NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4400

___________

DIANNE HYLAND,

 Appellant

v.

SMYRNA SCHOOL DISTRICT

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1:10-cv-00875)

District Judge: Honorable Leonard P. Stark

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 14, 2015

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

(Opinion filed April 21, 2015)

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OPINION*

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

constitute binding precedent.
2

PER CURIAM

Dianne Hyland appeals pro se from the order of the United States District Court 

for the District of Delaware granting summary judgment against her in this employment 

discrimination action. For the reasons that follow, we will affirm.

I.

This case involves allegations brought by Hyland against her long-time employer, 

Smyrna School District (“Smyrna”).1 In April 2009, she filed a charge of discrimination 

with the Delaware Department of Labor (“DDOL”) and the Equal Employment 

Opportunity Commission (“EEOC”). Hyland, who is black, claimed that Smyrna had 

denied her a promotion to a position with benefits because of her race, in violation of 

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the 

Delaware Discrimination in Employment Act (“DDEA”), 19 Del. Code Ann. § 710 et 

seq. In June 2010, she filed another charge with the DDOL and the EEOC, alleging 

racial discrimination and retaliation stemming from her decision to file the earlier charge. 

After the charges were dismissed, Hyland obtained a right-to-sue letter from the EEOC 

and, in October 2010, filed a pro se complaint against Smyrna in the District Court.2

After undertaking discovery, both parties moved the District Court for summary 

judgment. On September 30, 2014, the District Court issued an opinion addressing those 

 

1 Smyrna hired Hyland in 1990, and she indicated in her merits brief that she is still 

employed by Smyrna. During the time period relevant to this appeal, Hyland worked in 

positions in Smyrna’s Child Nutrition Program.

2 Two attorneys entered their appearance on Hyland’s behalf in May 2011, but they 

ultimately withdrew before the summary judgment stage of the case.
3

motions. The District Court began by explaining that many of Hyland’s allegations of 

racial discrimination were time-barred pursuant to 42 U.S.C. § 2000e-5(e) because the 

alleged events arose more than 300 days before her first EEOC filing. As for the 

allegations that were timely, the District Court held as follows: (1) Hyland had not 

presented evidence from which it could be reasonably found that Smyrna’s stated reasons 

for hiring Kristen Kahl, Alan Voshell, and Ethel Bogia (all of whom are white) for 

positions with benefits instead of promoting Hyland were a pretext for discrimination; 

and (2) Hyland had not met her burden of demonstrating even a prima facie claim of 

discrimination with respect to Smyrna’s decision to hire Pam Messick (who is white) for 

a position with benefits instead of promoting Hyland because Hyland had refused to take 

the skills test that was required to apply for that position.

The District Court then turned to Hyland’s claim that Smyrna had retaliated 

against her after she filed her first DDOL/EEOC charge. Approximately 10 months after 

that charge was filed, Smyrna received complaints from two employees that Hyland was 

engaging in offensive behavior and making racially inappropriate comments. An 

assistant superintendent and a supervisor in Hyland’s department met with Hyland to 

discuss the complaints. Although a letter was placed in Hyland’s employment file to 

memorialize the meeting, no disciplinary action was taken against her. The District 

Court concluded that, even assuming Smyrna’s response to the employees’ complaints 

constituted an adverse employment action against Hyland, she had not put forth evidence 

from which a reasonable factfinder could find that there was a causal connection between 
4

her first DDOL/EEOC charge and that adverse employment action.

In light of the above, the District Court granted Smyrna’s motion for summary 

judgment and denied Hyland’s cross-motion. This timely appeal followed.3

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “We review a 

district court’s grant of summary judgment de novo, applying the same standard as the 

district court.” S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d 

Cir. 2013). Summary judgment is appropriate 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). Although the non-movant’s evidence “is to be believed, 

and all justifiable inferences are to be drawn in h[er] favor in determining whether a 

genuine factual question exists, summary judgment should not be denied unless there is 

sufficient evidence for a jury to reasonably find for the nonmovant.” Barefoot Architect, 

Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) (internal quotation marks and citation 

omitted).

We begin with Hyland’s claims of racial discrimination under Title VII. First, we 

agree with the District Court that the claims that are based on alleged events that occurred 

more than 300 days before Hyland filed her first charge with the EEOC are time-barred. 

See 42 U.S.C. § 2000e-5(e); Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 

 

3 The District Court granted Hyland’s timely motion to extend the time to appeal under 

Federal Rule of Appellate Procedure 4(a)(5), and Hyland filed her notice of appeal within 

the time required by that rule.
5

2000) (explaining that 300-day limitation period governs Title VII claims brought by 

plaintiffs in “deferral” states); Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 751 (3d 

Cir. 1983) (indicating that Delaware is a deferral state), overruled on other grounds by

Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir. 1991) (en banc). “[D]iscrete 

discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 

113 (2002). Because Hyland’s time-barred claims indeed concern discrete acts of alleged 

discrimination, see Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) 

(stating that the failure to promote is a discrete act), they may not be considered in 

evaluating her timely discrimination claims. We now turn to those timely claims.

Hyland’s discrimination claims are governed by the burden-shifting framework set 

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Makky v. 

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Under that framework, the plaintiff must 

first make a prima facie showing of discrimination. Id. If the plaintiff makes that 

showing, “then an inference of discriminatory motive arises and the burden shifts to the 

defendant to articulate a legitimate, non-discriminatory reason for the adverse 

employment action.” Id. If the defendant articulates such a reason, “the inference of 

discrimination drops and the burden shifts back to the plaintiff to show that the 

defendant’s proffered reason is merely pretext for intentional discrimination.” Id. For 

substantially the reasons provided by the District Court, we find no error in its application 

of the McDonnell Douglas test to Hyland’s Title VII discrimination claims and agree that 
6

Smyrna was entitled to summary judgment on those claims.4

We also agree with the District Court’s decision to grant summary judgment in 

favor of Smyrna with respect to Hyland’s Title VII retaliation claim. “A prima facie case 

of illegal retaliation requires a showing of (1) protected employee activity; (2) adverse 

action by the employer either after or contemporaneous with the employee’s protected 

activity; and (3) a causal connection between the employee’s protected activity and the 

employer’s adverse action.” EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) 

(internal quotation marks omitted). For substantially the reasons given by the District 

Court, it correctly concluded that Hyland failed to present sufficient evidence of a causal 

 

4 The District Court liberally construed Hyland’s complaint as raising challenges under 

not only Title VII, but also the DDEA. District courts in this Circuit have disagreed as to 

whether language in the DDEA prohibits a plaintiff from pursuing relief under both 

statutes. See 19 Del. Code Ann. § 714(c) (“[The plaintiff] shall elect a Delaware or 

federal forum to prosecute the employment discrimination cause of action so as to avoid 

unnecessary costs, delays and duplicative litigation. A [plaintiff] is barred by this 

election from filing cases in both [the Delaware] Superior Court and the federal forum.”). 

Compare Brangman v. AstraZeneca, LP, 952 F. Supp. 2d 710, 724 (E.D. Pa. 2013) 

(concluding that section 714(c) does not bar a plaintiff from bringing both Title VII and 

DDEA claims in federal court), with Daughtry v. Family Dollar Stores, Inc., 634 F. Supp. 

2d 475, 483 n.13 (D. Del. 2009) (concluding that section 714(c) precludes a plaintiff from 

pursing relief under both Title VII and the DDEA). We need not resolve that split of 

authority here, for even if Hyland can seek relief under both Title VII and the DDEA, she 

still would not be able to survive summary judgment on her DDEA claim. The time to 

file an administrative charge is shorter under the DDEA than under Title VII. See 19 

Del. Code Ann. § 712(c)(1) (providing for 120-day time limit rather than 300-day time 

limit). Furthermore, as the District Court indicated, the evidence needed to prevail under 

the DDEA is generally the same as that needed to prevail under Title VII. Accordingly, 

because Hyland’s Title VII claims fail, her DDEA claims fail, too.
7

connection between her first DDOL/EEOC charge and the actions taken by Smyrna in 

response to the complaints about Hyland to survive summary judgment.5

We have considered Hyland’s various arguments and conclude that none has 

merit.6 Accordingly, we will affirm the District Court’s judgment. Smyrna’s motion to 

seal Volume II of its supplemental appendix is granted.

 

5 Again, because the standards under Title VII and the DDEA are generally the same, 

Hyland’s inability to survive summary judgment under Title VII dooms her claim under 

the DDEA.

6 Hyland appears to claim that Smyrna’s actions constituted harassment that subjected her 

to a hostile work environment. But her complaint did not allege a hostile work 

environment claim, nor did the District Court liberally construe the complaint as raising 

such a claim. In any event, Hyland has not demonstrated that this claim would survive 

summary judgment. See Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) 

(explaining that, to establish a hostile work environment claim, a plaintiff must show that 

“(1) [s]he suffered intentional discrimination because of [her] [race]; (2) the

discrimination was pervasive and regular; (3) it detrimentally affected [her]; (4) it would 

have detrimentally affected a reasonable person of the same protected class in [her] 

position; and (5) there is a basis for vicarious liability”) (certain alterations added and 

quotation marks omitted). On another note, Hyland’s requests to strike certain portions 

of Smyrna’s brief are denied. Contrary to her assertion, Smyrna does not seek to rely on 

evidence or factual allegations presented for the first time on appeal.