Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-20-2006
Red v. Postmaster Gen
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5256
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-5256
________________
MARITA RED,
Appellant
v.
JOHN E. POTTER, POSTMASTER GENERAL;
UNITED STATES POSTAL SERVICE
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 03-cv-02241)
District Judge: Honorable Dickinson R. Debevoise
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 17, 2006
Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.
(Filed: November 20, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Marita Red filed her complaint, pro se, against her former employer, the United
States Postal Service. In the complaint, Red alleges racial discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq. Red asserts that she was discriminated against because she is Filipino. First, she
alleges that she was improperly demoted four days after being promoted to the position of
full-time clerk in July 2000 (“Claim I”). Second, she asserts that was racially
discriminated against when she was terminated from employment in the fall of 2000
(“Claim II”). Third, Red asserts that her demotion and subsequent termination were both
in retaliation for her previous complaints filed with the Equal Employment Opportunity
Commission (“EEOC”) (“Claim III”). Ultimately, the District Court granted Defendant’s
motion for summary judgment on these claims.
We review the grant of summary judgment de novo. See McGreevey v. Stoup, 413
F.3d 359, 363 (3d Cir. 2005). Summary judgment is proper when, viewing the evidence
in the light most favorable to the non-movant, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. See Saldana v. KMart
Corp., 260 F.3d 228, 232 (3d Cir. 2001); Fed. R. Civ. P. 56(c).
Claims of discrimination under Title VII are analyzed under the burden-shifting
framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). In order to show a prima facie case of racial discrimination, a plaintiff must
illustrate that: (1) she is a member of a protected class; (2) she was qualified for the
position she held; (3) she suffered an adverse employment action; and (4) similarly
situated persons who are not members of the protected class were treated more favorably,
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or that the circumstances of her termination give rise to an inference of discrimination.
See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). If a plaintiff
establishes the prima facie case, the employer must come forward with a legitimate, non-
discriminatory reason for the adverse employment decision. See Goosby v. Johnson &
Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000) (citing Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-56 (1981)). 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. See Jones, 198 F.3d at
410 (citing Burdine, 450 U.S. at 252-53).
We will first examine Claim I. As previously noted, to prove the prima facie case,
a plaintiff must show that she is qualified for the position. In reviewing qualifications,
we can only look to objective criteria, such as education and experience. See Sempier v.
Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995).
Red was initially hired as a part-time mail handler. Before her promotion to a full-
time clerk in July 2000, Red requested to be reassigned from her mail handler’s position
to a part-time clerk position. The Collective Bargaining Agreement notes that when this
transfer occurs, an employee begins a new period of seniority. However, in Red’s case,
her period of seniority was not begun anew after this transfer due to an administrative
error. This error was only discovered a few days after Red was promoted. After this
discovery, the Defendant demoted Red back to the position of part-time clerk. Upon
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reviewing the record, Red fails to show the presence of a material issue of fact with
respect to whether she had the requisite seniority to be promoted initially. Thus, she fails
to show that she was qualified for the position.
With respect to Claim II, we conclude that Red failed to make out a prima facie
case of discrimination. In attempting to show an inference of discrimination, Red alleged
that several similarly situated employees (not in her protected class) were treated more
favorably. However, Red failed to show that these employees were similarly situated.
See Fed. R. Civ. P. 56(e) (stating that a non-moving party cannot rely on mere allegations,
but instead, must set forth specific facts showing a genuine issue for trial); see, e.g.,
Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003) (stating that “a plaintiff must
show that others similarly situated to him in all relevant respects were treated differently
by the employer.”) (internal quotation marks and citations omitted); Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (stating in order to show
that an employee is “similarly situated,” all of the relevant aspects of employment need to
be nearly identical). Thus, the District Court properly granted summary judgment on this
claim.
Next, we will examine Claim III. Red’s retaliation claim is subject to the same
burden-shifting analysis as set out in McDonnell Douglas. See Woodson v. Scott Paper
Co., 109 F.3d 913, 920 (3d Cir. 1997). To establish a prima facie case of retaliation, a
plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an
4
adverse employment action either after or contemporaneously with the protected activity;
and (3) there was a causal connection between the protected activity and the adverse
employment action. See id.
It is undisputed that Red established the first two elements for a prima facie case of
retaliation. Specifically, she filed complaints with the EEOC in 1999. Furthermore, Red
suffered adverse employment actions when she was demoted in July 2000 and terminated
from employment in the fall of 2000. However, we agree with the District Court that Red
failed to create a material issue of fact with respect to establishing a causal connection
between her protected activity and the adverse employment actions.
First, Red’s demotion and subsequent termination occurred over a year after she
filed her EEO complaints. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d
Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. v. White, 126 S.
Ct. 2405 (2006) (stating that the mere fact that an adverse employment action occurs after
a complaint will ordinarily be insufficient to satisfy the plaintiff’s burden of
demonstrating a causal link). Additionally, Red has not shown that there is a material
issue of fact that the officials responsible for her demotion and ultimate termination
(Patricia Johnson and Carmen G. Olivera, respectively) were aware of her EEO filings at
the time of their actions. See Dowe v. Total Action Against Poverty in Roanoke County,
145 F.3d 653, 657 (4th Cir. 1998) (stating that plaintiff failed to establish prima facie case
of discrimination where it was undisputed that relevant decisionmaker was unaware that
5
the plaintiff had engaged in protected activities). Accordingly, we conclude that the
record does not establish the requisite causal connection to support a prima facie case of
retaliation.
Finally, in her response to the Defendant’s summary judgment motion, Red
indicated other incidents of discrimination. These incidents appear to center on
circumstances occurring in late August 2000.1 The District Court determined that Red
failed to exhaust these claims. In order to bring a Title VII action in federal court, a
plaintiff must file a charge with the EEOC sufficient to put the EEOC on notice of her
particular claims. See Anjelino v. N.Y. Times Co., 200 F.3d 73, 93 (3d Cir. 1999);
Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997). We must determine whether
the claims at issue fall within the scope of the prior EEOC complaint, or the investigation
arising therefrom. See Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996).
The EEOC investigated the circumstances surrounding Red’s July 2000 demotion
and subsequent termination to determine whether it was racially discriminatory. To the
extent that Red now asserts that her termination was the result of disability
discrimination, she failed to exhaust this claim. Red’s claim of disability discrimination
cannot be said to have arisen from the investigation into her claims of race discrimination
before the EEOC. See Antol, 82 F.3d at 1295-96. Second, we conclude that Red’s
1
Red asserts she was denied the opportunity to go to her locker, denied sick leave
and denied light-duty work, among other claims.
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claims of discrimination arising out of the incidents occurring in late August 2000 were
exhausted. Red’s termination arose in part from the circumstances occurring in late
August 2000. Thus, it follows that these alleged incidents of discrimination would be
part of the EEOC’s investigation of Red’s termination. However, similar to Red’s other
discrimination claims, Red fails to illustrate a material issue of fact with respect to
proving her prima facie case regarding these claims for the reasons previously stated.2
See also Fed. R. Civ. P. 56(e).
In conclusion, we will affirm the grant of summary judgment in favor of the
Defendant.
2
In her response to the summary judgment motion, Red also alleged over forty
“acts of harassment.” The District Court construed these allegations as a separate hostile
work environment claim. Based upon Red’s appellate brief, however, Red alleged these
acts as evidence of her retaliation claim, not a separate hostile work environment claim.
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