NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-3293

___________

MARGARET MAZUR,

Appellant

v.

SOUTHWESTERN VETERANS CENTER;

DEPARTMENT OF MILITARY & VETERANS AFFAIRS

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civil Action No. 2:17-cv-00826)

District Judge: Honorable Joy Flowers Conti

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 4, 2020

Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges

(Opinion filed March 5, 2020)

___________

OPINION*

___________

PER CURIAM

Pro se appellant Margaret Mazur appeals the District Court’s grant of summary 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

judgment in favor of defendants the Southwestern Veterans Center (“SWVC”) and the 

Pennsylvania Department of Military and Veterans Affairs (“DMVA”). Mazur brought 

claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act, 

42 U.S.C. § 2000e, et seq., and retaliation in violation of 42 U.S.C. § 1981. For the 

reasons that follow, we will affirm the District Court’s judgment.

I.

Mazur, who is white, was a DMVA employee until April 27, 2017.1 She worked 

at the SWVC, one of six veterans’ homes operated by the DMVA, as an accounting 

assistant. Mazur was supervised by Darren Lindsay in the accounting department at the 

time relevant to this case, and she worked with one other accounting assistant. Sharon 

Warden was Mazur’s co-worker until late May or early June 2016, when she was 

replaced by a new accounting assistant. Lindsay is black. Warden self-identified her 

race as white on SWVC forms; Mazur believes her to be black.2

Mazur believes that she was treated with disdain at work by Warden and Lindsay 

because they talked about topics that Warden did not know about or understand. While 

they worked together, Mazur observed Warden taking excessive breaks, leaving money 

unlocked and unattended, making accounting mistakes, and failing to count money 

without reprimand. Mazur also reported an incident in which Warden told her that she 

was not allowed to use a bathroom that was not the main bathroom.

1

 The following facts are undisputed unless otherwise noted.

2

 A member of SWVC management identified Warden’s race as biracial, while several 

other managers were not aware of Warden’s race.
3

Mazur, Warden, and Lindsay regularly went to the bank to replenish the cash on 

hand in the accounting department. On May 16, 2016, Mazur went to the bank to 

replenish the cash on hand. Mazur then drove back to the SWVC, walked inside to the 

accounting office, and placed the deposit bag on Warden’s chair. Warden and Lindsay 

were not in the office when Mazur returned. The accounting office was always locked, 

but numerous employees had keys. Mazur then returned to her desk, where she could see 

part of Warden’s chair because it was pulled away from her desk.

Several minutes later, Warden returned to the office and started to count the 

money on her chair out of Mazur’s sight. Either a minute or several minutes later, 

Warden asked Mazur to count the money with her. After the money was counted, 

Warden stated that the amount was off by $500. Lindsay and Mazur later confirmed that 

the money was missing. After Warden called the bank, the bank manager called and 

confirmed that the bank teller’s drawer had balanced.3 The police were contacted several 

days later, and ultimately, a detective informed members of management that he had 

sufficient evidence to arrest or prosecute Mazur. The money was never located.

On May 26, 2016, Mazur received notice of a pre-disciplinary conference 

(“PDC”) for that day. Jennifer McClain-Miller, a human resources analyst at the DMVA, 

testified at a deposition that Mazur stated at the PDC that she had not recounted the 

money at the bank, that she had left the money on Warden’s desk chair unattended, and 

3

 Soon after this incident, Lindsay implemented new deposit and cash replenishment 

procedures to take effect from that point forward, including a requirement that two people 

must be present to count cash when it is brought from the bank, and that it must be 

transported in a locked deposit bag.
4

that Warden was left alone with the money for some amount of time before Mazur helped

her count it.4 At the end of the PDC, Mazur was suspended without pay, pending 

investigation of the allegations against her.5

On June 2, 2016, it was decided that no criminal charges would be pursued against 

Mazur; members of management decided to offer her a settlement for a final warning and 

a time-served suspension without back pay. Mazur’s union representative accepted the 

settlement on June 8, 2016.6 In the meantime, Warden was served with a PDC notice and

was disciplined with an oral reprimand around June 6, 2016. According to McClainMiller, Warden was reprimanded because she failed to maintain proper control of the 

money when she had custody of it, alone, for up to several minutes before she called 

Mazur to help her count it. Warden transferred out of the accounting office to the human 

resources office at the SWVC at some point in late May or early June 2016.

Mazur returned to work on June 13, 2016. She refused to sign the final warning 

letter that was part of her settlement. Mazur repeatedly contacted numerous members of 

management and human resources in the following months to have her suspension 

removed from her record because she believed that it was unsupported.

4

 Mazur has averred that she counted stacks of money with the bank teller as the money 

was distributed.

5

 The letter stated that Mazur would receive back pay if the allegations were not 

substantiated.

6

 According to McClain-Miller, Mazur agreed to the terms of the agreement in a phone 

call with her union representative and McClain-Miller after the union representative read 

the terms of the agreement and sought Mazur’s consent to sign it. Mazur claims that she 

was told to return to work but was not informed about the terms of the agreement.
5

Soon after she returned to work, Mazur filed a charge of discrimination with the 

Equal Employment Opportunity Commission (“EEOC”). Mazur later updated her charge

of discrimination to include allegations of retaliation. She received a right-to-sue notice 

from the EEOC on April 7, 2017.

On April 17, 2017, Mazur submitted a letter to SWVC management stating that 

she believed she was being retaliated against for filing a charge of discrimination with the 

EEOC. Mazur again requested back pay and to have her suspension removed from her 

employment record. In a deposition, Mazur testified that she believed she was being 

harassed because Lindsay had threatened her with PDCs at least ten times after she 

returned to work, and because he sometimes closed her door and yelled at her or stood in 

front of her door and sang “you’re no good, you’re no good” at her, or told her, “you ain’t 

nobody.” Pl.’s Statement of Material Facts, Ex. 2 at p. 6. Lindsay testified that he sang a 

lot of songs in the office and that he often said “you ain’t nobody” in jest to his 

employees. On April 27, 2017, Mazur resigned from her position.

Mazur commenced this action in the District Court in June 2017. The District 

Court granted defendants’ early motion to dismiss Mazur’s retaliation claims to the extent 

that she relied on her EEOC complaint as her protected activity. After discovery was 

complete, Mazur and defendants moved for summary judgment. The District Court 

granted defendants’ motion and denied Mazur’s. Mazur timely appealed.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s grant of summary judgment for defendants. See
6

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment 

is proper “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.” Fed. R. Civ. P. 56(a). A genuine 

dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to 

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986).

III.

Mazur argues on appeal that the District Court’s decision was incorrect because it 

considered evidence from various witnesses for defendants who she claims “had no firsthand or personal knowledge” of the May 16 incident. See Appellant’s Br. at 11. She 

also argues that the facts she put forward were not properly credited. However, the 

undisputed material facts show that defendants were entitled to summary judgment.

First, Mazur did not state a prima facie case of Title VII race discrimination either 

under a disparate treatment or a hostile work environment theory. To establish a prima 

facie case of disparate treatment, an employee must set out four elements, the last of 

which is that she suffered an adverse employment action under circumstances that give 

rise to an inference of unlawful discrimination, such as where the employer treated a 

similarly situated employee who was not a member of the plaintiff’s protected class more 

favorably. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep’t 

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802 (1973).

Mazur did not put forth evidence that her suspension occurred under 
7

circumstances that give rise to an inference of unlawful race discrimination. See Sarullo 

v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (per curiam) (“The central focus of 

the prima facie case is always whether the employer is treating some people less 

favorably than others because of their race, color, religion, sex, or national origin.”)

(internal quotation marks and citation omitted). The only potential comparator Mazur 

identified is Warden. Mazur contends on appeal that she and Warden were similarly 

situated because they had the same job and worked for the same supervisor and because 

Warden had previously left money unattended. See Appellant’s Br. at 11. However, 

even assuming that Warden is not a member of Mazur’s protected class, she and Mazur 

did not engage in comparable conduct that led to dissimilar disciplinary action.

The undisputed record regarding the May 16 incident indicates that Warden had 

sole possession of the money in the office for a few minutes, at most, before she asked 

Mazur to help her count it. In contrast, Mazur was responsible for going to the bank, 

verifying that she received the correct amount of money, returning with the full amount 

to the office, and ensuring that it was secure until it was counted. Warden is thus not a 

proper comparator for Mazur, as Warden appropriately received a less severe form of 

disciplinary action than Mazur for her smaller role in that incident. See Patterson v. 

Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (“To meet her burden of 

demonstrating that another employee is ‘similarly situated,’ a plaintiff must show that . . .

someone . . . is directly comparable to her in all material respects.”). Thus, summary 

judgment was appropriately granted to defendants on Mazur’s disparate treatment claim.

Next, Mazur failed to state a prima facie case of a hostile work environment claim 
8

because she did not set forth sufficient evidence that her workplace was “permeated with 

discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or 

pervasive to alter the conditions of [her] employment and create an abusive working 

environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal 

quotation marks and citations omitted). Mazur has not identified race-based intimidation, 

ridicule, or insult that occurred at her workplace; her brief contains solely conclusory 

statements that she experienced her workplace as hostile. See Appellant’s Br. at 18, 21, 

31. At most, Mazur described a work environment in which she did not participate in the 

social conversations of her supervisor and co-worker and in which her co-worker was 

underperforming. Mazur has also not explained how Lindsay’s stray comments about 

being “no good” or being “nobody” were discriminatory, let alone severe or pervasive 

enough to alter the conditions of her employment. See Faragher v. City of Boca Raton, 

524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents 

(unless extremely serious) will not amount to discriminatory changes in the terms and 

conditions of employment.”) (internal quotation marks and citation omitted). Thus, 

Mazur also has not set out a prima facie case of a hostile work environment claim.

Next, Mazur’s Title VII retaliation claim also fails at the prima facie stage. Mazur 

does not challenge the District Court’s dismissal of her claim based on her filing of an 

EEOC complaint. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“[A]n 

appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of 

that issue on appeal.”). The only remaining potential protected activity in the record was 

Mazur’s submission of a letter to management in April 2017, ten days before she decided 
9

to resign. A plaintiff must set out three elements to establish a prima facie case of Title 

VII retaliation, the last of which is that “there was a causal connection between her . . .

protected activity and the adverse employment action.” Moore v. City of Philadelphia, 

461 F.3d 331, 340-41 (3d Cir. 2006) (citation omitted). A plaintiff “must establish 

that . . . her protected activity was a but-for cause of the alleged adverse action by the 

employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).

Even assuming that Mazur’s decision to resign could be considered an adverse 

employment action here, the record does not contain evidence suggesting any 

circumstances between Mazur’s submission of the letter and her decision to resign that 

could establish but-for causation of retaliation in this case. See Carvalho-Grevious v. 

Del. State Univ., 851 F.3d 249, 260 (3d Cir. 2017) (explaining that a plaintiff can 

establish but-for causation “by proffering evidence of an employer’s inconsistent 

explanation for taking an adverse employment action, a pattern of antagonism, or 

temporal proximity ‘unusually suggestive of retaliatory motive’”) (internal citations 

omitted); Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (stating 

that “proffered evidence, looked at as a whole, may suffice to raise the inference” of an 

employer’s retaliatory motive). Accordingly, summary judgment was properly granted to 

defendants on Mazur’s remaining Title VII retaliation claim.

Finally, Mazur could not establish a retaliation claim under § 1981, as § 1981 does 

not contain a private right of action against state actors. See McGovern v. City of 

Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009). To the extent that Mazur’s claim could 

be construed as a claim pursuant to 42 U.S.C. § 1983, Mazur’s claims are barred by 
10

Eleventh Amendment immunity, which protects a state or a state agency from suit unless 

Congress has specifically abrogated the state’s immunity or the state has waived its 

immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); 

Karns v. Shanahan, 879 F.3d 504, 513 (3d Cir. 2018). There has been no such waiver in 

this case, and Congress did not intend § 1983 to abrogate a state’s Eleventh Amendment 

immunity.

7

 See Quern v. Jordan, 440 U.S. 332, 338-40 (1979). The District Court thus 

correctly granted summary judgment for defendants on Mazur’s remaining claim.

Accordingly, we will affirm the judgment of the District Court.

7

 To the extent that Mazur’s complaint could be construed to allege constitutional claims, 

they fail for this same reason.