Robert Gardner v. SEPTA

• Court: Court of Appeals for the Third Circuit
• Decided: February 15, 2024
• Docket: 22-3447
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-3447 _______________

ROBERT GARDNER, Appellant

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:20-cv-06045) District Judge: Honorable John R. Padova _______________ Submitted Under Third Circuit L.A.R. 34.1(a) on December 14, 2023

Before: BIBAS, PORTER, and FISHER, Circuit Judges

(Filed: February 15, 2024) _______________

OPINION* _______________

BIBAS, Circuit Judge.

Employees who claim discrimination or retaliation must complain promptly. Robert

Gardner did not. So we will affirm the District Court’s dismissal.

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. Gardner worked as a control-center manager for buses for the Southeastern Pennsyl-

vania Transportation Authority. He suffers from post-traumatic stress disorder, depression,

and light sensitivity. So he asked for a modified workstation, which the Authority gave

him. Gardner then asked to use that modified workstation for overtime work. On March

24, 2019, the Authority denied that request. As a result, over the next three months, Gardner

missed out on overtime. Yet he did not file an administrative charge to challenge this denial

until January 21, 2020—303 days later.

Gardner also repeatedly applied to transfer from managing buses to managing light-rail

trains. In January 2019, the Authority rejected his application and instead picked a woman

with fifteen more years’ experience. Still, Gardner placed well in the candidate pool and

became next in line to fill an opening to manage light-rail trains. But his hopes were dashed

when, in October 2019, he learned that the Authority had decided to let the candidate pool

expire before filling the opening. Gardner did not challenge that decision by filing an ad-

ministrative charge until a year later.

In August 2020, he again applied to manage light-rail trains and interviewed for an

opening. But the Authority voided its search and started over. Though it offered Gardner

an interview the next time around, he declined. So the Authority picked another man for

the job.

Gardner now sues the Authority. He says it discriminated against him based on his dis-

abilities and retaliated against him based on past complaints by denying him a modified

workstation for overtime work and denying his transfer applications. He claims all these

actions amount to disability discrimination and retaliation under the Americans with

2 Disabilities Act, 42 U.S.C. §§ 12101–12213, and the Pennsylvania Human Relations Act,

43 Pa. Cons. Stat. §§ 951–963. He also challenges the August 2020 denial of a transfer as

sex discrimination and retaliation barred by Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e–2000e-17.

The District Court dismissed Gardner’s 2019 claims about overtime and retaliation as

untimely and his August 2020 retaliation claims as not plausibly pleading causation. It later

granted summary judgment against the rest of his claims, finding that the other 2019 claims

were time-barred and his other August 2020 claims lacked an adverse employment action.

Gardner now appeals. We review the District Court’s dismissal and summary judgment

de novo, drawing all plausible factual inferences in favor of Gardner. Tundo v. County of

Passaic, 923 F.3d 283, 286–87 (3d Cir. 2019); Great W. Mining & Min. Co. v. Fox Roth-

schild LLP, 615 F.3d 159, 163 (3d Cir. 2010).

Gardner’s 2019 claims come too late. Before suing for discrimination or retaliation, a

plaintiff must first file an administrative charge within 180 or 300 days of the challenged

action. 43 Pa. Cons. Stat. § 959(h) (PHRA); 42 U.S.C. § 2000e-5(e)(1) (ADA & Title VII).

Yet Gardner did not file his charges until more than 300 days later.

He tries to rescue his failure-to-accommodate claim by citing the Lilly Ledbetter Fair

Pay Act, which makes each paycheck actionable separately. 42 U.S.C. § 2000e-5(e)(3)(A).

But that law applies only to “discrimination in compensation,” not failures to accommo-

date. Id. Because that exception does not apply, this claim is untimely. See Noel v. Boeing

Co., 622 F.3d 266, 275 (3d Cir. 2010) (“[D]iscrete employment acts trigger the adminis-

trative clock at the time the employment decisions occur.”).

3 Gardner also asks us to treat his October 2019 claim (challenging a supervisor’s deci-

sion to let the applicant pool expire) as not accruing until December 2019 (when the pool

ultimately expired). But he cites no authority on point. Worse still, those four pages of his

brief, recycled almost verbatim from an earlier brief, have nothing to do with this claim.

Compare Appellant’s Br. 25–29, with Appellant’s Br. 24–29, Gardner v. SEPTA, No. 19-

3608 (3d Cir. filed Mar. 2, 2020). All counsel did was add one new paragraph, cut two

sentences, make some minor tweaks, and cut a transitional phrase while forgetting to cap-

italize the start of a new sentence. That section of the brief, in this context, is frivolous. We

warn appellant’s counsel that, the next time he sloppily copies and pastes inapt text, we

will hold him liable for damages. See Fed. R. App. P. 38.

As for the August 2020 claims, the Authority did not pick someone else out of the

applicant pool. It canceled the results and invited Gardner to interview again, but he

declined. That do-over is not an adverse employment action, and he cites no authority for

treating it as one. Cf. Tundo, 923 F.3d at 285 (being kept on a list for preferential hiring is

not a protected property interest).

Because Gardner did not challenge the 2019 actions promptly and has shown neither

an adverse action nor causation in August 2020, we will affirm.