Filed: Jan. 23, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-1771 _ TAMEKA BARNES, Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY; VICTOR M. VERBEKE, Esquire _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cv-02438) District Judge: Hon. Anita B. Brody _ Submitted Under Third Circuit L.A.R. 34.1(a) January 21, 2015 Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges. (Filed: January 23, 2015) _ OPINION _ JORDAN,
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-1771 _ TAMEKA BARNES, Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY; VICTOR M. VERBEKE, Esquire _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cv-02438) District Judge: Hon. Anita B. Brody _ Submitted Under Third Circuit L.A.R. 34.1(a) January 21, 2015 Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges. (Filed: January 23, 2015) _ OPINION _ JORDAN, ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1771
_____________
TAMEKA BARNES,
Appellant
v.
NATIONWIDE MUTUAL INSURANCE COMPANY;
VICTOR M. VERBEKE, Esquire
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-13-cv-02438)
District Judge: Hon. Anita B. Brody
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 21, 2015
Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.
(Filed: January 23, 2015)
_______________
OPINION
_______________
JORDAN, Circuit Judge.
Tameka Barnes challenges the District Court’s entry of summary judgment against
her on claims she brought pursuant to 42 U.S.C. § 1981 and the Pennsylvania Human
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Relations Act (“PHRA”). She specifically argues that she can establish a prima facie
case of disparate treatment based on her race because, contrary to the District Court’s
conclusion, she suffered an adverse employment action. Because the District Court’s
ruling about a lack of adverse employment action was correct, we will affirm.
I. Background
A. Employment Overview
In 2002, Nationwide Mutual Insurance Company (“Nationwide”) hired Barnes,
who is an African American woman, as an office manager at one of its offices in
Philadelphia, Pennsylvania. In October 2005, she applied for a position as a legal
secretary in Nationwide’s Trial Division Office in Philadelphia. She was given that
position. Barnes testified at her deposition that she received favorable performance
evaluations and appropriate bonuses and raises throughout her time as a legal secretary in
the Philadelphia office. In December 2007, she transferred to a legal secretary position at
Nationwide’s Conshohocken, Pennsylvania, office. Again, she testified that she received
favorable performance evaluations and appropriate raises and bonuses throughout her
time there. In November 2012, Barnes applied for a position as a legal secretary at
Nationwide’s Trial Division Office in Harleysville, Pennsylvania. Her application was
successful, and she received a $2,500 raise. Barnes is still employed as a legal secretary
at Nationwide’s Harleysville office.
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B. Barnes’s 2009 Internal Complaint
On May 12, 2009, Barnes filed a complaint with Nationwide’s Office of Associate
Relations (“OAR”), 1 alleging that Victor Verbeke, the managing attorney of
Nationwide’s Conshohocken office, treated her unfairly because of her race.
Specifically, Barnes alleged that Verbeke was “lax with all the associates, except for
her,” that she was the only associate required to monitor the front desk, and that she had
heard from an anonymous source that Verbeke was watching her and was “trying to
create a paper trail” that would justify adverse action against her. (App. at 340a.) OAR
promptly investigated Barnes’s complaint, and as part of its investigation, it interviewed
Adrienne Oliphant (Barnes’s direct supervisor), Jeannette Burns-Young (another African
American legal secretary in the Conshohocken office), Donna DiPietro (one of Barnes’s
assigned attorneys), Verbeke, and Jesse Searfross (another of Barnes’s assigned
attorneys). At the conclusion of its investigation, OAR determined that there was no
evidence to support Barnes’s claim that Verbeke targeted her because of her race or
gender.
C. Barnes’s 2010 EEOC Complaint
On October 4, 2010, Barnes filed a charge of race and gender discrimination with
the Equal Employment Opportunity Commission (“EEOC”), alleging that, after returning
from a leave of absence, she was notified that she was under investigation for “allegedly
accepting vendor gift cards” and for having non-work related documents on her
“Associate” is evidently a term used within Nationwide as a synonym for
1
“employee.”
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computer. (Barnes Br. at 9.) She also alleged that Verbeke had harassed her since 2008
in the following ways: (1) he routinely reviewed and pulled files from her computer in an
attempt to locate non-work related documents, which he did not do with other associates’
computers; (2) he eavesdropped on her phone conversations, which he did not do with
other associates; and (3) he would send emails to Oliphant regarding Barnes’s arrival and
departure times in hopes of initiating disciplinary action.
After an investigation, the EEOC decided not to pursue Barnes’s matter further
and sent her a right-to-sue letter. The EEOC specifically explained that, as to the
allegation about vendor gift cards, an internal investigation by Nationwide had concluded
that Barnes did not accept or use gift cards from outside vendors. And, as to Barnes’s
allegation that Verbeke improperly accessed her computer and eavesdropped on her
phone calls, the EEOC noted that Nationwide regularly reminded employees that
company computers and telephones are subject to remote access and monitoring.
D. Barnes’s 2012 Internal Complaint
In 2012, Barnes filed another complaint with OAR. The complaint was
investigated, and OAR concluded that the complaint involved claims that had already
been investigated during the previous internal complaint.
E. Barnes’s 2013 Lawsuit
On May 1, 2013, Barnes filed a complaint in the United States District Court for
the Eastern District of Pennsylvania, alleging race discrimination claims under 42 U.S.C.
§ 1981 and the PHRA. She named Nationwide and Verbeke as defendants. In her
complaint, she alleged that Verbeke discriminated against her due to her race in the ways
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previously alleged in her EEOC complaint. She further alleged that, in addition to
sending emails to Oliphant about her arrival and departure times, Verbeke also sent
emails alleging she had made work-related errors. Barnes said that Verbeke did not
scrutinize white employees in the same way that he scrutinized black employees and that
he had targeted other black employees on two previous occasions.
On February 27, 2014, the District Court granted summary judgment against
Barnes. It reasoned that Barnes’s race discrimination claim failed as a matter of law
because none of the alleged wrongs that she suffered as a result of Verbeke’s conduct
resulted in disciplinary action, negative performance reviews, changes in employment
status, or any other adverse employment action. To the contrary, the District Court
observed that Barnes continuously received favorable evaluations, bonuses, and raises
during her employment at Nationwide. As a result, the Court concluded that Barnes had
not suffered an adverse employment action. Barnes timely appealed.
II. Discussion 2
As noted above, Barnes argues that she suffered an adverse employment action
and that, as a result, the District Court incorrectly held that her discrimination claim
failed as a matter of law. Her argument is unpersuasive.
2
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary
judgment de novo and “view inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d 243, 248 (3d
Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate where
the court is satisfied that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett,
477 U.S. 317, 322 (1986).
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The parties agree that the McDonnell Douglas burden-shifting framework applies
to Barnes’s race discrimination claims. Under that framework, Barnes must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). If she succeeds, the burden shifts to the defendants to articulate some
legitimate, non-discriminatory reason for their actions.
Id. If the defendants succeed,
then Barnes must prove by a preponderance of the evidence that the defendants’
purported legitimate reason is a mere pretext.
Id. at 804.
To establish a prima facie case of discrimination under section 1981 or the PHRA,
Barnes must show that: “(1) [she] is a member of a protected class; (2) [she] was
qualified for the position [she] sought to attain or retain; (3) [she] suffered an adverse
employment action; and (4) the action occurred under circumstances that could give rise
to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008) (Title VII); Brown v. J. KAZ, Inc.,
581 F.3d 175, 181-82 (3d Cir. 2009)
(“[T]he substantive elements of a claim under section 1981 are generally identical to the
elements of an employment discrimination claim under Title VII.”); Jones v. Sch. Dist. of
Phila.,
198 F.3d 403, 409 (3d Cir. 1999) (noting that the same legal standard applies to
Title VII and PHRA claims).3 Because the District Court concluded that Barnes failed to
show that she suffered an adverse employment action, that issue is the focus of her
appeal.
3
Because the standard for addressing a section 1981 claim is the same as the
standard used to address a PHRA claim, the discussion of Barnes’s section 1981 claim
simultaneously addresses her PHRA claim and no further analysis of the latter is
required.
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The phrase “adverse employment action” is linked to Title VII’s description of
employment actions that may not be based on an employee’s race. Title VII makes it
unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-
2(a)(1). Section 1981 similarly protects “the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship,” including an employment contract. 42
U.S.C. § 1981. Title VII and section 1981, therefore, do not provide relief for general
unpleasantness that can occur in the workplace, even if that unpleasantness may be
motivated by racial animus. Rather, those statutes provide relief only if discrimination is
“serious and tangible enough to alter an employee’s compensation, terms, conditions, or
privileges of employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (internal quotation marks and citations omitted) (applying Title VII); see also
Thompson v. City of Waco, Tex.,
764 F.3d 500, 503 (5th Cir. 2014) (applying section
1981).
Termination, failure to promote, and failure to hire all constitute adverse
employment actions. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin.”). Similarly, actions that reduce opportunities for promotion or professional
growth can constitute adverse employment actions. See de la Cruz v. N.Y.C. Human Res.
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Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996) (stating that reduced prestige
and opportunity for professional growth, although “quite thin,” are sufficient to show
adverse employment action at summary judgment). Employment actions such as lateral
transfers and changes of title or reporting relationships have generally been held not to
constitute adverse employment actions. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742,
761 (1998) (collecting cases stating that a “bruised ego;” a demotion without change in
pay, benefits, duties, or prestige; and a reassignment to a more inconvenient job did not
constitute adverse employment actions) (internal quotation marks omitted); Galabya v.
N.Y.C. Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000) (stating that delay in reassignment,
transfer to purportedly inferior facilities, and change in the type of students taught are not
adverse employment actions); Flaherty v. Gas Research Inst.,
31 F.3d 451, 456 (7th Cir.
1994) (concluding that changes to title and reporting relationship are not adverse
employment actions where plaintiff retained same grade level, benefits, and
responsibility).
Barnes advances two arguments in her attempt to establish that she suffered an
adverse employment action. First, she argues that Verbeke subjected her to “disciplinary
accusations,” and that such conduct constitutes an adverse employment action. (Barnes
Br. at 23-25.) She says that, “[g]iven the sheer amount of disciplinary accusations”
leveled against her by Verbeke, “it is simply of no moment that Defendants[] ‘abstained’
from issuing formal discipline.” (Id. at 24 (emphasis omitted).) And she also says that
“[t]here comes a point where the sheer number of meritless issues raised about an
employee’s performance, even if they do not result in discipline, must be considered
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sufficient to constitute an adverse employment action.” (Id. at 24-25 (emphasis
omitted).)
But regardless of whether “disciplinary accusations” can alter the conditions of an
employment contract for purposes of section 1981 – and we make no comment on that
assertion – the District Court rightly concluded that none of the “disciplinary
accusations” in this case constituted adverse employment actions. Section 1981 does not
grant federal courts the power to enforce good manners and proper etiquette in the
workplace; instead, it provides an avenue for employees to seek redress for significant
violations of civil rights. Barnes simply has not suffered a cognizable deprivation during
her employment at Nationwide under either section 1981 or the PHRA. Her brief
confirms as much when she acknowledges that, during her time in Conshohocken, she
received “overall favorable evaluations” and “appropriate raises and bonuses;” she “did
not receive any type of discipline, demotion, decrease in salary, written warning[;] nor
was she placed on a performance improvement plan.” (Barnes Br. at 7.) Bullying or
discrimination of any kind in the workplace is wrong, but not every wrong is a violation
of federal law.
Barnes next argues that “[a]ny questions as to whether Verbeke’s actions were
done with discriminatory animus were disputes of material fact for trial” because “[a]
reasonable jury could have concluded that [she] was targeted by Verbeke on the basis of
her race and that Nationwide is vicariously liable for [Verbeke’s] actions[.]” (Id. at 13,
24.) That argument also fails. Assuming that Verbeke treated Barnes less than
respectfully on account of her race, her claimed injury is not redressable under section
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1981 unless she suffered an adverse employment action. Absent such an action,
Verbeke’s motivation for targeting her, no matter how odious, is legally irrelevant.
III. Conclusion
For the reasons noted, we will affirm the judgment of the District Court.
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