Reuben Glass v. First Judicial District of Pen

• Court: Court of Appeals for the Third Circuit
• Decided: May 10, 2018
• Docket: 17-2928
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2928 _____________

REUBEN V. GLASS, Appellant

v.

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cv-05449) District Judge: Honorable Wendy Beetlestone

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 13, 2018

Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge ∗.

(Opinion Filed: May 10, 2018) ____________

OPINION 1 ____________

∗ The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. 1 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. BOLTON, District Judge.

Reuben Glass (“Appellant”) appeals an order granting summary judgment in favor

of the First Judicial District of Pennsylvania (“FJD” or “Appellee”) on Appellant’s claims

of sex-based disparate treatment and retaliation. We will affirm the district court.

I

Appellant began his employment with FJD in May 2005 as a legal secretary. On

September 6, 2010, he was transferred to the Office of Human Resources, where he

worked as a Personnel Investigator. His work included performing residency checks and

checks on employees who called in sick. These checks were unpopular with many

employees and administrators, and in August 2013, the position was eliminated. On

August 12, Appellant was transferred to the Office of Court Compliance (“OCC”) where

his position was Tipstaff 2. One of the OCC’s purposes is to facilitate criminal

defendants’ restitution and court fee payments. Appellant worked in Room B-04 of the

Criminal Justice Center (“CJC”) in the mornings and in Courtroom 1104 in the

afternoons. His duties included unlocking the rooms, checking in defendants, checking

for outstanding warrants and contacting the sheriff’s office if he found one, acting as a

security presence to maintain general order in the courtrooms, and locking Courtroom

1104 at the end of the day. Appellant’s work schedule required him to sign in at City Hall

Room 370 at 9:00 a.m., open Room B-04 at 9:30 a.m., remain in B-04 until his paid

lunch from 11:00 a.m. to 12:00 p.m. or 11:30 a.m. to 12:30 p.m., open Courtroom 1104 at

12:30, remain in 1104 until the list of defendants was finished, lock up 1104, and return

to Room 370 and remain until 5:00 p.m.

2 During the relevant period, the OCC officers assigned to Room B-04 and

Courtroom 1104 were Theresa Chambers (female), Jessica Washington (female), Bonnie

Day (female), Karl Dargan (male), Aaliyah Hill (female), and James Jordan (male). The

duties of the OCC officers were to meet with the defendants to set up payment plans for

their court fees and restitution payments. The OCC officers were also often in different

rooms responding to emails and completing their other duties. Ms. Chambers, Ms.

Washington, and Ms. Day worked in Courtroom 1104; Mr. Dargan worked in Room B-

04, assisted by Ms. Hill as necessary; and Mr. Jordan worked in City Hall and came to

courtrooms as needed. When Appellant began working for the OCC, Ms. Chambers

informed him that the OCC officers were aware that he had been the Personnel

Investigator and that Ms. Washington did not appreciate a sick check he had performed.

During his time there, Appellant observed that Ms. Chambers, Ms. Washington, and Ms.

Hill frequently came to work late, left early, or disappeared from their assigned

courtrooms for extended periods of time. Mr. Dargan also left daily around 4:30 p.m. and

Mr. Jordan left early at least once, running into his supervisor on the way out.

On March 14, 2014, Dominic Rossi, the OCC supervisor, told Appellant that he

had received numerous reports that Appellant left his assigned courtroom for extended

periods of time and verbally warned him that further discipline would follow continued

violations. The same day, Appellant emailed Mr. Rossi and asked him to clarify the

working hours for everyone at the OCC. Mr. Rossi replied that the schedule is to report to

Room 370 by 9:00 a.m., report to B-04 at 9:30 a.m., take lunch from 11:30 a.m. to 12:30

p.m., report to 1104 at 12:30 p.m., remain in 1104 until the end of the defendant list,

3 report back to Room 370, and leave at 5:00 p.m. Mr. Rossi confirmed that the schedule

applied to everyone. Appellant observed that Ms. Chambers and Ms. Washington

continued to come in late and leave early, and he continued to complain about their

attendance via telephone, text, and email. Ms. Chambers had an assigned office in Room

310 of the CJC, where she sometimes worked, and Mr. Jordan worked in City Hall. It is

unclear if the other OCC officers had offices, and if so, where they were.

On June 11, 2014, Appellant had a dispute with the OCC officers in Courtroom

1104. On June 12, Appellant sent an email to Mr. Rossi concerning the matter, and he

reported the incident in a staff meeting later that month. He reported that Ms. Washington

and Ms. Chambers were cursing at him, calling him names, and complaining that he

reported their absences from the courtroom. Mr. Rossi did not address the issue at the

staff meeting because Ms. Chambers was not present, but he did instruct Appellant to

work things out with his coworkers.

On September 16, 2014, Amy Mader, FJD’s Human Resources Executive

Director, directed all deputy district court administrators to have their employees fill out

new outside employment disclosure forms. Appellant completed his form on September

30, and reported that he served writs for Philadelphia Writ Service. He stated that he

served 85 percent of his writs on the weekends and the other 15 percent on Mondays

through Wednesdays from 6:00 to 8:00 p.m. Mr. Dargan and Ms. Day also disclosed

outside employment. Mr. Rossi requested a copy of all the writs Appellant had served in

2014 to that point and compared them to his attendance records. He found that 11 writs

were served either during work hours or so close to work hours that Appellant could not

4 have served them without cutting into work hours. On October 20, Mr. Rossi terminated

Appellant’s employment for failing to truthfully disclose the nature of his outside

employment, serving writs during work hours, and falsifying attendance reports by

claiming he was at work while serving writs.

On October 31, 2014, Appellant appealed his termination to Ms. Mader, who

upheld the termination on November 24. On December 8, he appealed his termination to

Joseph Evers, the FJD Court Administrator. Joseph McGill, the Director of

Administration for the Philadelphia Family Court, held hearings on January 22 and

March 13, 2015 where Appellant and his significant other, Jane Malloy, testified. They

testified that some of the writs were actually served by Ms. Malloy, who mistakenly

signed Appellant’s name; some of the timestamps were mistaken; and some of the writs

were served during lunch, which Appellant did not know was prohibited. At the

conclusion of the hearings, Mr. McGill recommended upholding the termination, and on

August 4, 2015, Mr. Evers issued a letter denying the appeal. Appellant believes that Mr.

Evers held a grudge against him because he sick checked one of Mr. Evers’ friends

during his time as a Personnel Investigator.

Appellant filed a complaint alleging sex-based disparate treatment and retaliation

under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e–2000e-17. The district court

granted Appellee’s motion for summary judgment on both claims. It concluded that the

other OCC officers were not proper comparators because they were not comparably

situated to Appellant due to their different job duties. It also concluded that there was no

evidence Mr. Rossi investigated, and subsequently terminated, Appellant on the basis of

5 sex because another man also disclosed outside employment and was not investigated.

Finally, it concluded that there was no evidence in the record that Appellant ever made a

protected complaint and that he therefore failed to establish a prima facie case of

retaliation. Appellant filed a timely notice of appeal on August 31, 2017.

II

The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s grant of summary

judgment de novo. Bradley v. West Chester Univ. of Pa. State Sys. of Higher Educ., 880

F.3d 643, 650 (3d Cir. 2018). In doing so, we apply the same test that is applied by the

district court. Id. at 649–50. Summary judgment may be granted 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). A fact is “material” when, under the

governing substantive law, it could affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if “the

evidence is such that a reasonably jury could return a verdict for the nonmoving party.”

Id. A nonmoving party must point to evidence in the record that would allow a jury to

rule in its favor to defeat a motion for summary judgment. Bradley, 880 F.3d at 650.

“When deciding whether to grant summary judgment, a court should draw all reasonable

inferences in favor of the nonmoving party.” Id.

III

Appellant argues, without citing any legal authority, that the district court erred in

granting summary judgment because the OCC officers were similarly situated

6 comparators, there was an issue of fact regarding whether Mr. Rossi chose to investigate

his outside employment in a discriminatory way, and his termination was close enough in

time to his complaints for them to be causally related. None of these arguments are

availing.

Appellant’s disparate treatment claim requires some evidence that his employer

treated him “less favorably than others based upon a trait that is protected under Title

VII.” Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). A possible form of

evidence is a showing that a similarly situated comparator engaged in similar conduct but

was treated more favorably. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d

Cir. 2013). In Appellant’s case, he attempted to show that the women with whom he

worked were treated more favorably because they were not disciplined for their absences

from their assigned courtrooms and because Mr. Rossi did not investigate their outside

employment. The district court, however, correctly concluded that they were not similarly

situated comparators because they held different jobs and had different responsibilities,

some of which took them out of their assigned courtrooms. The evidence shows that

Appellant and the OCC Officers did not have the same job functions. It is undisputed that

one of Appellant’s duties was to maintain order in the courtrooms, thus making his

presence essential. His presence was also required to sign in defendants. On the other

hand, at least two of the OCC Officers—Mr. Jordan and Ms. Chambers—had offices

outside of their assigned courtrooms where they would send emails and perform other

duties. Ms. Hill and Mr. Jordan were only required to be in courtrooms as needed.

7 Therefore, the district court correctly concluded that the OCC officers were not similarly

situated to Appellant because of their differing responsibilities.

Even if they had been similarly situated, the evidence shows that Mr. Dargan also

left early on a daily basis, quashing any inference that Mr. Rossi’s comparative strictness

with Appellant was based on gender. See Simpson v. Kay Jewelers, Div. of Sterling, Inc.,

142 F.3d 639, 645–46 (3d Cir. 1998) (evidence that some people of a certain race or sex

are treated poorly and others are not undermines inference that treatment was motivated

by a protected characteristic). Appellant faces the same problem with his claim that Mr.

Rossi chose to investigate his outside employment based on sex. Both Mr. Dargan and

Ms. Day also disclosed outside employment, but Mr. Rossi did not investigate either of

them. Under these circumstances, a reasonable juror could not infer that Mr. Rossi

investigated Appellant’s outside employment because of his sex. Therefore, the district

court did not err in granting summary judgment to Appellee on Appellant’s disparate

treatment claim.

Appellant’s retaliation claim is similarly ill-supported. To establish a prima facie

case of retaliation, a plaintiff must demonstrate: “(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.” Marra v. Philadelphia Hous. Auth., 497 F.3d 286,

300 (3d Cir. 2007), as amended (Aug. 28, 2007) (citations omitted). Raising a complaint

regarding a practice that an employee believes in good faith to be discriminatory is

clearly protected conduct. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d

8 Cir. 1996). To be sure, Appellant raised the issue of Ms. Washington’s, Chambers’, and

Hill’s absences from the courtrooms with Mr. Rossi. He also complained that Ms.

Washington and Ms. Chambers were treating him abusively. He did not, however, ever

raise a complaint that he thought he was being treated unfairly based on his sex. Daniels

v. Sch. Dist. of Philadelphia, 776 F.3d 181, 195 (3d Cir. 2015) (general complaints of

unfair treatment not tied to a protected class do not constitute protected activity).

Therefore, the district court correctly concluded that Appellant produced no evidence that

he engaged in protected activity.

Furthermore, the district court was correct that Appellant did not produce

sufficient evidence for a jury to conclude that his complaints were causally connected to

his termination. The record shows that the last complaints Appellant made were in June

and July of 2014, three months before his termination in October. Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (“[W]e believe that the timing of the

alleged retaliatory action must be ‘unusually suggestive’ of retaliatory motive before a

causal link will be inferred.”) (citations omitted). The events are simply too temporally

attenuated for a reasonable jury to conclude that the termination was based on retaliation.

The district court did not err in granting summary judgment on this claim.

IV

For the foregoing reasons, we will affirm the district court.