NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 15

- 3686

__________ MARIE T. SELVATO,

Appellant v. SEPTA

__________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court Civil No. 2

- 14

- cv - 04919 ) District Judge: Honorable Wendy Beetlestone Submitted Under Third Circuit LAR 34.1(a)

June 16, 2016 BEFORE: AMBRO , NYGAARD , and VAN ANTWERPEN , * Circuit Judges
(Filed : August 8, 2016 )

__________ OPINION **

__________

* The Honorable Franklin Van Antwerpen participated in the decision in this case, but died before the opinion could be filed. This opinion is filed by a quorum of the court. 28 U.S.C. § 46 and Third Circuit IOP 12.1(b).

** This disposition is not an opin ion of the full Court and pursuant to I.O.P. 5.7 does no t constitute binding precedent.2

NYGAARD, Circuit Judge

. Marie Selvato appeals the District Court’s order granting summary judgment to Southeastern Pennsylvania Transportation Authority (SEPTA) . She claims that the District Court erred by ignoring factual disputes and b y improperly evaluating evidence that she asse rts substantiated her Title VII claims, brought pursuant to 42 U.S.C. § 2000e

2(a)(1). W e will affirm

. This opinion does not have any precedential value. Therefore, our discussion of the case is limited to c overing only what is necessary to explain our decision to the parties. Under Title VII, “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any indiv idual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual ’ s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e

– 2(a)(1). In Pennsylvania, claimants are required first to file a claim with the Equal Employment Opportunity Commission (EEOC). Mandel v. M & Q Packaging Corp. , 706 F.3d 157, 165 (3d Cir. 2013). To be timely, a complaint must be filed with the EEOC within 300 days of an unlawful employment action. Id. Selvato filed a char ge with the Equal Opportunity Commission on July 17, 2013 claiming that SEPTA unlawfully terminated her on December 20, 2012 because of her gen der and as retaliation for her complaints about sexual harassment she suffered on the job. She also asserts that , from 2004 through the time of her termination , SEPTA discriminated against3

her by subjecting her to a hostile work environment in which she was sexually harassed. There is no dispute that Selvato’s t ermination falls within the 300

- day period for a timel y claim . However, th e District Court determined that a majority of the acts she alleges as sexual harassment are time

- barred. Selvato challenges this conclusion. Selvato alleges she was sexual ly harass ed between 2004 until she was terminated

. Th is tim eframe includes acts that occurred well beyond the 300

- day window imposed by law. Nonetheless, w hen an employee all eges a hostile work environment , discriminatory acts “can occur at any time so long as they are linked in a pattern of actions which
continu es into the applicable limitations period.” O’Connor v. City of Newark, 440 F.3d 125 , 127 (3d Cir.2006). T he District Court found that the record w as composed of three distinct periods. The first period covers acts she claims are sexual harassment by SE PTA supervisors and co

- workers that occurr ed between 2004 and 2009. In t he second period, from 2009 through August 2012, the record is devoid of any evidence of sexual harassment by SEPTA employees towards Selvato. 1 The third period extends from Septembe r 2012 through Selvato’s termination in December 2012. During this period, Selvato alleges that SEPTA supervisor James Stevens made t wo remarks to her that constitute evidence of sexual har assment. Stevens told her that he was “stalking her Facebook pict ures” because he had gone to school with Selvato’s sister . He also told Selvato that he would like to “pet” a flower on her blouse because it looked soft , but also

1 Selvato did not affirmatively assert to the District Court that acts of harassment persisted throughout the period between 2009 and August 2012. Therefore, there is no basis on which we can reasonably infer that harassment happened during this time.4

said he was afraid that she would slap him. Appx. 281

- 82. Selvato complained to SEPTA’s E qual Employment Opportunity (EEO) specialist about these comments. Sevlato asserts that, collectively, this record shows a continuous pattern, from 2004 thr ough 2012, of harassing comments and acts by SEPTA co

- workers and supervisors, and a persistent ins titutional failure to respond to any of her complaints

. Selvato argues i t is this alleged institutional failure to respond that enables her to aggregate all of the evidence of harassing comments and acts from 2004 onward into a
h ostile work environment cl aim.
E ven if we were to accept the premise that SEPTA did not adequately respond to Selvato’s complaints, she fails to cite to any authority for her theory that an employer’s failure to remedy is, itself, evidence of a continuous pattern of unlawful condu ct. Given the lack of evidence of harassing conduct between 2009 and August 2012, w e conclude that the Dist rict Court correctly ruled that this gap breaks the continuity necessary to establish a continuous pattern of unlawful action

. As a result, evidenc e of harassment occurring before 2009 is well beyond the required 300 days from the date of filing, and is outside of the body of evidence that can be co nsidered by the District Court for her hostile work environment claim under a continuing violation theo ry . The District Court properly construed the continuing violation doctrine narrowly ( Tearpaock

- Martini v. Borough of Sh i ckshinny , 756 F.3d 232, 236 (3d Cir. 2014)) , and did not err by considering only evidence of unlawful acts that fell within the 300 da ys preceding July 17, 2013, the date she filed a charge with the EEOC. Because of this, Selvato’s hostile5

work environment claim is limited to the two comments made by supervisor James
Stevens in the later part of 2012

. To make a hostile work environment claim, Selvato has the prima facie burden of proffering evidence to show the following elements: “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimental ly affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.” Mandel , 706 F.3d at 165. Therefore, a t summary judgment, it was the District Co urt’s task to judge whether any reasonable jury could conclude from the record that the alleged harassment was severe and pervasive. This inquiry incl uded assessing the frequency of the acts and whether they were physically threatening or merely offensive utterances. Mandel , 706 F.3d at 168. We conclude that the District Court did not err by determining t hat the two comments by Stevens ( concerning stalking pictures on Facebook and “petting” flowers on her blouse ) , though offensive, did not rise to the fr equency or level of physical threat necessary to establish a prima facie hostile work environment claim. 2 Next, Selvato challenges the District Court’s decision to dismiss the claim that her termination was gender discrimination. She supports this assert ion with both direct and

2 Selvato assert s that acts between 2004 and 2009 can be considered here under a totality of the circumstances analysis . However, even if we were inclined to do so, the three

- year period devoid of evidence of any harassment prevents a claim of severe and pervasive conduct

.6

indirect evidence

. 3 Her direct

- evidence argument employs a mixed

- motive theory. She recognizes that SEPTA claims she was terminated for violating sick leave policy. But, she contends that SEPTA also inappropriately weighed gende r - related considerations against her in their decision. T he fatal problem with her claim is that there is no evidence that the decision

- makers, Michael Lyles, SEPTA Director, and John Reynolds, SEPTA Senior Director of Transportation , relied on any facts other than those focused upon her infraction of the sick

- leave policy in their decision to terminate her. Selvato’s claim that gender

- related factors influenced their decision is pure speculation. Her case comprised of indirect evidence is wholly ground ed in a contention that , although she was terminated for feigning illness in violation of the sick leave policy, similarly situated male employees were not terminated for the same conduct. However, there are problems with each of the comparators she posit s. Dennis Zap p one worked in a different position, for a different supervisor, and he retired before any disciplinary action s took place

. These differences disqualify any comparison between him and Selvato. As for Michael Howley and Paul Dauria, the reco rd provides no evidence that they actually feigned any illness. We may not rely on Selvato’s bald assertions to infer otherwise. Given that there is no evidence that the decision

- makers had any awareness of the comments made by Stevens, nor any evidence that Stevens had any role in her termination, we conclude that the District Court did not err by dismissing this claim.

3 Selvato focuses upon her indirect evidence argument on appeal. However, there is overlap in the arguments she presents. Therefore, we address he r claim grounded in direct evidence in an abundance of caution.7

Selvato also contends that her termination violated Title VII because it was in retaliation for her complaints about sexual harassmen t. To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: “(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection betw een her participation in the protected activity and the adverse employment action.” Nelson v. Upsala Coll. , 51 F.3d 383, 386 (3d Cir.1995). The District Court correctly ruled that Selvato failed to provide any evidence that her claims of harassment made to SEPTA had any causal connection to her termination. Although there is no dispute that the complaints were protected activity , t he temporal distance between her 2009 report to SEPTA’s E qual Employment Opportunity office and her termination , without more , eliminates it as a leg itimate but

- for cause of retaliation.
H er seco nd harassment report is much closer to her terminat ion. But the subject of her report w as the conduct of her supervisor James Stevens. As noted above, t he person s who ultimately made the decision to terminate her were Lyles and Reynolds , not Stevens

. However, Selvato claims that Stevens, along with a former supervisor and the EEO specialist who received her harassment complaint, influenced Lyles and Reynolds to fire her . But she prov ided no direct evidence of such influence to the District Court , or, indeed, any evidence that Lyles and Reynolds w ere even aware of her protected activity ( the sexual harassment complaint)

. Merely showing that Lyles or Reynolds communicated with Stevens , or the EEO specialist , or another supervisor

— where such communication is consistent with the job responsibilities of all concerned

— is not8

enough. Selvato provided nothing on which a reasonable inference of influence could be based to meet her burden to e stablish a prima facie retaliation claim

. Finally, Selvato asserts that she was not, in fact, feigning illness. 4 She attempts to twist her disagreement with SEPTA’s findings about this into evidence that SEPTA retaliated against her. We are not persuade d by this circuitous argument. Therefore, we conclude that the District Court did not err by dismissing Selvato’s retaliation claim. 5 For all of these reasons, we will affirm the order of the District Court granting summary judgment in favor of SEPTA.

4 She contends that she was, in fact, suffering from a back injury, and that the sick leave policy did not prevent her from making the day trip to New York City to see the taping of a televisio n show. However, the plain words of the sick leave policy state: “Employees are expected to remain at home, except for medical treatment.” Appx. 337.

5 Because we conclude that Selvato did not make out a prima facie claim of discrimination, we need not address her arguments that SEPTA’s stated reason for the termination

— violation of the sick leave policy

— is pretext.