NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1855
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SHIRLEY E. WALKER,
Appellant
v.
CENTOCOR ORTHO BIOTECH, INC.
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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
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Submitted Under Third Circuit LAR 34.1(a)
February 13, 2014
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Before: CHAGARES, SHWARTZ, and GARTH, Circuit Judges.
(Filed: February 19, 2014)
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OPINION
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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
1
Centocor is now named Janssen Biotech, Inc., and is a subsidiary of Johnson &
Johnson.
2
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 lack of
support in her management of her subordinates.
Walker filed this lawsuit against Centocor, alleging racial discrimination,
retaliation, and hostile work environment2 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.
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 . . . .”
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 (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 (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
4
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, 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
5
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 (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 where plaintiff retained same grade level, benefits, and responsibility).
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
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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
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.
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.
7
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
8
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 (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”).
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
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 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.
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C
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
discriminaton 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
10
exercised its discretion by denying Walker’s request to investigate complaints that did not
appear to be based on allegations of racial discrimination.
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.
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 time is needed and a
showing that the movant diligently sought the discovery she now seeks to secure beyond
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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.
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).
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