NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2149
___________
MARY-ELLEN MARLEY,
Appellant
v.
POSTMASTER GENERAL OF THE UNITED STATES; THE UNITED STATES POSTAL SERVICE ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1-14-cv-01597) District Judge: Honorable Jerome B. Simandle ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 5, 2018
Before: GREENAWAY, JR., BIBAS, and ROTH, Circuit Judges
(Opinion filed: September 21, 2018 ) ___________
OPINION* ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Mary-Ellen Marley appeals from an order of the United States District Court for
the District of New Jersey, which granted the Postmaster General’s motion for summary
judgment on her retaliation claim. We will affirm the District Court’s judgment.
I.1
Marley, who was a long-time employee of the United States Postal Service,
initially filed a ten-count complaint against the Postal Service and the Postmaster
General. The District Court granted the Defendants’ motion for partial dismissal,
dismissing the Postal Service as an improper defendant,2 dismissing certain counts as
untimely or unexhausted, and dismissing other counts because the complaint failed to
state a claim upon which relief could be granted. The Court, however, allowed Marley’s
claim under Title VII for retaliatory discipline in the fall of 2009 to go forward.3 Marley
then filed an amended complaint containing only the retaliation count, as the Court
directed.
Following discovery, the Postmaster filed a motion for summary judgment, which
Marley opposed. The District Court granted the Postmaster’s motion, concluding that
Marley had not established a prima facie case of retaliation, as she had not proffered
1 The District Court ably set out the factual and procedural background of Marley’s claims. As we write primarily for the parties, who are well aware of those facts, we need not repeat them here. 2 See 42 U.S.C. § 2000e-16(c). 3 Marley argues here that the District Court failed to decide her “constructive discharge” claim, but that claim was not part of the retaliatory discipline claim, which was the only claim for which she exhausted administrative remedies. See Dist. Ct. Op., Dkt. #25, at 22. See also Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (plaintiff must exhaust all required administrative remedies before bringing Title VII claim in federal court).
2 evidence that showed that adverse employment actions taken against her were caused by
any of her protected activity. The District Court also determined that even if Marley had
established a prima facie case, the Postmaster had “adduced significant evidence
supporting his articulated, legitimate nondiscriminatory reason for disciplining” Marley,
and Marley had pointed to no facts from which a factfinder would conclude that the
articulated reason was pretextual. Marley filed a timely appeal from the District Court’s
judgment.
II.
We have jurisdiction over Marley’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).
“Title VII prohibits an employer from discriminating based on an employee’s race,
color, religion, sex, or national origin, 42 U.S.C. § 2000e–2(a), and from retaliating
against an employee for complaining about, or reporting, discrimination or retaliation, id.
3 § 2000e–3(a).” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017).
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. Allstate Ins.
Co., 778 F.3d 444, 449 (3d Cir. 2015) (internal quotation marks omitted). If a prima
facie case is established, the burden shifts to the employer to “present a legitimate, non-
retaliatory reason for having taken the adverse action.” Daniels v. Sch. Dist. of Phila.,
776 F.3d 181, 193 (3d Cir. 2015) (internal quotation marks and citation omitted). The
employee may then offer evidence to demonstrate that the employer’s stated reason was
pretextual, “and that retaliation was the real reason for the adverse employment action.”
Id. Although the plaintiff’s ultimate burden in a retaliation case is to prove that the
adverse action would not have taken place absent a retaliatory motive, the burden at the
prima facie stage is lower—the plaintiff must “produce evidence sufficient to raise the
inference that her protected activity was the likely reason for the adverse [employment]
action.” Carvalho-Grevious, 851 F.3d at 259 (internal quotation marks omitted).
We agree with the District Court that Marley failed to make out a prima facie case
of retaliation. Marley satisfied the first element of the test, as she engaged in protected
activity by filing several complaints with the EEOC in February and August of 2009.
She also satisfied the second element, as she “suffered adverse employment actions when
she was sent home on August 24, 2009, suspended without pay on October 5, 2009, and
4 given a Notice of Removal on October 20, 2009.” Dist. Ct. Op., Dkt. #59 at 15. But she
failed to proffer evidence from which a reasonable juror could conclude that retaliation
was the likely reason for the adverse employment actions.
As the District Court noted, evidence of close temporal proximity between the
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2149
___________
MARY-ELLEN MARLEY,
Appellant
v.
POSTMASTER GENERAL OF THE UNITED STATES; THE UNITED STATES POSTAL SERVICE ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1-14-cv-01597) District Judge: Honorable Jerome B. Simandle ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 5, 2018
Before: GREENAWAY, JR., BIBAS, and ROTH, Circuit Judges
(Opinion filed: September 21, 2018 ) ___________
OPINION* ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Mary-Ellen Marley appeals from an order of the United States District Court for
the District of New Jersey, which granted the Postmaster General’s motion for summary
judgment on her retaliation claim. We will affirm the District Court’s judgment.
I.1
Marley, who was a long-time employee of the United States Postal Service,
initially filed a ten-count complaint against the Postal Service and the Postmaster
General. The District Court granted the Defendants’ motion for partial dismissal,
dismissing the Postal Service as an improper defendant,2 dismissing certain counts as
untimely or unexhausted, and dismissing other counts because the complaint failed to
state a claim upon which relief could be granted. The Court, however, allowed Marley’s
claim under Title VII for retaliatory discipline in the fall of 2009 to go forward.3 Marley
then filed an amended complaint containing only the retaliation count, as the Court
directed.
Following discovery, the Postmaster filed a motion for summary judgment, which
Marley opposed. The District Court granted the Postmaster’s motion, concluding that
Marley had not established a prima facie case of retaliation, as she had not proffered
1 The District Court ably set out the factual and procedural background of Marley’s claims. As we write primarily for the parties, who are well aware of those facts, we need not repeat them here. 2 See 42 U.S.C. § 2000e-16(c). 3 Marley argues here that the District Court failed to decide her “constructive discharge” claim, but that claim was not part of the retaliatory discipline claim, which was the only claim for which she exhausted administrative remedies. See Dist. Ct. Op., Dkt. #25, at 22. See also Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (plaintiff must exhaust all required administrative remedies before bringing Title VII claim in federal court).
2 evidence that showed that adverse employment actions taken against her were caused by
any of her protected activity. The District Court also determined that even if Marley had
established a prima facie case, the Postmaster had “adduced significant evidence
supporting his articulated, legitimate nondiscriminatory reason for disciplining” Marley,
and Marley had pointed to no facts from which a factfinder would conclude that the
articulated reason was pretextual. Marley filed a timely appeal from the District Court’s
judgment.
II.
We have jurisdiction over Marley’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).
“Title VII prohibits an employer from discriminating based on an employee’s race,
color, religion, sex, or national origin, 42 U.S.C. § 2000e–2(a), and from retaliating
against an employee for complaining about, or reporting, discrimination or retaliation, id.
3 § 2000e–3(a).” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017).
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. Allstate Ins.
Co., 778 F.3d 444, 449 (3d Cir. 2015) (internal quotation marks omitted). If a prima
facie case is established, the burden shifts to the employer to “present a legitimate, non-
retaliatory reason for having taken the adverse action.” Daniels v. Sch. Dist. of Phila.,
776 F.3d 181, 193 (3d Cir. 2015) (internal quotation marks and citation omitted). The
employee may then offer evidence to demonstrate that the employer’s stated reason was
pretextual, “and that retaliation was the real reason for the adverse employment action.”
Id. Although the plaintiff’s ultimate burden in a retaliation case is to prove that the
adverse action would not have taken place absent a retaliatory motive, the burden at the
prima facie stage is lower—the plaintiff must “produce evidence sufficient to raise the
inference that her protected activity was the likely reason for the adverse [employment]
action.” Carvalho-Grevious, 851 F.3d at 259 (internal quotation marks omitted).
We agree with the District Court that Marley failed to make out a prima facie case
of retaliation. Marley satisfied the first element of the test, as she engaged in protected
activity by filing several complaints with the EEOC in February and August of 2009.
She also satisfied the second element, as she “suffered adverse employment actions when
she was sent home on August 24, 2009, suspended without pay on October 5, 2009, and
4 given a Notice of Removal on October 20, 2009.” Dist. Ct. Op., Dkt. #59 at 15. But she
failed to proffer evidence from which a reasonable juror could conclude that retaliation
was the likely reason for the adverse employment actions.
As the District Court noted, evidence of close temporal proximity between the
protected activity and the adverse action may demonstrate retaliation if it is “unusually
suggestive.” See, e.g., Daniels, 776 F.3d at 196; see also LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). In rejecting Marley’s assertion that
there was a genuine issue of fact for trial in connection with her retaliation claim, the
District Court carefully and thoroughly examined the temporal links between the adverse
actions and Marley’s protected activities, but properly concluded that in each instance,
the proximity was not unusually suggestive of a retaliatory motive. Moreover, in the
absence of other summary judgment evidence of a causal connection, such as a pattern of
antagonism, see Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997),
or inconsistent explanations from the employer, see Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281 (3d Cir. 2000), we agree with the District Court’s overall conclusion
that Marley did not make out a prima facie case of retaliation. We will therefore affirm
the District Court’s decision granting the Defendant summary judgment.4
4 To the extent that Marley challenges the orders denying her motions for appointment of counsel, we will affirm the District Court’s orders. The District Court recognized that some of the factors (e.g., Marley’s lack of substantial financial resources, and her injuries from a car accident occurring before she filed her second motion) would support appointment of counsel, but because Marley had shown that she could adequately present her case and had demonstrated that she was able to obtain documents in support of her claims, and because the case was not overly complex, we cannot conclude that the
5 District Court abused its discretion in denying the motions. See Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993) (discussing factors that courts should consider in deciding counsel motions and setting forth standard of review).