2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/126NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 4251

_____________ PHYLLIS ATKINSON, Appellant

v. NORTH JERSEY DEVELOPMENTAL; CAROLE WOLKE

_____________ On Appeal from the United States District Court for the District of New Jersey ( D.C. No. 06

- 05485 ) District Judge: Hon. Peter G. Sheridan Submitted September 20, 2011 Before: AM B R O, CHAGARES, and ALDISERT, Circui t Judges

.

(Filed December 1, 2011 )

____________ OPINION

____________ CHAGARES, Circui t J udge

. Phyllis Atkinson appeals the District Court’s grant of summary judgment to the
No rth Jersey Developmental Center and its employee Carole Wolke ( hereinafter “NJDC”) on her claim s of racial discrimination and retaliation . Atkinson contends that Wolke discriminated against her in giving her a low performance review, issuing her a2

warning for arriving late to work, denying her vacation requests, having her job duties adjusted, and engaging her in a heated argument where Wolke said she would “fix” her.
A dditionally, Atkinson maintains that based on her complaints regarding these discriminatory acts , NJDC retaliated against her

. For the reasons that follow, we will affirm the judgment of the District Court.
I. We write for the parties’ benefit and r ecite only the facts essential to our disposition. Phyllis Atkinson is an African

- American woman who was employed by NJDC as a clerk tran s c riber from 1980 until her retirement in Sept ember 2007. In the fall of 2003 , Carole Wolke, a Caucasian woman, was N JDC’s Assis tant Director of Nursing and became Atkinson’s immediate supervisor. In April 2004, Wolke performed Atkinson’s performance assessment review (“P AR”) , assigning her a score of twenty

four out of a possible thirty and citing specific areas where Atkinson could improve her job performance

. Wolke noted that this score indicated that Atkinson met the essential criteria for the majority of her job responsibilities and exceeded the essential criteria in the remaining duties. Despite the fact that Wol ke’s assessment was an improvement over Atkinson’s two previous PAR scores, she was not content with her review and requested a meeting with Wolke to dis cuss her score. Wolke and Atkinson never met to review the
PAR. On September 24, 2004, Wolke sent a l etter to the Director of Nursing Roxanne Lotts complaining about her PAR score, Wolke’s favoritism towards other employees, and that she was overworked with paperwork and felt un der appreciated for the amount of3

work she performed . Wolke never received a c opy of this letter. Eventually, Atkinson’s PAR score was raised to a twenty

- seven. On December 1, 2004, Atkinson and Wolke exchanged heated words, when Wolke confronted her regarding statements she made to other co

- workers that Wolke was a racist. Atkin son contends that , during this conversation , Wolke stated that she would “fix” Atkinson if the comments continued . Following the argument, Atkinson wrote another letter to Lotts recounting the confrontation and clarifying that she felt that Wo lke discrimi nated against her “ like a ra cist ” because of past incidents. Atkinson , on March 22, 2004, requested a vacation leave for the Thanksgiving holiday . NJDC’s vacation policy required that Atkinson submit all such requests no later than March 15, 2004. Whe n she received no response , Atkinson re - submitted the request on November 19, 2004. On that same day, Wolke denied her request for vacation

. Despite this denial, a NJDC supervisor later granted Atkinson the vacation leave. On February 14, 2005, Atkins on called NJDC around eleven in the morning , informing the staff that she would be late to work and stating that she would not arrive for another hour. Atkinson called back to work around one in the afternoon requesting an emergency administrative leave d ay. A supervisor granted her request, but she was able to report to work shortly afterwards. Because Atkinson was supposed to report to work at nine in the morning and did not call in to give notice that she would be late until around eleven, Wolke issue d her a “Red A” disciplinary notice. This notice, however, was later removed from Atkinson’s record.4

Atkinson also alleges that during this time period Caucasian co

- workers were treated more favorably than her. Specifically, Atkinson contends that NJDC employee Donna Corroda, a Caucasian female, received a new desk and computer from Wolke , whereas Wolke told Atkinson she did not need a desk or computer to perform her job duties . At all times, however, Atkinson had a desk and computer and , eventually , h er desk was replaced with new furniture

. On February 28, 2005, Atkinson filed a N ew J ersey Grievance Procedure Form, complaining about suffering emotion al distress and hea daches related to harassment in the workplace. The complaint did not include alle gations of racial discrimination

. Atkinson alleges that in response to this filing her new supervisor, Michael Buongiorno , started micro managing her work. On March 28, 2005, Atkinson filed a Disc rimination Complaint with the New Jersey Department of Pers onnel. Following this filing, Atkinson took an extended sick leave until June 2005. Atkinson , upon her return , complained that she did not receive al l her job responsibilities back, but admitted that she did not have a problem with the reduction in work because her duties were overwhelming. From 2005 through 2007, Atkinson took a series of medical leaves and retired in June 2007. Atkinson filed a pro se complaint in the District Court of New Jersey, alleging race discrimination and retaliation under Ti tle VII of the Civil Rights Act

. 1 On October 5, 2010, the District Court granted summary judgment to NJDC, finding that Atkinson did not present a prima facie case of retaliation under Title VII because she had not

1 T he District Court dismissed all of Atkinson’s claims under New Jersey Law Against Discrimination. Atkinson does not appeal this dismissal.5

demonstrated a causal connection between any alleged protected activity and a materially adverse action by NJDC. Similarly, the District Court granted summary judgment on Atkinson’s discrimination claim, concluding that she had failed to show an adverse employment action to satisfy a prima fa ci e claim of discrimination. Further, even if such a prima facie case could be made, the District Court found that NJDC had articulated a legitimate , nondiscriminatory reason for its action s and Atkinson had failed to show that these reasons were pretext fo r discrimination. Atkinson filed a timely appeal.
II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment is pl enary, and we apply the same legal standard as it should have. Vitalo v. Cabot Corp. , 399 F.3d 536, 542 (3d Cir. 2005). A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant i s entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In conducting our analysis, we must view the record in the light most favorable to Atkinson , and must draw all reasonable inferences in her favor. See Vitalo , 399 F.3d at 542. To defeat summary judgment, however, Atkinson must “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
III. Under Title VII, it is 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 such6

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e

- 2(a). Ad ditionally, Title VII contains an anti

- retaliation provision which provides that it is “an unlawful employment practice f or an employer to discriminate against any of his employees . . . because [the employee ] has opposed any practice made an unlawful empl oyment practice.” Id. § 2000e

- 3(a). In the absence of direct evidence of discrimination or retali ation , as here, a plaintiff may prove her claim according to the burden

- shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973 ). Under McDonnell Douglas , the plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination or retaliation

. Id. at 802. If the plaintiff succeeds, the burden of production shifts to the employer to articulate a legit imate, nondiscriminatory reason for its decision. Id. Once the employer meets its “relatively light burden,” the burden of production returns to the plaintiff, who must show by a preponderance of the evidence that the employer’s proffered reason is prete xtual. Fuentes v. Perskie , 32 F.3d 759, 763 (3d Cir. 1994). Accordingly, once an employer has proffered a legitimate, nondiscriminatory reason, the plaintiff “generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate re asons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employm ent action.” Id. at 762. Because the ultimate issue is whether “discriminatory animus” motivated the employer, it is not enough to show that the employer made a “wrong or mistaken” decision. Id. at 765 (citations7

omitted). Rather, the plaintiff must un cover “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation that would allow a reasonable factfinder to believe that the employer did not truly act for the asserted reason. Id. For Atkinson t o mai ntain a prima facie case of racial discrimination, she must show that (1) s he is African American; (2) s he was qualified for the position; (3) s he experienced an adverse employment action ; and (4) similarly situated persons who are not African American wer e treated more favorably. Jones v. Sch. Dist. Phila. , 198 F.3d 403, 410

- 11 (3d Cir. 1999). We are not persuaded that Atkinson has dem onstrated a prima facie case of discrimination , as she has failed to show she experienced an adverse employment ac tion or that similarly situated persons not in her protected class were treated more favorably. The only possible adverse e mployment action that Atkinson raises is the reduction in her workload, which the record demonstrates was requested by Atkinson herself thr ough her complaints about feeling overwhelmed by her job duties. To the e xtent that Atkinson alleges that her PAR score, vacation leave, and “Red A” disciplina ry notice resulted in adverse employment action s , we note that these complaints were adjusted in Atkinson’s favor. Further, we agree with the District Court that the record does not demonstrate that NJDC or Wolke treated non

- African Americans more favorably , as Atkinson’s allegations appear self

- serving and contradictory to her deposi tion testimony. Therefore, we agree with the District Court that Atkinson has not

es tablished a prima facie case of race discrimination.8

To establish a prima facie case of retaliation, Atkinson must show: (1) s he
enga ged in protected activity; (2) s he suffered an adv erse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Jalil v. Avdel Corp. , 87 3 F.2d 701, 708 (3d Cir. 1989). We conclude that Atkinson has failed to sustain a prima facie claim of retaliat ion because she failed to raise an instance where she engaged in a protected activity, and, similar to her discrimination claim, there is no evidence that Atkinson suffered an adverse employment action. As a result, we agree with the District Court that A tkinson cannot maintain a prima facie case of retaliation. Moreover, even assuming that Atkinson could de monstrate a prima facie case of discrimination and retaliation, NJDC has proffered legitimate nondiscriminatory reason s for all of its action s

– for example, Atkinson’s job performance and tardiness in submission of her vacation request and arrival to work

– and Atkinson has failed to show these reason s were a pretext for discrimination. Therefore, we conclude that Atkinson’s
discrimination and reta liation claims have no merit and will affirm the District Court’s grant of summary judgment.
IV. For the foregoing reasons, we will affirm the judgment of the District Court.