Filed: Mar. 24, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3661 _ CATHY THOMAS-TAYLOR, Appellant v. CITY OF PITTSBURGH; FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1; POLICEMEN'S RELIEF AND PENSION FUND OF THE CITY OF PITTSBURGH; UPMC BENEFITS MANAGEMENT SERVICES, INC. _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 13-cv-00164) District Judge: Honorable Joy Flowers Conti _ Submitted Pursuant to Third Circuit
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3661 _ CATHY THOMAS-TAYLOR, Appellant v. CITY OF PITTSBURGH; FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1; POLICEMEN'S RELIEF AND PENSION FUND OF THE CITY OF PITTSBURGH; UPMC BENEFITS MANAGEMENT SERVICES, INC. _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 13-cv-00164) District Judge: Honorable Joy Flowers Conti _ Submitted Pursuant to Third Circuit ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3661
___________
CATHY THOMAS-TAYLOR,
Appellant
v.
CITY OF PITTSBURGH;
FRATERNAL ORDER OF POLICE
FORT PITT LODGE NO. 1;
POLICEMEN'S RELIEF AND PENSION FUND
OF THE CITY OF PITTSBURGH;
UPMC BENEFITS MANAGEMENT SERVICES, INC.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 13-cv-00164)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2015
Before: CHAGARES, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: March 24, 2015)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Cathy Thomas-Taylor appeals the District Court’s order granting summary
judgment for Defendants the Fraternal Order of Police (“FOP”) and the City of Pittsburgh
(“the City”). We will affirm the District Court’s judgment.
Thomas-Taylor filed two complaints in the District Court that were consolidated.
The claims were eventually winnowed down to four claims against the City (Breach of
contract, Title VII retaliation, ERISA retaliation, and ERISA interference), and one claim
against the FOP (retaliation in violation of Title VII). See Notice Identifying Claims
Against Defendants, dkt. #38. The District Court granted summary judgment for the City
because Thomas-Taylor’s claims were barred by a previous settlement agreement
between the parties, see dkt. #58-14, and granted the FOP summary judgment because
Thomas-Taylor failed to make a prima facie case of retaliation. Mem. Op., dkt. #79.
The City asks us to dismiss Thomas-Taylor’s appeal as frivolous, because she
failed to include any legal support for relief in her brief. We agree that she essentially
has waived any argument that the settlement agreement does not bar her current claims;
her only argument is a conclusory statement that “I did not release my pension rights or
benefits at that time by signing agreement.” App. Br. at 6; see Kopec v. Tate, 361 F.3d
772, 775 n.5 (3d Cir. 2004) (“An issue is waived unless a party raises it in its opening
brief, and for those purposes a passing reference to an issue . . . will not suffice to bring
that issue before this court.”). Similarly, Thomas-Taylor has in essence waived any
argument that the District Court improperly granted FOP summary judgment. Thomas-
2
Taylor’s brief only makes conclusory statements that she “feel[s] everything that was
done was in direct retaliation for filing of complaints and reporting wrongdoing.” App.
Br. at 9. However, because she is proceeding pro se, we will briefly address why the
District Court properly granted summary judgment for the Defendants.
“We apply plenary review to a district court’s construction of settlement
agreements, but we review any underlying factual findings for clear error.” In re Diet
Drugs Prod. Liab. Litig., 706 F.3d 217, 223 n.4 (3d Cir. 2013) (internal quotation
omitted). As the District Court noted, the settlement agreement contained an “extensive
general release of claims against the City,” including “causes of action both ‘known and
unknown’ at the time of the signing.”1 Mem. Op. at 3, 9. The Court noted that two
actions formed the basis for Thomas-Taylor’s current claims against the City: its
conversion of her status from a recipient of Heart and Lung Act benefits to Worker’s
Compensation benefits, and its cessation of contributions to her pension. The Court
found, based on the record, that both of those actions occurred “more than a year prior to
the settlement agreement.” Mem. Op. at 9. Thomas-Taylor, who was represented by
1
The settlement agreement stated in part that “Ms. Thomas Taylor knowingly and
voluntarily releases and forever discharges the City and its current and former employees,
attorneys, officers, directors and agents thereof and the current and former trustees or
administrators of any pension or other benefit plan applicable to the employees or former
employees of City . . . of and from any and all claims, demands, liabilities, obligations,
promises, controversies, damages, rights, actions and causes of action, known and
unknown, whether in law or equity, which Ms. Thomas Taylor has or may have asserted
against the City as of the date of execution of the Agreement . . . .” Dkt. #46-8 at 2.
3
counsel at the time of the settlement agreement,2 does not dispute these facts, but only
argues vaguely that she did not believe she was waiving her pension rights. We discern
no error in the District Court’s application of the undisputed facts and agree that
summary judgment in favor of the City was proper as a matter of law. See Fed. R. Civ.
P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”).
The District Court also properly granted summary judgment in favor of Thomas-
Taylor’s labor union, the FOP. Thomas-Taylor filed a charge of discrimination against
the FOP in 2008, claiming that because of her race and sex it failed to properly represent
her in a job selection claim.3 In the current suit, Thomas-Taylor complained that because
she had filed that discrimination charge, the FOP retaliated4 against her: (1) by declining
to file on her behalf a grievance based on a claim to longevity pay; (2) by adopting a
policy that FOP members must reimburse the FOP for legal fees if a charge against the
2
She was also represented by counsel in the District Court here. She proceeds pro se on
this appeal.
3
Title VII prohibits discrimination not only by employers, but also by labor
organizations. See 42 U.S.C. § 2000e-2(c) (unlawful for labor organization to
discriminate against individual because of her race, color, religion, sex, or national
origin).
4
See 42 U.S.C. § 2000e-3(a) (unlawful for labor organization to discriminate against
member because she has opposed organization’s discriminatory practice); see also Dixon
v. Int’l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007) (setting forth three-part
test for retaliation in labor union context).
4
FOP is resolved in its favor; and (3) by ceasing to communicate with her for part of 2009
and 2010.
The District Court noted that evidence of close temporal proximity between the
protected activity and the adverse action may demonstrate retaliation if is “unusually
suggestive,” see, e.g., Daniels, 2015 WL 252428, at *10, but it properly concluded that in
each case here, the proximity was not unusually suggestive of a discriminatory motive.
The FOP’s first and third actions (declining to file the grievance and the alleged failure to
communicate) both occurred more than a year after Thomas-Taylor filed her charge
against the FOP. The gap here certainly does not suggest that Thomas-Taylor’s activity
caused the FOP to retaliate against her. See LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n,
503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what
constitutes unduly suggestive temporal proximity, a gap of three months between the
protected activity and the adverse action, without more, cannot create an inference of
causation and defeat summary judgment.”).
The FOP’s second action (requiring membership to reimburse the FOP for legal
fees) took place about a month after Thomas-Taylor filed a second charge of
discrimination against the FOP. This is closer, of course, but not close enough to support
a finding of causation without more. See Smith v. Fairview Ridges Hosp. 625 F.3d 1076,
1088 (8th Cir. 2010) (one month gap is not unusually suggestive), abrogated on other
grounds by Torgerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011) (en banc). If
the time period is not unusually suggestive, the court must consider whether “the
5
proffered evidence, looked at as a whole, may suffice to raise the inference.” LeBoon,
503 F.3d at 232. The District Court properly found that Thomas-Taylor had not pointed
to any direct or circumstantial evidence in the record that showed a discriminatory
animus.5 On the contrary, the letter informing Thomas-Taylor that she owed the FOP
legal fees was “in response to plaintiff putting herself forward as a candidate for delegate
in the FOP’s 2010 election, [and] inform[ed] her of the need to pay outstanding [legal
fees and dues] in order to be considered ‘in good standing’ and eligible to stand for
election.” Mem. Op. at 18. We agree with the FOP that even though Thomas-Taylor had
by that time filed two EEOC complaints against it, the letter “does not show a trace of
retaliatory animus, but rather civil and respectful treatment of [Thomas-Taylor].” FOP’s
Br. at 21. We conclude that Thomas-Taylor did not make out a prima facie case for
retaliation based on any of the FOP’s actions. The District Court thus properly granted
summary judgment.
For the foregoing reasons and those explained by the District Court, we will affirm
the District Court’s judgment.6
5
In her brief here, Thomas-Taylor argues that summary judgment was premature because
there are “conflicting statements” in the record. However, she has not pointed to any
evidence in the record that shows a genuine dispute as to any fact that is material to the
determination of whether retaliation took place.
6
Thomas-Taylor’s motions to expand the record are denied. In re Capital Cities/ABC,
Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) (we
“cannot consider material on appeal that is outside of the district court record”).
6
