Slagle v. Clarion

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

1-12-2006

Slagle v. Clarion
Precedential or Non-Precedential: Precedential

Docket No. 04-2622

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-2622

TIMOTHY A. SLAGLE,
Appellant

v.

COUNTY OF CLARION;
CLARION COUNTY JAIL

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 02-cv-00960)
District Judge: Hon. Terrence F. McVerry

Argued July 14, 2005

Before: SLOVITER, McKEE and WEIS, Circuit Judges

(Filed: January 12, 2006)

Neal A. Sanders (Argued)
Law Offices of Neal Alan Sanders
1924 North Main Street Extension
Route 8 North
Butler, PA 16001

Attorney for Appellant
Louis C. Long
Marie Milie Jones (Argued)
Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C.
U.S. Steel Tower, Suite 4850
600 Grant Street
Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Timothy A. Slagle, a former correctional officer at the
Clarion County Jail in Pennsylvania, appeals from the Order of
the District Court granting summary judgment in favor of his
employer, the County of Clarion, and dismissing Slagle’s claims
of retaliatory discharge in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3a, and the Pennsylvania
Human Relations Act (“PHRA”).1 We review a grant of
summary judgment de novo, applying the same standard as did
the district court. Antonelli v. New Jersey, 419 F.3d 267, 272
(3d Cir. 2005).

I.

Slagle was employed as a correctional officer at the
Clarion County Jail (“Jail”) from October 1996 to February
2002. Several separate incidents are relevant to the issue before
us. In April 2001, Slagle, using testing material belonging to the
Jail, gave himself an HIV test at his home and submitted the test
to the Pennsylvania Department of Health for analysis without

1
Slagle also raises a claim of hostile work environment.
Because Slagle mentions this claim only once in his brief and only
in passing, we hold that Slagle waived the claim. See Laborer’s
Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (finding an issue waived because “passing reference to an
issue . . . will not suffice to bring that issue before this court”)
(citation omitted).

2
identifying the subject of the test. The Pennsylvania Department
of Health mailed the results of the anonymous test back to the
Jail. Deputy Warden Traister, who received the results of the
test, assumed that the test had been administered to an inmate.
Because he had not authorized any HIV testing of inmates, he
began an internal investigation to determine who had conducted
the unauthorized HIV test. Slagle refused to cooperate with the
investigation but, at a hearing held subsequently, he admitted
that he was the subject of the test.

In a separate incident that occurred on May 11, 2001,
Slagle allegedly told the officer in charge who was on duty that a
state trooper had engaged in inappropriate behavior during an
inmate interview. Later that day Warden John Rowley accused
Slagle of going outside the chain of command by threatening to
report the trooper’s behavior to his supervisor. Slagle denied
making any such threat. By letter dated May 14, 2001, Slagle
received a one-day suspension for his failure to cooperate with
the deputy warden’s investigation of the HIV test and for his
May 11 “threat” to go outside the chain of command. In
addition, Slagle received a two-week suspension without pay in
July, 2001, for making inappropriate comments to a female
inmate and sexually harassing a female correctional officer.

On September 10, 2001, Slagle filed a complaint against
Clarion County with the Equal Employment Opportunity
Commission (“EEOC”) in connection with his May 2001 and
July 2001 suspensions. In the complaint, Slagle stated: “the
Respondent discriminated against me because of
whistleblowing, in violation of my Civil Rights, and invasion of
privacy.” App. at 96. By letter dated October 31, 2001, the
EEOC notified Slagle that it dismissed his charge because “the
facts [he] alleg[ed] failed to state a claim under any of the
statutes enforced by the Commission.” App. at 14.

On January 2, 2002, Slagle was advised that he was being
discharged from his position at the Jail for gross insubordination
and for allegedly lying that he had not received notice of the
denial of his request to have a vacation day on December 25,
2001, and for not working on that day pending a Loudermill

3
hearing.2 Slagle filed a union grievance in January related to his
discharge, which he withdrew a week later. Slagle filed a
second charge with the EEOC on January 15, 2002, alleging that
his employment was terminated in retaliation for having filed the
September 2001 EEOC charge.

Approximately two weeks later, the Director of Finance
and Human Resources for Clarion County advised Slagle that
Clarion County had determined that he would not be terminated.
Instead, he would be suspended without pay through February 2,
2002, but would not lose seniority or other benefits during the
suspension. Nonetheless, Slagle never returned to work after
January 2, 2002.

On February 8, 2002, Slagle filed a third charge with the
EEOC in which he asserted that Clarion County discriminated
against him “because of [his] gender, male, in violation of Title
VII as to gender discrimination and the PHRA.” App. at 129.
The EEOC notified Slagle that his complaint was dismissed
because “the Commission [was] unable to conclude that the
information obtained establish[ed] violations of the statutes.”
App. at 12.

Slagle thereafter filed this lawsuit on May 29, 2002,
against Clarion County in the United States District Court for the
Western District of Pennsylvania, alleging that his termination
was a result of unlawful retaliation in violation of Title VII.3

2
In Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985), the Supreme Court held that a public employee is
entitled to a “pretermination hearing [that] need not definitively
resolve the propriety of the discharge. It should be an initial check
against mistaken decisions-- essentially, a determination of whether
there are reasonable grounds to believe that the charges against the
employee are true and support the proposed action.” Id. at 545-46.
3
The District Court dismissed Clarion County Jail as a
defendant in this case, stating “it is well established in the Third
Circuit that a prison is not a ‘person’ subject to suit under federal
civil rights laws.” Slagle v. County of Clarion and Clarion County

4
Slagle alleges that after he filed his charge with the EEOC in
September 2001, he was subject to antagonism at the workplace
in the form of unwarranted work criticism, cancellation of a
previously scheduled vacation, and unwarranted disciplinary
action. He expounds on his complaint by asserting in his brief
that he was “excluded from participating in inmate hearings
while less experienced correctional officers were selected . . .
[and he] began to be reprimanded for minor items . . . that other
correctional officers engaged in without being criticized[.]”
Appellant’s Br. at 6-7.

The District Court granted summary judgment for Clarion
County. It applied the framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and held that Slagle had failed to establish a prima facie
case. The District Court stated that Slagle “failed to establish
that he engaged in protected activity, which is an essential
element of a prima facie case of retaliation under Title VII.”
App. at 41. Slagle appeals.

II.

In reviewing the grant of summary judgment, we must
view “the underlying facts and all reasonable inferences
therefrom in the light most favorable to the party opposing the
motion.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d
Cir. 2004). Summary judgment is appropriate where there are
no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

To prevail on a claim of retaliatory discharge in violation
of Title VII and the analogous provision of the PHRA,4 Slagle

Jail, No. 02-0960 (W.D. Pa. filed March 6, 2003).
4
In pertinent part, the PHRA states:

It shall be an unlawful discriminatory practice . . .
[f]or any person, employer, employment agency or
labor organization to discriminate in any manner

5
must demonstrate that: 1) he engaged in conduct protected by
Title VII; 2) his employer took an adverse action against him
either after or contemporaneous with the protected activity; and
3) a causal link exists between his protected conduct and the
employer’s adverse action. Weston v. Pennsylvania, 251 F.3d
420, 430 (3d Cir. 2001).5

Slagle argues that the District Court erred in holding that
he failed to establish that he engaged in conduct protected under
Title VII. Title VII prohibits employers from discriminating on
the basis of race, color, religion, sex, or national origin. 42
U.S.C. § 2000e-2. The anti-retaliation provision of Title VII
provides, in pertinent part:

It shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.

against any individual because such individual has
opposed any practice forbidden by this act, or
because such individual has made a charge, testified
or assisted, in any manner, in any investigation,
proceeding or hearing under this act.

43 Pa. Cons. Stat. § 955(d).
5
This court has stated “‘that the PHRA is to be interpreted
as identical to federal anti-discrimination laws except where there
is something specifically different in its language requiring that it
be treated differently.’” Fasold v. Justice, 409 F.3d 178, 184 n.8
(3d Cir. 2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d
561, 567 (3d Cir. 2002)). The PHRA provisions here at issue
contain no such language; therefore, we will interpret the
implicated provisions of Title VII and PHRA as applying
identically in this case and as being governed by the same set of
decisional law.

6
42 U.S.C. § 2000e-3(a) (emphasis added).

Slagle argues that filing a charge with the EEOC
constitutes protected activity under the participation clause,
which protects an employee who has “made a charge [or
otherwise] participated . . . in an investigation . . . under this
subchapter.” He asserts that he engaged in protected activity
when he filed a charge alleging “unspecified civil rights
violations.” Appellant’s Br. at 14.

The District Court found that Slagle had only made
general complaints of unfair treatment. Relying on this court’s
decision in Barber v. CSX Distribution Services, 68 F.3d 694,
701-02 (3d Cir. 1995), the District Court stated that “a general
complaint of unfair treatment does not translate into a charge of
illegal discrimination, and is not protected conduct under Title
VII.” Slagle v. County of Clarion, No. 02-0960, slip op. at 6
(W.D. Pa. May 13, 2004).

In Barber, the plaintiff, who was an employee of the
defendant, wrote a letter to the defendant’s Human Resources
Department complaining that an available position had been
awarded to a less-qualified person. The plaintiff’s position was
eliminated soon thereafter, and he filed a suit alleging that his
position had been eliminated to retaliate for the letter of
complaint and that this retaliation violated the Age
Discrimination in Employment Act (“ADEA”). Barber’s claim
was based on the “opposition clause” of the ADEA, section
704(a), which protects from retaliation employees who oppose
any practice made unlawful by Title VII. See 29 U.S.C. §
623(d). The District Court had entered judgment for the
employer following a jury verdict for Barber, but this court
reversed, holding that defendant’s failure to promote Barber
violated the ADEA. On the other hand, we affirmed the
dismissal of the retaliation claim because Barber’s letter to
defendants’ Human Resources Department did not specifically
complain about age discrimination and therefore did “not
constitute the requisite ‘protected conduct’ for a prima facie case
of retaliation.” 68 F.3d at 701-02. The ADEA’s provision
against retaliatory discharge is identical to that of Title VII. The
defect with Barber’s retaliation claim was that he never

7
explicitly claimed that he was discriminated against on the basis
of age.

In contrast to Barber’s claim of unlawful retaliatory
discharge which was based on the “opposition clause” of the
ADEA, Slagle’s claim arises under the “participation clause” of
Title VII. Commentators have noted that “[i]t is essential to the
analysis of § 704(a) to recognize its two different clauses. . . .
The distinction is significant because the levels of statutory
protection differ.” Barbara L. Schlei & Paul Grossman,
Employment Discrimination Law 533 (2d ed. 1983); see also
Proulx v. Citibank, 659 F. Supp. 972 (S.D.N.Y. 1987) (same);
cf. Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892,
896 n.4 (3d Cir. 1993) (noting that courts have distinguished
between the activities protected by the two clauses of 42 U.S.C.
§ 2000e-3(a)).

Courts that have interpreted the “participation clause”
have held that it offers much broader protection to Title VII
employees than does the “opposition clause.” See, e.g., Deravin
v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (“[C]ourts have
consistently recognized [that] the explicit language of § 704(a)’s
participation clause is expansive and seemingly contains no
limitations.”); Booker v. Brown & Williamson Tobacco Co., 879
F.2d 1304, 1312 (6th Cir. 1989) (noting that “courts have
generally granted less protection for opposition than for
participation” and that the participation clause offers
“exceptionally broad protection”); Sias v. City Demonstration
Agency, 588 F.2d 692, 695 (9th Cir. 1997) (stating that the
opposition clause serves “a more limited purpose” and is
narrower than the participation clause); Pettway v. American
Cast Iron Co., 411 F.2d 998, 1006 n.18 (5th Cir. 1969) (noting
that the participation clause provides “exceptionally broad”
protection for employees covered by Title VII).

The question before us, one of first impression, is whether
the participation clause of section 704(a) protects an employee
who files a facially invalid claim for retaliatory discharge.

It is well-settled that “[t]he first step in interpreting a
statute is to determine whether the language at issue has a plain

8
and unambiguous meaning with regard to the particular dispute
in the case.” United States v. Cooper, 396 F.3d 308, 310 (3d Cir.
2005) (internal quotation marks and citation omitted). As noted,
the statute provides: “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his
employees . . . because he has made a charge . . . under this
subchapter.” 42 U.S.C. § 2000e-3(a). The language at issue has
a clear and unambiguous meaning. An employee filing a charge
is protected only if the charge is brought under “this
subchapter.” The phrase “this subchapter” refers specifically to
42 U.S.C. §§ 2000e through 2000e-17, the provisions that set
forth an employee’s rights when an employer has discriminated
against him or her on the basis of race, color, sex, religion, or
national origin. It follows that a charge “under this subchapter”
is a charge that alleges discrimination on the basis of those
prohibited grounds.

Slagle’s argument that an employee is protected when
s/he files any charge, regardless of its content, is to render the
phrase “under this subchapter” meaningless. Such an
interpretation is contrary to the accepted rules of statutory
interpretation. See Cooper, 396 F.3d at 312 (“It is a well known
canon of statutory construction that courts should construe
statutory language to avoid interpretations that would render any
phrase superfluous.”); see also Philip J. Pfeiffer, Employment
Discrimination Law 499 (2002) (“The retaliation provisions of
[Title VII] do not protect employees from retaliation for filing
any charge alleging any misconduct; to gain protection, the
charge – factually supported or not – must allege conduct within
the scope of the statute.”).

Of course, because Title VII is a remedial statute, it must
be interpreted liberally. See, e.g., Bowers v. NCAA, 346 F.3d
402, 431 n.24 (3d Cir. 2003) (“We recognize that
[ ]Title VII is clearly remedial civil rights legislation . . . .”);
Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 204
(3d Cir. 1998) (noting that liberal construction of a statute is
appropriate where that statute is remedial). Even if a plaintiff
files a complaint with the incorrect agency, but alleges
discrimination, s/he is protected by Title VII. See Hicks v. Abt
Assoc., Inc., 572 F.3d 960, 969 (3d Cir. 1978) (“Defendant’s

9
interpretation would mean that if the employee first turned to the
wrong agency even with a meritorious claim, that employee
could be discharged before he was eventually directed to the
EEOC. Such an interpretation would undercut the purposes of
section 704.”). Therefore, we require only that the plaintiff file a
formal complaint that alleges one or more prohibited grounds in
order to be protected under Title VII. But we cannot dispense
with the requirement that the plaintiff allege prohibited grounds.

The result we reach is consistent with that reached in
cases from the Fourth and the Ninth Circuit Courts of Appeals
addressing the issue of whether § 704(a) protects an employee
who files a facially invalid claim of retaliatory discharge. In
Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988),
the court held that “[t]he mere fact that an employee is
participating in an investigation or proceeding involving charges
of some sort of discrimination . . . does not automatically trigger
the protection afforded under section 704(a) . . . .” The Learned
court found that because the plaintiff’s complaint did not allege
discrimination prohibited by Title VII, he was not protected from
the adverse employment actions taken by his employer in
response to his complaint.6 In Balazs v. Liebenthal, 32 F.3d 151,
159-60 (4th Cir. 1994), the court relied on Learned in holding
that the plaintiff’s retaliation claim failed because, inter alia, the
“plaintiff’s previous claim[,] the filing of which was alleged to
have given rise to the retaliation claim, was not one cognizable
under Title VII of the Civil Rights Act of 1964.”
Our holding that Slagle’s filing of a facially invalid
complaint does not constitute “participation” for the purposes of
Title VII does not raise the low bar that Title VII sets for
employees seeking protection against retaliation. A plaintiff
need only allege discrimination on the basis of race, color,
religion, sex, or national origin to be protected from retaliatory

6
The plaintiff in Learned had complained to the state of
“discrimination on the basis of physical and mental limitations in
violation of state law.” Learned, 860 F.2d at 930. The Learned
court also stated that the participation clause requires that “the
underlying discrimination must be reasonably perceived as
discrimination prohibited by Title VII.” Id. at 932.

10
discharge under Title VII. Protection is not lost merely because
an employee is mistaken on the merits of his or her claim. See,
e.g., Pettway, 411 F.2d at 1005 (explaining that the participation
clause must offer broad protection because individuals draft
charges “as best they can without expert legal advice” and often
face “a huge industrial employer in this modern day David and
Goliath confrontation”). Slagle’s complaint, with its vague
allegations of “civil rights” violations, did not meet even this
low bar.

Once a plaintiff files a facially valid complaint, the
plaintiff will be entitled to the broad protections of § 704(a), as
interpreted by the EEOC and by numerous courts. Section 8-II
of the EEOC Compliance Manual states that a plaintiff is
protected under the participation clause “regardless of whether
the allegations in the original charge were valid or reasonable.”
See also Johnson v. University of Cincinnati, 215 F.3d 561, 582
(6th Cir. 2000) (“The exceptionally broad protections of the
participation clause extends to persons who have participated in
any manner in Title VII proceedings . . . . Protection is not lost
if the employee is wrong on the merits of the charge, . . . nor is
protection lost if the contents of the charge are malicious or
defamatory as well as wrong.”) (internal quotation marks and
citation omitted); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st
Cir. 1994) (“[T]here is nothing [in the wording of the
participation clause] requiring that the charges be valid, nor even
an implied requirement that they be reasonable.”) (citation
omitted); Proulx, 659 F. Supp. at 977 (noting that courts give
“basically absolute protection for ‘participation conduct.’”)
(citation omitted). All that is required is that plaintiff allege in
the charge that his or her employer violated Title VII by
discriminating against him or her on the basis of race, color,
religion, sex, or national origin, in any manner. Slagle did not
do so, and therefore he cannot assert a claim for retaliation for
filing that charge.

For the reasons set forth, we will affirm the judgment of
the District Court.

11
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