2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2015

Michelle Jones v. SEPTA

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 14-3814

__________

MICHELLE PRECIA JONES,

Appellant

v.

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY; ALFRED OUTLAW

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cv-06582)

District Judge: Honorable William H. Yohn, Jr.

__________

Submitted Under Third Circuit LAR 34.1(a)

March 23, 2015

Before: HARDIMAN, GREENAWAY, Jr. and KRAUSE, 

Circuit Judges.

(Filed: August 12, 2015)
2

Olugbenga O. Abiona

1st Floor

1433 South 4th Street

Philadelphia, PA 19147

Brian M. Rhodes

356 North State Road

Springfield, PA 19064

 Attorneys Appellant

Danielle Banks

Michelle K. Carson

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

2005 Market Street

Philadelphia, PA 19103

 Attorneys Appellees

__________

OPINION OF THE COURT

__________

HARDIMAN, Circuit Judge.

In this appeal, we consider whether a suspension with

pay constitutes an “adverse employment action” under the 

substantive discrimination provision of Title VII. We hold 

that it typically does not.

I

Michelle Jones was fired in 2011 by her employer, the 

Southeastern Pennsylvania Transportation Authority 

(SEPTA). SEPTA says it dismissed Jones for submitting 

fraudulent timesheets; Jones says her termination was the 
3

culmination of years of unlawful sexual harassment, gender 

discrimination, and retaliation. The District Court entered 

judgment for SEPTA, Jones v. SEPTA, 2014 WL 3887747 

(E.D. Pa. Aug. 7, 2014), and Jones filed this appeal. 

SEPTA is a public transit agency that serves 

Philadelphia and its environs. In 2001, Jones began working

as an administrative assistant in SEPTA’s Revenue 

Operations Department under the supervision of Alfred 

Outlaw. On December 1, 2010, Outlaw suspended Jones with 

full pay after he discovered apparent fraud in her timesheets. 

Jones promptly informed SEPTA’s Equal Employment 

Opportunity (EEO) Office that she intended to file a 

complaint against Outlaw. At a meeting the following week, 

Jones told the EEO Office that he had “sexually harassed” 

and “retaliated against” her. App. 167.

In the meantime, Outlaw referred the timesheet matter 

to SEPTA’s Office of Inspector General (OIG). After an 

extensive investigation, OIG concluded in February 2011 that 

Jones collected pay for days she hadn’t worked by submitting 

fraudulent timesheets. SEPTA suspended Jones without pay 

on February 22, 2011 and formally terminated her in April of 

that year.

Jones continued to press her grievances throughout this 

process. In March 2011, she filed a complaint with the 

Pennsylvania Human Relations Commission alleging that 

Outlaw had sexually harassed her and other female 

employees, ordered her to do personal work for him during 

business hours, and retaliated against her for resisting this 

mistreatment by accusing her of timesheet fraud. SEPTA 

therefore ended its internal investigation, but not before 

concluding that Outlaw had engaged in inappropriate 

behavior by once asking Jones to step on his back to relieve 
4

spinal pain. This “lapse in judgment” was noted in Outlaw’s

annual performance evaluation, and he was required to attend 

a training session regarding SEPTA’s sexual harassment 

policy. App. 1089–90.

Jones ultimately filed suit against SEPTA and Outlaw 

in the United States District Court for the Eastern District of 

Pennsylvania. Her amended complaint alleged gender 

discrimination and retaliation in violation of Title VII of the 

Civil Rights Act of 1964 and the Pennsylvania Human Rights 

Act (PHRA). She also alleged a violation of the Fourteenth 

Amendment of the United States Constitution, common law 

wrongful termination, and retaliation in violation of the 

Family and Medical Leave Act. The District Court dismissed 

the wrongful termination claim and subsequently granted 

summary judgment to SEPTA and Outlaw on the remaining 

claims. Jones has appealed only the Court’s summary 

judgment on the Title VII, PHRA, and constitutional claims. 

II

The District Court exercised jurisdiction under 28 

U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 

28 U.S.C. § 1291, and our review of a summary judgment is 

plenary. EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 

2015).

III

The linchpin of the District Court’s opinion was its 

holding that Jones’s claims fail principally because her initial 

suspension with pay was not an adverse action within the 

meaning of the employment discrimination laws. Jones, 2014 

WL 3887747, at *3–4, 6, 9. This is an issue of first 

impression in the Third Circuit. Although we need not 

consider and do not decide whether a paid suspension 
5

constitutes an adverse action in the retaliation context, see 

infra Section IV-B, we hold that such a suspension generally 

does not constitute an adverse action in the substantive 

discrimination context. 

Title VII forbids employers “to fail or refuse to hire or 

to discharge any individual, or otherwise to discriminate 

against any individual 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). Our analysis of claims arising 

under this “substantive provision” is governed by the threestep framework of McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973): first we ask whether the plaintiff has stated a 

prima facie case of discrimination or retaliation; if she has, 

we ask whether the employer has advanced a legitimate

reason for its conduct; and finally we give the plaintiff an 

opportunity to prove that the employer’s proffered reason is 

pretextual. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 

1994).

A Title VII plaintiff must prove that she suffered an 

adverse employment action in order to satisfy step one of 

McDonnell Douglas. See Sarullo v. U.S. Postal Serv., 352 

F.3d 789, 797 (3d Cir. 2003). We have described an adverse 

employment action “as an action by an employer that is 

serious and tangible enough to alter an employee’s 

compensation, terms, conditions, or privileges of 

employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 

764 (3d Cir. 2004) (internal quotation marks omitted).

The District Court held that Jones’s suspension with 

pay did not constitute an adverse employment action under 

Title VII. See Jones, 2014 WL 3887747, at *4. Although the 

District Court noted that we have “not addressed this issue,” it 
6

also noted that other courts of appeals have unanimously 

concluded that “placing an employee on paid administrative 

leave where there is no presumption of termination” is not an 

adverse employment action under the substantive provision of 

Title VII. Id.; see Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 

2006) (“[A]dministrative leave with pay during the pendency 

of an investigation does not, without more, constitute an 

adverse employment action.”); Singletary v. Mo. Dep’t of 

Corr., 423 F.3d 886, 891–92 (8th Cir. 2005); Peltier v. United 

States, 388 F.3d 984, 988 (6th Cir. 2004); see also Von 

Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001)

(holding that “placing [an employee] on administrative leave 

with pay for a short time to allow investigation” is not an 

adverse action for retaliation purposes), abrogated on other 

grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 

U.S. 53, 60 (2006); Breaux v. City of Garland, 205 F.3d 150, 

158 (5th Cir. 2000) (placement on paid administrative leave is 

not an adverse action for purposes of a First Amendment 

retaliation claim). But cf. Dahlia v. Rodriguez, 735 F.3d 1060, 

1078–79 (9th Cir. 2013) (en banc) (placement on paid 

administrative leave can be an adverse action for purposes of 

a First Amendment retaliation claim).

Like the District Court, we think this chorus is on 

pitch. A paid suspension pending an investigation of an 

employee’s alleged wrongdoing does not fall under any of the 

forms of adverse action mentioned by Title VII’s substantive 

provision. That statute prohibits discrimination in hiring, 

firing, and “compensation, terms, conditions, or privileges of 

employment.” § 2000e-2(a)(1). A paid suspension is neither a 

refusal to hire nor a termination, and by design it does not 

change compensation. Nor does it effect a “serious and 

tangible” alteration of the “terms, conditions, or privileges of 

employment,” Storey, 390 F.3d at 764, because “the terms 
7

and conditions of employment ordinarily include the 

possibility that an employee will be subject to an employer’s 

disciplinary policies in appropriate circumstances,” Joseph, 

465 F.3d at 91. We therefore agree with our sister courts that 

a suspension with pay, “without more,” is not an adverse 

employment action under the substantive provision of Title 

VII. Id.

Applying this legal standard to the facts of this appeal, 

we readily agree with the District Court that Jones’s 

suspension with pay did not constitute an adverse 

employment action. In her brief, Jones summarily declares

that her “indefinite suspension” that began on December 1, 

2010 was an adverse employment action without providing 

any argument for why this is so. Jones Br. 44. Having failed 

to marshal evidence that her suspension with pay was atypical 

in any way, Jones’s argument fails for the same reasons stated 

by our sister courts in the cases we have cited. Accordingly, 

we hold that Jones’s suspension with pay from December 1 to 

February 22 (when SEPTA suspended her without pay) was 

not an adverse employment action under the substantive 

provision of Title VII.

IV

The fact that Jones’s initial suspension with pay was 

not an adverse employment action eviscerates much of 

Jones’s appeal but doesn’t doom it entirely. Therefore, we 

turn to her specific claims under Title VII, the PHRA, and the 

Constitution. Her statutory claims turn on whether summary 

judgment for SEPTA was appropriate on the Title VII claims.

“[T]he PHRA is to be interpreted as identical to federal antidiscrimination laws except where there is something 

specifically different in its language requiring that it be 

treated differently,” Fogleman v. Mercy Hosp., Inc., 283 F.3d 
8

561, 567 (3d Cir. 2002), and Jones identifies no relevant 

distinction here. Furthermore, Outlaw was a defendant on the 

PHRA counts of the complaint and not on the Title VII 

counts, and his liability as an “aide[r] and abett[or]” under the 

PHRA hinges on SEPTA’s liability. App. 1119 (Am. Compl. 

¶¶ 62, 66); see Dici v. Pennsylvania, 91 F.3d 542, 552 (3d 

Cir. 1996). Our main inquiry, then, is whether the District 

Court erred in granting summary judgment to SEPTA on 

Jones’s claims of gender discrimination and retaliation under 

Title VII.

A

1

To state a prima facie case of gender discrimination, 

the District Court said, Jones was required to “show that (1) 

she is a member of a protected class; (2) she was qualified for 

her position; (3) the particular disciplinary measure was an 

adverse employment action; and (4) the circumstances of the 

disciplinary measure give rise to an inference of 

discrimination.” Jones, 2014 WL 3887747, at *3. We see no 

error in this formulation. See Geraci v. Moody-Tottrup, Int’l, 

Inc., 82 F.3d 578, 581 (3d Cir. 1996) (“The elements of [the]

prima facie case . . . must not be applied woodenly, but must 

rather be tailored flexibly to fit the circumstances of each type 

of illegal discrimination.”).

To the extent that Jones’s discrimination claim is 

based upon her initial paid suspension, her claim fails for 

want of an adverse employment action for the reasons stated 

herein. See supra Part III. To the extent that her claim is 

based upon her subsequent suspension without pay and 

termination, however, we agree with the District Court that 

the chief defect of her claim lies in the final element of the 

prima facie case—the requirement of “some causal nexus” 
9

between her gender and her adverse treatment by SEPTA.

Sarullo, 352 F.3d at 798. The record is devoid of evidence 

supporting an inference that Jones’s suspension without pay 

and termination were products of discrimination instead of 

the natural result of SEPTA’s investigation into the 

allegations of timesheet fraud.

Jones’s briefs are “not a model of clarity,” SEPTA Br. 

34, but her main contention on this point seems to be that a 

reasonable jury could draw an inference of discrimination 

because SEPTA declined to punish male employees who 

engaged in the same alleged misconduct as she. See Filar v. 

Bd. of Educ., 526 F.3d 1054, 1061 (7th Cir. 2008) (“All 

things being equal, if an employer takes an action against one 

employee in a protected class but not another outside that 

class, one can infer discrimination.”). Jones points to 

evidence that at least one male SEPTA employee, John 

Solecki, was permitted by Outlaw to underreport his vacation 

time to compensate him for unpaid overtime work. But even 

if this practice was against SEPTA rules, it was materially 

different from Jones’s misconduct because Solecki did not 

fraudulently claim pay for work he never performed. Because 

of this distinction, the treatment of Solecki could not support 

an inference that Jones’s suspension without pay and 

termination were motivated by discrimination rather than by 

SEPTA’s good-faith conclusion that Jones submitted false

timesheets.

2

Jones also argues that she was the victim of a hostile 

work environment. In Meritor Savings Bank, FSB v. Vinson, 

the Supreme Court held “that a plaintiff may establish a 

violation of Title VII by proving that discrimination based on 

sex has created a hostile or abusive work environment.” 477 
10

U.S. 57, 66 (1986). The Court went on to hold that workplace 

sexual harassment can be actionable under such a theory, so 

long as it is “sufficiently severe or pervasive.” Id. at 67.

In a pair of later cases, the Court elaborated on when 

an employer can be held vicariously liable under Title VII for 

harassment of an employee by her supervisor. Faragher v. 

City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., 

Inc. v. Ellerth, 524 U.S. 742 (1998). Those decisions 

distinguished between “(1) harassment that ‘culminates in a 

tangible employment action,’ for which employers are strictly 

liable, and (2) harassment that takes place in the absence of a 

tangible employment action, to which employers may assert 

an affirmative defense.” Pa. State Police v. Suders, 542 U.S. 

129, 143 (2004) (citations omitted). This defense, which has 

come to be known as the Faragher–Ellerth defense, applies 

when the employer “exercised reasonable care to avoid 

harassment and to eliminate it when it might occur” and the

complaining employee “failed to act with like reasonable care 

to take advantage of the employer’s safeguards and otherwise 

to prevent harm that could have been avoided.” Faragher, 

524 U.S. at 805.

Jones claims she has cited sufficient evidence of 

severe or pervasive sexual harassment by Outlaw. The 

District Court said this was irrelevant even if true, Jones, 

2014 WL 3887747, at *5 & n.3, and we agree. Even if Jones 

had evidence of severe or pervasive sexual harassment, 

SEPTA was entitled to the Faragher–Ellerth defense.

First, the defense is available to SEPTA because any 

sexual harassment of Jones by Outlaw did not “culminate[] in 

a tangible employment action.” Faragher, 524 U.S. at 808. 

The Supreme Court has defined a “tangible employment 

action” as “a significant change in employment status, such as 
11

hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision causing a 

significant change in benefits.” Ellerth, 524 U.S. at 761.

Regardless of whether this term means precisely the same 

thing as “adverse employment action,” we think it clear that 

neither phrase applies to Jones’s initial paid suspension, 

which is the only action that Jones can link to the alleged 

harassment. As the District Court observed, SEPTA’s 

decisions to suspend Jones without pay and then terminate her 

were “based on the OIG investigation report, which itself 

relied on information independent from what was produced 

by Outlaw.” Jones, 2014 WL 3887747, at *6.

Second, SEPTA satisfies both prongs of the Faragher–

Ellerth defense on the merits. As the District Court noted, 

SEPTA took several steps in response to Jones’s allegations of 

harassment: it conducted an investigation, made findings, 

developed a “plan of action,” required Outlaw to attend a 

counseling session, and gave him a demerit on his evaluation. 

Id. at *7. Jones claims that this is not enough, but her 

arguments are unconvincing. Although it appears Outlaw never 

received training on SEPTA’s sexual harassment policy until 

after she complained, Jones identifies no authority showing

that this precludes SEPTA from asserting the Faragher–

Ellerth defense. She also highlights Outlaw’s admission that he 

did not comply with SEPTA policy when he asked her to step 

on his back, but she doesn’t explain how this fact supports

imposing vicarious liability on SEPTA. Jones further objects 

that Outlaw was given only a “slap on the wrist,” Jones Br. 26, 

but a showing that discipline was imposed is not required to 

prove that an employer’s remedial action was adequate, see 

Knabe v. Boury Corp., 114 F.3d 407, 413 (3d Cir. 1997). 

Indeed, a light punishment may have been suitable in view of 

SEPTA’s finding that Outlaw’s only proven misconduct was 
12

the spine-stepping incident. Finally, Jones attacks SEPTA’s 

harassment policy for encouraging employees to report 

harassment to their supervisors, suggesting that the policy 

failed because her supervisor was Outlaw. But the policy states 

that an employee is expected to “[r]eport any incident 

immediately to his/her supervisor or to SEPTA’s EEO[ 

Office],” and any sensible employee would surely go the EEO 

route instead of complaining only to the very person 

committing the harassment. App. 703 (emphasis added).

That brings us to the second Faragher–Ellerth prong, 

which is even less favorable for Jones. Jones worked for 

Outlaw for about 10 years, and she asserts that she was 

subject to “pervasive” sexual harassment the entire time. 

Reply Br. 10. Despite 10 years of alleged harassment, she 

admits that she never made a complaint until Outlaw accused 

her of timesheet fraud, despite the fact that she knew that the 

EEO Office fielded such complaints—in fact, she had 

previously worked in SEPTA’s Office of Civil Rights, 

apparently the EEO Office’s predecessor. App. 145–46, 872; 

see SEPTA Br. 47–48. This demonstrates that Jones “failed to 

act with . . . reasonable care to take advantage of the 

employer’s safeguards and otherwise to prevent harm that 

could have been avoided.” Faragher, 524 U.S. at 805. Even if 

Jones could offer evidence of severe or pervasive sexual 

harassment by Outlaw, therefore, her hostile work 

environment claim fails because no reasonable jury could 

hold SEPTA liable for such harassment. Accordingly, we will 

affirm the District Court’s summary judgment on Jones’s 

statutory claims of gender discrimination.

B

The other statutory claim at issue arises under the 

antiretaliation provision of Title VII, 42 U.S.C. § 2000e-3(a).
13

“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.” Allstate, 778 F.3d at 449 (internal quotation 

marks omitted). Jones posits that her suspension by Outlaw 

and her termination by SEPTA were retaliation against her

informal complaints to Outlaw about his behavior and her 

formal complaint to the EEO Office. Outlaw’s suspension of 

Jones with pay was not actionable retaliation, however, 

because Jones has identified no evidence showing that her 

alleged informal complaints caused Outlaw to suspend her.

Therefore, we must focus on whether a reasonable jury could 

conclude that SEPTA’s decisions to suspend Jones without 

pay and then terminate her were acts of retaliation.

Jones’s claim fails because there is no evidence that 

her complaints of harassment caused SEPTA to discharge her, 

and her efforts to establish a causal connection go nowhere. 

First, Jones claims that “she never falsified her timesheets” 

and suggests that this supports an inference that SEPTA’s 

actions were motivated by a desire for revenge rather than a 

bona fide belief that Jones had stolen wages. Jones Br. 51.

The District Court found no evidence supporting Jones’s 

denial of wrongdoing, however, and also rightly noted that 

showing that an employer incorrectly found an employee 

guilty of misconduct is insufficient to prove retaliation

anyway. See Jones, 2014 WL 3887747, at *10–11 & n.7; see 

also Fuentes, 32 F.3d at 766–67.

Jones also makes much of numerous alleged defects in 

OIG’s investigation of her timesheet submissions, arguing 

that these imperfections are evidence of bad faith and 
14

“animosity” on SEPTA’s part. Jones Br. 47. She says, for 

example, that OIG interrogated her “by ambush” about the 

timesheet fraud; didn’t allow her to review the timesheets in 

question during that session; didn’t investigate whether 

someone besides Jones tampered with her timesheets; and 

didn’t look into whether any timesheet discrepancies were 

resolved by “adjustment forms” filed by Jones. Id. at 47–48, 

54. Each of these grievances is either unfounded or too petty 

to serve as evidence of retaliation, and the District Court did 

not err in treating them as such. See Jones, 2014 WL 

3887747, at *12–13.

Jones also argues that a reasonable jury could find 

retaliation here on a “cat’s paw” theory of liability. In Staub 

v. Proctor Hospital, the Supreme Court interpreted a federal 

statute prohibiting employment discrimination against 

members of the military to make employers liable when an 

employee’s “supervisor performs an act motivated by 

antimilitary animus that is intended by the supervisor to cause 

an adverse employment action, and . . . is a proximate cause 

of the ultimate employment action.” 562 U.S. 411, 422 (2011)

(footnote omitted). In McKenna v. City of Philadelphia, we 

approved the extension of this theory of liability to the Title 

VII context. 649 F.3d 171 (3d Cir. 2011). Jones argues it 

applies here because, even if there is no direct evidence that 

SEPTA’s decision to terminate her was discriminatory, 

Outlaw’s accusation of timesheet fraud was driven by animus 

and contributed to Jones’s termination.

Even if Jones did produce evidence that Outlaw’s 

accusation was based on animus, her resort to the cat’s paw 

theory would still be unavailing. It may be true that Outlaw’s 

conduct was a but-for cause of Jones’s termination, as she 

may never have been fired for timesheet fraud had Outlaw not
15

reported the matter to OIG. But proximate cause is required in 

cat’s paw cases, and that requires “some direct relation 

between the injury asserted and the injurious conduct alleged” 

and excludes links that are “remote, purely contingent, or 

indirect.” Staub, 562 U.S. at 419 (internal quotation marks 

omitted). The Staub Court declined to adopt a “hard-and-fast 

rule” that an employer’s intervening exercise of independent 

judgment (e.g., between the supervisor’s biased report of 

employee wrongdoing and the termination of the employee) 

precludes a finding of proximate cause. Id. at 420. But the 

Court did indicate that proximate cause will not exist when 

the employer does not rely on the “supervisor’s biased report” 

in taking the ultimate adverse action. Id. at 421 (noting that it 

“is necessary in any case of cat’s-paw liability” that “the 

independent investigation rel[y] on facts provided by the 

biased supervisor”).

Here, Jones offers no evidence that Outlaw influenced

the OIG investigation or SEPTA’s termination decision

beyond getting the ball rolling with his initial report of 

timesheet fraud. The only evidence Jones cites in support of 

her cat’s paw theory is that Outlaw conducted the initial 

investigation of Jones’s timesheets; OIG interviewed Outlaw

and informed him of Jones’s harassment claims; and Outlaw

communicated with OIG and the SEPTA official who 

determined Jones committed timesheet fraud. As the District 

Court acknowledged, though, the record also shows that 

SEPTA decided to terminate Jones “based on an investigation 

independent from Outlaw” that relied on forensic handwriting 

analysis (to determine if the signatures on Jones’s timesheets 

were phony) and “email, computer, and building access 

records.” Jones, 2014 WL 3887747, at *12. This case is a far 

cry from McKenna, where there was no evidence that the 

employer relied on anything besides the allegedly biased 
16

supervisor’s say-so in deciding to terminate the employee.

See 649 F.3d at 179. Here, undisputed evidence excludes the 

possibility that SEPTA merely “adopted [Outlaw’s] biased 

account of the events.” Id. For those reasons, we agree with 

the District Court that cat’s paw liability does not apply here.

In her only other attempt to conjure a causal 

connection between her complaints of sexual harassment and 

her termination, Jones notes that we have previously held that 

“temporal proximity between the protected activity and the 

termination is sufficient to establish a causal link.” Woodson 

v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). But

Jones ignores other cases holding that “the timing of the 

alleged retaliatory action must be ‘unusually suggestive’ of 

retaliatory motive before a causal link will be inferred.” 

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 

1997) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 

1302 (3d Cir. 1997)). We reject Jones’s suggestion that a gap 

of nearly three months (between Jones’s harassment 

complaint and SEPTA’s determination that she committed 

timesheet fraud) raises a red flag, especially when SEPTA 

spent those three months on a thorough investigation into her 

alleged malfeasance. Because a reasonable jury could not find 

a causal link between her allegations of harassment and any 

adverse employment action, we will affirm the District 

Court’s summary judgment on the retaliation claims.

C

Jones’s remaining claims arise under 42 U.S.C. § 1983 

and allege violations of the Fourteenth Amendment. The 

District Court held that Jones forfeited her constitutional 

claims by failing to mention them in her response to SEPTA

and Outlaw’s motion for summary judgment. See Jones, 2014 

WL 3887747, at *14. Although Jones’s response did mention 
17

those provisions (if only fleetingly, see Supp. App. 324, 335), 

we will nevertheless affirm the Court’s judgment on the 

constitutional claims. See Hughes v. Long, 242 F.3d 121, 122 

n.1 (3d Cir. 2001) (“We may affirm a District Court’s 

judgment on grounds other than those considered by the 

District Court itself.”). First, Jones expressly waives her 

constitutional claims against SEPTA on appeal. Jones Br. 62 

n.4. Second, in support of her constitutional claims against 

Outlaw, she makes no affirmative argument that is 

distinguishable from her statutory arguments and provides no 

coherent reason why her evidence succeeds under § 1983 

even if it fails under Title VII. In the absence of such 

argument, we will not disturb the District Court’s summary 

judgment for SEPTA and Outlaw. See United States v. 

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam) (“A 

skeletal ‘argument,’ really nothing more than an assertion, 

does not preserve a claim. Especially not when the brief 

presents a passel of other arguments . . . . Judges are not like 

pigs, hunting for truffles buried in briefs.” (citation omitted)).

* * *

For the reasons stated, we hold that Jones’s suspension 

with pay did not constitute an adverse employment action 

under the substantive provision of Title VII. And any adverse 

actions Jones did suffer were not sufficiently linked to any 

alleged misconduct to support a claim of discrimination or 

retaliation. Accordingly, the District Court did not err in 

entering summary judgment for SEPTA, and we will affirm 

that order.