NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                   ________________

                         No. 17-1206
                      ________________


                  JOAN Y. SUMMY-LONG,

                                    Appellant

                               v.

             PENNSYLVANIA STATE UNIVERSITY;
       PENN STATE COLLEGE OF MEDICINE, ("PSCM");
                   GRAHAM B. SPANIER, Ph.D.,
              President of Pennsylvania State University;
 HAROLD L. PAZ, M.D., Senior Vice President for Health Affairs,
             Dean and Chief Executive Officer of PSCM;
   DARRELL G. KIRCH, M.D., former Senior Vice President for
         Health Affairs, Dean and Chief Executive of PSCM;
KEVIN GRIGSBY, D.W.S., Vice Dean of Faculty and Administrative
Affairs at PSCM; C. MCCOLLISTER EVARTS, M.D., former Senior
    Vice President for Health Affairs, Dean and Chief Executive
      Officer PSCM; ELLIOT S. VESELL, Sc.D., Former Chair
            of the Department of Pharmacology of PSCM;
    WAYNE ZOLKO, Associate Vice President for Finance and
    Business and Controller of PSCM; KENT E. VRANA, Ph.D.,
      current Chair of the Department of Pharmacology PSCM;
        MELVIN BILLINGSLEY, former Acting Chair of the
                Department of Pharmacology of PSCM

                      ________________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
                  (M.D. Pa. No. 1-06-cv-01117)
          District Judge: Honorable Matthew W. Brann
                       ________________
                        Submitted Under Third Circuit LAR 34.1(a)
                                   September 27, 2017

     Before: AMBRO, KRAUSE, Circuit Judges, and CONTI, Chief District Judge

                            (Opinion filed: November 6, 2017)
                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge

          Dr. Joan Summy-Long (“Summy-Long”) brought claims against her former

employer, Pennsylvania State University (“Penn State”), under Title VII of the Civil

Rights Act of 1964, Title IX of the Education Amendments of 1972, the Federal Equal

Pay Act, 42 U.S.C. §§ 1983 & 1985, the Pennsylvania Human Relations Act, the

Pennsylvania Equal Pay Act, and the Pennsylvania Equal Rights Amendment. The theme

is that she suffered wage disparity on account of her gender. After Summy-Long

abandoned her Pennsylvania Equal Pay Act and Pennsylvania Equal Rights Amendment

claims, the District Court granted summary judgment to Penn State, holding that she

failed to establish a prima facie case of sex discrimination and otherwise could not show

that Penn State’s explanations were a pretext for discrimination. We agree and thus

affirm.





  Honorable Chief Judge Joy Flowers Conti, District Court Judge for the Western District
of Pennsylvania, sitting by designation.
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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       The facts of this case are well known to the Court and the parties. See Summy-

Long v. Pennsylvania State Univ., 

(M.D. Pa. 2016); Summy-Long v.

Pennsylvania State Univ., No. 1:06-CV-1117, 

, at *1 (M.D. Pa. Nov.

2, 2010).

       We review determinations on summary judgment de novo. Kelly v. Borough of

Carlisle, 

, 253 (3d Cir. 2010). It is appropriate when “the movant shows

that there is no genuine dispute as to any material fact and . . . is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56. The court must view the evidence in the light most

favorable to the non-moving party. Galena v. Leone, 

, 196 (3d Cir. 2011).

       Despite a long and settled history to the contrary, Summy-Long asked the District

Court to construe her sex discrimination claims as asserting a disparate impact theory of

liability. Disparate impact occurs when policies, practices, rules or other systems that

appear to be neutral result in a disproportionate effect on a protected group, as opposed to

disparate treatment claims that involve discriminatory decisions regarding an individual.

See Griggs v. Duke Power Co., 

(1971); 42 (U.S.C. § 20003-2(k).

       The District Court refused Summy-Long’s request; it reasoned that she styled and

prosecuted her action as a disparate treatment claim and thus was precluded from

attempting to include other theories of liability at the eleventh hour in her summary

judgment brief. We agree. Our Court has upheld decisions made by district courts

rejecting disparate impact claims that were raised for the first time in summary judgment,

expressing concerns over potential prejudice, expansion of burdens, and delay. See e.g.,

Josey v. John R. Hollingsworth Corp., 

, 641 (3d Cir. 1993).

                                               3
       We apply the same legal standard for all of Summy-Long’s sex discrimination

claims. Title VII and the PHRA prohibit an employer from discriminating against its

employees on the basis of sex. 42 U.S.C. § 2000e-2(a)(i); 43 PA. CONS. STAT. § 955(a).

Title IX applies the same prohibition to recipients of federal funds. 20 U.S.C. § 1681(a).

“Following the Supreme Court’s lead in turning to Title VII jurisprudence for Title IX

cases, lower courts have adopted the Title VII framework to analyze Title IX [ ] claims.”

Atkinson v. Lafayette Coll., 

, 594 (E.D. Pa. 2009). This means

Summy-Long’s claims are analyzed under burden-shifting framework in McDonnell

Douglas Corp. v. Green, 

(1973).

       To survive summary judgment, a plaintiff must establish a prima facie case by

showing (1) she is a member of a protected class, (2) she was qualified for the position,

(3) she suffered an adverse action, and (4) this occurred under circumstances that raise an

inference of discriminatory action. Sarullo v. U.S. Postal Serv., 

, 797 (3d

Cir. 2003). If Summy-Long meets the prima facie test, the burden shifts to Penn State to

offer a legitimate, non-discriminatory reason for its actions. Stanziale v. Jargowsky, 

, 105 (3d Cir. 2000). If it does so, Summy-Long must then point to evidence

from which a reasonable jury could find that the University’s explanation is a pretext for

discrimination and not the real motivation for its actions. 

.

       Summy-Long fails at the prima facie stage. She relies on the history of salary

studies at Penn State’s Medical College that show she, as well as other female faculty,

received lower salaries than their male comparators. However, our Court has previously

instructed district courts to treat statistical evidence with caution in disparate treatment

                                               4
cases. Healy v. N.Y. Life Ins. Co., 

, 1217 (3d Cir. 1988). The reason is that

the inquiry involves decision-making related to the individual rather than the group.

Cooper v. Fed. Reserve Bank of Richmond, 

, 867 (1984).

       The Haignere Report relied on by Summy-Long did not establish causation for any

salary disparities, analyze individualized circumstances, or explain the qualitative aspects

of the faculty. Further, the only salary inputs were taken from the 2001-2002 academic

year, which is outside of the relevant time period, here after June 2, 2003.

       Even had Summy-Long crossed the prima facie threshold, she failed to show that

Penn State’s legitimate, non-discriminatory explanation of substandard academic

performance is mere pretext. Penn State has cited numerous items in the record that

Summy-Long’s salary reflected a lack of academic performance in comparison to her

colleagues. She was urged to increase publications and to obtain external funding to

support her research and a required portion of her salary. She was also offered a position

as a committee chair by her boss but refused. Summy-Long failed to apply timely to

renew her National Institute of Health grant even after being reminded repeatedly for

three years by her superior. She also failed to respond with any affirmative evidence that

Penn State’s explanation regarding her salary is pretextual. We thus affirm the District

Court’s summary judgment in favor of Penn State regarding her sex discrimination

claims.

       Summy-Long also appeals the summary judgment against her as to her claim

under the Federal Equal Pay Act. To establish a prima facie case here, a plaintiff must

show that employees of the opposite sex were paid more for performing work under

                                             5
similar conditions that required substantially “equal skill, effort, and responsibility.” 29

U.S.C. § 206(d)(1); 

. Substantial equality is not determined by

job titles; it turns on “actual job content.” Brobst v. Columbus Servs. Int’l, 

,

155 (3d Cir. 1985). If a plaintiff is able to demonstrate a prima facie Equal Pay Act case,

the burden then shifts to the employer to show that the pay difference resulted from (1) a

bona fide seniority system, (2) a merit system, (3) a system that measures earnings by

quantity or quality of production, or (4) a differential based on any factor other than sex.

29 U.S.C. § 206(d)(1).

       As with Summy-Long’s sex discrimination claims, even if she were able to

demonstrate a prima facie Equal Pay Act case, Penn State has shown an affirmative

defense that she has not overcome. It awards salary based on a merit system. The

difference in Summy-Long’s salary compared to her male coworkers resulted from,

among other things, her lack of publications and failure to obtain external funding.

Hence we affirm here as well.

       The District Court also properly granted summary judgment to Penn State on the

merits of Summy-Long’s retaliation claims. There were four asserted bases for

retaliation: (1) reduction of lab space; (2) her name was not listed on the Neural Science

and Behavior Department faculty website; (3) medical misdiagnosis by doctors not

parties to this claim; and (4) negative working conditions in the Pharmacology

Department. At the prima facie stage Summy-Long must show: (1) protected employee

activity; (2) adverse action by employer after or concurrent with the protected activity;



                                              6
and (3) a causal connection between the two. EEOC v. Allstate Ins. Co., 

,

449 (3d Cir. 2015).

       Reduction in lab space was not an adverse action, as lab space is awarded based on

external grant funding that Summy-Long did not have. Her name was missing from the

faculty web site simply because it had not been updated in years. She alleges that Penn

State doctors misdiagnosed her skin tumor, classifying it as squamous cell carcinoma,

and when they recommended a second excision it showed she was cancer-free. Not only

have the doctors never been parties to this claim, but Summy-Long fails to show the

alleged misdiagnosis was in any way motivated by her protected activity. Additionally,

the negative working conditions in Pharmacology consisted of rudeness from an assistant

and an omission of her name in an article, which are not sufficiently adverse. Moreover,

Summy-Long failed to show any causal relation of the University’s action to her

protected activity. Yet again, a prima facie case for retaliation is not met.

       The remainder of Summy-Long’s appeal relates to discovery. The District Court

denied her last minute motion to compel, and she appeals. We review that denial under

an abuse-of-discretion standard. Berger v. Edgewater Steel Co., 

, 916 (3d

Cir. 1990). Summy-Long submitted a discovery request on January 3, 2014—regarding

performance and salary information for multiple Penn State employees dating back to the

1970s—to which Penn State promptly objected and repeated its objection two months

later. Yet she waited almost twenty months to challenge the objections and compel

production of the documents, filing a motion to compel on the very last day of discovery.

The District Court denied it as untimely.

                                              7
       Summy-Long has failed to show that she was unable to file the motion to compel

discovery in a diligent manner, rather than months after the second round of objections

by Penn State. Our Court has held that a district court’s discovery ruling will not be

reversed without determining that it resulted in actual and substantial prejudice and was a

“gross abuse of discretion resulting in fundamental unfairness.” Marroquin-Manriquez v.

I.N.S., 

, 134 (3d Cir. 1983); see also In re Fine Paper Antitrust Litig., 

, 817-18 (3d Cir. 1982). We make no such determination here.

       The District Court also properly limited the scope of discovery to alleged

discriminatory practices occurring on or after June 2, 2003. Summy-Long does not

challenge that this is the law of the case relative to monetary relief, but claims that the

Court erred in determining that the scope of the evidentiary time frame relevant to her

case is also limited to after 2003. What this ignores is that the District Court’s ruling

took place in the context of deciding Summy-Long’s motion to compel, which sought the

production and performance of her comparators as far back as 1978. The Court relied on

the fact that, since 2010, the parties had proceeded on the basis that this case involved

salary-related issues only for the period during and after 2003. Based on this, it properly

declined to expand the scope of the case by approximately twenty-five years after the

case already had been pending for nine years.

       Finally, Summy-Long claims that the District Court was biased against her. While

the Court may have referred to its frustration related to Summy-Long’s frequent changes

of counsel and requests for deadline extensions, it carefully reviewed and explored all

pertinent factual and legal issues before coming to a decision.

                                              8
      Critical comments by a judge in an opinion or during court proceedings do not by

themselves make for bias or prejudice. See Knoll v. City of Allentown, 

, 411

(3d Cir. 2013). What is needed is a “deep-seated” or “high degree” of “favoritism or

antagonism that would make fair judgment impossible.” United States v. Wecht, 

, 213 (3d Cir. 2007), as amended (July 2, 2007) (citing Liteky v. United States,

, 555-56 (1994)). The record reveals none of that here.

      We affirm in all respects.




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