NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-2873
HOWARD LEBOFSKY,
Appellant
v.
CITY OF PHILADELPHIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-06-cv-05106)
District Judge: Honorable J. William Ditter
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2010
Before: SLOVITER, BARRY and SMITH, Circuit Judges
(Filed: September 17, 2010 )
OPINION
SLOVITER, Circuit Judge.
Appellant Howard Lebofsky, an attorney who was formerly employed in the Law
Department of the City of Philadelphia, appeals from the District Court’s grant of
summary judgment for defendant City of Philadelphia (“City” or “Law Department”).
After he accepted a higher-paying job with a private law firm, Lebofsky filed a complaint
against the City alleging age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. §§ 2000e, et. seq. We will affirm.
I.
Lebofsky was hired in 1996 at age forty-six as a deputy city solicitor in the special
litigation unit, where he focused on defending the City in discrimination and retaliation
actions. Within four years he was named the acting chief deputy of the unit.
In February 2000, the mayor appointed Kenneth Trujillo as the new city solicitor.
Trujillo merged the labor and employment functions of the special litigation unit into one
new department. Lebofsky’s position as acting chief deputy solicitor was terminated and
a new supervisory position, labor and employment chief deputy solicitor, was created.
Despite Lebofsky’s professed interest in that position, Trujillo selected Peter Winebrake,
a thirty-four-year-old white male, from outside the Law Department. Lebofsky was then
fifty years old.
2
According to Lebofsky, soon after Winebrake was appointed as chief deputy,
Winebrake told him that he “wanted to bring on board new, young attorneys to staff the
unit.” App. at B-689. Lebofsky warned Winebrake that such a comment could be
construed as evidence of an intent to engage in illegal age discrimination and could “get
the City . . . into trouble here.” App. at B-690. Lebofsky then complained of
Winebrake’s “new, young attorneys” statement to William Thompson, the chief of
litigation. A few days after Lebofsky’s complaint, Winebrake instructed Lebofsky “to get
[his] clients on the phone right now and tell them [he] won’t be practicing employment
law anymore.” App. at B-693. Lebofsky reported the incident to Thompson. Lebofsky
also contends that Winebrake then instructed members of the labor and employment unit
not to speak with him.
Donna Mouzayck, the person responsible for investigating discrimination
complaints within the Law Department, overheard one of the conversations between
Thompson and Lebofsky. Mouzayck spoke to Winebrake about his “new, young
attorneys” comment and was satisfied that “there was [not] age discrimination going on
here at all.” App. at B-838. Mouzayck also recalled speaking with at least two other
employees about the incident.
Lebofsky was then assigned to a new position, senior attorney functioning as
special counsel on litigation matters, which Trujillo characterized as one with “some level
of prestige,” App. at B-1227, and one “where [Lebofsky] could be successful,” App. at B-
3
1229. Lebofsky, by contrast, characterized it as “a dead-end position” and a demotion.
Appellant’s Br. at 16. His first assignment in this new position was to assist Trujillo in
developing a new, affirmative litigation unit. Lebofsky was not assigned to lead this new
unit, but instead Trujillo selected Shelley Smith, a thirty-five-year-old African-American
woman.
A few months later, in February 2001, Lebofsky advised Mouzayck that he was
leaving the Law Department for private practice. Mouzayck proposed a “special
portfolio” of high profile matters that Lebofsky could handle in an apparent effort to
convince him to stay. App. at B-834. Lebofsky met with Trujillo and Mouzayck and
stated that he would stay if the City conducted an investigation into Winebrake’s alleged
age discrimination and gave him the title of chief deputy. Neither request was granted.
A week later, Lebofsky submitted a resignation memorandum. It set forth no
conditions on which he would withdraw his resignation; it did not say that he was leaving
because “there was a refusal to do an investigation,” App. at B-780, nor did it allege
discrimination. Lebofsky thereafter accepted a position at a local law firm, which paid
him twenty percent more than he earned at the Law Department.
On September 28, 2001, Lebofsky filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging unlawful race and age
discrimination and retaliation. Lebofsky thereafter filed a complaint in the District Court
alleging, inter alia, claims under the ADEA and Title VII. The District Court granted
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summary judgment for the City, concluding that “no reasonable finder of fact could
conclude that Lebofsky was subjected to a hostile work environment, constructively
discharged, or retaliated against . . . .” Lebofsky v. City of Phila., No. 06-cv-5106, 2009
WL 1507581, at *21 (E.D. Pa. May 29, 2009).
Lebofsky appealed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We review its order
under 28 U.S.C. § 1291. Our review is plenary and we apply the same standard as the
District Court. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010).1
III.
A. Lebofsky’s Retaliation and Discriminatory Treatment Claims
To establish a prima facie retaliation claim under Title VII, the plaintiff must
demonstrate that (1) he engaged in protected activity; (2) after or contemporaneous with
that protected activity, he was subject to a materially adverse employment action 2 ; and (3)
1
Summary judgment will be granted “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). “The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
2
In considering the second element of a prima facie case,
the inquiry is whether the alleged retaliation “well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Moore v. City of Phila., 461 F.3d 331, 341 (3d
5
a causal connection existed between the protected activity and the adverse employment
action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007).
In its memorandum of law supporting summary judgment, the City acknowledged
“[Lebofsky’s] allegation that he complained” and assumed that he could “establish the
first element of his retaliation claim.” App. at B-328 n.7. We therefore accept arguendo
that Lebofsky’s complaints constituted protected activity.
Even so, Lebofsky’s claim of retaliation fails because the City took no adverse
employment action against him within 300 days of his EEOC charge.3 To pursue an
employment discrimination claim under Title VII or the ADEA, an employee must first
file a charge with the EEOC within 300 days of an adverse employment action or of
notification to the employee of such an action. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. §
626(d)(1)(B).4 Lebofsky filed his charge of discrimination with the EEOC on September
28, 2001. Therefore, to meet the statute of limitations requirement, Lebofsky must show
that at least one adverse employment action occurred after December 2, 2000 – 300 days
earlier.
Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)).
3
For this reason, in addition to the other reasons cited by
the District Court, Lebofsky’s claims of age discrimination under
the ADEA, race discrimination under Title VII, and a hostile work
environment also fail.
4
The parties agree that 300 days is the applicable
limitations period in this case.
6
As the District Court noted, no such action occurred within 300 days of his EEOC
charge. Lebofsky contends that his EEOC charge was not untimely “[u]nder the federal
discovery rule,” Appellant’s Br. at 34, because he did not know he was demoted until
“after several weeks in the position,” Appellant’s Br. at 33. That post hoc
characterization, however, belies Lebofsky’s testimony that he viewed the position as “a
demotion” as early as November 30, 2000, App. at B-703, and that he “kn[e]w [he] had to
get out” of the Law Department “and that’s what [he] tried to do,” App. at B-708. He
“start[ed] looking for another position . . . [a]lmost immediately after” Shelley Smith was
promoted. App. at B-709. Indeed, within days of the announcement of her promotion,
Lebofsky applied for new employment elsewhere.
The only allegedly adverse employment action Lebofsky identifies as occurring
within the limitations period was during a meeting just prior to his resignation. There,
according to Lebofsky, Trujillo “made it absolutely clear that” no investigation would
ensue. App. at 780. Lebofsky had “never seen [Trujillo] so angry.” App. at 780. The
District Court correctly noted that “Mouzayck had already investigated.” Lebofsky, 2009
WL 1507581, at *12. Indeed, she spoke with several employees, including Winebrake,
and was satisfied that no unlawful discrimination had occurred. The evidence that
Trujillo was aware of this fact is uncontroverted.
Lebofsky next asserts that we should disregard the 300-day time bar because,
“[u]nder the continuing violation theory, a plaintiff may pursue a claim for discriminatory
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or retaliatory conduct that began prior to the filing period if he can demonstrate that act is
part of an ongoing practice o[r] pattern of discrimination . . . .” Appellant’s Br. at 35
(citing West v. Phila. Elec. Co., 45 F.3d 744 (3d Cir. 1995)). Although we have found
that a filing requirement may be tolled in the context of a Title VII hostile work
environment claim, see West, 45 F.3d at 754, we have only done so when at least one
adverse employment action occurred within the filing period. This is not such a case, as
the District Court correctly concluded.
B. Lebofsky’s Constructive Discharge Claim
Lebofsky contends that he suffered constructive discharge due to “a persistent
pattern of discriminatory and retaliatory treatment.” Appellant’s Br. at 39. To find
constructive discharge, a court “need merely find that the employer knowingly permitted
conditions of discrimination in employment so intolerable that a reasonable person
subject to them would resign.” Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.
1984). In Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993), we
identified several factors that may be indicative of constructive discharge: (1) threat of
discharge; (2) suggesting or encouraging resignation; (3) a demotion or reduction of pay
or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job
responsibilities; and (6) unsatisfactory job evaluations. Id.
Turning to these factors, Lebofsky testified that the Law Department threatened
him with discharge when he sought out work in his role as senior attorney and Mouzayck
8
told him to “find work to do or . . . be fired.” App. at B-714. However, when Lebofsky
told Mouzayck that he was leaving the Law Department for private practice, Mouzayck
tried to convince him to stay. She proposed a “special portfolio” of matters for him to
handle. App. at B-834. There is no basis for a determination that his resignation was
suggested or encouraged by the Law Department.
Lebofsky asserts that his transfer to the position of senior attorney was a “de facto
demotion,” Appellant’s Br. at 32, because he was “assigned work that was not desirable
and was much less significant than what [he] had been doing previously; [he] was being
given little to no work to do the majority of the time; and, [he] was denied a secure place
in the organization structure.” App. at B-344. He complains he was moved into a less
desirable office, lost an assigned secretary, and his name was omitted from settlement
documents.
The District Court correctly concluded that “no reasonable finder of fact asked to
consider the litany of real or perceived slights suffered by Lebofsky, alone or collectively,
could conclude that he suffered under conditions that could be objectively described as
being so intolerable that he had no [re]course but to quit.” 5 Lebofsky, 2009 WL 1507581,
at *21 (citing Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992)).
5
Our conclusion is buttressed by the facts that Lebofsky
remained in his supposedly “intolerable” position for several
months without complaint and that he was willing to reconsider his
resignation if he were given the title of chief deputy.
9
Accordingly, summary judgment was properly entered against Lebofsky on his
constructive discharge claim.
IV.
For the above stated reasons, we will affirm the District Court’s order granting
summary judgment in favor of the City.
10