NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-1237
_______________
MAURICE BURTON,
Appellant
v.
PENNSYLVANIA STATE POLICE;
KATHY JO WINTERBOTTOM
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1-11-cv-01968)
District Judge: Hon. Sylvia H. Rambo
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 15, 2015
Before: AMBRO, FUENTES, and ROTH, Circuit Judges
(Filed: May 18, 2015)
____________
OPINION*
____________
______________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Maurice Burton, a former corporal in the Pennsylvania State Police (the “Police”),
appeals the District Court’s grant of summary judgment in favor of the Police and Kathy Jo
Winterbottom, a Police lieutenant. We affirm.
I.
Burton worked as a trooper and then corporal supervisor in the Police’s Bureau of
Research and Development (the “Bureau”). Beginning in 2007, several of Burton’s
supervisors noticed that he was spending an extraordinary amount of time at work—
sometimes two to four hours a day—with Pamela Yandrich, who was employed as the e-
library administrator. Burton’s supervisors initially addressed the issue informally. This
became a significant problem in maintaining the discipline and effectiveness of the Police’s
work environment. The real problem, Burton claims, was that he and Yandrich were of
mixed raced—Burton black and Yandrich white. Indeed, Burton interpreted comments
made to him by his colleagues, including an African-American colleague, as threats based
on race rather than attempts to stop excessive worktime fraternization.
In early 2008, Burton began the process of testing for the rank of sergeant. Upon
learning that Lieutenant Walter Margeson was assigned to score the oral portion of the
exam, Burton objected, believing that Margeson held a negative view of him because of his
relationship with Yandrich. Burton eventually elected to keep Margeson on the panel and
have a consultant examine the test results. While candidates must score in the top 100 to be
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eligible for sergeant, Burton’s test scores ranked 244 out of 476. Consequently, he was not
promoted.
Burton remained in his position as corporal supervisor where, despite repeated
informal reprimands, he continued to spend much worktime conversing with Yandrich. In
November 2008, after observing the two talking for over seven hours in two days,
Lieutenant Carl Harrison (himself an African-American) issued supervisor’s notations to
both Burton and Yandrich. A supervisor’s notation is a disciplinary measure used by the
Police that is placed in an employee’s personnel files for six months. If no further issue
arises during those six months, the notation is removed from the files.
A few weeks later, at the Bureau’s holiday party, Lieutenant Richard Stein
approached Corporal Jack Reese and asked him whether he would be interested in taking
Burton’s position. Reese declined the offer and later informed Burton about his
conversation with Stein. Also in December 2008, Harrison asked Burton to cover the
upcoming Pennsylvania Farm Show, an assignment that Burton found insulting in light of
his supervisory position in the Bureau. After Burton complained about the assignment,
Harrison responded that the Bureau was short-staffed and that the “Farm Show Detail calls
for Trooper/Corporal assignment. You are a Corporal . . . and can be assigned as needed. .
. . By your logic, any assignment given that you are not in agreement with would be
retaliation.” App. 699-700.
In January 2009, Burton met with Captain Martin Henry III, the Equal Employment
Opportunity director for the Police. During their meeting, Burton advised Henry of his
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recent treatment at the Bureau and his belief that the various incidents were racially
motivated. In addition, Burton told Henry that Stein had made inappropriate sexual
comments in the office. Following this meeting, the Police initiated a formal investigation
into these allegations led by Lieutenant Winterbottom. In connection with her investigation,
Winterbottom interviewed all relevant personnel, including Burton, Yandrich, and Stein.
Based on her report, the Police initially determined that the allegations were unfounded as
to disparate treatment but sustained as to Stein’s inappropriate comments.
After further review, however, Major John Laufer concluded that the charge against
Stein was not sustained because Burton and Yandrich had credibility issues and were less
than truthful in their interviews. The Police then conducted a supplemental investigation
into Burton, believing that he may have committed infractions. Following this additional
investigation, the Police concluded that Burton discussed the sexual comments attributed to
Stein with two subordinates, made an inappropriate sexual remark himself, and was not
truthful when questioned about reading a confidential correspondence that he was not
authorized to read. As a result of these infractions, Burton was suspended for two days
without pay.
Burton remained at the Bureau until he retired in July 2011, five years short of full
retirement. After he left, Burton sued the Police and Winterbottom asserting claims for
discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Pennsylvania Human Relations
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Act, 43 Pa. Stat. § 951 et seq.; and 42 U.S.C. § 1983. In an exhaustive decision, the
District Court granted summary judgment for the Police and Winterbottom.1
II.
A.
We begin our analysis with Burton’s discrimination claims. Under the McDonnell
Douglas framework, the employee bears the initial burden of establishing a prima facie
case of discrimination by showing, among other things, that he suffered an adverse
employment action occurring under circumstances that could give rise to an inference of
discrimination. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). Once the
employee satisfies these elements, the burden of production shifts to the employer to
provide a legitimate, non-discriminatory reason for the adverse action. Smith v. City of
Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If the employer is able to provide such a
reason, the burden of production shifts back to the employee to demonstrate that the
proffered rationale was a pretext for discrimination. Id.
Burton alleges that the Police discriminated against him on the basis of race by
issuing him a supervisor’s notation, failing to promote him to sergeant, and suspending him
1
The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367.
Our jurisdiction is based on 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s grant of summary judgment and will affirm only if, “viewing the underlying
facts and all reasonable inferences therefrom in the light most favorable to the party
opposing the motion, we conclude that a reasonable jury could not rule for the nonmoving
party.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015) (internal quotation
marks and citations omitted). We apply the same standards to the claims under Title VII
and the Pennsylvania Human Relations Act. See Fogleman v. Mercy Hosp., Inc., 283 F.3d
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without pay. We agree with the District Court that Burton has not established a prima facie
case of discrimination and that, even if he had, the Police has offered legitimate, non-
discriminatory justifications for its actions.
As to the supervisor’s notation, there was no adverse employment action because the
notation, which is placed in an employee’s files for six months, did not materially change
the terms or conditions of Burtons’s employment. See Weston v. Pennsylvania, 251 F.3d
420, 431 (3d Cir. 2001) (explaining that temporary reprimands not permanently affixed to
an employee’s file do not alter the employee’s status), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In any event, the Police
has offered a non-discriminatory reason for its actions. Notwithstanding repeated warnings
from his supervisors, Burton continued to spend an inordinate amount of time socializing
with Yandrich while at work. As the District Court found, “[i]t speaks for itself that an
employer has a strong interest in ensuring a certain level of conduct and productivity within
the office.” Burton v. Pa. State Police, 990 F. Supp. 2d 478, 504 (M.D. Pa. 2014). Other
than his self-serving statements to the contrary, Burton has not shown that the Police’s
explanation was pretextual.
Burton similarly fails to support his claim that the Police did not promote him to
sergeant because of discriminatory animus. He does not dispute that his test scores alone—
ranking 244 out of 476—disqualified him from eligibility for promotion.
Burton maintains that the investigation that resulted in his two-day suspension was
561, 567 (3d Cir. 2002).
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racially motivated. He points out that he was the only African-American among a group of
employees who made inappropriate sexual comments and he was the only one subject to
investigation. However, he ignores that the supplemental investigation arose during the
course of investigating Burton’s complaints about Stein’s alleged transgressions. During
that initial investigation, the Police learned of several infractions committed by Burton.
Moreover, Burton acknowledges that he was suspended for violating several Police field
regulations and he has not put forth evidence of similarly situated employees receiving less
severe punishments.
B.
We next turn to Burton’s retaliation claims. To establish a prima facie case of
retaliation, an employee must demonstrate that (1) he engaged in protected activity, (2) his
employer took adverse employment action against him, and (3) there was a causal
connection between the protected activity and the adverse action. Moore v. City of Phila.,
461 F.3d 331, 340-41 (3d Cir. 2006). We find that Burton has not shown a prima facie
case of retaliation and, moreover, the Police has articulated non-discriminatory reasons for
its actions.
Burton appears to argue that he received a supervisor’s notation in retaliation for
complaining to Harrison and Stein that he was being unfairly targeted for his relationship
with Yandrich. This argument fails for the same reasons discussed above in connection
with his discrimination claim.
Burton suggests that the Police retaliated against him by threatening him and
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attempting to remove him from the Bureau. Specifically, a statement by Stein that “I’d hate
to see you leave, though you do good work” was a “clear threat.” Stein then attempted to
replace Burton at the holiday party by offering his position to someone else. But neither
Stein’s comment nor the attempt to replace Burton qualifies as an adverse employment
action. And even if they did, Burton offers nothing to rebut the Police’s non-discriminatory
reason for these actions, namely, his excessive socializing.
He maintains that his assignment to cover the Farm Show, which was “beneath his
position,” was an act of retaliation. However, the director of the Bureau testified that both
troopers and corporal supervisors could be tasked with covering the Farm Show. Burton
offers no rebuttal to this point. At most, the four-day assignment was a “petty slight[] or
minor annoyance[]” that does not rise to the level of a material adverse employment action.
Moore, 461 F.3d at 346.
Burton alleges that the Police retaliated against him by making him the subject of an
investigation. For reasons similar to those discussed above, we reject this argument.
Finally, Burton asserts that Winterbottom retaliated against him for exercising his
First Amendment right to freedom of association. In his view, as a public employee, his
relationship with Yandrich was protected activity. Notwithstanding much of it occurred
during work hours and interfered with their official duties, Burton cites no authority for the
proposition that work friendships are a constitutionally protected association. Moreover,
Winterbottom’s investigations arose as a result of Burton complaining to the Police’s Equal
Employment Opportunity director, not because of his relationship with Yandrich.
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C.
Arguing he “had no choice but to resign” in 2011, Burton asserts a claim for
constructive discharge. To establish this claim, an employee must show that “the employer
knowingly permitted conditions of discrimination in employment so intolerable that a
reasonable person subject to them would resign.” Mandel v. M & Q Packaging Corp., 706
F.3d 157, 169 (3d Cir. 2013) (internal quotation marks omitted).
There is no evidence in the record to support constructive discharge. Many of the
incidents about which Burton complains occurred several years before he resigned. Nor
were the incidents he describes the result of discrimination. Burton was censured and
disciplined because of his excessive socializing with Yandrich in the office. Furthermore,
many of Burton’s allegations of mistreatment target Harrison and Stein, but they both left
the Bureau well before Burton did—Stein in early 2009 and Harrison in July 2010.
III.
For the foregoing reasons, we affirm the District Court’s order.
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