BLD-081 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4092

___________

KEVIN D. CARTER,

Appellant

v.

MIDWAY SLOTS AND SIMULCAST; 

HARRINGTON RACEWAY AND CASINO

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1:09-cv-00493)

District Judge: Honorable Sue L. Robinson

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 4, 2013

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: January 22, 2013)

_________

OPINION

_________

PER CURIAM

Kevin Carter, proceeding pro se, appeals from an order of the United States 

District Court for the District of Delaware granting Appellees‟ motion for summary 
2

judgment. Because this appeal does not present a substantial question, we will 

summarily affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

I.

Because we write primarily for the parties, we need only recite the facts necessary 

for our discussion. Appellees hired Carter as a security officer in 2001. In April 2005, 

Carter was promoted to dual rate lead officer. On June 22, 2005, a shift supervisor found 

Carter sleeping on the job twice during one shift. Carter did not deny sleeping, and the 

supervisor issued him a final warning.

In November 2005, security officer Dean told Carter that lead officer Malin had 

used a racial slur in front of him. Two months later, Carter reported the incident to 

Saxon, the Director of Human Resources. Malin denied the accusation, and Carter and 

Dean provided Saxon with the names of three employees who could confirm Dean‟s 

report. One employee, West, noted that she had previously heard Malin use a racial slur 

in reference to Carter. In July 2006, Carter was promoted to lead security officer. Prior 

to making the decision, Saxon conferred with Carter‟s supervisors, and Malin supported 

Carter‟s promotion to lead officer.

On three separate dates in October 2006, four security officers observed Carter 

sleeping during his shift. One officer reported to Malin that Carter had not answered a 

radio page. Carter received a one-day suspension. He disputed the suspension and stated 

that, although he napped during his breaks, he did not sleep while on duty. Carter filed a 

charge of discrimination with the Equal Employment Opportunity Commission 
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(“EEOC”) on December 6, 2006, alleging race discrimination and retaliation beginning 

on October 1, 2005, and ending on November 17, 2006. According to Carter, he was 

discriminated against and harassed after reporting incidents of the use of racial slurs, 

reporting previous employment discrimination, and being disciplined for infractions that 

were routinely ignored.

On January 17, 2007, security operations supervisor Rockwell issued a 

memorandum prohibiting any security team member from sleeping in any area 

frequented by or visible to patrons while on either scheduled breaks when clocked in or

during scheduled meal breaks when clocked out. During the Delaware State Fair in July 

2007, Carter was responsible for supervising security officers assigned to patrol the 

exterior of the facility. On July 21, 2007, supervisor Kiser heard Malin radio Carter but 

noted that reception was not great because of the distance between the two. According to 

Malin, three security officers who reported to Carter were unable to reach him via radio 

for a two-hour period. Security officer Carey and Malin saw Carter asleep in his truck in 

the parking lot. Malin sent Carter home for the day.

On July 24, 2007, Carter sent a memorandum to Lewis, head of the security 

department, advising that he had been unable to take a lunch break and that he was taking 

his break in his truck when Kiser arrived. He stated that he always answered radio or 

phone calls while on break. After an investigation, Saxon concluded that the version of 

events given by Malin and other officers was accurate. Carter was terminated on July 26, 

2007, for repeatedly sleeping while on duty. He filed a charge of discrimination with the 
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EEOC on October 31, 2007, asserting that he was discharged in retaliation for filing his 

previous charge of discrimination. He further alleged that similarly situated employees 

engaged in similar conduct but were not discharged.

On July 7, 2009, Carter filed his complaint alleging employment discrimination in 

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. On 

September 23, 2011, the District Court denied Appellees‟ motion to dismiss for failure to 

prosecute. After conducting discovery, Appellees filed a motion for summary judgment 

on July 3, 2012. The District Court granted Appellees‟ motion on September 28, 2012. 

Carter then timely filed this appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review 

over the District Court‟s order granting summary judgment. See Giles v. Kearney, 571 

F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate only when 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). “The moving party has the burden 

of demonstrating that there is no genuine issue as to any material fact, and summary 

judgment is to be entered if the evidence is such that a reasonable fact finder could find 

only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 

2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may 

summarily affirm if the appeal does not present a substantial question, and may do so on 
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any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) 

(per curiam).

III.

In his complaint, Carter alleges discrimination based upon race, color, and national 

origin. Upon review of the record, we conclude that the District Court correctly granted 

Appellees‟ motion for summary judgment.

As an initial matter, a plaintiff initiating an employment discrimination suit under 

Title VII must first exhaust his remedies by complying with the procedural requirements 

set forth in 42 U.S.C. § 2000e-5. These requirements include filing a charge with the 

EEOC within 180 days of the alleged unlawful employment practice. See 42 U.S.C. § 

2000e-5(e)(1); Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 472 

(3d Cir. 2001). Here, Carter failed to comply with this requirement to the extent that his 

complaint raised claims of discrimination based on his national origin. Therefore, 

because this claim was not brought to the attention of the EEOC and accordingly did not 

fall within the scope of its investigation, the District Court properly dismissed Carter‟s 

claim of discrimination based upon national origin as unexhausted. See, e.g., Webb v. 

City of Phila., 562 F.3d 256, 262-63 (3d Cir. 2009).

As his first exhausted claim, Carter alleges that he experienced discrimination 

based upon his race. Because Carter lacks direct evidence of such discrimination, his 

claim falls under the burden-shifting framework set forth in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Under this framework, he has the burden of establishing a 
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prima facie case of discrimination by proving that (1) he is a member of a protected class; 

(2) he suffered some form of adverse employment action; and (3) this action occurred 

under circumstances giving rise to an inference of unlawful discrimination that might 

occur when nonmembers of the protected class are treated differently. See Goosby v. 

Johnson & Johnson Med., 228 F.3d 313, 318 (3d Cir. 2000); Jones v. Sch. Dist. of Phila., 

198 F.3d 403, 410 (3d Cir. 1999). Once a plaintiff establishes a prima facie case, the 

employer must provide a legitimate, non-discriminatory reason for the adverse 

employment action. See Goosby, 228 F.3d at 319. If the employer meets this burden, the 

burden again shifts to the plaintiff to demonstrate that the employer‟s reason is pretextual. 

See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005); Jones, 198 F.3d at 412.

We agree with the District Court that Carter failed to show circumstances giving 

rise to an inference of unlawful discrimination based upon race. Carter alleges that five 

of his subordinates engaged in similar conduct but were not discharged from their 

employment. However, three of these individuals were disciplined for violating the

attendance policy, not the policy prohibiting sleeping on the job. One subordinate, a 

Caucasian individual, was terminated, like Carter, for repeatedly sleeping on the job. 

Carter and his five subordinates were not similarly situated for Title VII purposes 

because they did not share the same supervisor. See Pierce v. Commonwealth Life Ins. 

Co., 40 F.3d 796, 802 (6th Cir. 1994) (noting that, in order to show that comparators are 

“similarly situated,” all relevant aspects of employment need to be nearly identical). 

Furthermore, Carter‟s claim that discrimination occurred because Malin was allowed to 
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confront his accusers and he was not is meritless because he and Malin did not engage in 

similar conduct. Accordingly, the District Court properly granted summary judgment to 

Appellees because Carter failed to establish a prima facie case of race discrimination.

Additionally, the District Court properly granted summary judgment to Appellees 

on Carter‟s claim regarding a hostile work environment. To establish a hostile work 

environment claim, Carter has the burden of proving that: (1) he suffered intentional 

discrimination because of his race; (2) the discrimination was pervasive and regular; (3) 

the discrimination detrimentally affected him; (4) the discrimination would have 

detrimentally affected a reasonable person of the same race in his position; and (5) 

respondeat superior liability exists. See Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 

2007); West v. Phila. Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995). Analysis of hostile 

work environment claims requires an assessment of the totality of the circumstances. 

Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001); see also Faragher v. City of Boca 

Raton, 524 U.S. 775, 787-88 (1998) (noting that “conduct must be extreme to amount to 

a change in the terms and conditions of employment”).

Three incidents of alleged harassment during Carter‟s five years of employment

include: (1) an isolated statement by Malin that Carter “doesn‟t know anything”; (2) an 

isolated statement by Malin regarding Carter‟s failure to wear his badge while on duty; 

and (3) Saxon‟s behavior following his November 2006 meeting with Carter regarding 

his one-day suspension for sleeping while on duty. The record indicates that Malin used 

racial slurs on two occasions but never in Carter‟s presence. Notably, the record 
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indicates that Malin supported Carter‟s two promotions in April 2005 and July 2006. 

Even assuming that Carter‟s unsubstantiated allegations are true, they are insufficient to 

constitute the “pervasive and regular” behavior required to sustain a hostile work 

environment claim. Accordingly, the District Court properly granted summary judgment 

to Appellees.

Finally, the District Court correctly granted summary judgment for Appellees as to 

Carter‟s retaliation claims. To establish a prima facie case of retaliation under Title VII, 

a plaintiff must show that “„(1) []he engaged in activity protected by Title VII; (2) the 

employer took an adverse employment action against h[im]; and (3) there was a causal 

connection between h[is] participation in the protected activity and the adverse 

employment action.‟” Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) 

(quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). An adverse action 

refers to “a significant change in employment status, such as hiring, firing, failing to 

promote, reassignment with significantly different responsibilities, or a decision causing a 

significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 

(1998). Furthermore, the complainant has the burden of stating a prima facie case; if he 

does, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory 

reason for the adverse action. McDonnell Douglas Corp., 411 U.S. at 802.

Carter alleges two claims of retaliation: first, when he was written up and received 

a one-day suspension in October 2006 after his January 2006 report of Malin‟s racial 

statements, and second, when he was terminated in July 2007 following his report of 
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Malin‟s racial statements and his December 6, 2006 filing of a charge of discrimination 

with the EEOC. Appellees have conceded that Carter engaged in two instances of 

protected activity during his employment. However, we agree with the District Court 

that Carter has not fulfilled the third and final element of a prima facie retaliation case.

Carter needed to demonstrate a causal connection between his protected activity 

and the adverse action. See Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 

2007). This Court has noted two primary factors for this determination: timing and 

evidence of ongoing antagonism. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 

(3d Cir. 2000); see also Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 

1997) (“[T]emporal proximity . . . is sufficient to establish the causal link . . . . [A] 

plaintiff can [also] establish a link between his or her protected behavior and subsequent 

discharge if the employer engaged in a pattern of antagonism in the intervening period.”). 

However, the “mere passage of time is not legally conclusive proof against retaliation.” 

Robinson v. SEPTA, 982 F.2d 892, 894 (3d Cir. 1993). A plaintiff can also demonstrate 

a causal connection through other types of circumstantial evidence. See Farrell, 206 F.3d 

at 280-81.

Here, approximately ten months elapsed between the time when Carter submitted 

his complaint about Malin and when he was written up and given a one-day suspension in 

October 2006. Furthermore, approximately eight months passed between Carter‟s filing 

of a charge of discrimination with the EEOC and his termination in July 2007. Standing 

alone, this passage of time is insufficient to establish a causal connection between the 
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protected activity and the adverse action. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268, 273-74 (2001) (citing cases where the passage of three and four months 

between the protected activity and the adverse action was insufficient, by itself, to 

establish a causal connection).

“[T]iming plus other evidence [is] an appropriate test where the temporal 

proximity is not so close as to be „unduly suggestive.‟” Farrell, 206 F.3d at 280 

(alteration in original). Carter testified that Malin was the only individual who bore 

discriminatory animus towards him; however, the record indicates that Appellees‟ actions 

were not solely based upon Malin‟s observations and report. Instead, these actions were 

also based upon other employees‟ reports, and Carter has not identified the authors of 

these reports as harboring any discriminatory animus. Accordingly, the District Court 

properly granted summary judgment to Appellees as to Carter‟s retaliation claims.

IV.

For the foregoing reasons, no substantial question is presented and we will affirm 

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.