2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-2011

Sheila Seeney v. Elwyn Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2707

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Recommended Citation

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-2707

____________

SHEILA SEENEY,

Appellant

v.

ELWYN, INC.

__________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 08-cv-05032)

District Judge: Honorable Eduardo C. Robreno

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 25, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Filed: February 1, 2011)

____________

OPINION OF THE COURT

____________

PER CURIAM.

Appellant Sheila Seeney appeals the District Court’s order granting summary 

judgment in favor of her former employer, Elwyn, Inc. For the foregoing reasons, we 

will affirm.
2

Seeney, an African-American, was a long-time employee of Elwyn, Inc., a 

residential treatment facility for people with mental and physical disabilities. Seeney was 

employed by Elwyn from December, 1980 until February, 2006, and worked the third 

shift, serving Elwyn’s neediest, round-the-clock care clients. Sometime prior to October 

18, 2005, a new supervisor, Luceni Kamara, a male of African descent, was appointed 

her supervisor. When Seeney reported to work on October 25, she observed that one of 

the residents had severely soiled himself, and had been left unattended by the previous 

shift. Seeney asked Kamara for his help in placing the resident in the shower. Kamara 

demanded that Seeney first clean the resident up in the wash basin. Seeney declined 

because the resident had a history of biting. Following a disagreement about how to

properly clean the resident, Kamara sent Seeney home without completing her shift. She 

later was suspended for three days without pay for refusing to accept a reasonable job 

assignment. Seeney served the suspension and returned to work.

Thereafter, Seeney reported Kamara to Elwyn management when he was sleeping 

on duty. Kamara was suspended for this infraction. In December, 2005, Seeney 

complained to management that Kamara had falsely accused her of improperly leaving 

her shift. Neither Seeney nor Kamara was disciplined for this event. In January, 2006, 

Seeney complained that Kamara intentionally bumped into her in the hallway, and she 

claimed that this was in retaliation for her reporting that he was sleeping on the job. She 

complained that Kamara’s behavior was aggressive, erratic and abusive. In February, 

2006, Seeney submitted a letter complaining that Kamara had yelled at her for removing 
3

a log book from his desk. On the morning of February 22, 2006, after one more incident 

with Kamara over cleaning a refrigerator, Seeney resigned. 

After Seeney filed a complaint with the Equal Employment Opportunity 

Commission and the Pennsylvania Human Relations Commission, and the EEOC issued 

a right to sue letter, Seeney filed suit against Elwyn in the United States District Court for 

the Eastern District of Pennsylvania. She alleged racial discrimination, disparate 

treatment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e-5 et seq. See Amended Complaint, at ¶¶ 7, 11. The District Court 

appointed counsel to assist Seeney. After taking Seeney’s deposition, Elwyn moved for 

summary judgment, and Seeney submitted a written response in opposition. 

In an order and judgment entered on April 26, 2010, the District Court granted 

summary judgment to Elwyn. Noting that Seeney had relied on a theory of constructive 

discharge to show that she was forced to resign, the court concluded that Seeney could 

not point to any evidence that her resignation was on account of racial discrimination by 

Kamara or Elwyn. There was no direct evidence that Kamara’s alleged harassment was 

based on her race, and her many letters to Elwyn complaining about Kamara made no 

reference to racial discrimination, disparate treatment based on her race, or retaliation 

after making race-based complaints. Moreover, Seeney was never threatened with 

discharge, she was not encouraged to resign, she was not demoted, her pay was not 

reduced, she was not involuntarily transferred to a less desirable position, her job 

responsibilities were not altered, and she was not subjected to unsatisfactory job 
4

evaluations. With respect to the October 18, 2005 incident, the court observed that she 

did not follow up on her suspension with Elwyn officials or her union. Accordingly, a

reasonable jury could not conclude that the conditions faced by Seeney during the fivemonth period in question were so intolerable that a reasonable employee facing the same 

conditions would leave the job. Therefore, she did not establish a prima facie case of 

race discrimination. 

With respect to her allegation that Kamara retaliated against her by harassing her 

after she reported that he was sleeping on the job, the District Court determined that

Seeney’s evidence was insufficient to show that Elwyn took an adverse action after, or 

contemporaneous with, her complaint. Although Seeney was suspended in October, 

2005, she had never complained about Kamara prior to the suspension, and the 

suspension thus could not form the basis of a retaliation claim. There was no other 

evidence in the record of any other action that arguably could be regarded as adverse. 

Kamara’s alleged retaliatory behavior, while rude and unprofessional, did not rise to the 

level of racially motivated retaliation. Therefore, there was no prima facie showing of 

retaliation. In the margin, the District Court noted that the claim was time-barred in any 

event because Seeney filed her EEOC charge on December 1, 2006, more than 300 days 

after the 2005 suspension, see 42 U.S.C. § 2000e-5(e)(1). 

Seeney appeals. A motions panel of the Court previously denied her motion to 

restrict electronic access to certain items filed in the court of appeals.
5

We will affirm. We have jurisdiction under 28 U.S.C. § 1291. Seeney contends 

on appeal that her case presents a triable issue with respect to whether she had no choice 

but to resign given the intolerable conditions at work, and that Elwyn management, 

which is predominantly Caucasian, “fell flat at supervising L. Kamara.” See Reply Brief, 

at 2. She contends in her opening Informal Brief on appeal that the District Court failed 

to consider Vice President Scott Campbell’s “Action Sheet,” which foretold her 

termination and thus forced her to resign. See Informal Brief, at 11.

Our review of the District Court’s grant of summary judgment is plenary and we 

must affirm if there is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 

Fed. R. Civ. Pro. 56(c)(2). “Where the record taken as a whole could not lead a rational 

trier of fact to find for the non-moving party, there is no genuine issue for trial.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine 

issue of material fact is one that could change the outcome of the litigation. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 

To prevail on a claim of discrimination, a plaintiff must first establish a prima 

facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A prima facie 

case is established where the plaintiff shows that (1) she is a member of a protected class; 

(2) she was qualified for the position in question; (3) she suffered an adverse employment 

action; and (4) that adverse employment action gives rise to an inference of unlawful 

discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 
6

(1981). Only if the plaintiff establishes a prima facie case does the burden of production 

shift to the defendant to set forth a legitimate, non-discriminatory reason for its action. 

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993).

The District Court determined that Seeney could not show a genuine issue for trial 

with respect to whether she suffered an adverse employment action that gave rise to an 

inference of unlawful discrimination. Burdine, 450 U.S. at 253. We have carefully 

reviewed the record and the items Seeney attached to her briefs on appeal and conclude 

that there was an insufficient evidentiary basis on which a reasonable jury could find in 

her favor on this issue. Anderson, 477 U.S. at 249-50. It is undisputed that Seeney was 

not terminated by Elwyn. Therefore, to show that her resignation was an adverse 

employment action taken by Elwyn, she had to show that she was forced to resign or 

constructively discharged under circumstances that give rise to an inference of racial 

discrimination. To establish a constructive discharge claim, a plaintiff must show that the 

employer knowingly permitted conditions of discrimination in the workplace “so 

intolerable that a reasonable employee would be forced to resign.” Levendos v. Stern 

Entertainment, Inc., 860 F.2d 1227, 1230 (3d Cir. 1988) (internal quotations removed). 

The analysis focuses on what a reasonable person would do if placed in the position the 

employee was in when she resigned. See id. 

Courts consider a number of factors in determining whether an employee was 

forced to resign, including whether (1) she was threatened with discharge; (2) she was 

encouraged to resign; (3) she was demoted or suffered a reduction in pay or benefits; (4) 
7

she was involuntarily transferred to a less desirable position; (5) her job responsibilities 

were altered; and (6) she began receiving unsatisfactory job evaluations. See Clowes v. 

Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993). See also Colwell v. Rite 

Aid Corp., 602 F.3d 495, 502-03 (3d Cir. 2010). 

We agree with the District Court that Seeney came forward with no evidence that 

she was forced to resign because of racial discrimination. There was no direct evidence 

that Kamara’s alleged harassment of her was based on her race. She did not identify any 

employee of Elwyn who was treated more favorably, and she offered no evidence that 

any incidents involving Kamara or any other employee were motivated by racial bias.

See Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999) (to establish a prima facie 

case plaintiff must “present sufficient evidence to allow a fact finder to conclude that the 

employer is treating some people less favorably than others based upon a trait that is 

protected under Title VII”). Seeney’s contemporaneous letters to Elwyn management 

complaining about Kamara made no reference to racial discrimination, disparate 

treatment based on her race, or retaliation after making race-based complaints, and this 

seriously undermines her claim of race discrimination. Seeney’s contention in her brief 

on appeal that Elwyn failed to adequately supervise Kamara, and that this failure was 

motivated by Elwyn management’s racial bias, finds no support whatever in the record. 

Fed. R. Civ. Pro. 56(e)(2) (non-moving party must come forward with affidavits or other 

evidence specific facts showing that there is a genuine issue for trial).
8

Moreover, as determined by the District Court, it was undisputed that Seeney was 

not encouraged to resign, she was not demoted, her hourly pay was not reduced, she was 

not involuntarily transferred to a less desirable position, her job responsibilities were not 

altered, and she did not begin to receive unfavorable job evaluations. With respect to her 

contention on appeal that she was threatened with termination, we note that the October, 

2005 suspension was, as she states, approved by Vice President Scott Campbell. The 

suspension letter was written by Unit Director Maryanne Booth, and it stated that, 

“should a situation arise in the future warranting additional disciplinary action, we will 

proceed to the next progressive step, up to and including termination of your employment 

at Elwyn, Inc.” Supp. App. 84. However, a rational trier of fact would not find a threat 

of termination in this letter because the statement about proceeding to the next step is 

conditioned on an event that might not ever happen – a need for further discipline. 

Furthermore, although a three-day suspension without pay may be considered an 

adverse employment action, see, e.g., Russell v. Board of Trustees of the University of 

Illinois, 243 F.3d 336, 341 (7th Cir. 2001) (suspension for five days without pay is 

adverse employment action), the question with respect to summary judgment in Seeney’s 

case is not whether the suspension was adverse but whether a reasonable person, when 

faced with the suspension, would have felt forced to resign. Seeney has never alleged 

that the suspension by itself forced her to resign. She asserts on appeal that Kamara sent 

her home for a second time on February 22, 2006 after they fought about how to properly 

clean the refrigerator, and she believed she would eventually be terminated by Elwyn for 
9

this incident. Rather than waiting to learn the outcome of her latest conflict with Kamara, 

she resigned. Thus, Seeney subjectively determined that she was likely to be disciplined 

again and possibly terminated, but the law of constructive discharge “does not permit an 

employee’s subjective perceptions to govern [the] claim.” Gray v. York Newspapers, 

Inc., 957 F.2d 1070, 1083 (3d Cir. 1992) (quoting Bristow v. Daily Press, Inc., 770 F.2d 

1251, 1255 (4th Cir. 1985)).

Attached to Seeney’s Reply Brief on appeal is a decision of the state 

Unemployment Compensation Board of Review reversing a decision of the Referee and 

determining that Seeney “had cause of a necessitous and compelling nature for quitting” 

under section 402(b) of the Pennsylvania Unemployment Compensation Law. See

Exhibit to Appellant’s Reply Brief. Although Seeney did not raise a contention on appeal 

that this decision has a preclusive effect in her case, we note for the sake of completeness 

that a state unemployment agency’s ruling that an employee had just cause to resign has 

no preclusive effect in subsequent Title VII proceedings. Roth v. Koppers Indus., 993 

F.2d 1058, 1062 (3d Cir. 1993).

Title VII bars retaliation against an employee who exercises her right to complain 

about discrimination. 42 U.S.C. § 2000e-3(a). It does so by prohibiting an employer 

from doing anything that is likely to deter a victim of discrimination from complaining 

to the EEOC, the courts, or her employer. See Robinson v. Shell Oil Co., 519 U.S. 337, 

346 (1997). To establish a prima facie case of retaliation under Title VII, an employee 

must show that (1) she engaged in a protected employment activity, (2) her employer 
10

took an adverse employment action after or contemporaneous with the protected activity, 

and (3) a causal link exists between the adverse action and the protected activity. Weston

v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001). Seeney offered no evidence to show 

that she suffered an adverse employment action after or contemporaneous with an action 

she took that was protected by Title VII. Although Seeney submitted complaints about 

Kamara to management, those complaints were devoid of any mention of racial 

discrimination or discrimination of any kind, and thus are not protected by Title VII. In 

addition, as explained by the District Court, Seeney’s suspension without pay in October, 

2005 is the only adverse employment action she suffered, and it preceded any of her 

complaints about Kamara. It thus could not form the basis of a prima facie retaliation 

claim.1

For the foregoing reasons, we will affirm the judgment of the District Court 

awarding summary judgment to Elwyn, Inc.

 

1 We have not overlooked Seeney’s complaints throughout her briefs on appeal that 

appointed counsel failed to investigate her allegations, and took no depositions of 

potentially helpful witnesses in the proceedings below. Evidently, she did not bring her 

concerns to the attention of the District Court. Nevertheless, we note that counsel was 

present at her deposition, and he also submitted a response in opposition to Elwyn’s 

motion for summary judgment, arguing that there was a triable constructive discharge 

issue. Because Seeney has yet to come forward with any witnesses to support her claim 

of racial discrimination, and her deposition testimony did not support a case for racial 

discrimination, we fail to see how additional activity on appointed counsel’s part would 

have made a difference in her case.