NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1051
___________
GLORIA MCKINNEY,
Appellant
v.
HACKENSACK MERIDIAN HEALTH, INC.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-16-cv-04139)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2018
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed: October 18, 2018)
___________
OPINION *
___________
PER CURIAM
Gloria McKinney appeals from an order of the United States District Court for the
District of New Jersey, which granted summary judgment to Hackensack Meridian
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Health, Inc. (“Meridian”), her employer at the time of the complaint. We will affirm the
District Court’s judgment.
I.
Because we write primarily for the parties, we discuss the background of this case
only to the extent needed to resolve this appeal. McKinney, who is Black and 64 years
old, began working for Meridian Nursing & Rehab at Bayshore (“Bayshore”) in 1999 as
a Nutritional Services Supervisor. McKinney alleges that she was hired for the opening
shift (starting between 5:30 a.m. and 6:30 a.m., and finishing between 2:00 p.m. and 3:00
p.m.). Meridian acquired Bayshore in 2011. 1 In April 2013, Laura Perez, Bayshore’s
Director of Nutritional Services and McKinney’s direct supervisor, and William
Hamilton, then Assistant Administrator, decided to require all Nutritional Services
Supervisors to take turns working the opening shift and the closing shift (closing starts
around 11:30 a.m. and ends around 8:00 p.m.).
Perez met with McKinney to explain the decision and McKinney objected, since
she had always worked only the opening shift. McKinney also complained that people
doing the closing shift were not doing their jobs and that McKinney would have to pick
up the slack the next morning. Perez replied “that’s your nature,” which McKinney took
1
Unless otherwise specified in this opinion, our references to “Bayshore” refer to that
entity after it was acquired by Meridian.
2
as an insult. 2 McKinney met with Hamilton to complain about the decision, and
Hamilton brought Perez into the meeting. Perez then apologized to McKinney in case
she had said anything that had offended her. But McKinney remained upset and told
them that they were making the decision because she is Black.
McKinney sent a report to a Meridian Team Member Relations Specialist, Claudia
Myers, indicating that Perez told her, “Gloria you are the opening supervisor, now you
will be the closing supervisor.” Myers investigated, and learned that McKinney was not
the only closing supervisor; in May and June 2013, Caucasian supervisor David
diGiacomo was scheduled to work four closing shifts each week, Hispanic supervisor
Yolanda Torres was scheduled to work two closing shifts each week, and McKinney also
was scheduled to work two closing shifts each week. Myers explained to McKinney that
her co-worker Fern Collins was not required to close because she was the Assistant
Director of Nutritional Services, rather than a Nutritional Services Supervisor.
McKinney’s complaint also mentioned an incident in July 2015, when a patient
with seafood allergies was erroneously served clam chowder. Because it was
McKinney’s duty to check the patient trays to ensure patients received the proper food,
McKinney was called into a meeting with Hamilton, Perez, and Director of Nursing
Beverly Osbourne. McKinney denied that she had made a mistake and told Hamilton
that she was being picked on because she is Black. McKinney alleges that Hamilton then
2
We are hard pressed to understand how being told that it is “in your nature” to pick up
the slack for other employees is an insult, much less a racially-charged insult.
3
launched out of his seat, pointed his finger at her, and said, “Don’t go there!” When the
meeting concluded, Hamilton contacted Human Resources, and Team Member Relations
Manager Brad Viola investigated with the assistance of Myers.
McKinney told investigators that she was treated differently than Collins, who had
also made a mistake by providing mushroom soup to a patient with a mushroom allergy,
but investigators learned that Perez had similarly spoken to Collins when that problem
occurred. McKinney also told investigators that white supervisors were assigned fewer
closing shifts and that Perez had refused to allow her to take vacation. The investigators
learned that McKinney was not assigned to more closing shifts than others of a different
race, and that she was not refused vacation, but was asked to schedule for a different time
because of an upcoming State inspection.
Throughout the period in question, McKinney received good performance reviews
and received annual salary increases. She was never formally disciplined for any
mistakes.
II.
In July 2015, McKinney filed charges with the United States Equal Employment
Opportunity Commission (“EEOC”), but after investigation, it was “unable to conclude
that the information obtained establishes violations of the statutes” enforced by the
EEOC. The EEOC dismissed the matter and issued McKinney a “right to sue” notice.
4
McKinney then filed her complaint in the District Court. The Defendants 3 filed a motion
to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The District Court granted the motion to dismiss the case as to the individual
defendants, and granted the motion to dismiss the complaint against Bayshore without
prejudice to McKinney filing an amended complaint. 4
McKinney timely filed an amended complaint. Bayshore filed another Rule
12(b)(6) motion. The District Court granted that motion in part, dismissing with
prejudice all causes of action in the amended complaint, except “causes of action on (i)
race discrimination under Title VII of the Civil Rights Act of 1964; (ii) age
discrimination under the Age Discrimination in Employment Act (ADEA); and (iii)
unlawful retaliation under Title VII and the ADEA.” Dkt. #28. 5 Following discovery,
Bayshore filed a motion for summary judgment. The District Court granted that motion,
determining that McKinney had failed to establish a prima facie case of discrimination
under Title VII and the ADEA, as she had failed to show that she was subject to any
adverse employment action. McKinney timely appealed.
III.
3
McKinney had sued individual defendants, as well as Bayshore.
4
McKinney has waived any challenge to this decision, as she does not challenge this
decision in her brief on appeal. See Voci v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir.
2005).
5
McKinney has also waived any challenge to this decision, as she does not meaningfully
challenge it in her brief. See id. at 609 n.1 (noting that a passing reference to an issue is
not sufficient to bring the issue before the court).
5
We have jurisdiction over McKinney’s appeal pursuant to 28 U.S.C. § 1291. “We
review a district court’s grant of summary judgment de novo, applying the same standard
as the district court.” S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256
(3d Cir. 2013). Summary judgment is appropriate when the “movant shows that 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). Although “[w]e view the facts and draw all
reasonable inferences in the non-movant’s favor,” we will conclude that “[a] disputed
issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable jury
could find for the non-moving party.” Resch v. Krapf’s Coaches, Inc., 785 F.3d 869, 871
n.3 (3d Cir. 2015). “We may affirm a district court for any reason supported by the
record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011).
The burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), applies to McKinney’s claims of discrimination under both Title
VII and the ADEA. See Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir.
2003) (per curiam). Under this framework, McKinney had the initial burden of
establishing a prima facie case of discrimination by a preponderance of the evidence.
Id. Whether McKinney established a prima facie case is a question of law. Id.
To establish a prima facie case, McKinney was required to show that (1) she
belongs to a protected class; (2) she was qualified for the position she occupied; and (3)
she was subject to an adverse employment action (4) under circumstances that give rise to
an inference of unlawful discrimination. See id. McKinney indisputably established the
6
first two factors. As noted, the District Court determined that McKinney’s Title VII and
ADEA claims failed, as she had not established that she had been subjected to an adverse
employment action.
But as for the Title VII claim, we will assume without deciding that a reasonable
jurist might find that the change in work shifts was “adverse.” McKinney clearly
believed that the closing shift was less desirable. However, even if we were to construe
the shift change as an adverse action, the record is devoid of any “circumstances that give
rise to an inference of unlawful discrimination.” See Sarullo, 352 F.3d at 797. All
employees with the same job title as McKinney, regardless of race, were required to take
turns covering the closing shift, and the record established that McKinney worked fewer
closing shifts than any other supervisor. We thus agree with the District Court’s ultimate
conclusion that McKinney failed to establish a prima facie case of discrimination.
As for the ADEA claim, we agree with the District Court that McKinney failed to
establish any adverse action—she noted that younger employees were hired as
supervisors (i.e., hired to be her peers), but she did not explain how that affected her
employment in any way.
McKinney’s retaliation claim appears to be based on the 2015 incident regarding
the patient tray. An employee establishes a prima facie case of retaliation by showing
“(1) protected employee activity; (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity; and (3) a causal connection
between the employee’s protected activity and the employer’s adverse action.” EEOC v.
7
Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (internal quotation marks omitted).
Here, we agree with the District Court that McKinney experienced no adverse
employment action. 6 McKinney alleges that Hamilton yelled at her and pointed his
finger in her face. This isolated verbal reprimand, which did not result in any
disciplinary action against McKinney, does not rise to the level of an adverse
employment action. 7 See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 (3d Cir.
1997) (“Robinson’s allegations that she was subjected to ‘unsubstantiated oral
reprimands’ and ‘unnecessary derogatory comments’ following her complaint do not rise
to the level of the ‘adverse employment action’ required for a retaliation claim.”),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006). 8
In sum, we agree with the District Court that McKinney failed to show a genuine
dispute as to any material fact that would establish a prima facie case of discrimination or
retaliation. We therefore will affirm the District Court’s judgment.
6
McKinney satisfied the first element because of her July 2013 complaint alleging racial
discrimination.
7
Further, it is highly doubtful that McKinney could establish a causal connection
between her July 2013 complaint and the July 2015 meeting regarding the tray incident.
8
McKinney appears to argue that the District Court should have granted her relief on a
“hostile workplace” theory, based on this incident. But to recover for a hostile workplace
claim, the plaintiff must show, among other things, that “the discrimination was severe or
pervasive.” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (internal quotation
8
marks omitted). A one-time finger-pointing incident is neither severe nor pervasive.
9