NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 16

- 2466

____________ DARLENA CLARKSON,

Appellant

v. SEPTA

____________ On Appeal from the United States Distri ct Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2

- 14

- cv - 02510) District Judge: Honorable Michael M. Baylson

____________ Submitted Pursuant to Third Circuit L

. A

. R

. 34.1(a)

January 20, 2017
Before: FISHER ,  HARDIMAN, and GREENAWAY, JR. , Circuit Judges

. (Filed: June 27, 2017 )

____________ OPINION **

____________

 Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit, assumed senior status on February 1, 2017.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

FISHER, Circuit Judge

. Darlena Clarkson brought this action against her employer, Southeastern Pennsylvania Transportation Authority (SEPTA), asserting claims of gender
discrimination and retaliation under Title VII of the Civil Rights Act of 1964 , and the Pennsylvania Human Relations Act (PHRA)

. She appeals the District Court’s orders dismissing her failure to promote claims under Federal Rule of Civil Procedure 12(b)(6) and granting summ ary judgment in favor of SEPTA on her retaliation claims under Federal Rule of Civil Procedure 56(c) . For the reasons stated below, we will affirm.
I.
SEPTA hired Darlena Clarkson as a union employee in 1989. In 2009, SEPTA posted a job opening for Vehicle, Engineering, and Maintenance (VEM) Warranty
Administrator

— a s upervisory, a dministrative, and m anagerial position. Clarkson applied seeking a promotion from her previously held positions as a typist and statistical records clerk. Despite her qualifications, SEPTA didn’t interview Clarkson, or anyone for that matter, and Clarkson never followed up or asked for an explanation. The position
remaine d unfilled and was relisted in 2012. She reapplied, and this time, was interviewed. In July 2012 , Clarkson spoke wi th a coworker who led her to believe that SEPTA’s 2009 inaction stemmed from a personal conflict with Luther Diggs, the then

Assistant General Manager of Operations. Apparently, Diggs asked Clarkson to help him3

develop a personal relationship with an other SEPTA employee . When Clarkson refused, he placed hiring for the VEM Warranty Administrator position on hold. In November 2012, SEPTA offered, and Clarkson accepted, the position of VEM Warranty Administrator. In her new role, Clarkson reported primarily to Raelund Dickerson, but also to John Merrigan. Dickerson and Merrigan worked with Clarkson to develop Clarkson’s annual goals and objectives. They then directed her to participate in activities and complete tasks consistent with achieving t hose goals and o bjectives. Days af ter accepting the promotion , on November 1 8, Clarkson dual

- filed the first of two complaints with the Equal Employment Opportunity Commission (EEOC) and Pennsylvania Human Relations Commission (PHRC). In the initial complaint , Clarkson
cl aimed, among other things, that SEPTA’s failure to promote her in 2009 was unlawful
retaliation for her refusal to facilitate Diggs’ personal e ndeavor

. On March 11, 2013,
Clarkson dual

- filed a second EEOC/PHRC complaint. In it she alleged that SEPTA employ ees retaliated against her for filing the initial complaint. Both complaints were dismissed for insufficient evidence of unlawful conduct, and the EEOC thereafter issued
Clarkson a right

- to

- sue letter. On May 1, 2014, Clarkson brought a gender

- based discr imination and retaliation lawsuit against SEPTA alleging violations of Title VII and the PHRA

. The District Court granted SEPTA’s Rule 12(b)(6) motion to dismiss Clarkson’s failure to promote claims

.4

After discovery, the court granted SEPTA’s Rule 56 (c) mo tion for summa r y judgment on
all other claims. Relevant on appeal are Clarkson’ s failure to promote and unlawful retaliation
claims

. 1 The District Court dismissed Clarkson’s failur e to promote claims as untimely and granted summary judg ment on her retalia tion claims for failure to establish a prima
facie case. With respect to her retaliation claims , Clarkson contends that after filing the
initial EEOC/PHRC complaint , SEPTA employees improperly assigned her duties
outside of the VEM Warranty Administrator j ob description, made her attend a meeting in an attempt to embarrass her, gave her conflicting directives, threatened her with termination, and subjected her to workplace gossip and disparaging comments.
II. The District Court had jurisdiction under 28 U.S.C . §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. We apply plenary review to the District Court’s grant of a Rule 12(b)(6) motion to
dismiss and to its grant of a Rule 56(c) motion for summary judgment. 2 In so doing, we apply the same stand ard as the District Court. We will affirm the court’s dismissal under

1 The District Court noted, and Clarkson does not now dispute, that she dropped her direct discrimination and retaliatory compensation claims. See Clarkson v. SEPTA , No. 14

- 2510, 2016 WL 1637279, at *1 n.1

- 2 (E.D. Pa. Apr. 25, 2016). Thus, we d o not consider those claims on appeal.

2 Fowler v. UPMC Shadyside , 578 F.3d 203, 206 (3d Cir. 2009) (motion to dismiss); Blunt v. Lower Merion Sch. Dist ., 7 67 F.3d 247, 265 (3d Cir. 2014) (summary judgment).5

Rule 12(b)(6) “if it appears to a certainty that no relief could be granted under any set of facts which could be proved.” 3 Additionally, because the court dismissed Clarkson’s
failure t o promote claim s as untimely, we will affirm only if her “ tardiness . . . [is] apparent from the face of the complaint.” 4 We will affirm the court’s summary judgment under Rule 56(c) if viewing the “underlying facts and all reasonable inferences therefrom in the light most favorable” to Clarkson, a reasonable factfinder could find only for
SEPTA. 5
III.
A. Before filing suit under Title VII and the PHRA, Clarkson had to timely exhaust each statute’s administrative remedies. 6 Under Title VII, a claimant must file an EEOC charge reporting unlawful employment practice s within 300 days of the challenged
conduct

. 7 Under the PHRA, the claimant must file a PHRC complaint within 180 days of the challenged conduct

. 8 Promotion decisions are subject to these time limitations and

3 Evancho v. Fisher , 423 F.3d 347, 351 (3d Cir . 2005). 4 W. Pen n. Allegheny Health Syst., Inc. v. UPMC , 627 F.3d 85, 105 n.13 (3d Cir. 2010). 5 Blunt , 767 F.3d at 265.

6 See Woodson v. Scott Paper Co ., 109 F.3d 913, 926

- 27 (3d Cir. 1997). 7 42 U.S.C. § 2000e

- 5(e)(1). 8 43 Pa. Stat. and Cons. Stat. An n. § 95 9(h).6

accrue when the claimant was denied the promotion, not when the claimant discovers the allegedly unlawful basis for the decision. 9 Clarkson takes issue with SEPTA’s failure to promote her to the position of VEM Warranty Administrator in October 2009. But because s he did not file her first
EEOC /PHRC complaint until November 18, 2012

— at least three yea rs after the challenged conduct

—her filing is plainly beyond Title VII’s and the PHRA’s limitation periods. To defeat this clear time

- bar, Clarkson argues that because she could not have known of the allegedly unlawful nature of SEPTA’s October 2009 inaction until July 2012, we should apply either the discovery rule or equitable tolling. We find neither appropriate. With respect to the discovery rule, we lo ok to when, through the “ exercise of reasonable diligence , ” the injury would have been “knowable to the plaintiff.” 10 And with respect to equitable tolling, the plaintiff mu st diligently pursue her rights and show “that some extraordinary circumstance stood in [her] way.” 11 Clarkson argues that tolling is appropriate because SEPTA never actually denied her application. But Clarkson does not explain why she failed to follow up with SEPTA regarding her application or inquire about the position for more than two years . We are confident that through the exercise of reasonable diligence, Clarkson would have learned that the position was placed on hold

9 See Noel v. The Boeing Co ., 622 F.3d 266, 270

- 71, 275 (3d Cir. 2010). 10 Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1386 (3d. Cir 1994). 11 Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005).7

and would have discovered any injury within t he applicable limitation period s . Moreover,
she fails to point to any circumstance, let alone an extraordinary circumstance, that otherwise stood in the way of the timely pursuance of her rights

. Because the tardiness of Clarkson’s initial EEOC/PHRC complaint is apparent from the face of the complaint and we decline to toll the statutes of limitation , we will affirm the District Court’s Rule 12(b)(6) dismissal of Clarkson’s failure to promote
claims

. B.
We now turn to the District Court’s grant of summary judgment on Clarkson’s remaining retaliation claims. 12 To meet her prima facie burden on these claims , Clarkson must show that “(1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal connection between the participation in the protected activity and the adverse action. ” 13 To satisfy the second prong of her prima facie case , Clarkson must point to an employment action that is “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 14 W e examine the

12 We give consistent treatment to reta liation claims brought under Title VII and the PHRA. See Woodson , 109 F.3d at 920. For the sake of brevity, we will analyze the claims together.

13 Carvalho

- Grevious v. Delaware State Univ. , 851 F.3d 249, 257 (3d Cir. 2017). 14 Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57 (2006).8

chal lenged action “from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.” 15 We, like the District Court, view the additional tasks and the meeting about an unfamiliar topic as consistent with Clarkson’s pro motion to a managerial role

. That the
tasks were not specifically listed in her job description , and that Clarkson was not previously knowledgeable about the topic discussed at the meeting, do es no t r ender those actions materially adverse. This is especial ly true considering that the tasks and the meeting were consistent with Clarkson’s annual goals and objectives , t hat the VEM Warranty Administrator job description imposed on Clarkson the responsibility to

“ [ p ] erform other duties as assigned, ” 16 and that th e voluntary duties were expected of all managerial employees. In the context of a promotion from a union position to a managerial position, the assignment of additional responsibilities, and the expectation that the employee learn about topics necessary to succe ed in his or her new position, would not dissuade a reasonable employee from reporting workplace discrimination. As for the conflicting directi ves, the record is clear tha t Dickerson was Clarkson’s direct supervisor. Still, she argues that by having to decide whether to follow Dickerson ’s or Merrigan’s directive, the two exposed her to the risk of disciplinary action

. Importantly, Clarkson does not claim that she, or any other employee , was ever disciplined for making such a decision. While the super visory structure could have been

15 Id. at 71 (internal quotation marks and citation omitted). 16 App. 413, VEM Warranty Administrator Description.9

clearer , we believe that at most the confusion constitutes a “minor annoyance ” that many employees have endure d in the workplace. 17 Finally, the sporadic threats of termination, workplace gossip, and disparaging comments, do not rise to the level of a materially adverse employment action. The antiretaliation provisions do “not set forth a general civility code for the American workplace.” 18 Clarkson alternatively seeks to prevail on a retaliation claim premised on a hostile

w ork environment. A hostile work environment is one that is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working
environme nt.” 19 For the same reason s that individually , the challenged actions are not adverse employment action s , we find that together they do not establish a hostile work
environment sufficient to support Clarkson’s retaliation claims. Clarkson’s failure to meet the second prong of her prima facie case is fatal to her
retaliation claims . As such, we will affirm the District Court’s sum mary judgment in favor of SEPTA without reaching the issue of causation.
IV.
For the reasons s et forth above, we will affirm the Distr ict Court’s order s
.

17 See Burlington N. , 548 U.S. at 68 (Adverse employment actions are not “petty slights or minor annoyance s that often take place at work an d that all employees experience ” ).

18 Id. (internal quotation marks and citation omitted). 19 Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 116 (2002) (internal quotation marks and citation omitted).