Roslyn Oden v. SEPTA , 671 F. App'x 859 ( 2016 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 15-3676
    ROSLYN ODEN,
    Appellant
    v.
    SEPTA; STACY RICHARDSON
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil Action No. 2:14-cv-06197)
    District Judge: Honorable Mark A. Kearney
    ____________________________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    on Tuesday June 7, 2016
    Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges
    (Opinion filed: November 4, 2016)
    OPINION*
    KRAUSE, Circuit Judge.
    Roslyn Oden appeals the District Court’s grant of summary judgment in favor of
    her former employer, the Southeastern Pennsylvania Transportation Authority
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
    does not constitute binding precedent.
    (“SEPTA”), on Oden’s claims under the Americans with Disabilities Act and the
    Pennsylvania Human Relations Act, and in favor of her former supervisor, Stacey
    Richardson, on Oden’s claims under 42 U.S.C. § 1983. For the reasons that follow, we
    will affirm.
    I.     Background
    In 2011, after more than twenty years as a SEPTA bus operator, Oden was
    medically disqualified from the position due to a diagnosed sleep disorder and other
    disabilities,1 and, with the approval of her doctor, assumed a position as a SEPTA
    cashier. Upon starting the position, Oden approached Richardson, her new supervisor,
    with requests for accommodation for Oden’s disabilities—namely, flexible reporting
    times, use of sick time, personal time, and break time. Instead of discussing
    accommodations with Oden, Richardson allegedly stated that Oden would have to
    transfer to another department. Oden did not transfer and continued working as a cashier.
    On January 31, 2013, Richardson observed Oden sleeping or being inattentive at a
    cashier booth and initiated an investigation into Oden’s conduct. Based on three hours of
    video footage, the investigation uncovered multiple violations of SEPTA employee rules.
    For example, Oden was reading from her cellular phone for forty minutes, and she later
    left her cashier booth for seventy-five minutes, which resulted in twenty unregistered
    1
    The parties do not dispute that Oden’s medical conditions are disabilities as
    defined under the Americans with Disabilities Act and the Pennsylvania Human
    Relations Act.
    2
    fares. Because of these violations, SEPTA terminated Oden’s employment on February
    27, 2013.
    Oden filed a Charge of Discrimination against SEPTA with the Pennsylvania
    Human Relations Commission and with the United States Equal Employment
    Opportunity Commission on July 26, 2013. She then proceeded to the District Court,
    where she brought discrimination and retaliation claims against SEPTA under the
    Americans with Disabilities Act (“ADA”) and against SEPTA and Richardson under the
    Pennsylvania Human Relations Act (“PHRA”), as well as Equal Protection and First
    Amendment claims against Richardson individually under 42 U.S.C. § 1983.
    The District Court granted summary judgment to SEPTA and Richardson on the
    grounds that (1) any failure-to-accommodate claims were time-barred under the ADA
    and the PHRA; (2) Oden could not establish, for purposes of her discrimination and
    retaliation claims under both statutes, that SEPTA and Richardson’s nondiscriminatory
    reasons for terminating her were pretextual; and (3) Oden did not establish that
    Richardson treated similarly situated employees differently from Oden in violation of the
    Equal Protection Clause, nor did Oden make statements on a matter of public concern
    that would merit First Amendment protection. This appeal timely followed.
    3
    III.   Discussion 2
    We review a district court’s grant of summary judgment de novo, Faush v.
    Tuesday Morning, Inc., 
    808 F.3d 208
    , 215 (3d Cir. 2015), and will affirm when the
    moving party has established that “there is no genuine dispute as to any material fact”
    and, viewing the facts in light most favorable to the non-moving party, “the movant is
    entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Moore v. City of Phila.,
    
    461 F.3d 331
    , 340 (3d Cir. 2006). Such is the case here. We address in turn Oden’s
    (1) failure-to-accommodate claims, (2) discrimination and retaliation claims, and
    (3) § 1983 claims against Richardson.3
    First, although Oden continues to press the merits of her failure-to-accommodate
    claims on appeal, she does not challenge the District Court’s conclusion that those claims
    are time-barred. That conclusion appears to be well-founded as Oden alleges that
    Richardson responded to her 2011 request for accommodation with immediate
    disapproval, and Oden did not file her administrative discrimination charge with the
    relevant agencies until July 2013—well beyond the 300-day deadline for ADA claims,
    see 42 U.S.C. § 12117(a); 
    id. § 2000e-5(e)(1),
    and the 180-day deadline for PHRA
    claims, 43 Pa. Cons. Stat. § 959(h). In any event, because she does not dispute the time
    2
    The District Court had subject-matter jurisdiction over Oden’s ADA and § 1983
    claims pursuant to 28 U.S.C. § 1331, and over Oden’s PHRA claims pursuant to 28
    U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
    3
    On appeal, Oden also asserts hostile work environment and retaliatory
    harassment claims. Because she did not raise those claims before the District Court,
    however, she has waived them. Thompson v. Real Estate Mortg. Network, 
    748 F.3d 142
    ,
    150 n.7 (3d Cir. 2014).
    4
    bar on appeal, Oden has waived review of this issue. See Gonzalez v. AMR, 
    549 F.3d 219
    , 225 (3d Cir. 2008).
    Second, we agree with the District Court that Oden did not establish that SEPTA
    and Richardson’s nondiscriminatory reason for terminating her was pretextual. Under the
    McDonnell Douglas burden-shifting framework that applies to both her ADA and PHRA
    claims,4 Oden had the initial burden of establishing a prima facie case of discrimination
    or retaliation; if she did, then SEPTA and Richardson were required to articulate a
    legitimate, nondiscriminatory reason for the adverse action they took against Oden. See
    
    Shellenberger, 318 F.3d at 187
    ; 
    Olson, 101 F.3d at 951
    . At that point, Oden could defeat
    a summary judgment motion only with evidence that would allow a factfinder reasonably
    (1) to disbelieve SEPTA and Richardson’s nondiscriminatory reason, or (2) to believe
    that discrimination or retaliation was the determinative cause of SEPTA and
    Richardson’s adverse action. See 
    Shellenberger, 318 F.3d at 187
    ; 
    Olson, 101 F.3d at 951
    -52.
    Here, even assuming that Oden established a prima facie case with regard to her
    2013 termination,5 she did not meet her burden at the third step of the McDonnell
    4
    See Shellenberger v. Summit Bancorp, Inc., 
    318 F.3d 183
    , 187 (3d Cir. 2003)
    (retaliation); Olson v. Gen. Elec. Astrospace, 
    101 F.3d 947
    , 951-52 (3d Cir. 1996)
    (discrimination). We apply the same liability standards to Oden’s ADA and PHRA
    claims because the two statutes are “to be interpreted consistently” and “have the same
    standard for determination of liability.” Macfarlan v. Ivy Hill SNF, LLC, 
    675 F.3d 266
    ,
    274 (3d Cir. 2012).
    5
    Although Oden argues that we should apply the McDonnell Douglas framework
    to a number of other alleged “adverse actions” that she contends were taken against her
    5
    Douglas analysis to adduce sufficient evidence from which a reasonable jury could find
    that SEPTA and Richardson’s nondiscriminatory reasons for terminating her were false
    or that a discriminatory or retaliatory reason motivated the termination. That is, she does
    not deny serious violations of SEPTA’s employee rules, and thus has not provided any
    evidence that would allow a reasonable jury either to disbelieve SEPTA’s
    nondiscriminatory and non-retaliatory reasons for terminating her, or to believe that any
    discriminatory or retaliatory animus would have “had a determinative effect” on her
    termination. 
    Shellenberger, 318 F.3d at 187
    ; see also 
    Olson, 101 F.3d at 951
    .
    Finally, we perceive no error in the District Court’s entry of summary judgment on
    Oden’s § 1983 claims against Richardson individually. To establish her Equal Protection
    claim, Oden was required to “prove the existence of purposeful discrimination” by
    showing that she “received different treatment from that received by other individuals
    similarly situated.” Blunt v. Lower Merion Sch. Dist., 
    767 F.3d 247
    , 273 (3d Cir. 2014)
    (brackets and internal quotation marks omitted) (quoting Andrews v. City of Phila., 
    895 F.2d 1469
    , 1478 (3d Cir. 1990)). Oden failed to produce such evidence. Although Oden
    mentions another cashier whom Richardson did not discipline, that cashier was not
    “similarly situated” because she was not alike “in all relevant aspects.” 
    Id. (internal quotation
    marks omitted) (quoting Startzell v. City of Phila., 
    533 F.3d 183
    , 203 (3d Cir.
    for discriminatory and retaliatory reasons, any claims arising from those actions are either
    time-barred or—as to her November 2012 suspension from work without pay—waived
    for failure to argue that it constituted an independent adverse action in the District Court.
    See D.E. v. Cent. Dauphin Sch. Dist., 
    765 F.3d 260
    , 268 n.7 (3d Cir. 2014).
    6
    2008)). Oden, for example, left her cashier booth for seventy-five minutes while there is
    no evidence that the other cashier left her assigned work location at all.
    Oden fares no better as to her First Amendment retaliation claim, which turns on
    whether the speech in question involves “a matter of public concern,” Flora v. Cty. of
    Luzerne, 
    776 F.3d 169
    , 175 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 
    455 F.3d 225
    , 241-42 (3d Cir. 2006)), or merely “matters of purely personal interest,” such as
    “mundane employment grievances,” Munroe v. Cent. Bucks Sch. Dist., 
    805 F.3d 454
    , 467
    (3d Cir. 2015). Here, the speech on which Oden relies is her request for her individual
    accommodations. We have held, however, that requests of this nature fall squarely into
    the category of “mundane employment grievances” and are not protected speech under
    the First Amendment. 
    Munroe, 805 F.3d at 467-70
    . The District Court thus correctly
    granted summary judgment on Oden’s § 1983 claims.
    IV.    Conclusion
    For the foregoing reasons, summary judgment was warranted on all of Oden’s
    claims and we will affirm the judgment of the District Court.
    7