NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-2466
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DARLENA CLARKSON,
Appellant
v.
SEPTA
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cv-02510)
District Judge: Honorable Michael M. Baylson
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 20, 2017
Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
(Filed: June 27, 2017)
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OPINION**
____________
Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Darlena Clarkson brought this action against her employer, Southeastern
Pennsylvania Transportation Authority (SEPTA), asserting claims of gender
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and the
Pennsylvania Human Relations Act (PHRA). She appeals the District Court’s orders
dismissing her failure to promote claims under Federal Rule of Civil Procedure 12(b)(6)
and granting summary judgment in favor of SEPTA on her retaliation claims under
Federal Rule of Civil Procedure 56(c). For the reasons stated below, we will affirm.
I.
SEPTA hired Darlena Clarkson as a union employee in 1989. In 2009, SEPTA
posted a job opening for Vehicle, Engineering, and Maintenance (VEM) Warranty
Administrator—a supervisory, administrative, and managerial position. Clarkson applied
seeking a promotion from her previously held positions as a typist and statistical records
clerk. Despite her qualifications, SEPTA didn’t interview Clarkson, or anyone for that
matter, and Clarkson never followed up or asked for an explanation. The position
remained unfilled and was relisted in 2012. She reapplied, and this time, was interviewed.
In July 2012, Clarkson spoke with a coworker who led her to believe that
SEPTA’s 2009 inaction stemmed from a personal conflict with Luther Diggs, the then-
Assistant General Manager of Operations. Apparently, Diggs asked Clarkson to help him
2
develop a personal relationship with another SEPTA employee. When Clarkson refused,
he placed hiring for the VEM Warranty Administrator position on hold.
In November 2012, SEPTA offered, and Clarkson accepted, the position of VEM
Warranty Administrator. In her new role, Clarkson reported primarily to Raelund
Dickerson, but also to John Merrigan. Dickerson and Merrigan worked with Clarkson to
develop Clarkson’s annual goals and objectives. They then directed her to participate in
activities and complete tasks consistent with achieving those goals and objectives.
Days after accepting the promotion, on November 18, Clarkson dual-filed the first
of two complaints with the Equal Employment Opportunity Commission (EEOC) and
Pennsylvania Human Relations Commission (PHRC). In the initial complaint, Clarkson
claimed, among other things, that SEPTA’s failure to promote her in 2009 was unlawful
retaliation for her refusal to facilitate Diggs’ personal endeavor. On March 11, 2013,
Clarkson dual-filed a second EEOC/PHRC complaint. In it she alleged that SEPTA
employees retaliated against her for filing the initial complaint. Both complaints were
dismissed for insufficient evidence of unlawful conduct, and the EEOC thereafter issued
Clarkson a right-to-sue letter.
On May 1, 2014, Clarkson brought a gender-based discrimination and retaliation
lawsuit against SEPTA alleging violations of Title VII and the PHRA. The District Court
granted SEPTA’s Rule 12(b)(6) motion to dismiss Clarkson’s failure to promote claims.
3
After discovery, the court granted SEPTA’s Rule 56(c) motion for summary judgment on
all other claims.
Relevant on appeal are Clarkson’s failure to promote and unlawful retaliation
claims.1 The District Court dismissed Clarkson’s failure to promote claims as untimely
and granted summary judgment on her retaliation claims for failure to establish a prima
facie case. With respect to her retaliation claims, Clarkson contends that after filing the
initial EEOC/PHRC complaint, SEPTA employees improperly assigned her duties
outside of the VEM Warranty Administrator job description, made her attend a meeting
in an attempt to embarrass her, gave her conflicting directives, threatened her with
termination, and subjected her to workplace gossip and disparaging comments.
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291.
We apply plenary review to the District Court’s grant of a Rule 12(b)(6) motion to
dismiss and to its grant of a Rule 56(c) motion for summary judgment.2 In so doing, we
apply the same standard as the District Court. We will affirm the court’s dismissal under
1
The District Court noted, and Clarkson does not now dispute, that she dropped
her direct discrimination and retaliatory compensation claims. See Clarkson v. SEPTA,
No. 14-2510, 2016 WL 1637279, at *1 n.1-2 (E.D. Pa. Apr. 25, 2016). Thus, we do not
consider those claims on appeal.
2
Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009) (motion to
dismiss); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (summary
judgment).
4
Rule 12(b)(6) “if it appears to a certainty that no relief could be granted under any set of
facts which could be proved.”3 Additionally, because the court dismissed Clarkson’s
failure to promote claims as untimely, we will affirm only if her “tardiness . . . [is]
apparent from the face of the complaint.”4 We will affirm the court’s summary judgment
under Rule 56(c) if viewing the “underlying facts and all reasonable inferences therefrom
in the light most favorable” to Clarkson, a reasonable factfinder could find only for
SEPTA.5
III.
A.
Before filing suit under Title VII and the PHRA, Clarkson had to timely exhaust
each statute’s administrative remedies.6 Under Title VII, a claimant must file an EEOC
charge reporting unlawful employment practices within 300 days of the challenged
conduct.7 Under the PHRA, the claimant must file a PHRC complaint within 180 days of
the challenged conduct.8 Promotion decisions are subject to these time limitations and
3
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
4
W. Penn. Allegheny Health Syst., Inc. v. UPMC, 627 F.3d 85, 105 n.13 (3d Cir.
2010).
5
Blunt, 767 F.3d at 265.
6
See Woodson v. Scott Paper Co., 109 F.3d 913, 926-27 (3d Cir. 1997).
7
42 U.S.C. § 2000e-5(e)(1).
8
43 Pa. Stat. and Cons. Stat. Ann. § 959(h).
5
accrue when the claimant was denied the promotion, not when the claimant discovers the
allegedly unlawful basis for the decision.9
Clarkson takes issue with SEPTA’s failure to promote her to the position of VEM
Warranty Administrator in October 2009. But because she did not file her first
EEOC/PHRC complaint until November 18, 2012—at least three years after the
challenged conduct—her filing is plainly beyond Title VII’s and the PHRA’s limitation
periods. To defeat this clear time-bar, Clarkson argues that because she could not have
known of the allegedly unlawful nature of SEPTA’s October 2009 inaction until July
2012, we should apply either the discovery rule or equitable tolling. We find neither
appropriate.
With respect to the discovery rule, we look to when, through the “exercise of
reasonable diligence,” the injury would have been “knowable to the plaintiff.”10 And with
respect to equitable tolling, the plaintiff must diligently pursue her rights and show “that
some extraordinary circumstance stood in [her] way.”11 Clarkson argues that tolling is
appropriate because SEPTA never actually denied her application. But Clarkson does not
explain why she failed to follow up with SEPTA regarding her application or inquire
about the position for more than two years. We are confident that through the exercise of
reasonable diligence, Clarkson would have learned that the position was placed on hold
9
See Noel v. The Boeing Co., 622 F.3d 266, 270-71, 275 (3d Cir. 2010).
10
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d. Cir
1994).
11
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
6
and would have discovered any injury within the applicable limitation periods. Moreover,
she fails to point to any circumstance, let alone an extraordinary circumstance, that
otherwise stood in the way of the timely pursuance of her rights.
Because the tardiness of Clarkson’s initial EEOC/PHRC complaint is apparent
from the face of the complaint and we decline to toll the statutes of limitation, we will
affirm the District Court’s Rule 12(b)(6) dismissal of Clarkson’s failure to promote
claims.
B.
We now turn to the District Court’s grant of summary judgment on Clarkson’s
remaining retaliation claims.12 To meet her prima facie burden on these claims, Clarkson
must show that “(1) she engaged in a protected activity, (2) she suffered an adverse
employment action, and (3) there was a causal connection between the participation in
the protected activity and the adverse action.”13
To satisfy the second prong of her prima facie case, Clarkson must point to an
employment action that is “harmful to the point that [it] could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”14 We examine the
12
We give consistent treatment to retaliation claims brought under Title VII and
the PHRA. See Woodson, 109 F.3d at 920. For the sake of brevity, we will analyze the
claims together.
13
Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017).
14
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
7
challenged action “from the perspective of a reasonable person in the plaintiff’s position,
considering all the circumstances.”15
We, like the District Court, view the additional tasks and the meeting about an
unfamiliar topic as consistent with Clarkson’s promotion to a managerial role. That the
tasks were not specifically listed in her job description, and that Clarkson was not
previously knowledgeable about the topic discussed at the meeting, does not render those
actions materially adverse. This is especially true considering that the tasks and the
meeting were consistent with Clarkson’s annual goals and objectives, that the VEM
Warranty Administrator job description imposed on Clarkson the responsibility to
“[p]erform other duties as assigned,”16 and that the voluntary duties were expected of all
managerial employees. In the context of a promotion from a union position to a
managerial position, the assignment of additional responsibilities, and the expectation
that the employee learn about topics necessary to succeed in his or her new position,
would not dissuade a reasonable employee from reporting workplace discrimination.
As for the conflicting directives, the record is clear that Dickerson was Clarkson’s
direct supervisor. Still, she argues that by having to decide whether to follow Dickerson’s
or Merrigan’s directive, the two exposed her to the risk of disciplinary action.
Importantly, Clarkson does not claim that she, or any other employee, was ever
disciplined for making such a decision. While the supervisory structure could have been
15
Id. at 71 (internal quotation marks and citation omitted).
16
App. 413, VEM Warranty Administrator Description.
8
clearer, we believe that at most the confusion constitutes a “minor annoyance” that many
employees have endured in the workplace.17 Finally, the sporadic threats of termination,
workplace gossip, and disparaging comments, do not rise to the level of a materially
adverse employment action. The antiretaliation provisions do “not set forth a general
civility code for the American workplace.”18
Clarkson alternatively seeks to prevail on a retaliation claim premised on a hostile
work environment. A hostile work environment is one that is “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.”19 For the same reasons that individually, the challenged actions are not
adverse employment actions, we find that together they do not establish a hostile work
environment sufficient to support Clarkson’s retaliation claims.
Clarkson’s failure to meet the second prong of her prima facie case is fatal to her
retaliation claims. As such, we will affirm the District Court’s summary judgment in
favor of SEPTA without reaching the issue of causation.
IV.
For the reasons set forth above, we will affirm the District Court’s orders.
17
See Burlington N., 548 U.S. at 68 (Adverse employment actions are not “petty
slights or minor annoyances that often take place at work and that all employees
experience”).
18
Id. (internal quotation marks and citation omitted).
19
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal
quotation marks and citation omitted).
9