Ralph Blakney v. City of Philadelphia , 559 F. App'x 183 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-3062
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RALPH P. BLAKNEY,
Appellant
v.
CITY OF PHILADELPHIA;
LINDA TURNER; LYNN SPIRO;
JOHN DOES 1-10
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 12-cv-06300)
District Judge: Honorable Ronald L. Buckwalter
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Submitted Under Third Circuit LAR 34.1(a)
March 6, 2014
Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.
(Filed: March 19, 2014)
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OPINION
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HARDIMAN, Circuit Judge.
Ralph Blakney appeals the order of the District Court dismissing his civil rights
claims against the City of Philadelphia and two of its employees. We will affirm.
I
Because we write for the parties, we recount only the essential facts of this case.
Appellant Blakney, an African-American male, was hired by the City of Philadelphia in
July 1988 as Director of the Older Adult Center in the City’s Parks and Recreation
Department.
Almost twenty years later, Blakney filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging race discrimination. 1 After receiving a right-
to-sue letter Blakney sued the City of Philadelphia, along with his supervisor, Linda
Spiro, and the Director of Human Resources for the Parks and Recreation Department,
Lynn Turner (collectively, “City Defendants”). See Blakney v. City of Phila., No. 10-
4237, 2011 WL 4402962 (E.D. Pa. Sept. 22, 2011) (Prior Action).
In January 2011, while that litigation was pending, Blakney voluntarily resigned
from his position to care for his terminally ill mother. Consistent with the Family and
Medical Leave Act (FMLA), he provided the City with formal documentation showing
that his mother was ill and that he assisted her. See 29 C.F.R. § 825.306. On September
22, 2011, the District Court granted summary judgment for the City, Turner, and Spiro in
1
Blakney’s complaint alleged he was discriminated against when, after taking leave to
serve as a political appointee, he was restored to his position as Older Adult Center Director
but denied a choice between two locations. He also alleged he was denied the opportunity to
interview for the Recreation Program Director position.
2
the Prior Action. Four days later, Blakney hand-delivered a letter to the City’s Human
Resources Department demanding reinstatement to his prior position or to any available
position. Although Blakney watched as the letter was faxed to Director Turner, the City
filled the position and Blakney never received a response to his letter.
On October 11, 2011, Blakney filed a notice of appeal in the Prior Action. Two
months later, he hand-delivered a second letter to the City’s Human Resources
Department asking for a list of positions to which he could be reinstated. Again, Blakney
watched as the letter was faxed to Director Turner, but received no response. On February
8, 2012, Blakney filed a complaint with the EEOC, this time alleging retaliation under
Title VII and the Pennsylvania Human Relations Act (PHRA). 2 The EEOC granted
Blakney a right-to-sue notice and he brought suit on November 8, 2012 in the District
Court, alleging retaliation in violation of Title VII and the PHRA. He sought relief
against the City under 42 U.S.C. § 1983. Additionally, he sought relief against Turner and
Spiro, whom he alleged were “the appointing authorized officials of the Parks and
Recreation Department responsible for approving Plaintiff’s reinstatement requests,”
under 42 U.S.C. § 1981. The City, Turner, and Spiro filed a motion to dismiss Blakney’s
amended complaint, which the District Court granted. Blakney timely appealed.
2
Two days later, Blakney voluntarily withdrew his appeal in the Prior Action.
3
II 3
We exercise plenary review over the District Court’s decision to grant a motion to
dismiss. Anspach v. City of Phila., 503 F.3d 256, 260 (3d Cir. 2007). In doing so, we
presume the complaint’s well-pleaded facts to be true and view them in the light most
favorable to the non-moving party. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008). To survive a motion to dismiss, Plaintiff must allege sufficient facts, which,
taken as true, state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Blakney alleges unlawful retaliation under Title VII and the PHRA. 4 Title VII
prohibits employers from discriminating against “any individual . . . because he has
opposed any . . . unlawful employment practice” under Title VII, or because he has “made
a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing” pursuant to Title VII. 42 U.S.C. § 2000e–3(a). To establish a prima facie case
of retaliation, plaintiff must show (1) he engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against him; and (3) there was a causal
connection between the participation in the protected activity and the adverse
employment action. Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006).
3
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
4
The parties agree that Blakney established the first two elements of his prima facie
case: he engaged in protected activity under Title VII, having brought a race
discrimination complaint against the Parks and Recreation Department, whose failure to
rehire him constituted an adverse employment action. Accordingly, the sole question on
appeal is whether the District Court erred when it held that Blakney failed to plead the
third element of his prima facie retaliation case: causation.
To satisfy the third prong, Blakney “must establish that his . . . protected activity
was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). We have previously held that
“temporal proximity between the employee’s protected activity and the alleged retaliatory
action may satisfy the causal link element of a prima facie retaliation claim, at least where
the timing is ‘unusually suggestive of retaliatory motive.’” Shaner v. Synthes, 204 F.3d
494, 505 (3d Cir. 2000) (internal citation omitted). “[T]he mere fact that adverse
employer action occurs after a complaint will ordinarily be insufficient to satisfy the
plaintiff’s burden of demonstrating a causal link between the two events.” Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997).
We have found that a temporal proximity of two days is unusually suggestive of
causation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (reversing summary
4
Because the analysis for adjudicating a retaliation claim under the PHRA is identical
to a Title VII inquiry, we need not address Blakney’s PHRA claim separately. Goosby v.
Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000).
5
judgment for the defendant when plaintiff was fired two days after his employer received
notice of his EEOC complaint), but have held that a temporal proximity greater than ten
days requires supplementary evidence of retaliatory motive, see Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (finding that “where the temporal
proximity is not so close as to be unduly suggestive,” the appropriate test is “timing plus
other evidence”); see also Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760
(3d Cir. 2004) (two months is not unusually suggestive); LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (three months is not unusually
suggestive).
We measure temporal proximity from the date on which the litigant first files a
complaint. See Jalil, 873 F.2d at 703. Here, Blakney filed an EEOC complaint in 2008
and sued in federal court in 2010. He voluntarily resigned in January 2011 and first
sought reinstatement in September 2011—four days after summary judgment was entered
against him in the Prior Action. He sought reinstatement a second time in December
2011. Thus, the period between the filing of the EEOC complaint and the City’s failure to
reinstate Blakney spans three years, which falls well short of the “unduly suggestive”
mark. See Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir. 2001) (finding that protected
activity that extended “over a substantial period of time” is “insufficient to establish
causation”).
Because the temporal proximity here is not sufficiently close to imply direct
6
causation, we apply the “timing plus other evidence” test to determine whether other
pleaded facts suggest retaliatory motive. Farrell, 206 F.3d at 280. We have held that such
“other evidence” may include, but is not limited to, a “pattern of antagonism” subjecting
plaintiff to a “constant barrage of written and verbal warnings and . . . disciplinary
actions, all of which occurred soon after plaintiff’s initial complaints.” Robinson v. Se.
Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993). Absent direct evidence of
antagonism, circumstantial evidence may be used to support an inference of antagonism.
For example, “a plaintiff may establish the connection by showing that the employer gave
inconsistent reasons for terminating the employee.” Farrell, 206 F.3d at 280-81.
Our review of the record leads us to conclude that Blakney did not plead facts
showing that he was subject to retaliatory conduct during the period between his EEOC
claim in 2008 and his voluntary resignation in 2011. After he resigned, the only negative
conduct Blakney experienced at the hand of the Parks and Recreation Department was
passive at best—they ignored his reinstatement requests. Other than two trips to hand-
deliver letters demanding reinstatement, Blakney pleaded no contact with the Department
after his resignation.
Nevertheless, Blakney claims we should infer antagonism from the City’s response
to his reinstatement demands, which he bases on (1) the “absolute silent treatment” he
received upon delivering his letters, (2) the fact that City Defendants “quickly filled” his
position after he sought reinstatement, and (3) City Defendants’ failure to reinstate him
7
when, he claims, he was entitled to reinstatement pursuant to Civil Service Regulation
15.031. We disagree.
The City’s decisions to ignore Blakney’s reinstatement requests and fill the
position with another employee were neutral acts that do not create an inference of
antagonism. Moreover, Blakney’s claim that he was entitled to reinstatement under Civil
Service Regulation 15.031 is belied by the text of the regulation itself:
An employee who has resigned in good standing may be reinstated within one
year to any position in the City service in the same class, in a comparable class,
or in a lower class in the same or comparable series of classes having
substantially the same qualification requirements, skills or aptitudes if such
reinstatement is approved by the Director and by the appointing authority of
the department in which the reinstatement is to be made.
Phila. Civ. Serv. Reg. 15.031 (emphasis added). Blakney seems to have misread this
regulation, replacing “may be reinstated” with “must be reinstated.” As the District Court
correctly noted, the language of the regulation is “intentionally discretionary in nature.”
Blakney v. City of Phila., No. 12-6300, 2013 WL 2411409 (E.D. Pa. June 4, 2013) at *6.
Because Blakney was not entitled to reinstatement, the City’s decision not to rehire him
does not support an inference of antagonism.
For the reasons stated, the District Court properly found that “both the protected
activity and the adverse employment action continued over such an extended period of
time that it is impossible to make any inference of causation between them.” Id. at *5.
Accordingly, we will affirm the order of the District Court as it relates to Blakney’s Title
VII and PHRA claims.
8
III
Our conclusion that the District Court did not err when it held that Blakney failed
to plead causation dictates the same result as to his claims against Turner and Spiro under
42 U.S.C. § 1981. The same three-prong test that applies to Title VII and PHRA claims
also applies to § 1981 claims. Cardenas, 269 F.3d at 263. Accordingly, “where a Title VII
and a § 1981 claim arise out of the same facts and circumstances and the Title VII claim
fails, the § 1981 claim must fail for the same reasons.” Blakney, 2013 WL 2411409, at *7
(internal citation omitted). Here, Blakney’s complaint incorporates by reference the same
set of facts for his Title VII and § 1981 claims. Therefore, “our discussion of the Title VII
claim above applies with equal force,” Cardenas, 269 F.3d at 263, and Blakney’s § 1981
claim fails. 5
IV
For the foregoing reasons, Blakney failed to state a plausible claim under Title VII,
the PHRA, 42 U.S.C. §§ 1981 or 1983. Therefore, we will affirm the order of the District
Court.
5
Blakney also seeks relief pursuant to 42 U.S.C. § 1983 and Monell v. Department
of Social Services of New York, 436 U.S. 658, 690 (1978), claiming his rights under 42
U.S.C. § 1981 were violated due to the City’s failure “to properly train, supervise,
discipline and control [the City Defendants] regarding [Blakney’s right] to be free from
unlawful retaliatory actions.” Because this claim is derivative of Blakney’s untenable
retaliation claim, it too must fail.
9