NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1351
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WILLIE J. ABNEY,
Appellant
v.
SEPTA
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-20-cv-04435)
District Judge: Honorable Nitza I. Quinones Alejandro
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 20, 2023
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BEFORE: RESTREPO, PHIPPS, and ROTH, Circuit Judges
(Filed: October 18, 2023)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RESTREPO, Circuit Judge
William J. Abney filed an employment discrimination complaint against his
employer SEPTA, alleging unlawful retaliation in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Pennsylvania Human
Relations Act (the “PHRA”), 43 Pa. Cons. Stat. § 951 et seq. Specifically, Abney claimed
SEPTA demoted him in retaliation for making numerous complaints. The District Court
granted SEPTA’s motion for summary judgment, finding that none of Abney’s complaints
alleged he suffered discrimination on any of Title VII’s protected grounds and his
retaliation claim was therefore unsubstantiated. We agree and will therefore affirm.
I. Facts and Procedural History
Abney began working for SEPTA in 1992. In 2014, he was promoted to Assistant
Director of Station Operations.
In May 2017, Abney reported to SEPTA’s Equal Employment Opportunity (EEO)
Department that an employee under his supervision failed to comply with SEPTA’s
uniform policy by refusing to remove her head scarf. In response to his complaint, a
SEPTA Employee Relations Manager informed Abney that the head scarf was a religious
accommodation and that he should not report the employee for a policy infraction. The
manager further advised Abney that he should attend EEO Department training. Abney
emailed his supervisor, complaining about the manager’s recommendation that he attend
training and her general demeanor towards him. Abney did not suggest to his supervisor
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that he had been discriminated against, either by the EEO Department manager or the
workplace generally.
Between July 2017 and August 2018, six of Abney’s subordinates made complaints
about his aggressive and intimidating management style. Each complaint was investigated
by either Abney’s supervisor or the EEO Department. None of the investigations resulted
in action being taken against Abney. Abney offered no evidence that he complained of
discrimination while being the subject of the six investigations.
In October 2018, Abney submitted a Workplace Violence Report to his supervisor
regarding an altercation with one of his subordinates. Consistent with SEPTA’s Workplace
Violence Policy, the Office of the Inspector General investigated this incident and
determined Abney’s allegations could not be substantiated. Abney did not contend that he
had been subjected to any discrimination in connection with this investigation.
In December 2018, Abney wrote a memorandum to the director of SEPTA’s EEO
Department, Jacqueline Hopkins, complaining about the Department’s recent
investigations into his job performance. He contended that he was being “targeted” by the
Department. Hopkins responded that the complaints against Abney had been found to be
unsubstantiated but that his management style had been consistently characterized as
“abrasive and overbearing.” Appx. 410. Abney’s complaint to Director Hopkins did not
allege he suffered any discrimination based on any protected ground under Title VII.
On April 29, 2019, Abney filed a Charge with the Equal Employment Opportunity
Commission. He claimed that he was retaliated against when SEPTA officials advised him
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that he could be subjected to discipline in the future if more complaints were made, and
that he was required to attend Respect and Civility in the Workplace training. The charge
did not contain any allegations of discrimination based on any of Title VII’s protected
criteria.
In August 2019, a cashier named Reydonia Benjamin submitted a complaint to
SEPTA’s EEO Department alleging that Abney harassed her by sending her inappropriate
text messages and publicly berating her. SEPTA’s EEO investigation found that Abney
sent flirtatious text messages to Benjamin, that he provided untruthful statements during
the investigation, and had inappropriately confronted Benjamin while she was alone in her
cashier booth. As a result of these findings, Abney’s supervisor recommended that he be
demoted from his position as an Assistant Director and attend EEO Department training
on SEPTA’s harassment policies and guidelines.
Upon receiving the Notice of Imminent Demotion, Abney appealed first to
SEPTA’s Manager of Labor Relations. Following a Determination Hearing, the Senior
Director of Railroad Operations upheld the supervisor’s recommendation of demotion.
Abney appealed again, and a Post-Determination Hearing was conducted by a neutral
arbitrator. The arbitrator upheld the demotion, finding that Abney had acted
unprofessionally and his removal from a management position was justified.
Abney filed an employment discrimination complaint in District Court alleging a
single count of retaliation under Title VII and the PHRA. SEPTA filed a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that Abney did
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not establish the prima facie requirements of a retaliation claim. The District Court agreed,
finding that Abney’s complaint “did not expressly or implicitly assert discrimination on
any of Title VII’s prohibited grounds.” Appx. 11. Following this Court’s decision in
Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006), the District Court found
Abney’s complaint to be facially invalid because it failed to allege a Title VII violation and
his participation in SEPTA’s EEO investigations were therefore not protectable conduct.
We agree with this application of the law.
II. Analysis
In reviewing the grant of summary judgment, we consider the evidence and
supported relevant facts in the light most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. See Fed. R. Civ. P. 56(c).
To succeed on a claim of retaliation in violation of Title VII and the analogous
provision of the PHRA, Abney must demonstrate that: (1) he engaged in conduct protected
by Title VII; (2) his employer took an adverse action against him either after or
contemporaneously with his protected activity; and (3) there is a causal connection between
his participation in protected activity and the employer’s adverse action. Slagle, 435 F.3d
at 265. If Abney establishes a prima facie case, “the burden shifts to the employer to
advance a legitimate, non-retaliatory reason” for the adverse action. Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997).
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Abney argues that the District Court erred in finding that he did not engage in the
requisite protected conduct to allege a Title VII violation. 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-retaliatory 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 or applicants for employment, for an
employment agency, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training
programs, to discriminate against any individual, or for a labor organization
to discriminate against any member thereof or applicant for membership,
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.
42 U.S.C. § 2000e-3(a) (emphasis added).
Abney contends he is entitled to Title VII protection because he participated in
investigations conducted by SEPTA’s EEO Department and opposed discriminatory
practices. He argues the District Court erred by “focus[ing] solely” on whether he alleged
he suffered discrimination related to one of Title VII’s specifically protected grounds cited
in 42 U.S.C. § 2000e-2. Appellant’s Brief, 13. Abney posits that such a narrow focus
misses the point—that he was demoted in retaliation for his participation in workplace
investigations and for complaining about being targeted by his employer. He argues the
fact that he was the subject of the investigations is irrelevant, and therefore his claim was
improperly dismissed on summary judgment.
Being the subject of an EEO investigation conducted by one’s employer does not
exclude an employee from the protection of Title VII. Failing to allege the employee was
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discriminated against on the basis of a Title VII protected ground does. We agree with the
District Court that Abney’s failure to allege SEPTA discriminated against him on a
prohibited ground under Title VII is fatal to his claim. As this Court reasoned in Slagle,
finding that an employee is protected by Title VII when they file vague allegations of
generalized discrimination would render the phrase “under this subchapter” in § 2000e-
3(a) meaningless. Slagle, 435 F.3d at 267 (citing 42 U.S.C. § 2000e-3(a)). The
“subchapter” refers to 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.” Id. 1
Thus, to garner Title VII protection, Abney’s complaints against SEPTA would
have had to identify, either explicitly or implicitly, conduct made unlawful by 42 U.S.C. §
2000e-2. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (holding
an employee’s complaint that does not specifically oppose an unlawful practice “does not
constitute the requisite ‘protected conduct’ for a prima facie case for retaliation”). Because
Abney’s complaints did not attribute his allegedly unfair treatment to discrimination on
any protected ground, the District Court properly granted summary judgment. Id. at 702.
See also Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 134-35
(3d Cir. 2006) (affirming dismissal of retaliation claim where plaintiff failed to allege any
sort of discrimination made unlawful by Title VII).
1
The subchapter specifically refers to provisions 42 U.S.C. § 2000e through §2000e-17.
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III. Conclusion
For the reasons discussed above, we will affirm the judgment of the District Court.
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Willie Abney v. SEPTA
Combined Opinion