Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2008

Clayton v. PA Dept Welfare
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3171




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-3171


                           SAMUEL CLAYTON, JR., M.D.
                                                             Appellant

                                           v.

   PENNSYLVANIA DEPARTMENT OF WELFARE, by and though their Agent,
          Estelle Richman, Secretary, Department of Public Welfare;
   HARRISBURG STATE HOSPITAL, by and through their agent, Dr. Ann Shemo,
             Medical Director, PA Department of Public Welfare,
                          Harrisburg State Hospital



                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 05-cv-00768)
                      District Judge: Honorable John E. Jones, III


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 2, 2008


                 Before: AMBRO and GREENBERG, Circuit Judges,
                           and O’NEILL,* District Judge


                          (Opinion filed: December 22, 2008)




      *
       Honorable Thomas N. O’Neill, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation
                                         OPINION

AMBRO, Circuit Judge

       Samuel Clayton, Jr., M.D. appeals the District Court’s grant of summary judgment

to Estelle Richman, Ann Shemo, M.D., and the Pennsylvania Department of Public

Welfare on (1) his claim of racial discrimination under 42 U.S.C. § 1981, Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Pennsylvania

Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann. § 951 et seq.; (2) his retaliation

claim under 42 U.S.C. § 1981, Title VII, and the PHRA; and (3) his hostile work

environment and constructive discharge claims. For the following reasons, we affirm.

                                              I.

       Because we write only for the benefit of the parties, our recitation of the facts is

brief. Dr. Clayton is an African-American physician who was employed part-time from

1985 until his retirement in 2003 at Harrisburg State Hospital (“the Hospital”), a mental

health facility operated by the Pennsylvania Department of Public Welfare. Estelle

Richman is and has been the Secretary of Public Welfare in Pennsylvania since 2003. Dr.

Ann Shemo was the Medical Director at Harrisburg State Hospital from March 2000 until

September 2004.

       Dr. Clayton filed a charge with the Pennsylvania Human Relations Commission in

February 2001 alleging an improper change in his work schedule. In March 2001, he

filed an amended charge with the Equal Employment Opportunity Commission

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(“EEOC”), complaining of multiple discriminatory incidents. The EEOC issued a right-

to-sue letter in January 2005, after which Dr. Clayton filed his complaint in the District

Court.

         In his complaint, Dr. Clayton claimed that he suffered the following individual

incidents of discrimination and retaliation between 1999 and 2003: (1) the Hospital

reduced his on-call time after a brief period of equalizing on-call hours between full-time

and part-time physicians; (2) the Hospital advised him that he might be furloughed to

make way for another physician; (3) the Hospital changed his work schedule in a way that

interfered with his private practice; (4) the Hospital, at the direction of Dr. Shemo, moved

his mailbox to a new administrative building approximately one month before moving all

other physicians’ mailboxes; (5) the Hospital denied him a specialty board certification

bonus; (6) the Hospital removed a second desk from his office for restoration without

requesting his consent; (7) Dr. Shemo did not provide him with the specific office she had

promised to him; (8) the Hospital neglected to pay him step-cash payments; and (9) the

Hospital failed to respond timely to filed grievances. See Clayton v. Pennsylvania Dep’t

of Public Welfare, No. 4:CV 05-0768, 

, *2–4 (M.D. Pa. Feb. 20, 2007).

         The District Court rejected all of Dr. Clayton’s claims. As a preliminary matter, it

dismissed Ms. Richman as a party, limited Dr. Shemo’s liability to claims under § 1981,

and dismissed Dr. Clayton’s PHRA and § 1981 claims against the Department of Public

Welfare. See 

The Court also concluded that all of Dr. Clayton’s PHRA

claims, with the exception of his change in work schedule allegation, were barred for

                                               3
failure to exhaust. See 

It determined as well that the statute of limitations

barred Dr. Clayton’s Title VII on-call-hours claim and all but three of his § 1981 claims.

See 

       Addressing the merits of Dr. Clayton’s discrimination and retaliation claims

(including those barred by statute), the District Court held that Dr. Clayton could not

make out a prima facie case because he could not establish that he suffered an adverse

employment action or was subject to a hostile work environment or constructively

discharged. See 

The Court noted that Dr. Clayton failed to show that

similarly situated members of other races were treated more favorably than he was, or

that there was any discriminatory or retaliatory motive behind the Hospital’s or Dr.

Shemo’s actions. See 

reaffirmed its conclusions in a denial of Dr. Clayton’s motion for

reconsideration in June 2007. See App. at 4a–20a. Dr. Clayton thereafter timely

appealed.

                                              II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291. When the District Court grants a motion for summary judgment,

our review is plenary. See Elsmere Park Club, L.P. v. Town of Elsmere, 

,

416 (3d Cir. 2008). Summary judgment is appropriate when no genuine issues of

material fact exist and the moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 

, 322–23 (1986). We resolve all factual doubts and

                                              4
draw all reasonable inferences in favor of the nonmoving party. See DL Res., Inc. v.

FirstEngergy Solutions Corp., 

, 216 (3d Cir. 2007).

                                            III.

       Dr. Clayton argues that the District Court erred in concluding that (1) his Title VII

on-call-hours claim was time barred, (2) he had not presented sufficient evidence of

discrimination or retaliatory behavior to defeat summary judgment on his individual

discrimination allegation, and (3) he could not establish a claim for a hostile work

environment or constructive discharge.

       We consider first whether the District Court erred in determining that Dr.

Clayton’s claim that the Hospital reduced his on-call time for discriminatory reasons was

time barred. Title VII requires a claimant to file a charge with the EEOC within 300 days

of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). The

Court found that Dr. Clayton’s claim of discrimination regarding his on-call time accrued

in October 1999 and was barred after June 2000—nine months before his March 2001

filing with the EEOC. See Clayton, 

, at *13. Dr. Clayton retorts that his

allotment of reduced hours represented a continuing violation that did not accrue until his

departure from the Hospital in 2003. He explains that “this is a ‘paycheck’ case, and

every discriminatory paycheck represents a violation of Title VII.” Clayton’s Br. at 16;

see also 

(citing Bazemore v. Friday, 

, 395–96 (1986)). We

disagree.

       The Supreme Court’s recent opinion in Ledbetter v. Goodyear Tire & Rubber Co.,

                                             5
Inc., 

, ___, 

, 2166–72 (2007), forecloses the argument that

each paycheck Dr. Clayton received constituted a new and separate violation of Title VII.

The Court in Ledbetter stated that “[a] new violation does not occur, and a new charging

period does not commence, upon the occurrence of subsequent nondiscriminatory acts

that entail adverse effects resulting from past discrimination.” 

The Hospital

made the decision to reduce Dr. Clayton’s—and all other part-time physicians’—on-call

time in October 1999. See Clayton, 

, at *13. This was a discrete

employment decision, about which Dr. Clayton complained to his superiors but did not

file a timely EEOC complaint. See Clayton’s Br. at 42. He thus forfeited his opportunity

to file a Title VII complaint regarding his allocation of on-call time, and he cannot now

rely on his paychecks to “breathe life into prior, uncharged discrimination.” 

; see also Nat’l R.R. Passenger Corp. v. Morgan, 

, 110–14

(2002).

       We next review the merits of Dr. Clayton’s individual discrimination claims. To

establish a prima facie case of racial discrimination or retaliation under Title VII, § 1981,

or the PHRA, a claimant must, among other things, demonstrate that he was subject to an

adverse employment action. See Jones v. Sch. Dist. of Phila., 

, 410–11 (3d

Cir. 1999). The District Court held that Dr. Clayton failed to satisfy this requirement

because he did not show that he suffered an “action by [his] employer that [was] serious

and tangible enough to alter [his] compensation, terms, conditions or privileges of

employment.” Clayton, 

, at *8 (quoting Storey v. Burns Int’l Sec.

                                              6
Servs., 

, 764 (3d Cir. 2004) (internal quotations omitted)). Our reading of

the record confirms that Dr. Clayton is unable to prove that he was subjected to a

discriminatory or retaliatory employment action through any of the individual incidents

recounted in his claim. We thus have nothing to add to the District Court’s thorough

analysis, see Clayton, 

, at *8–12; App. at 7a–15a, and we affirm its

determination that Dr. Clayton has not raised issues of material fact necessary to survive a

motion for summary judgment. See O’Connor v. Consol. Coin Caterers, Corp., 

312 (1996).

       We conclude by considering the District Court’s rejection of Dr. Clayton’s hostile

work environment and constructive discharge claims. To prevail on a hostile work

environment claim under Title VII and the PHRA, Dr. Clayton must show that (1) he

suffered intentional discrimination because of his race, (2) the discrimination was severe

or pervasive, (3) this detrimentally affected him, (4) it would have detrimentally affected

a reasonable person in like circumstances, and (5) a basis for employer liability is present.

See Jensen v. Potter, 

, 449 (3d Cir. 2006). Viewing all of the facts in the

light most favorable to Dr. Clayton, we conclude that he cannot satisfy this showing

because there is no evidence that he suffered intentional discrimination because of his

race or that such discrimination was severe or pervasive. The record has nine alleged

incidents of discrimination spread over a five-year period. None of these incidents was

severe or pervasive in nature, and none was shown by Dr. Clayton to have been racially

motivated. Accordingly, the District Court was correct to deny Dr. Clayton’s hostile

                                              7
work environment claim.

       To establish constructive discharge, Dr. Clayton must show that “the employer

knowingly permitted conditions of discrimination in employment so intolerable that a

reasonable person subject to them would resign.” Aman v. Cort Furniture Rental Corp.,

, 1084 (3d Cir. 1996) (internal quotations omitted). Because Dr. Clayton has

failed to present any evidence of racial discrimination, however, he cannot satisfy this

requirement. The District Court thus properly granted summary judgment on this claim

as well. Cf. Clowes v. Allegheny Valley Hosp., 

, 1161–62 (3d Cir. 1993)

(holding that objective proof of discrimination is required to sustain an allegation of

constructive discharge)

                                            IV.

       For these reasons, we affirm the District Court’s grant of summary judgment.




                                              8