NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1726
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CHERYL A. SLATER,
Appellant
v.
SUSQUEHANNA COUNTY; SUSQUEHANNA COUNTY CORRECTIONAL
FACILITY; SUSQUEHANNA COUNTY PRISON BOARD; DONALD STEWART;
WILLIAM BRENNAN; TEAMSTERS LOCAL 229; and JACK MCGRAIL
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 3:07-cv-02304)
District Judge: Honorable A. Richard Caputo
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 17, 2011
Before: FUENTES and CHAGARES, Circuit Judges and POGUE, Judge.1
(Filed: January 9, 2012)
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OPINION
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CHAGARES, Circuit Judge.
1
Honorable Donald C. Pogue, Chief Judge, United States Court of International Trade,
sitting by designation.
Cheryl Slater appeals the District Court’s entry of judgment in favor of seven
municipal and union officers and entities on her claims of employment discrimination
and retaliation. For the reasons that follow, we will affirm.
I.
We write solely for the parties’ benefit and recite only the facts essential to our
disposition.
Slater has worked as a correctional officer at the Susquehanna County
Correctional Facility since 1994. The prison is a subdivision of Susquehanna County and
is superintended by the Susquehanna Prison Board. William Brennan and Donald
Stewart were wardens at the prison during Slater’s employment. Teamsters Local Union
229 is the bargaining representative for correctional officers employed by Susquehanna
County. Jack McGrail is the union’s business representative.
Two sets of factual circumstances underlie Slater’s claims. First, in early 2004,
Slater refused to attest to her receipt and understanding of the prison’s Policy and
Procedure Manual. She believed that prison rules were not properly enforced and
therefore refused to provide a signature acknowledging her understanding of the manual.
As a consequence, William Brennan, the prison warden at the time, suspended her for
three days and referred her to a psychiatrist for evaluation. She eventually signed under
protest and wrote a letter to the Prison Board to inform them of the incident and express
her disapproval of the lax enforcement of prison rules. Later that year, she was
interviewed by an investigator about the death of an inmate in the prison. Brennan was
present for at least part of the interview. Slater alleges that Brennan’s presence at the
2
interview was related to her letter to the Prison Board, but offers no evidence to support
the inference. Second, Slater testified that a group of other correctional officers at the
prison — self-titled the “secret sisters” because they gave gifts to each other to boost
morale — harassed her by posting postcards of middle-aged women in bathing suits near
her work area. She also testified that the group manufactured false accusations about her.
Three episodes preceded Slater’s termination on December 1, 2006.2 In October
2006, Slater permitted an out-of-state police officer to enter the prison intake area without
first disarming him or checking his identification. This was a violation of prison security
policy, and Slater received a five-day suspension for her actions. The following month,
she twice violated policies directed to prisoners’ medical care by permitting an inmate to
change the bandage of another inmate with a contagious infectious disease and by
improperly disposing of contaminated medical gloves.
Slater initiated this action in the District Court for the Middle District of
Pennsylvania on December 21, 2007. Against all defendants, the complaint asserted
federal claims of (1) retaliation for exercising First Amendment speech rights, brought
pursuant to 42 U.S.C. § 1983; (2) conspiracy to retaliate for exercising First Amendment
speech rights, brought pursuant to 42 U.S.C. § 1985(3); (3) age-based discrimination,
retaliation, and creation of a hostile work environment under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1), (c)(3); and (4) gender-based
discrimination, retaliation, and creation of a hostile work environment under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), (c)(3). The complaint also
2
Slater was 57 years old when the prison terminated her employment.
3
alleged state law claims of conspiracy, intentional infliction of emotional distress,
wrongful discharge, and discrimination under the Pennsylvania Human Relations Act.
In three memoranda and orders issued in July 2008, March 2009, and February
2011, the District Court granted the defendants’ motions to dismiss and motions for
summary judgment on all claims. Slater filed this timely appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s orders granting a motion to dismiss, Grier v. Klem, 591 F.3d
672, 676 (3d Cir. 2010), and summary judgment, Gonzalez v. AMR, 549 F.3d 219, 223
(3d Cir. 2008). In so doing, we apply the standard that the District Court was obliged to
apply. On review of the grant of a motion to dismiss, “we accept as true all well-pled
factual allegations . . . and all reasonable inferences that can be drawn from them.”
Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir. 2008). Summary
judgment is appropriate only where 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). On
summary judgment, a court “must view the facts in the light most favorable to the non-
moving party, and draw all reasonable inferences therefrom in that party’s favor.” N.J.
Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir. 2007).
III.
Slater appeals the District Court’s dismissal or entry of summary judgment on the
§ 1983 claim for retaliation for engaging in protected speech, the § 1985 claim for
4
conspiracy to retaliate, the discriminatory discharge claim under the ADEA, and the
gender- and age-based hostile work environment claims under Title VII and the ADEA.
A.
Slater first contests the entry of judgment for the defendants on her claim, brought
pursuant to 42 U.S.C. § 1983, that she endured retaliation for engaging in speech
protected by the First Amendment. She maintains that because she wrote to the Prison
Board on a matter of public concern, the defendants willfully conspired to send her to a
psychiatrist, impose a suspension on her, manufacture false accusations about her, and
arrange for termination of her employment.
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). To state a claim of retaliation for engaging in
protected expression, a public employee must show that her expressive activity is covered
by the First Amendment and that it substantially influenced the alleged retaliatory action.
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). The District Court granted
judgment for the defendants on Slater’s claim because her letter to the Prison Board was
not protected by the First Amendment.
A public employee’s speech is protected by the First Amendment when she speaks
as a citizen about a matter of public concern. Borough of Duryea v. Guarnieri, 564 U.S.
—, 131 S. Ct. 2488, 2493 (2011) (citing Connick v. Myers, 461 U.S. 138, 147 (1983)).
Slater contends that the criticism of the lax enforcement of prison rules contained within
her letter to the Prison Board was a matter of public concern. The argument is dubious
5
insofar as the letter only alleges, non-specifically, that many of the rules in the Policy and
Procedure Manual went unenforced. Appendix (“App.”) 681. But even if Slater’s
conclusory critiques of the prison’s general noncompliance with its rules addresses a
matter of public concern, there is no dispute that the letter was written in Slater’s capacity
as an employee, not as a citizen. The letter — sent privately “in response” to Slater’s
suspension and in order to “set the record straight” — is concerned with a particular
personnel action. Id. It does not advance values safeguarded by the First Amendment by
promoting public discourse or expressing an informed opinion in a public forum, but
rather involves a matter of “personal interest.” Connick, 461 U.S. at 144-45. Slater’s
speech, therefore, is not protected by the First Amendment, and the District Court
correctly entered judgment for the defendants on her § 1983 claim.
B.
Slater next contends that the District Court erred in dismissing her claim of
conspiracy to retaliate for engaging in protected speech, brought under 42 U.S.C. §
1985(3). To state a claim under § 1985(3), a plaintiff must allege “(1) a conspiracy; (2)
for the purpose of depriving . . . any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.” United
Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983). The second
component of the test requires the plaintiff to allege that the conspiracy was motivated by
racial, gender, or other class-based discriminatory animus. Farber v. City of Paterson,
6
440 F.3d 131, 135 (3d Cir. 2006); see also Novotny v. Great Am. Fed. Sav. & Loan
Ass’n, 584 F.2d 1235, 1242-44 (3d Cir. 1978), overruled on other grounds, 442 U.S. 366
(1979) (holding that conspiracies motivated by gender-based animus are actionable under
§ 1985). The District Court dismissed Slater’s § 1985 claim on the basis that she failed to
allege that the defendants conspired to retaliate against her because of her gender. This
conclusion is sound. The complaint alleges that the defendants wished to retaliate against
Slater because of her whistle-blowing activities, not because of her membership in a class
protected by the statute. Dismissal of the § 1985 claim was proper.
C.
Slater next contests the District Court’s entry of summary judgment in favor of the
defendants on her claim that she was terminated because of her age. The ADEA makes it
unlawful for an employer to “discharge any individual . . . because of such individual’s
age” and for a union to “cause or attempt to cause an employer to discriminate against an
individual” because of her age. 29 U.S.C. § 623(a)(1), (c)(3). As Slater lacks direct
evidence of intentional age discrimination, we evaluate her ADEA claim under the
burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). This
framework places upon the plaintiff the initial burden of establishing a prima facie case
of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse
7
employment action. Id. To prevail, the plaintiff must prove, by a preponderance of the
evidence, that the defendant’s legitimate reason was in fact pretext for discrimination. Id.
Slater established a prima facie case of age discrimination by demonstrating that
she was over 40, was qualified to serve as a correctional officer, suffered an adverse
employment action, and was replaced by an employee sufficiently young enough to
support an inference of age-based discriminatory animus. See Smith, 589 F.3d at 689
(setting forth the elements of a prima facie case of age discrimination under the ADEA).3
The defendants satisfied their burden by proffering evidence that Slater was terminated
for permitting an armed individual into the prison intake area and by twice violating
prison policies governing the medical care of prisoners.
Slater’s claim falters for lack of evidence that these legitimate, nondiscriminatory
reasons were pretext for age discrimination. To defeat summary judgment, Slater was
required either to adduce evidence of discrimination or discredit the reasons proffered for
her termination. Fasold v. Justice, 409 F.3d 178, 185 (3d Cir. 2005). She introduced no
evidence that she was fired because of her age. Rather, she endeavored to cast doubt
upon the justifications for her discharge by denying that she was responsible for the entry
of an armed police officer into the prison and by insisting that she properly disposed of
the contaminated medical gloves. But to discredit the basis for her discharge, she “cannot
3
Slater stated in an affidavit submitted in opposition to summary judgment that she was
replaced by a 38-year-old employee. App. 725. The District Court did not acknowledge
the statement, but we assume that it satisfied the fourth component of a prima facie case
of age discrimination. See Smith, 589 F.3d at 689. On appeal, Slater argues only that she
established a prima facie case of age discrimination; she does not dispute the District
Court’s conclusion that she failed to establish pretext.
8
simply show that the employer’s decision was wrong or mistaken.” Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994). Rather, she must “demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence . . . and hence infer that the employer did not act for [the
asserted] non-discriminatory reasons.” Id. (citations omitted). In light of profuse
testimony by her coworkers and supervisors that she did, in fact, permit an armed trooper
to enter the prison and improperly dispose of used medical gloves, Slater failed to
surmount this “difficult burden.” Id. A reasonable jury could not conclude, from Slater’s
testimony alone, that the defendants’ legitimate reasons were implausible, inconsistent,
incoherent, contradictory, or otherwise a pretext for discharging her because of her age.
D.
Finally, Slater contends that the District Court erred in concluding that she was not
subjected to a hostile work environment because of her gender and age. Title VII makes
it unlawful for an employer “to discriminate against any individual with respect to [her] .
. . terms, conditions, or privileges of employment, because of such individual’s . . . sex”
and for a union to “to cause or attempt to cause an employer to discriminate against an
individual” because of her gender. 42 U.S.C. § 2000e-2(a)(1), (c)(3). Hostile work
environment claims based on allegations of sexual harassment fall within the ambit of
Title VII’s proscriptions on workplace discrimination. Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993). “[W]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
9
conditions of the victim’s employment and create an abusive working environment, Title
VII is violated.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)
(quoting Harris, 510 U.S. at 21) (quotation marks omitted). We assume, without
deciding, that the ADEA makes available a hostile work environment claim for age-based
discrimination, analyzed under the same standards as a Title VII hostile work
environment claim. See Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 318
(2d Cir. 1999); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996).
The District Court concluded that the paucity of evidence of workplace
intimidation or ridicule foreclosed trial on the claims. We agree. There is insufficient
evidence of gender- or age-based harassment severe or pervasive enough to create an
abusive working environment. What Slater has proffered is not the stuff of hostile work
environment claims. The District Court’s grant of summary judgment was proper.4
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
4
The District Court granted summary judgment to the union on the basis that Slater did
not file a grievance with the union and proceed to arbitration in compliance with the
procedures set forth in the collective bargaining agreement. It granted summary
judgment to McGrail on the basis that Title VII does not impose liability on individuals.
Because Slater’s hostile work environment claim fails on the merits, we need not address
these alternative, non-jurisdictional bases for summary judgment.
10