Jones v. Se. Pa. Transp. Auth.

• Decision Date: 12 August 2015
• Docket Number: No. 14–3814.,14–3814.
• Citation: 796 F.3d 323
• Parties: Michelle Precia JONES, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY; Alfred Outlaw.
• Court: U.S. Court of Appeals — Third Circuit

796 F.3d 323

Michelle Precia JONES, Appellant

v.SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY; Alfred Outlaw.

No. 14–3814.

United States Court of Appeals, Third Circuit.

LAR 34.1(a) March 23, 2015.

Filed: Aug. 12, 2015.

Olugbenga O. Abiona, Philadelphia, PA, Brian M. Rhodes, Springfield, PA, for Appellant.

Danielle Banks, Michelle K. Carson, Stradley, Ronon, Stevens & Young, Philadelphia, PA, for Appellees.

Before: HARDIMAN, GREENAWAY, Jr. and KRAUSE, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

In this appeal, we consider whether a suspension with pay constitutes an “adverse employment action” under the substantive discrimination provision of Title VII. We hold that it typically does not.

I

Michelle Jones was fired in 2011 by her employer, the Southeastern Pennsylvania Transportation Authority (SEPTA). SEPTA says it dismissed Jones for submitting fraudulent timesheets; Jones says her termination was the culmination of years of unlawful sexual harassment, gender discrimination, and retaliation. The District Court entered judgment for SEPTA, Jones v. SEPTA, 2014 WL 3887747 (E.D.Pa. Aug. 7, 2014), and Jones filed this appeal.

SEPTA is a public transit agency that serves Philadelphia and its environs. In 2001, Jones began working as an administrative assistant in SEPTA's Revenue Operations Department under the supervision of Alfred Outlaw. On December 1, 2010, Outlaw suspended Jones with full pay after he discovered apparent fraud in her timesheets. Jones promptly informed SEPTA's Equal Employment Opportunity (EEO) Office that she intended to file a complaint against Outlaw. At a meeting the following week, Jones told the EEO Office that he had “sexually harassed” and “retaliated against” her. App. 167.

In the meantime, Outlaw referred the timesheet matter to SEPTA's Office of Inspector General (OIG). After an extensive investigation, OIG concluded in February 2011 that Jones collected pay for days she hadn't worked by submitting fraudulent timesheets. SEPTA suspended Jones without pay on February 22, 2011 and formally terminated her in April of that year.

Jones continued to press her grievances throughout this process. In March 2011, she filed a complaint with the Pennsylvania Human Relations Commission alleging that Outlaw had sexually harassed her and other female employees, ordered her to do personal work for him during business hours, and retaliated against her for resisting this mistreatment by accusing her of timesheet fraud. SEPTA therefore ended its internal investigation, but not before concluding that Outlaw had engaged in inappropriate behavior by once asking Jones to step on his back to relieve spinal pain. This “lapse in judgment” was noted in Outlaw's annual performance evaluation, and he was required to attend a training session regarding SEPTA's sexual harassment policy. App. 1089–90.

Jones ultimately filed suit against SEPTA and Outlaw in the United States District Court for the Eastern District of Pennsylvania. Her amended complaint alleged gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Rights Act (PHRA). She also alleged a violation of the Fourteenth Amendment of the United States Constitution, common law wrongful termination, and retaliation in violation of the Family and Medical Leave Act. The District Court dismissed the wrongful termination claim and subsequently granted summary judgment to SEPTA and Outlaw on the remaining claims. Jones has appealed only the Court's summary judgment on the Title VII, PHRA, and constitutional claims.

II

The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291, and our review of a summary judgment is plenary. EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir.2015).

III

The linchpin of the District Court's opinion was its holding that Jones's claims fail principally because her initial suspension with pay was not an adverse action within the meaning of the employment discrimination laws. Jones, 2014 WL 3887747, at *3–4, 6, 9. This is an issue of first impression in the Third Circuit. Although we need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context, see infra Section IV–B, we hold that such a suspension generally does not constitute an adverse action in the substantive discrimination context.

Title VII forbids employers “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.”42 U.S.C. § 2000e–2(a)(1). Our analysis of claims arising under this “substantive provision” is governed by the three-step framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) : first we ask whether the plaintiff has stated a prima facie case of discrimination or retaliation; if she has, we ask whether the employer has advanced a legitimate reason for its conduct; and finally we give the plaintiff an opportunity to prove that the employer's proffered reason is pretextual. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994).

A Title VII plaintiff must prove that she suffered an adverse employment action in order to satisfy step one of McDonnell Douglas. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003). We have described an adverse employment action “as an action by an employer that 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 omitted).

The District Court held that Jones's suspension with pay did not constitute an adverse employment action under Title VII. See Jones, 2014 WL 3887747, at *4. Although the District Court noted that we have “not addressed this issue,” it also noted that other courts of appeals have unanimously concluded that “placing an employee on paid administrative leave where there is no presumption of termination” is not an adverse employment action under the substantive provision of Title VII. Id.; see Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.2006) (“[A]dministrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action.”); Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 891–92 (8th Cir.2005) ; Peltier v. United States, 388 F.3d 984, 988 (6th Cir.2004) ; see also Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir.2001) (holding that “placing [an employee] on administrative leave with pay for a short time to allow investigation” is not an adverse action for retaliation purposes), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ; Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.2000) (placement on paid administrative leave is not an adverse action for purposes of a First Amendment retaliation claim). But cf. Dahlia v. Rodriguez, 735 F.3d 1060, 1078–79 (9th Cir.2013) (en banc) (placement on paid administrative leave can be an adverse action for purposes of a First Amendment retaliation claim).

Like the District Court, we think this chorus is on pitch. A paid suspension pending an investigation of an employee's alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII's substantive provision. That statute prohibits discrimination in hiring, firing, and “compensation, terms, conditions, or privileges of employment.” § 2000e–2(a)(1). A paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation. Nor does it effect a “serious and tangible” alteration of the “terms, conditions, or privileges of employment,” Storey, 390 F.3d at 764, because “the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer's disciplinary policies in appropriate circumstances,” Joseph, 465 F.3d at 91. We therefore agree with our sister courts that a suspension with pay, “without more,” is not an adverse employment action under the substantive provision of Title VII. Id.

Applying this legal standard to the facts of this appeal, we readily agree with the District Court that Jones's suspension with pay did not constitute an adverse employment action. In her brief, Jones summarily declares that her “indefinite suspension” that began on December 1, 2010 was an adverse employment action without providing any argument for why this is so. Jones Br. 44. Having failed to marshal evidence that her suspension with pay was atypical in any way, Jones's argument fails for the same reasons stated by our sister courts in the cases we have cited. Accordingly, we hold that Jones's suspension with pay from December 1 to February 22 (when SEPTA suspended her without pay) was not an adverse employment action under the substantive provision of Title VII.

IV

The fact that Jones's initial suspension with pay was not an adverse employment action eviscerates much of Jones's appeal but doesn't doom it entirely. Therefore, we turn to her specific claims under Title VII, the PHRA, and the Constitution. Her statutory claims turn on whether summary judgment for SEPTA was appropriate on the Title VII claims. “[T]he PHRA is to be interpreted as identical to federal antidiscrimination laws except where there is something specifically different in its language requiring that it be treated differently,” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir.2002), and Jones identifies no relevant distinction here. Furthermore, Outlaw was a defendant on the PHRA counts of the complaint and not on the Title VII counts, and his liability as an “aide[r] and abett[or]” under the PHRA hinges on...