphia office. In December 2007, she transferred to a legal secretary position at Nationwide's Conshohocken, Pennsylvania, office. Again, she testified that she received favorable performance evaluations and appropriate raises and bonuses throughout her time there. In November 2012, Barnes applied for a position as a legal secretary at Nationwide's Trial Division Office in Harleysville, Pennsylvania. Her application was successful, and she received a $2,500 raise. Barnes is still employed as a legal secretary at Nationwide's Harleysville office. B. Barnes's 2009 Internal Complaint On May 12, 2009, Barnes filed a complaint with Nationwide's Office of Associate *88 Relations (“OAR”), 1 alleging that Victor Verbeke, the managing attorney of Nationwide's Conshohocken office, treated her unfairly because of her race. Specifically, Barnes alleged that Verbeke was “lax with all the associates, except for her,” that she was the only associate required to monitor the front desk, and that she had heard from an anonymous source that Verbeke was watching her and was “trying to create a paper trail” that would justify adverse action against her. (App. at 340a.) OAR promptly investigated Barnes's complaint, and as part of its investigation, it interviewed Adrienne Oliphant (Barnes's direct supervisor), Jeannette Burns- Young (another African American legal secretary in the Conshohocken office), Donna DiPietro (one of Barnes's assigned attorneys), Verbeke, and Jesse Searfross (another of Barnes's assigned attorneys). At the conclusion of its investigation, OAR determined that there was no evidence to support Barnes's claim that Verbeke targeted her because of her race or gender. C. Barnes's 2010 EEOC Complaint On October 4, 2010, Barnes filed a charge of race and gender discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that, after returning from a leave of absence, she was notified that she was under investigation for “allegedly accepting vendor gift cards” and for having non-work related documents on her computer. (Barnes Br. at 9.) She also alleged that Verbeke had harassed her since 2008 in the following ways: (1) he routinely reviewed and pulled files from her computer in an attempt to locate non- work related documents, which he did not do with other associates' computers; (2) he eavesdropped on her phone conversations, which he did not do with other associates; and (3) he would send emails to Oliphant regarding Barnes's arrival and departure times in hopes of initiating disciplinary action. After an investigation, the EEOC decided not to pursue Barnes's matter further and sent her a right-to-sue letter. The EEOC specifically explained that, as to the allegation about vendor gift cards, an internal investigation by Nationwide had concluded that Barnes did not accept or use gift cards from outside vendors. And, as to Barnes's allegation that Verbeke improperly accessed her computer and eavesdropped on her phone calls, the EEOC noted that Nationwide regularly reminded employees that company computers and telephones are subject to remote access and monitoring. D. Barnes's 2012 Internal Complaint In 2012, Barnes filed another complaint with OAR. The complaint was investigated, and OAR concluded that the complaint involved claims that had already been investigated during the previous internal complaint. E. Barnes's 2013 Lawsuit On May 1, 2013, Barnes filed a complaint in the United States District Court for the Eastern District of Pennsylvania, alleging race discrimination claims under 42 U.S.C. § 1981 and the PHRA. She named Nationwide and Verbeke as defendants. In her complaint, she alleged that Verbeke discriminated against her due to her race in the ways previously alleged in her EEOC complaint. She further alleged that, in addition to sending emails to Oliphant about her arrival and departure times, Verbeke also sent emails alleging she had made work-related errors. Barnes said that Verbeke did not scrutinize *89 white employees in the same way that he scrutinized black employees and that he had targeted other black employees on two previous occasions. On February 27, 2014, the District Court granted summary judgment against Barnes. It reasoned that Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 2 of 23 Barnees v. Nationwide Mut. Ins. Co., 598 Fed.Appx. 86 (2015) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Barnes's race discrimination claim failed as a matter of law because none of the alleged wrongs that she suffered as a result of Verbeke's conduct resulted in disciplinary action, negative performance reviews, changes in employment status, or any other adverse employment action. To the contrary, the District Court observed that Barnes continuously received favorable evaluations, bonuses, and raises during her employment at Nationwide. As a result, the Court concluded that Barnes had not suffered an adverse employment action. Barnes timely appealed. II. Discussion 2 As noted above, Barnes argues that she suffered an adverse employment action and that, as a result, the District Court incorrectly held that her discrimination claim failed as a matter of law. Her argument is unpersuasive. The parties agree that the McDonnell Douglas burden- shifting framework applies to Barnes's race discrimination claims. Under that framework, Barnes must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If she succeeds, the burden shifts to the defendants to articulate some legitimate, non-discriminatory reason for their actions. Id. If the defendants succeed, then Barnes must prove by a preponderance of the evidence that the defendants' purported legitimate reason is a mere pretext. Id. at 804, 93 S.Ct. 1817. To establish a prima facie case of discrimination under section 1981 or the PHRA, Barnes must show that: “(1) [she] is a member of a protected class; (2)[she] was qualified for the position [she] sought to attain or retain; (3)[she] suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.2008) (Title VII); Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir.2009) (“[T]he substantive elements of a claim under section 1981 are generally identical to the elements of an employment discrimination claim under Title VII.”); Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir.1999) (noting that the same legal standard applies to Title VII and PHRA claims). 3 Because the District Court concluded that Barnes failed to show that she suffered an adverse employment action, that issue is the focus of her appeal. The phrase “adverse employment action” is linked to Title VII's description of employment actions that may not be based *90 on an employee's race. Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 similarly protects “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” including an employment contract. 42 U.S.C. § 1981. Title VII and section 1981, therefore, do not provide relief for general unpleasantness that can occur in the workplace, even if that unpleasantness may be motivated by racial animus. Rather, those statutes provide relief only if discrimination is “serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir.2004) (internal quotation marks and citations omitted) (applying Title VII); see also Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir.2014) (applying section 1981). Termination, failure to promote, and failure to hire all constitute adverse employment actions. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”). Similarly, actions that reduce opportunities for promotion or professional growth can constitute adverse employment actions. See de la Cruz v. N.Y.C. Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 21 (2d Cir.1996) (stating that reduced prestige and opportunity for professional growth, although “quite thin,” are sufficient to show adverse employment action at summary judgment). Employment actions such as lateral transfers and changes of title or reporting relationships have generally been held not to constitute adverse employment actions. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (collecting cases stating that a “bruised ego;” a demotion without change in pay, benefits, duties, or prestige; and a reassignment to a more inconvenient job did not constitute adverse employment actions) (internal quotation marks omitted); Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (stating that Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 3 of 23 Barnees v. Nationwide Mut. Ins. Co., 598 Fed.Appx. 86 (2015) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 delay in reassignment, transfer to purportedly inferior facilities, and change in the type of students taught are not adverse employment actions); Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir.1994) (concluding that changes to title and reporting relationship are not adverse employment actions where plaintiff retained same grade level, benefits, and responsibility). Barnes advances two arguments in her attempt to establish that she suffered an adverse employment action. First, she argues that Verbeke subjected her to “disciplinary accusations,” and that such conduct constitutes an adverse employment action. (Barnes Br. at 23-25.) She says that, “[g]iven the sheer amount of disciplinary accusations” leveled against her by Verbeke, “it is simply of no moment that Defendants[ ] ‘abstained’ from issuing formal discipline.” (Id. at 24 (emphasis omitted).) And she also says that “[t]here comes a point where the sheer number of meritless issues raised about an employee's performance, even if they do not result in discipline, must be considered sufficient to constitute an adverse employment action.” (Id. at 24-25 (emphasis omitted).) But regardless of whether “disciplinary accusations” can alter the conditions of an employment contract for purposes of section 1981-and we make no comment on that assertion-the District Court rightly concluded that none of the “disciplinary *91 accusations” in this case constituted adverse employment actions. Section 1981 does not grant federal courts the power to enforce good manners and proper etiquette in the workplace; instead, it provides an avenue for employees to seek redress for significant violations of civil rights. Barnes simply has not suffered a cognizable deprivation during her employment at Nationwide under either section 1981 or the PHRA. Her brief confirms as much when she acknowledges that, during her time in Conshohocken, she received “overall favorable evaluations” and “appropriate raises and bonuses;” she “did not receive any type of discipline, demotion, decrease in salary, written warning[;] nor was she placed on a performance improvement plan.” (Barnes Br. at 7.) Bullying or discrimination of any kind in the workplace is wrong, but not every wrong is a violation of federal law. Barnes next argues that “[a]ny questions as to whether Verbeke's actions were done with discriminatory animus were disputes of material fact for trial” because “[a] reasonable jury could have concluded that [she] was targeted by Verbeke on the basis of her race and that Nationwide is vicariously liable for [Verbeke's] actions[.]” (Id. at 13, 24.) That argument also fails. Assuming that Verbeke treated Barnes less than respectfully on account of her race, her claimed injury is not redressable under section 1981 unless she suffered an adverse employment action. Absent such an action, Verbeke's motivation for targeting her, no matter how odious, is legally irrelevant. III. Conclusion For the reasons noted, we will affirm the judgment of the District Court. All Citations 598 Fed.Appx. 86 Footnotes * This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 1 “Associate” is evidently a term used within Nationwide as a synonym for “employee.” 2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court's grant of summary judgment de novo and “view inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir.2010) (internal quotation marks omitted). Summary judgment is appropriate where the court is satisfied that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 3 Because the standard for addressing a section 1981 claim is the same as the standard used to address a PHRA claim, the discussion of Barnes's section 1981 claim simultaneously addresses her PHRA claim and no further analysis of the latter is required. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 4 of 23 Barnees v. Nationwide Mut. Ins. Co., 598 Fed.Appx. 86 (2015) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 5 of 23 Peake v. Pennsylvania State Police, 644 Fed.Appx. 148 (2016) 2016 Fair Empl.Prac.Cas. (BNA) 78,212 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 644 Fed.Appx. 148 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of Appeals 3rd Cir. App. I, IOP 5.1, 5.3, and 5.7. United States Court of Appeals, Third Circuit. William C. PEAKE, Appellant v. PENNSYLVANIA STATE POLICE, a department of the Commonwealth of Pennsylvania. No. 15-2669. | Submitted Under Third Circuit LAR 34.1(a) Feb. 29, 2016. | Opinion filed: March 15, 2016. Synopsis Background: Black probationary police officer who was terminated at end of his twelve-month probationary period brought Title VII action against state. The United States District Court for the Western District of Pennsylvania, Cathy Bissoon, J., 2015 WL 3646446, granted defendant's motion for summary judgment, and later denied motion for reconsideration, 2015 WL 3825432, and officer appealed. Holdings: The Court of Appeals, Ambro, Circuit Judge, held that: [1] officer failed to make out prima facie case of racial discrimination in violation of Title VII by demonstrating that similarly situated individual was treated more favorably, and [2] even assuming that officer had made prima facie showing, he failed to satisfy burden of demonstrating pretextual nature of legitimate, nondiscriminatory reasons provided by state for terminating him. Affirmed. West Headnotes (2) [1] Civil Rights Disparate treatment Black probationary police officer who was terminated at end of his twelve-month probationary period failed to make out prima facie Title VII case of discrimination, though officer, unlike white probationary officer who was also terminated at end of his probationary period, had not been given written action plan and extensions of more than seven months to attempt to correct deficiencies in his performance; aside from deficiencies in their report writing, officers' respective performance problems were not comparable, and 13 of 19 individuals interviewed pertaining to black officer recommended that he not be retained, while only one of 16 recommended that other officer not be retained. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 2 Cases that cite this headnote [2] Civil Rights Motive or intent; pretext Even assuming that black probationary police officer who was terminated at end of his twelve-month probationary period had made out prima facie case of racial discrimination in violation of Title VII, officer failed to satisfy burden of demonstrating pretextual nature of legitimate, nondiscriminatory reasons provided by state for terminating him, his mishandling of accident investigations, deficiencies in report writing, written and oral communication difficulties and competency concerns; mere fact that it was rare for probationary officer not to be retained at end of twelve-month training program, or that officer was not provided with written action plan to correct his deficiencies, in no way suggested that state's legitimate, nondiscriminatory reasons for termination were unworthy of credence. Civil Rights Act Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 6 of 23 Peake v. Pennsylvania State Police, 644 Fed.Appx. 148 (2016) 2016 Fair Empl.Prac.Cas. (BNA) 78,212 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote *149 Appeal from the United States District Court for the Western District of Pennsylvania, (D.C. Civil Action No. 2-12-cv-01761), District Judge: Honorable Cathy Bissoon. Attorneys and Law Firms James H. Logan, I, Esq., Logan & Logan, Pittsburgh, PA, for Plaintiff-Appellant. Kemal A. Mericli, Esq., Robert A. Willig, Esq., Office of Attorney General of Pennsylvania, Pittsburgh, PA, for Defendant-Appellee. Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges. OPINION * AMBRO, Circuit Judge. William C. Peake appeals from an entry of summary judgment in favor of his former employer, the Pennsylvania State Police, on his claim of race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons noted below, we affirm. I. William C. Peake is an African American who enlisted in the Pennsylvania State Police in May 2009. Prospective troopers are required to complete an 18- month probationary period, composed of 6 months of formal education at the State Police Training Academy and a 12-month field training program at a patrol station. The latter includes periodic written evaluations of the trooper's performance and a General Investigation Report (the “Investigation Report”). The Investigation Report is conducted approximately 7 or 8 months into the field training program and is used to determine whether a probationary officer should be retained. A Probationary Trooper Review Panel reviews the Investigation Report, and if the trooper is found to be deficient, a separate review by the Probationary Trooper Administrative Review Panel (the “Administrative Review Panel” or “Panel”) occurs. 1 The latter Panel makes its recommendation to the Commissioner of the State Police, who makes the final decision regarding trooper retention. In November 2009 Peake successfully completed his formal education at the Police Academy. He was 1 of 4 African *150 Americans of the 88 graduates in his cadet class. After graduation the State Police assigned Peake, along with 7 white probationary officers from his cadet class, to the Uniontown, Pennsylvania barracks of Troop B for his field training. The other 3 African Americans from Peake's cadet class were assigned to barracks in Eastern Pennsylvania. On November 3, 2010, the scheduled end of his probationary period, Peake was terminated from the State Police. His letter of termination stated “that as a result of [his] lack of solid job knowledge and basic police skills, along with officer/public safety concerns, [he] [did] not meet the standards set forth of a Pennsylvania State Police Trooper.” App. 27. The Commissioner relied on the recommendation of the Administrative Review Panel in making the decision to terminate Peake. The Panel found several factors as grounds for dismissal, including mishandled accident investigations, reports with errors and incorrect information, written and oral communication problems, and competency concerns voiced by supervisors, colleagues, and outside agency personnel. Id. at 72-76. The Panel's recommendations were based on the Investigation Report conducted by Corporal Michael Irwin, Peake's immediate supervisor. It noted several deficiencies and misconduct. First, Corporal Irwin found that Peake had treated two “reportable” traffic accidents, where an occupant is seriously injured or the vehicle must be towed, as “non-reportable” accidents. Second, despite multiple remedial courses in police report writing, Peake continued to turn in reports that had spelling and grammatical errors and inaccurate factual representations. Third, he submitted late reports and missed magistrates' hearings, two of which resulted in charges being dropped. Fourth, Peake had oral communication problems when excited. The only other individual from Peake's cadet class to be terminated at the conclusion of the probationary Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 7 of 23 Peake v. Pennsylvania State Police, 644 Fed.Appx. 148 (2016) 2016 Fair Empl.Prac.Cas. (BNA) 78,212 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 period was Trooper # 9, a white male assigned to Troop M in Bethlehem, Pennsylvania. Prior to Trooper # 9's dismissal, however, he was given a written action plan and extensions that totaled in excess of 7 months. Additionally, several other probationary officers in Troop B were given extensions to bring up their performance standards. None of the other probationary officers in Troop B were terminated at the conclusion of the probationary period. Peake argues that he was given less favorable treatment than Trooper # 9 and the other probationary troopers in Troop B because he is African American. The District Court granted summary judgment in favor of the State Police and dismissed the action. II. The District Court had original jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review over a district court's grant of summary judgment.” Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210, 218 (3d Cir.2015) (citation omitted). “To prevail on a motion for summary judgment, the moving party must demonstrate ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Shelton v. Bledsoe, 775 F.3d 554, 559 (3d Cir.2015) (quoting Fed.R.Civ.P. 56(a)). A material fact is one that would affect “the outcome of the suit under the applicable substantive law.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir.2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). When determining whether there is an issue of material fact, we must review the record and draw all *151 inferences in favor of the non-moving party. Shelton, 775 F.3d at 559. III. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (1). Claims of discrimination in violation of Title VII are analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination. See Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999). To do so, a plaintiff must demonstrate that he (1) was a member of a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) the circumstances of the adverse employment action imply discrimination. Id. at 410-11. “Once a plaintiff under Title VII establishes a prima facie case, the employer must come forward with a legitimate, non-discriminatory reason for the adverse employment decision.” Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.2000) (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “If the employer is able to proffer a legitimate, nondiscriminatory reason for its actions, the plaintiff must demonstrate that the proffered reason was merely a pretext for unlawful discrimination.” Id. (citing Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). [1] The District Court found that Peake had not made out his prima facie case for race discrimination because he had not established his termination gave rise to an inference of discrimination. Peake v. Pennsylvania State Police, No. 12-1761, 2015 WL 3646446, at *3-6 (W.D.Pa. June 10, 2015). Specifically, he had not introduced any similarly situated comparators and could not show a causal link between his membership in a protected class and the adverse employment action. Id. Further, the Court concluded that, even if Peake had established a prima facie case, summary judgment would nonetheless be appropriate because he was unable to rebut, by a preponderance of the evidence, that the State Police's legitimate, nondiscriminatory reasons for termination were not a pretext for discrimination. Id. at *6-8. We begin by determining whether Peake introduced any valid comparator to establish his termination as inferring discrimination. An unlawful inference of discrimination can be shown by identifying a similarly situated individual, outside of the protected class, who engaged in the same conduct and was treated more favorably. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d Cir.2013). “In order to determine who might qualify as a similarly situated employee we must look Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 8 of 23 Peake v. Pennsylvania State Police, 644 Fed.Appx. 148 (2016) 2016 Fair Empl.Prac.Cas. (BNA) 78,212 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 to the job function, level of supervisory responsibility and salary, as well as other factors relevant to the particular workplace. This determination requires a court to undertake a fact-intensive inquiry on a case-by-case basis rather than in a mechanistic and inflexible manner.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 305 (3d Cir.2004). Peake argues that at least 3 or 4 probationary troopers in Troop B, all of whom were white, were similarly situated comparators that were treated more favorably than he was. Specifically, he claims that these individuals had a combination of at-fault automobile accidents, inferior productivity *152 to his own, and instances involving bodily harm to the public. As noted above, Peake's dismissal was due to mishandled accident investigations, deficiencies in report writing, written and oral communication difficulties, and competency concerns voiced by those who observed him. His dismissal was not attributable to any of the areas of misconduct by the other 3 or 4 probationary officers in Troop B. Further, Peake cannot offset his deficiencies by noting areas in which he outperformed some of his colleagues in Troop B. Peake also attempts to compare himself to Trooper # 9, a white individual from Troop M in Bethlehem, Pennsylvania. He asserts Trooper # 9 had deficient driving skills, difficulties becoming familiar with the geographic area of his patrol region, difficulties with report writing, trouble in conducting magistrate's hearings, and had at one time fallen asleep while driving. Although Peake and Trooper # 9 each were deficient in report writing, their performance problems were dissimilar. The most distinguishing feature between Peake and Trooper # 9, however, is that their evaluative processes were conducted by different people because they were assigned to different barracks. The Investigation Report Corporal Irwin produced was a result of previously written evaluations and interviews with supervisors, coaches, district justices, and other people with whom Peake worked. It was based on a compilation of information coming from people who had a direct relationship with Peake and who were able to observe fully his behavior as a prospective trooper. We find it significant that 13 out of the 19 individuals interviewed pertaining to Peake's performance recommended that he not be retained. Indeed, not a single individual recommended retention. Trooper # 9 only had 1 individual out of 16 recommend that he not be retained. Unlike Peake, Trooper # 9 had 5 people recommend an extension of his probationary period. Given that Peake and Trooper # 9 were assigned to different barracks, had different supervisors, had different individuals interviewed with regard to their retention, and had different deficiencies, we conclude that Trooper # 9 is not similarly situated to Peake. [2] We also agree with the District Court that even if Peake had established his prima facie case of race discrimination, summary judgment was still in order because he did not show that the State Police's legitimate, nondiscriminatory reasons for dismissal were a pretext for racial discrimination. See id. at *6-7. To survive summary judgment when the employer has articulated a legitimate nondiscriminatory reason for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons[,] or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir.1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)). To discredit the employer's articulated reason for the adverse employment action, the plaintiff must “point to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the proffered nondiscriminatory reason did not actually motivate the employer's action.” Id. at 644 (citations omitted) (internal quotations and alteration omitted). To show that an *153 invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action, “the plaintiff must point to evidence with sufficient probative force that a factfinder could conclude by a preponderance of the evidence that [race] was a motivating or determinative factor in the employment decision.” Id. at 644-45 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir.1997)). Examples include showing that the employer Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 9 of 23 Peake v. Pennsylvania State Police, 644 Fed.Appx. 148 (2016) 2016 Fair Empl.Prac.Cas. (BNA) 78,212 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 has previously discriminated against the plaintiff, that the employer has discriminated against members of the plaintiff's protected class or another protected class, or that similarly situated people not within plaintiff's class were treated more favorably. Id. at 645 (citing Fuentes, 32 F.3d at 765). Peake makes several attempts to undermine the State Police's legitimate, nondiscriminatory reasons for termination. He claims termination at the end of the 12- month training period was “rare” (Opening Br. at 5). He also asserts that he was put on desk duty for the final 2 months of his probationary period in violation of the State Police's written protocol. Next, Peake contends that he was not provided a written action plan despite this being common if a trooper was not improving quickly enough. Finally, he notes a contradiction between the termination letter sent to him, which stated he lacked “basic police skills,” and a category in his final probationary trooper evaluation with the same name in which he received a rating of “satisfactory” (Opening Br. at 12). We agree with the District Court that Peake failed to satisfy either prong of the Fuentes pretext analysis. As for the first prong, Peake's reasons demonstrating pretext in no way concern the negative evaluations of his performance as a probationary trooper. The only inconsistency he can point to is his termination letter, which stated he lacked basic police skills, and his final trooper evaluation form that rated him as satisfactory in the category of basic police skills. The Court found the terms had different meanings in their respective contexts. In the termination letter, basic police skills was more general and referred to the factors the review panels used in recommending Peake's dismissal. In the probationary evaluation forms, the term was used in a more specific sense. That it was rare for a probationary trooper not to be retained at the end of the 12-month training program, that Peake was not provided a written action plan, and that he was placed on desk duty, in no way suggests that the State Police's legitimate, nondiscriminatory reasons for termination are “unworthy of credence.” Simpson, 142 F.3d at 644. With respect to the second prong, Peake does not contend the State Police previously discriminated against him. Further, he does not claim that it discriminated against any other member of his class or any other member of a protected class. He does contend, however, that similarly situated individuals outside his protected class were treated more favorably than he was. Based on the discussion above, we conclude that Peake did not present any valid comparator. Therefore, he does not satisfy the second prong of the Fuentes pretext analysis. * * * * * * For the foregoing reasons, we affirm. All Citations 644 Fed.Appx. 148, 2016 Fair Empl.Prac.Cas. (BNA) 78,212 Footnotes * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The Probationary Trooper Review Panel consists of captains and lieutenants. The Administrative Review Panel is composed of majors and the head of the Human Resources Department. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 10 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 3646446 Only the Westlaw citation is currently available. United States District Court, W.D. Pennsylvania. William C. PEAKE, Plaintiff, v. PENNSYLVANIA STATE POLICE, Defendant. Civil Action No. 12-1761. | Signed June 10, 2015. Attorneys and Law Firms James H. Logan, Logan & Logan, Pittsburgh, PA, for Plaintiff. Robert A. Willig, Office of the Attorney General, Pittsburgh, PA, for Defendant. MEMORANDUM ORDER CATHY BISSOON, District Judge. I. MEMORANDUM *1 For the reasons that follow, Defendant's Motion for Summary Judgment (Doc. 26) will be granted. BACKGROUND 1 William C. Peake (“Plaintiff”) initiated this lawsuit on December 4, 2012, alleging racial discrimination under Title VII of the Civil Rights Act of 1964, (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Compl. (Doc. 1). Specifically, Plaintiff claims that the Pennsylvania State Police (“Defendant,” or “PSP”), terminated his employment as a probationary state trooper because he is African-American, and otherwise treated non-members of his protected class more favorably. See generally id. As the parties are well acquainted with the facts, the Court will provide only a brief summary for context. Plaintiff enlisted in the PSP on May 4, 2009. See Def.'s Exhibit M (Doc. 29-2) at p. 120. Prospective PSP troopers must successfully complete an 18-month probationary period, which is comprised of six months of study at PSP training academy followed by a 12-month field training program. Def.'s Stmt. of Facts (Doc. 28) at ¶¶ 1-3. Plaintiff was one of four African-American graduates from his 88-member training academy class in late November 2009. Pl.'s Stmt. of Facts (Doc. 41) at ¶¶ 64, 66. For his field training, Plaintiff was assigned to the Uniontown barracks, which is part of PSP Troop B. Id. at ¶ 68. Seven other probationary troopers were assigned to Troop B, all of whom were white. Id. at ¶ 123. On November 3, 2010, the scheduled end of Plaintiff's probationary period, Plaintiff was terminated. See Def.'s Exhibit M at p. 120; Def.'s Stmt. of Facts at ¶ 18. On that same date, Plaintiff was presented with a letter explaining that “as a result of [his] lack of solid job knowledge and basic police skills, along with officer/ public safety concerns, [he] do[es] not meet the standards set forth of a[PSP] trooper.” Def.'s Exhibit H (Doc. 29-1) at p. 145. In making the decision to dismiss Plaintiff, the Commissioner of the PSP relied on the recommendation of a Review Panel, id., which provided several factors in support of its recommendation, Def.'s Exhibit F (Doc. 29-1) at pp. 90-91. These factors included: mishandled accident investigations; reports with incorrect information and numerous other errors; written and verbal communication problems; and competency concerns voiced by Plaintiff's “CO, supervisors, peer troopers and outside agency personnel.” Id. The Review Panel's recommendations were based on a General Investigation Report (the “GIR”), which was the product of an investigation into Plaintiff's performance conducted during the 13th or 14th month of his probation. Def.'s Stmt. of Facts at ¶¶ 7, 8. Of the 19 district justices, assistant district attorneys, and PSP supervisors who were interviewed on Plaintiff's behalf, 13 recommended that the PSP not retain Plaintiff following his probation. Def.'s Exhibit B (Doc. 29-1) at pp. 33-40. None recommended that he be retained. Id. *2 The GIR reflected a number of Plaintiff's perceived shortcomings as a probationary trooper. First, Plaintiff was found to have treated two “reportable” vehicle accidents as “non-reportable.” Id. at p. 32. Second, most of Plaintiff's supervisors who were surveyed noted pervasive and persistent issues with his report writing, including grammatical and spelling errors, inaccurate event narratives, and incorrect representations of fact. Id. at pp. 34-40. Sixteen “Report Correction Notices” were attached to the GIR, documenting occasions when such Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 11 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 mistakes were brought to Plaintiff's attention. Id. at pp. 43-59. Problems with untimely reports were also noted, which, along with a couple missed magistrate hearings, were attributed to “his planning and time management.” Id. at p. 36. Third, aside from Plaintiff's perceived written communication deficiencies, several individuals noted his difficulties in making himself understood verbally, both over the radio and in person. Id. at pp. 33, 35, 37, 38. One specific incident was recounted in which Plaintiff allegedly was unable to effectively convey the field sobriety test procedure to a suspected DUI offender. Id. at pp 38- 39. Fourth and finally, multiple individuals described incidents supposedly handled improperly by Plaintiff. These included his failure to submit drug paraphernalia for testing, which resulted in dismissed charges in one instance, id. at p. 35, and a domestic assault investigation during which Plaintiff had to be instructed on the proper course of action, id. at pp. 36-37. Plaintiff was the only one of Troop B's eight probationary troopers to be dismissed at the end of the probationary period. Pl.'s Stmt. of Facts at ¶ 120. The only other individual from Plaintiff's training academy class of 88 cadets to be terminated at the end of the training period was a white male assigned to PSP Troop M (“Trooper # 9”). Id. at ¶ 124. However, prior to being terminated, Trooper # 9 first was given multiple extensions of his probationary period, totaling in excess of seven months, so that he could attempt to address his performance deficiencies. Id. at ¶¶ 124-25, 132. Plaintiff argues that he “was judged by different and more harsh standards than [these] other probationary troopers, because of his race.” Compl. at ¶ 31. ANALYSIS In the United States Court of Appeals for the Third Circuit: [c]laims of discrimination under Title VII are analyzed under the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80204, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to show a prima facie case of racial discrimination, a plaintiff must illustrate that: (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the circumstances of the adverse employment action give rise to an inference of discrimination. If a plaintiff establishes a prima facie case, the employer must come forward with a legitimate, non-discriminatory reason for the adverse employment decision. If the defendant meets this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination. *3 Johnson v. Keebler-Sunshine Biscuits, Inc., 214 F. App'x 239, 241-42 (3d Cir.2007) (internal citations omitted). In favor of summary judgment, Defendant first argues that Plaintiff cannot satisfy elements two or four of his prima facie case. Def.'s Brief (Doc. 27) at pp. 5- 14. Defendant alternatively argues that, even if a prima facie case is established, Plaintiff cannot show that the legitimate reasons for Plaintiff's dismissal offered by Defendant are pretextual. Id. at p. 14. Defendant does not challenge that Plaintiff is a member of a protected class or that he suffered an adverse employment action. Each of Plaintiff's arguments will be addressed in turn. Defendant's argument that Plaintiff is not qualified to be a PSP trooper misses the mark. Defendant attempts to substantiate this claim by extensively detailing each of Plaintiff's alleged failings during his time as a probationary trooper. Id. at pp. 5-14. However, Plaintiff's subjective performance of the job has no bearing on the determination of whether he was qualified for said job. It has long been established that a plaintiff's qualifications for purposes of proving a prima facie case are evaluated under an “objective standard.” Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990)). “[W]hile objective job qualifications should be considered in evaluating the plaintiff's prima facie case, the question of whether an employee possesses a subjective quality ... is better left to the later stage of the McDonnell Douglas analysis.” Weldon, 896 at 798. Here, there has been no assertion that Plaintiff lacked any of the objective job Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 12 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 qualifications an individual must possess to be hired as a PSP trooper. As such, the facts that he was hired and successfully completed the training academy portion of the probationary period are sufficient to establish that he was qualified to be a trooper for the purposes of proving his prima facie case. As to whether the circumstances under which Plaintiff was dismissed give rise to an inference of discrimination, to establish this element of the prima facie case: a plaintiff may either: (1) introduce evidence of comparators (i .e., similarly situated employees who (a) were not members of the same protected class and (b) were treated more favorably under similar circumstances); or (2) rely on circumstantial evidence that otherwise shows a causal nexus between his membership in a protected class and the adverse employment action. Greene v. Virgin Islands Water & Power Auth., 557 F. App'x 189, 195 (3d Cir.2014) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 n. 7 (3d Cir.2003)). While Plaintiff attempts to meet his burden of production by offering both types of evidence, his efforts ultimately are unsuccessful. Plaintiff points to multiple supposed comparators who were treated more favorably than himself. Pl.'s Brief (Doc. 31) at pp. 9-17. These include the seven white probationary troopers assigned to Troop B, as well as Trooper # 9, a white male probationary trooper in Plaintiff's cadet class who was assigned to Troop M. Each of these individuals was outside of Plaintiff's protected class, African-American, and each was treated more favorably than Plaintiff; the seven Troop B probationary troopers were retained, and Trooper # 9 was provided with a written action plan and an extended training period before ultimately being terminated. However, for the reasons that follow, none of these individuals is similarly situated to Plaintiff for the purpose of supporting an inference of discrimination. *4 “While ‘similarly situated’ does not mean identically situated, the plaintiff must nevertheless be similar in ‘all relevant respects .’ “ Opsatnik v. Norfolk S. Corp., 335 F. App'x 220, 222-23 (3d Cir.2009) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). “A determination of whether employees are similarly situated takes into account factors such as the employees' job responsibilities, the supervisors and decision-makers, and the nature of the misconduct engaged in.” Wilcher v. Postmaster Gen., 441 F. App'x 879, 882 (3d Cir.2011) (citing Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259- 61 (5th Cir.2009)). With respect to the similarity of the misconduct, “the focus is on the particular criteria or qualifications identified by the employer as the reason for the adverse action.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir.1998) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 528 (3d Cir.1992)). “The employee's positive performance in another category is not relevant,” id., “and neither is the employee's judgment as to the importance of the stated criterion,” id. (citing Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir.1988).” Further, “purported comparators must have committed offenses of ‘comparable seriousness.’ “ Opsatnik, 335 F. App'x at 223 (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir.2006)). Plaintiff relies primarily on Trooper # 9 as a comparator. This reliance is misplaced. Although there is unquestionably a great deal of overlap among Plaintiff's and Trooper # 9's noted areas of deficiencies, there are clear distinctions in the measure of some of those shortcomings. In particular, Trooper # 9 never received less than a rating of “Borderline-Needs Improvement” for any category in each of his three Probationary Trooper Evaluations. See Pl.'s Exhibits PX21-PX23 (Docs.41-2-41-4). In contrast, Plaintiff received three ratings of “Unsatisfactory” between his second and third evaluations. See Def.'s Exhibit M. Plaintiff also received a total of three fewer “Satisfactory” ratings over the three evaluations as compared to Trooper # 9. Compare Pl.'s Exhibits PX21-PX23, with Def.'s Exhibit M. Perhaps even more telling were the investigations conducted on Plaintiff and Trooper # 9 in early September of 2010 in order to determine whether each should be retained by the PSP. As part of these investigations, “interviews with supervisors, coaches, district justices, and individuals with whom the probationary trooper came into contact with” are conducted to aid in this determination. Def.'s Exhibit A (Doc. 29-1) at p. 26. Of Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 13 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 the 16 individuals interviewed on Trooper # 9's behalf, only one recommended that he not be retained by the PSP, where five recommended an extension of the probation period, and six offered no opinion. Pl.'s Exhibit PX25 at pp. 3-6. In Plaintiff's case, 13 of the 19 individuals interviewed recommended that the PSP not retain him, with all others offering no opinion. Def.'s Exhibit B at pp. 33-40. This was despite the fact that “[e]very person interviewed regarding this investigation mentioned that [Plaintiff] is polite and treats them with respect,” and that Plaintiff's “positive attitude,” professionalism, and “sociable” nature were noted. Id. at p. 40. Given these distinctions, Trooper # 9 is not sufficiently similarly situated to Plaintiff to serve as a valid comparator. 2 *5 Plaintiff's reliance on the other probationary troopers assigned with him to Troop B as comparators equally is unavailing. In this regard, Plaintiff points to several of these individuals who had some combination of: 1) productivity inferior to his own; 2) at-fault automobile accidents; and 3) incidents involving bodily harm to members of the public. Pl.'s Brief at pp. 57. Plaintiff argues that, although he performed better than certain other Troop B probationary troopers in one or more of these important areas, they were treated more favorably by being retained. Id. This argument fails to recognize that Plaintiff's dismissal was in no way attributed to failings in any of these areas. See Exhibit F at pp. 90-91; Exhibit H at p. 145. Instead, the “key points” supporting Plaintiff's dismissal were: (1) mishandled accident investigations; (2) deficiencies in report writing; (3) difficulty with written and verbal communications; and (4) competency concerns voiced by those who observed Plaintiff. See Exhibit F at pp. 90-91. Because the focus of the inquiry must be on “the particular criteria or qualifications identified by the employer as the reason for the adverse action,” any Troop B probationary trooper misconduct with respect to other criteria is irrelevant to the determination of whether any of these individuals is similarly situated to Plaintiff. See Simpson, 142 F.3d at 647. As Plaintiff can point to no other probationary trooper at Troop B who was similarly situated to himself, none can serve as a comparator to support an inference of discriminatory circumstances. With no similarly situated employee to compare his own treatment with, Plaintiff must satisfy his burden of production with respect to the fourth element of his prima facie case with other circumstantial evidence. To this end, Plaintiff alleges that African-Americans “were grossly underrepresented within the ranks of full- time non-probationary troopers.” Pl.'s Brief at p. 2. Additionally, Plaintiff notes that the seven remaining white probationary troopers assigned to Troop B with him were retained, and that only four of the 88 cadets in his training class were African-American. Pl.'s Stmt. of Facts at ¶ 123. Standing alone, these facts are insufficient to illustrate that Plaintiff was dismissed under circumstances giving rise to an inference of discrimination. “[I]n individual disparate treatment cases such as this, statistical evidence, which “may be helpful, ... [is] ordinarily not dispositive.' “ Bruno v. W.B. Saunders Co., 882 F.2d 760, 767 (3d Cir.1989) (quoting Krodel v. Young, 748 F.2d 701, 710 (D.C.Cir.1984)). In any case, “the usefulness of statistics will depend primarily upon their relevance to the specific decision affecting the individual plaintiff,” id., and more broadly “on all of the surrounding facts and circumstances,” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). “In order to be useful in establishing a prima facie case, statistics must assist the plaintiff in proving discrimination in h[is] particular case.” Blue v. Def. Logistics Agency, 181 F. App'x 272, 274 (3d Cir.2006) (citing Krodel, 748 F.2d at 710)). *6 The “statistics” provided by Plaintiff here do not meet these requirements. First, Plaintiff's assertion that African-Americans are underrepresented in the PSP, aside from being vague, conclusory and unsupported by actual numbers, is far “too general to be relevant or useful in establishing a prima facie case of discrimination.” Blue, 181 F. App'x at 274 (citing Ezold, 983 F.2d at 542- 43). Next, the fact that there were only four African- Americans in his cadet class has no relevance whatsoever to the specific decision to dismiss Plaintiff; one of the individuals who actually was admitted to the program. Finally, any inference of discrimination supported by the dismissal of the only African-American probationary trooper assigned to Troop B is lost when it is noted that the three other African-American members of Plaintiff's cadet class were all retained. Pl.'s Stmt. of Facts at ¶ 124. In short, Plaintiff's circumstantial evidence in no way “shows a causal nexus between his membership in a protected class and the adverse employment action.” Greene, 557 F. App'x at 195. Having failed to illustrate that the circumstances of his dismissal give rise to an inference of discrimination, Plaintiff cannot prove his prima facie case. See Johnson, Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 14 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 214 F. App'x at 24142. However, even if Plaintiff had met his burden of production here, his claim could not survive summary judgment. As prescribed by McDonnell Douglas, Defendant has met its subsequent burden of offering legitimate, nondiscriminatory reasons for dismissing Plaintiff. Id. Specifically, Defendant notes Plaintiff's mishandling of accident investigations, his struggles with report writing, his problems with communication, and the concerns that others have voiced about his competency. Def.'s Brief at pp. 8-15. Thus, the burden of production switches back to Plaintiff. Id. To survive summary judgment when the employer has articulated a legitimate nondiscriminatory reason for its action, the plaintiff must “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.” Simpson, 142 F.3d at 644 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)). Plaintiff has satisfied neither of the prongs of the Fuentes pretext analysis. With respect to the first prong of the analysis, a plaintiff need not “produce additional evidence beyond h[is] prima facie case.” Id. He “must, however, point to ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a reasonable factfinder could rationally find them unworthy of credence’ and hence infer that the proffered nondiscriminatory reason ‘did not actually motivate’ the employer's action.” Id. (quoting Fuentes, 32 F.3d at 764- 65). *7 Plaintiff offers very little in an attempt to undermine Defendant's legitimate, nondiscriminatory reasons for dismissing him. While Plaintiff does offer explanations, or even outright denials, for the numerous circumstances which provide the foundation for Defendant's negative evaluations of him, see Peake Affidavit (Doc. 33-8) at pp. 2-5, such assertions alone “do[ ] not create a material issue of fact,” Fuentes, 32 F.3d at 766. A “plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Id. at 765. Thus, Plaintiff's assertions that Defendant's evaluations of him were based on wrong or mistaken perceptions of his performance cannot, without more, support the reasonable conclusion that such misapprehensions were actually the product of discriminatory animus. In his only other argument with respect to prong one of the Fuentes pretext analysis, Plaintiff points to a “contradiction” between the reference in his termination letter to “basic police skills” as one of the reasons for his dismissal and his rating of “Satisfactory” in a category with the same name on his final probationary trooper evaluation completed less than three months prior. Pl.'s Brief at pp. 17-18 (citing Def.'s Exhibit H at p. 145; Def.'s Exhibit M at p. 156). This argument is a red herring. To begin with, it seems clear that the Termination Letter's use of the phrase “basic police skills” was in reference to the factors listed by the Review Panel in recommending Plaintiff's dismissal, not to a category on earlier probationary trooper evaluation forms. See Def.'s Exhibit F at 90-91; Def.'s Exhibit H at p. 145. Moreover, Defendant has offered multiple legitimate reasons for terminating Plaintiff, consistent with the evaluations of Plaintiff's performance. See generally Def.'s Brief. Plaintiff offers no evidence to suggest that any of these reasons are “unworthy of credence,” Simpson, 142 F.3d at 644, but instead attacks only a semantical straw man of “basic police skills.” This cannot satisfy the first prong. Plaintiff fares no better against prong two of the pretext analysis. Evidence relevant to this prong includes any that could “show that the employer has previously discriminated against h[im], that the employer has discriminated against other persons within the plaintiff's protected class or within another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class.” Id. at 645 (citing Fuentes, 32 F.3d at 765). Together, the evidence presented must have sufficient probative force to permit a factfinder to conclude by a preponderance of the evidence that the protected characteristic was a motivating or determinative factor in the employment decision. Simpson, 142 F.3d at 644-45. Plaintiff has offered no such evidence here. *8 Plaintiff points to no evidence for the purpose of proving pretext beyond that offered to support his prima facie case. As discussed in that context above, Plaintiff has identified no similarly situated non-African- Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 15 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 American individual who was treated more favorably by the PSP. There is also nothing to suggest that Plaintiff was ever previously discriminated against by the PSP. And, although “[s]tatistical evidence of an employer's pattern and practice with respect to minority employment may be relevant to a showing of pretext, Ezold, 983 F.2d at 542 (citing McDonnell Douglas, 411 U.S. at 805), such evidence must be accompanied by some “analysis of either the qualified applicant pool or the flow of qualified candidates over a relevant time period” to have probative value, id. at 543. Plaintiff's assertions of underrepresentation of African-Americans in his cadet class and in the PSP in general, without the benefit of any such analysis, are not probative. See id. at 542-43. As Plaintiff has failed to satisfy either prong of the Fuentes pretext analysis, summary judgment in Defendant's favor would be appropriate, even if Plaintiff had proved his prima facie case. For these reasons, Defendant's Motion for Summary Judgment (Doc. 26) will be granted. CONCLUSION Consistent with the analyses above, the Court hereby enters the following: II. ORDER Defendant's Motion for Summary Judgment (Doc.26) is GRANTED. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 3646446, 2015 Fair Empl.Prac.Cas. (BNA) 184,378 Footnotes 1 The factual background is derived from the undisputed evidence of record and the disputed evidence viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”). 2 It also should be noted that Plaintiff and Trooper # 9 were evaluated and supervised by entirely different people, further distinguishing them from each other. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 16 of 23 Peake v. Pennsylvania State Police, Not Reported in F.Supp.3d (2015) 2015 WL 3825432 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 3825432 Only the Westlaw citation is currently available. United States District Court, W.D. Pennsylvania. William C. PEAKE, Plaintiff, v. PENNSYLVANIA STATE POLICE, Defendant. Civil Action No. 12-1761. | Signed June 19, 2015. Attorneys and Law Firms James H. Logan, Logan & Logan, Pittsburgh, PA, for Plaintiff. Robert A. Willig, Office of Attorney General, Pittsburgh, PA, for Defendant. ORDER CATHY BISSOON, District Judge. *1 Plaintiff has Filed A Motion for Reconsideration of This Court's June 10, 2015, Memorandum and Order (Doc. 45) granting summary judgement in favor of Defendant. 1 Plaintiff also Seeks an Opportunity to Engage in Oral Argument on the Matter. For the reasons stated herein, Plaintiff's Motion for Reconsideration Will Be Denied. A Proper Motion For reconsideration “must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.2010) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)). Plaintiff has Not Identified Any Intervening Change in Controlling Law or Any New evidence, nor has he demonstrated a need to correct a clear error of law or prevent manifest injustice. Plaintiff does Correctly Point Out That the Court Declined to Discuss His Argument that he was placed on desk duty, allegedly in violation of “AR5-2.” The fact that Plaintiff Was Placed on Desk Duty During His Training Period, Perhaps in Violation Of proper practice, does not alter the Court's decision, as the record reflects that said action was taken in order to limit the damage Plaintiff Would Cause. Plaintiff does Not Argue That There Has Been an Intervening Change in Controlling law, or that there is newly available evidence. See Lazaridis, 591 F.3d at 669. Rather, Plaintiff disagrees with the Court's Interpretation and Application of the Law, And with our findings of fact. He has not, however, established that the Court committed a clear error of law or that reconsideration is necessary to prevent manifest injustice. Id. Accordingly, there is no basis for reconsideration, and Plaintiff's motion is denied. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 3825432 Footnotes 1 A complete factual history of this matter is set forth in the June 10, 2015 Memorandum and Order. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 17 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 558 Fed.Appx. 216 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7) United States Court of Appeals, Third Circuit. Shirley E. WALKER, Appellant v. CENTOCOR ORTHO BIOTECH, INC. No. 13-1855. | Submitted Under Third Circuit LAR 34.1(a) Feb. 13, 2014. | Filed: Feb. 19, 2014. Synopsis Background: Female African-American employee brought racial discrimination, retaliation, and hostile work environment claims under § 1981 against employer. The employer moved for summary judgment. The United States District Court for the Eastern District of Pennsylvania, 2013 WL 664204, Lawrence F. Stengel, J., granted the motion. Employee appealed. Holdings: The Court of Appeals, Shwartz, Circuit Judge, held that: [1] employee's manager did not take adverse employment actions against her; [2] transferring of her sales accounts was not an adverse employment action; and [3] employee was not entitled to additional discovery. Affirmed. West Headnotes (5) [1] Civil Rights Particular cases Actions taken by African-American employee's manager including delaying approval of expense reports, giving a negative performance review, and realigning employee's sales territory were not adverse employment actions that materially altered the conditions of her employment, and thus did not give rise to a discrimination claim under § 1981. 42 U.S.C.A. § 1981. 15 Cases that cite this headnote [2] Civil Rights Particular cases Transferring of African-American employee's sales accounts was not an adverse employment action, and thus did not give rise to a retaliation claim under § 1981, where employee conceded that she did not know who moved the accounts, and once the error of the move was realized, they were returned to employee. 42 U.S.C.A. § 1981. 7 Cases that cite this headnote [3] Federal Civil Procedure Employment, records of African-American employee was not entitled to discovery of documents related to complaints against her manager in her claims under § 1981 for race discrimination and retaliation, where the documents concerned non race-related complaints against her manager. 42 U.S.C.A. § 1981. Cases that cite this headnote [4] Federal Civil Procedure Persons Whose Depositions May Be Taken African-American employee was not entitled to depose four co-workers regarding their Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 18 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 complaints against her supervisor, in her claim under § 1981 for race discrimination and retaliation, where none of the employees' complaints were related to race. 42 U.S.C.A. § 1981. 1 Cases that cite this headnote [5] Federal Civil Procedure Time for Motion for Taking African-American employee was not entitled to an extended discovery deadline to obtain a deposition of a human resources employee, in her action against employer under § 1981 for race discrimination and retaliation, where she had been aware of the human resource employee's involvement, since that was the individual with whom she initially filed a complaint. 42 U.S.C.A. § 1981. 1 Cases that cite this headnote *217 Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-11-cv- 04917), District Judge: Hon. Lawrence F. Stengel. Attorneys and Law Firms Robert T. Vance, Jr., Esq., Philadelphia, PA, for Appellant. Kathryn H. Levering, Esq., Drinker, Biddle & Reath, Philadelphia, PA, for Centocor Ortho Biotech, Inc. Before: CHAGARES, SHWARTZ, and GARTH, Circuit Judges. OPINION SHWARTZ, Circuit Judge. Shirley Walker (“Walker”) brought this employment discrimination claim against Centocor Ortho Biotech, Inc. (“Centocor”), 1 and now appeals the District Court's orders denying discovery-related requests and granting summary judgment in favor of Centocor. We will affirm. I As we write principally for the benefit of the parties, we recite only the essential facts and procedural history. Walker, an African-American woman, worked as a Senior District Manager for Centocor's dermatological business in the Midwest. Beginning in 2008, she reported to Dave Gelfuso (“Gelfuso”), the Regional Business Director. In December 2008, Walker filed an internal complaint of race discrimination with Anita Tinney (“Tinney”) in Centocor's Employee Relations Group. Specifically, she complained about Gelfuso's allegedly racially-motivated: (1) attempt to redraw the region Walker oversaw; (2) allocation of launch programs to a different team; (3) delayed processing of two of Walker's expense reports and the resulting credit card penalties; (4) negative and unfair feedback process, particularly with respect to another African-American manager; and (5) negative reaction to a product promotion event Walker had helped organize. The internal investigation found that her accusation of racial discrimination was not substantiated, but that Gelfuso: (1) took longer to approve Walker's expense reports than those of other managers; (2) failed to support her in resolving budget and sales issues; and (3) apparently had a negative impact on women and people of color. The investigator suggested, and Gelfuso received, diversity coaching, but did not find he acted with “inappropriate intent against” such groups. App. 221. Walker alleges that actions were thereafter taken in retaliation for her filing of her internal complaint, namely, movement of her accounts, resulting in lower sales ratings, a requirement that she use her car instead of a train for business travel, and a *218 lack of support in her management of her subordinates. Walker filed this lawsuit against Centocor, alleging racial discrimination, retaliation, and hostile work environment 2 claims under 42 U.S.C. § 1981. 3 During the pretrial phase, the District Court issued orders denying Walker's motions for the production of documents relating to non-racial discrimination complaints against Gelfuso, depositions of four Centocor employees Gelfuso directly or indirectly supervised, and an extension of the discovery deadline for Walker to depose Tinney. The District Court granted Centocor's motion for summary judgment. Walker appeals the District Court's orders granting summary judgment and denying her discovery- related requests. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 19 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 II The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. This Court's “review of the grant or denial of summary judgment is plenary....” Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir.2013). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We apply the same standard the District Court applied, viewing facts and making reasonable inferences in the non-moving party's favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir.2005). III A Walker's § 1981 discrimination claim is governed by the burden-shifting framework explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its elements are generally identical to those of a Title VII claim. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir.2009). Thus, to establish a prima facie case of discrimination under § 1981, Walker must show that: (1) she is a member of a protected class; (2) she satisfactorily performed her required duties; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred “under circumstances that raise an inference of discriminatory action....” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003). The parties do not dispute that Walker is a member of a protected class, and Centocor does not argue that her job performance was unsatisfactory. We next examine whether the facts viewed in Walker's favor show she suffered an adverse employment action. The phrase “adverse employment action” paraphrases Title VII's description of the type of employment actions that may not occur as a result of employment discrimination. The statute makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, *219 because of such individual's race....” 42 U.S.C. § 2000e-2(a)(1); see Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir.2004). Title VII and § 1981 thus do not provide relief for unpleasantness that may be encountered in the work place. Rather, they provide a remedy only if discrimination seriously and tangibly altered the employee's ability to perform the job or impacted the employee's job benefits. Storey, 390 F.3d at 764 (an “adverse employment action” must be “serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment” (internal quotation marks omitted)); see also Connors v. Chrysler Fin. Corp., 160 F.3d 971, 973-74 (3d Cir.1998) (discrimination claim fails absent proof of an adverse employment action). Termination, failure to promote, and failure to hire all constitute adverse job actions. 42 U.S.C. § 2000e- 2(a)(1). Similarly, actions that reduce opportunities for promotion or professional growth can constitute adverse employment actions. Storey, 390 F.3d at 764 (denial of promotion); de la Cruz v. N.Y.C. Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 21 (2d Cir.1996) (reduced prestige and opportunity for professional growth, although “quite thin,” sufficient to show adverse employment action at summary judgment); Torre v. Casio, Inc., 42 F.3d 825, 831 n. 7 (3d Cir.1994) (material fact issue exists as to whether plaintiff “was transferred ... to a dead-end job that had effectively been eliminated before he was transferred to it” even though his pay and benefits were unchanged). Employment actions such as lateral transfers and changes of title or reporting relationships have generally been held not to constitute adverse employment actions. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting that a “bruised ego,” a demotion without change in pay, benefits, duties, or prestige, and a reassignment to a more inconvenient job did not constitute adverse employment actions); Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (delay in reassignment, transfer to purportedly inferior facilities, and change in the type of students taught are not adverse employment actions); Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir.1994) (changes to title and reporting relationship not adverse employment actions Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 20 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 where plaintiff retained same grade level, benefits, and responsibility). [1] Walker asserts that the following nine events constitute adverse employment actions: (1) Gelfuso's allegedly negative performance review that Walker contends affected her compensation; (2) Gelfuso's delays in approving expense reports; (3) Gelfuso's attempted realignment of Walker's sales territory in an effort to cause another African-American sales representative to join her team; (4) Gelfuso's assignment of drug launch programs to a white manager; (5) Gelfuso's expression of dislike for another African-American sales representative; (6) Gelfuso's failure to provide a budget report to Walker; (7) Gelfuso's questioning of Walker's hiring of a “minority transfer candidate”; (8) Gelfuso's requirement that Walker use a car rather than a train for some business travel; and (9) Gelfuso's failure to provide Walker support in her management of three subordinates. 4 *220 None of these events constitute adverse employment actions, so summary judgment on Walker's discrimination claim was appropriate. A negative evaluation, by itself, is not an adverse employment action, see Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (holding written reprimands placed in plaintiff's personnel file were not adverse employment actions because they had not effected a “material change in the terms or conditions of his employment”), and here Walker concedes that her numerical ratings remained the same as they had been under her previous supervisor, that her ratings were higher than for some other white managers, and that she received raises each year she worked for Gelfuso. Thus, the record does not support the conclusory description she affixes to the evaluation, and she has offered no evidence to support a finding that her conditions of employment were impacted by it. The remaining eight events also do not constitute adverse employment actions. Some of the events never actually had any tangible impact on Walker's employment. Specifically, the attempted realignment of Walker's territory did not occur, Gelfuso's expression of dislike for someone else, without more, could not have had an adverse effect on Walker's employment, and Gelfuso did not stop Walker from hiring the minority candidate. Some of the events she identified were not directed at Walker alone, suggesting that, even assuming they were adverse employment actions, there are no facts from which a reasonable fact-finder could find they were motivated by discriminatory animus. Specifically, Gelfuso did not provide the budget report to Walker or to any other manager and the train travel policy was not directed specifically at Walker. The remaining three incidents -the delayed expense reports, the assignment of drug launch programs to a white manager, and the failure to support Walker's management of three of her direct reports-were certainly frustrating, but Walker produced no evidence showing they tangibly altered her conditions of employment. Accordingly, summary judgment on Walker's discrimination claim was appropriate. B To succeed on her claim for retaliation, Walker must show that: (1) she engaged in protected activity; (2) Centocor took an adverse employment action against her; and (3) there was a causal connection between the protected activity and the adverse employment action. See Estate of Oliva v. New Jersey, 604 F.3d 788, 798 (3d Cir.2010). For the purpose of a retaliation claim, an adverse employment action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotation marks omitted) (explaining that employees reporting discriminatory behavior are not “immunize[d] ... from those petty slights or minor annoyances that often take place at work and that all employees experience”). [2] Here, although the parties agree that Walker meets the first prong, as the filing of her internal complaint constituted protected activity, they dispute the second and third prongs. As to the second prong, which requires a showing that Centocor took an adverse employment action, Walker specifically alleges that the following adverse actions took place in retaliation for her internal complaint: (1) movement of accounts; (2) requiring that she use her car for certain business travel; and (3) failing to support her management of her subordinates. Even under the more expansive definition of “adverse employment *221 action” relevant to our retaliation inquiry, see id., as explained above, the latter two actions were not adverse. As for the first action, account movement, which Walker alleges negatively affected her sales results, Walker concedes that she does not know who was responsible for Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 21 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 this activity and that it was promptly corrected, restoring her internal sales ranking, and thus did not adversely affect her conditions of employment. Because she has not provided proof of an adverse employment action after she filed her internal complaint, the District Court properly granted summary judgment in Centocor's favor on Walker's retaliation claim. C [3] Walker's challenges to the discovery orders also fail. We review the District Court's discovery orders for abuse of discretion, and we will not disturb them “absent a showing of actual or substantial prejudice.” Washington v. Hovensa LLC, 652 F.3d 340, 348 n. 6 (3d Cir.2011). Our review of the District Court's management of discovery is highly deferential, requiring a party who was denied additional discovery to demonstrate a consequent denial of access to “crucial evidence” and an inability to have conducted “more diligent discovery” within the confines of the District Court's case management orders. Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir.2000) (internal quotation marks omitted); Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 107 F.3d 1026, 1034 (3d Cir.1997). We cannot conclude that the District Court abused its discretion by denying Walker's motions for additional discovery. The District Court did not abuse its discretion in denying Walker's requests for documents related to complaints against Gelfuso based on accusations other than racial discrimination and for depositions of four individuals to investigate issues they may have had with Gelfuso's supervision. As to the request for documents relating to non-racial discrimination complaints against Gelfuso, we have previously held that it is not an abuse of discretion for a District Court to limit an investigation of disability discrimination by excluding information relating to racial discrimination. EEOC v. Kronos Inc., 620 F.3d 287, 301- 02 (3d Cir.2010). We similarly conclude here that the District Court properly exercised its discretion by denying Walker's request to investigate complaints that did not appear to be based on allegations of racial discrimination. [4] The District Court also acted within its discretion to refuse to permit the four depositions. Although Walker argued that three of the individuals she sought to depose were also under Gelfuso's supervision and had also filed internal complaints about him, she has not shown that these complaints were also based on racial discrimination. As stated above, the District Court had discretion to limit discovery of complaints of past discrimination to the type Walker alleged. As to the fourth individual she sought to depose, Bruce Johnson, Walker argues that he was encouraged by Gelfuso to file an internal complaint against her. While the record shows Johnson and Walker filed complaints against each other, the record, including Walker's deposition, does not show Gelfuso encouraged Johnson to file the complaint. Because Walker has not shown she was denied crucial evidence by being barred from deposing these individuals, we cannot conclude that the District Court abused its discretion. [5] As to Walker's request to extend the discovery deadline to depose Tinney, the District Court appropriately exercised its discretion to deny this request. To obtain an extension of a discovery deadline, a movant must show “good cause” under Fed.R.Civ.P. 16(b)(4), which includes both an explanation of why more *222 time is needed and a showing that the movant diligently sought the discovery she now seeks to secure beyond the deadline. 5 See Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir.2010). Walker was aware of Tinney's role in the investigation of her internal complaint from the time she filed it in 2008. The record does not show why she should have been excused from being more diligent in securing Tinney's deposition. Thus, the District Court's finding that Walker did not provide good cause to extend the discovery deadline to depose Tinney was well- founded and we will not disturb it. IV. For the foregoing reasons, we will affirm the District Court's orders granting summary judgment in favor of Centocor and denying Walker's requests for discovery- related relief. All Citations 558 Fed.Appx. 216 Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 22 of 23 Walker v. Centocor Ortho Biotech, Inc., 558 Fed.Appx. 216 (2014) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 Footnotes 1 Centocor is now named Janssen Biotech, Inc., and is a subsidiary of Johnson & Johnson. 2 The District Court found that Walker had waived her hostile work environment claim at the summary judgment stage and she does not appeal that ruling. 3 Section 1981 provides, “[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....” 4 The District Court noted that Walker had failed to mention the first event in her complaint and held that she had waived any argument that the latter eight events constituted adverse employment actions by not discussing them in her opposition to Centocor's motion for summary judgment. Even assuming they were not waived, none constitute adverse employment actions. 5 Although Walker stated that her motion was made pursuant to Fed.R.Civ.P. 6, Rule 16 is the more appropriate rule for motions to extend a discovery schedule embodied in a pretrial scheduling order. Regardless, both rules require a showing of good cause. Fed.R.Civ.P. 6(b)(1); Fed.R.Civ.P. 16(b)(4). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00057-YK-KM Document 11-1 Filed 05/02/17 Page 23 of 23