Debora Lamb v. Township of Montgomery ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1180
_____________
DEBORA LAMB,
Appellant
v.
MONTGOMERY TOWNSHIP; LAWRENCE J. GREGAN; KEVIN COSTELLO;
THREE JOHN DOES AND THREE JANE DOES
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-06759)
District Judge: Hon. Wendy Beetlestone
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 8, 2018
Before: JORDAN, ROTH, Circuit Judges and STEARNS*, District Judge.
(Opinion Filed: May 7, 2018)
_______________
OPINION
_______________
*
Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Debora Lamb appeals from the grant of summary judgment against her on her
claims that Montgomery Township, Lawrence Gregan, and Kevin Costello (the
“Defendants”) violated her rights under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.
Cons. Stat. § 951 et seq.1 We will affirm.
I. Background
A. Factual Background
Lamb worked in Montgomery Township’s Public Works Department (“PWD”) for
15 years. She was fired in 2013 after internal and police investigations concluded that
she had stolen her supervisor’s iPhone. At the time Lamb was fired, Costello was the
Township’s Director of Public Works and Gregan was the Township Manager.
The Township began an investigation after Lamb’s immediate supervisor, Glenn
Heberlig, reported to Costello that his iPhone had disappeared from the employee break
room. The Township Police were called to investigate. A Township Police detective
interviewed each employee (including Lamb) who had been at the PWD building at the
time in question and, after receiving consent, searched every employee’s car (including
1
Lamb also sued six John and Jane Doe defendants. The District Court properly
dismissed those Doe defendants pursuant to Federal Rule of Civil Procedure 21 because
Lamb failed to identify them after the discovery period closed. See Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time, on just terms, add or drop a
party.”); see also Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (“The case law is
clear that [f]ictitious parties must eventually be dismissed, if discovery yields no
identities[.]” (quotation marks and citation omitted)).
2
Lamb’s) that had been parked at the building. The interviews revealed that several PWD
employees had observed tensions between Lamb and Heberlig. Although the detective’s
search did not locate the missing iPhone, a Township resident found the iPhone several
days later and brought it to the police. That resident led the detective to the intersection
where he had found the phone, which was about three-tenths of a mile from where the
iPhone had disappeared.
The detective returned to the PWD building to ask the office secretary which
crews had gone out the morning that the iPhone disappeared. Based on his prior
interviews, the detective knew that Lamb was on a crew that morning with co-worker
Donald Johnson. While he was talking with the secretary about the work crews, Lamb
was near enough to have overheard the conversation. That same day, the detective
positioned himself near the intersection where the iPhone was found. While at that
location, he saw Lamb drive by slowly and look towards the area where the iPhone was
found. Lamb contends that she had driven by the subject intersection that day because
she was performing ordinary work responsibilities and was flicking a cigarette out the
window while passing the intersection. The detective subsequently asked Lamb whether
she had taken the iPhone. Lamb denied doing so.2 Based on the detective’s preliminary
investigation, the Township placed Lamb on administrative leave.
2
The detective then collected voluntary DNA samples from Lamb and Heberlig.
The DNA test results, received after Lamb’s termination, were ultimately inconclusive as
to both the presence of Lamb’s DNA on the iPhone and to the presence of Heberlig’s
DNA on his own iPhone.
3
The detective continued his investigation and again spoke with Johnson, the PWD
employee who had worked with Lamb the morning the iPhone disappeared. Johnson
recalled, according to the detective’s report, that when Lamb tossed a pair of her gloves
into their PWD truck that morning, “they made a clunk or hard contact sound as if
something solid was inside one of the gloves.” (App. at 258.)
The Township conducted its own internal investigation into the alleged theft. That
internal investigation concluded – based on interviews with Lamb and fifteen other PWD
employees, discussions with the investigating detective, and a review of the police report
– that Lamb had taken Heberlig’s iPhone. Gregan sent Lamb a pre-disciplinary notice on
March 20, 2013, informing her that she might be subject to disciplinary action, up to and
including termination, based on the outcome of the internal investigation and the
determination that she had been untruthful when questioned about the incident. Gregan
fired Lamb on April 4, 2013.
B. Relevant Procedural History
On July 3, 2013, Lamb filed a dual charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission. She subsequently filed a complaint in federal court alleging hostile work
environment, sex discrimination, and retaliation claims. The District Court’s scheduling
order set an April 13, 2016 deadline for the completion of fact discovery, an April 20,
4
2016 deadline for the exchange of affirmative expert reports, and a May 4, 2016 deadline
for the completion of expert depositions.
After those deadlines had passed, the Defendants moved for summary judgment,
which Lamb opposed. Lamb’s opposition brief included a declaration by Maria Brogna
that offered opinions on the sufficiency and propriety of the police investigation into the
iPhone theft.3 The Defendants moved to strike the Brogna Declaration as an improper
attempt to introduce expert testimony in contravention of the Federal Rules of Civil
Procedure and the District Court’s scheduling order. The District Court granted the
Defendants’ motion to strike with regard to Brogna’s expert testimony and granted
summary judgment in favor of the Defendants. Lamb appeals those rulings.
II. Discussion4
A. The District Court Did Not Abuse Its Discretion in Striking the Brogna
Declaration.5
The District Court did not abuse its discretion in striking the Brogna Declaration.
The the record demonstrates that Lamb’s litigation conduct deprived the Defendants of
the opportunity to depose Brogna. Federal Rule of Civil Procedure 26(a)(2) requires the
disclosure of experts and their reports “at the times and in the sequence that the court
3
Brogna is a former Township police officer.
4
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
5
We review for an abuse of discretion a district court’s decision granting or
denying a motion to strike. Meditz v. City of Newark, 658 F.3d 364, 367 n.1 (3d Cir.
2011).
5
orders.” Fed. R. Civ. P. 26(a)(2)(D). Under Rule 37, district courts are authorized to
exclude evidence if a party violates the requirements of Rule 26(a). Fed. R. Civ. P.
37(c)(1). A party can overcome Rule 37 sanctions by demonstrating that a Rule 26
violation was “substantially justified or … harmless.” Fed. R. Civ. P. 37(c)(1). We have
cautioned that district courts should only exclude critical evidence such as expert
testimony upon “a showing of willful deception or flagrant disregard of a court order by
the proponent of the evidence.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791-92
(3d Cir. 1994) (internal quotation marks and citation omitted).
The District Court concluded that Lamb’s conduct was neither substantially
justified nor harmless. First, her tactics deprived the Defendants of a meaningful
opportunity to depose Brogna by classifying Brogna as an expert witness to avoid a fact
deposition, and then by failing to produce her expert report (i.e. the Brogna Declaration)
until well after the deadline for expert depositions. Second, the justification offered for
that failure – that Lamb had not received relevant discovery in time for Brogna to provide
a timely expert report – was unconvincing. Lamb had received the necessary discovery
nearly two months prior to submitting her summary judgment opposition. The District
Court determined that Lamb’s decision to blindside the Defendants at summary
judgment, instead of providing a timely report or requesting an extension of expert
discovery deadlines, was a flagrant disregard of the rules. There was no abuse of
discretion in the consequent granting of the Defendants’ motion to strike.6
6
Lamb also appeals the District Court’s denial of her motion to strike certain
affidavits relied upon by the Defendants pursuant to the “sham affidavit” doctrine.
6
B. The District Court Did Not Err in Granting Summary Judgment.7
We agree with the District Court’s well-reasoned analysis granting summary
judgment in favor of the Defendants on Lamb’s hostile work environment, sex
discrimination, and retaliation claims.
To bring a claim under Title VII in Pennsylvania, a plaintiff must first have filed a
claim with the EEOC within 300 days of the alleged unlawful employment practice. 42
U.S.C. § 2000e-5(e)(1); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir.
2013). Similarly, to bring a claim pursuant to the PHRA, a plaintiff must first have filed
a claim with the Pennsylvania Human Rights Commission within 180 days of the alleged
discriminatory act. 43 Pa. Stat. and Cons. Stat. § 959(h); Mandel, 706 F.3d at 164.
Discrete discriminatory acts falling outside of the statutory time periods are not
actionable. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
(Opening Br. at 27.) Lamb, however, fails to provide a single record citation highlighting
the alleged contradictions between those affiants’ deposition testimonies and their
respective affidavits. Federal Rule of Appellate Procedure 28(a)(8) requires appellant’s
legal argument to include “citations to the … parts of the record on which the appellant
relies[.]” Fed. R. App. P. 28(a)(8). Accordingly, Lamb has presented no basis for us to
conclude that the District Court abused its discretion when it denied Lamb’s motion. See
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (“It is well settled that if an appellant
fails to comply with [Rule 28] on a particular issue, the appellant normally has
abandoned and waived that issue on appeal and it need not be addressed by the court of
appeals.”).
7
Our review of a grant of summary judgment is plenary. Ramara, Inc. v.
Westfield Ins. Co., 814 F.3d 660, 665 (3d Cir. 2016). Summary judgment is appropriate
if there are no genuine disputes of material fact and if the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). In reviewing a summary judgment ruling, we view the facts in the
light most favorable to the nonmoving party. Anderson, 477 U.S. at 248-49.
7
“Under the continuing violation doctrine, discriminatory acts that are not
individually actionable may be aggregated to make out a hostile work environment claim;
such acts can occur at any time so long as they are linked in a pattern of actions which
continues into the applicable limitations period.” Mandel, 706 F.3d at 165 (quotation
marks and citation omitted). To demonstrate a continuing violation, all acts underlying
the claim must be “part of the same unlawful employment practice.” Id. at 165-66.
When determining whether an employer’s actions constitute a continuing violation, we
consider the frequency of the actions and whether they relate to the same subject matter.
Id. at 166. Acts relate to the same subject matter when they “constitute the same type of
discrimination.” Id. at 166 n.2.
1. Hostile Work Environment Claim
The District Court correctly concluded that, with respect to her hostile work
environment claim, Lamb failed to establish a continuing violation and that the allegedly
discriminatory acts falling within the limitations period did not constitute severe or
pervasive discrimination. Lamb argues that the Court erred in rejecting her contentions
that being forced to work in a moldy environment without safety equipment, and being
denied worker’s compensation benefits until she retained an attorney, were related acts of
sex discrimination. The record demonstrates, however, that to the extent Lamb was
required to work in a moldy environment, it was not because of her sex. Rather, Lamb
acknowledged that male employees worked alongside her in the same conditions.
Further, the record belies Lamb’s unsupported contention that she was denied worker’s
compensation benefits because of her sex. She testified that, before she retained an
8
attorney, the Township’s worker’s compensation policy covered all her relevant medical
expenses and that she was paid for all the time she missed because of an earlier
workplace injury. Because those incidents occurred outside of the limitations period, and
because Lamb has failed to point to any part of the record that would support her
contention that those incidents amounted to sex discrimination, the District Court did not
err in refusing to consider those acts as part of Lamb’s hostile work environment claim.
Lamb next argues that the District Court erred in determining that certain
derogatory comments made to or about her during the limitations period did not
constitute severe or pervasive harassment. As part of her prima facie hostile work
environment claim under Title VII and the PHRA, Lamb must establish that she was
subjected to discrimination that was severe or pervasive. Id. at 167; Jensen v. Potter, 435
F.3d 444, 449 (3d Cir. 2006), overruled on other grounds by Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006). The Court noted that Lamb identified only “one
incident of harassment overtly based on sex during the limitations period: the comment
[from a male co-worker] … that she ‘could just piss on the side of the truck’ if she were
male.” (App. at 33.) That comment, “while crass and unwarranted,” does not, standing
alone, constitute severe or pervasive discrimination. (App. at 34.)8
8
Lamb further argues that she was subjected to a hostile work environment
because she is a lesbian and overheard co-workers use homophobic slurs. Lamb cannot
succeed on that argument either for two reasons. First, she again fails to provide a single
record citation in support of her contention that she overheard the alleged comments, or
to establish the frequency with which she overheard the alleged comments. Second, to
the extent the record supports that her co-workers used homophobic slurs, occasional
derogatory comments not intentionally directed at a plaintiff, but simply overheard by a
plaintiff, are not sufficient to establish a hostile work environment. See Caver v. City of
9
2. Sex Discrimination Claim
The District Court rightly concluded that Lamb was unable to establish a prima
facie claim of sex discrimination because she lacked evidence that she was treated less
favorably than her male co-workers. Such evidence is essential. Burton v. Teleflex Inc.,
707 F.3d 417, 426 (3d Cir. 2013); see also Connelly v. Lane Constr. Corp., 809 F.3d 780,
791 n.8 (3d Cir. 2016) (explaining that sex discrimination claims under both Title VII and
the PHRA “are governed by essentially the same legal standards”).
Lamb argues that the District Court erred by concluding that the comparators she
presented to establish that she was treated less favorably than her male co-workers were
not sufficiently similar to her. But she identifies only a single instance when male
Township employees were treated differently after being accused of a theft of a similar or
more serious nature. In that incident, four Township police officers were not disciplined
following an investigation that concluded that those officers stole firearms. The District
Court properly concluded, however, that those officers were not similarly situated to
Lamb because they held different jobs in a different department. See Mandel, 706 F.3d at
170 (“[A]n employee who holds a different job in a different department is not similarly
situated.”). Furthermore, those officers were parties to a collective bargaining agreement,
which required different disciplinary procedures, whereas Lamb was an at-will employee
Trenton, 420 F.3d 243, 262-63 (3d Cir. 2005) (explaining that offhand and isolated
comments “merely overheard” by a plaintiff do not create a hostile work environment).
10
without those same contractual protections. In short, Lamb failed to establish a prima
facie claim of sex discrimination.
3. Retaliation Claim
We also agree with the District Court that Lamb has not established a prima facie
case of retaliation. As part of that prima facie case, Lamb had to establish “a causal
connection between [her] protected activity and [her] employer’s adverse action.”
Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (citation omitted); see
also Connelly, 809 F.3d at 791 n.9 (explaining that the same legal framework applies to
retaliation claims under Title VII and the PHRA). But she failed to do so.
Lamb argues that the Defendants terminated her in retaliation for her alleged
participation in a 2007 employment discrimination case brought by other Township
employees. The District Court rejected that argument because the record is devoid of
evidence that the individual responsible for her termination, Gregan, had any idea that
Lamb was involved in the prior lawsuit. Lamb contends that the “cat’s paw” theory of
liability nevertheless saves her claim. Under that theory, if a non-decision maker’s
discriminatory act serves as the proximate cause for the ultimate adverse employment
action, then employer liability can attach. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323,
330 (3d Cir. 2015) (citing Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)). Here,
Lamb contends that Costello was aware of her alleged participation in the prior lawsuit,
“got the ball rolling” with the investigation, and communicated with Gregan about the
decision to terminate. (Opening Br. at 25.) The District Court rejected Lamb’s argument
because the record evidence demonstrated that the proximate cause for Gregan’s decision
11
to terminate Lamb was the conclusions of the police report and internal investigation that
Lamb had stolen the iPhone. We agree. Merely “getting the ball rolling” with an
investigation is not sufficient to invoke the “cat’s paw” theory of liability, absent some
showing that the non-decision maker influenced the ultimate adverse employment action.
See Jones, 796 F.3d at 331 (rejecting “cat’s paw” theory of liability where the plaintiff
offered “no evidence that [the non-decision maker] influenced the … investigation or …
termination decision beyond getting the ball rolling” with the investigation culminating in
the plaintiff’s termination). Lamb has not pointed to any evidence in the record to
support her desired conclusion, and we see no error in the District Court’s analysis.9
III. Conclusion
For the foregoing reasons, we will affirm the grant of summary judgment.
9
Because we have concluded that the District Court did not err in determining
that Lamb failed to establish a prima facie claim under the PHRA, we need not address
Lamb’s assertion of error concerning aiding and abetting liability pursuant to the PHRA.
Nor do we address Lamb’s argument, raised in a single footnote without citation to legal
authority, that the Court erred in considering the Township police report when ruling on
the Defendants’ summary judgment motion. See Papp v. Fore-Kast Sales Co., 842 F.3d
805, 815-16 (3d Cir. 2016) (deeming an argument raised by a litigant in a footnote
forfeited).
12