2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-10-2013

Lawrence Brown v. SEPTA

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-2467

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Recommended Citation

"Lawrence Brown v. SEPTA" (2013). 2013 Decisions. Paper 250.

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GLD-410 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2467

___________

LAWRENCE BROWN,

Appellant

v.

SEPTA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 11-cv-07366)

District Judge: Honorable Thomas N. O’Neill, Junior

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 29, 2013

Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed: September 10, 2013)

_________

OPINION

_________

PER CURIAM

Pro se Appellant Lawrence Brown appeals the District Court’s order granting 

Appellee's motion for summary judgment. For reasons set forth below, we will 

summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

I.
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Brown, a former Southeastern Pennsylvania Transportation Authority (“SEPTA”)

employee, alleges that SEPTA violated his constitutional rights and discriminated against 

him because of his race. Specifically, Brown claims that SEPTA violated 42 U.S.C. §§ 

1981 and 1983, as well as the Fourth, Fifth, and Fourteenth Amendments, during an 

investigation that ultimately led to his termination. Furthermore, Brown claims that he 

was treated differently than similarly situated individuals outside of his protected class. 

SEPTA terminated Brown due to his attempt to fill a fraudulent prescription while 

dressed in his SEPTA uniform and using his SEPTA prescription card. 

Brown, who worked as a cashier, was ordered to report to the SEPTA Office of 

Inspector General (“OIG”) in November 2009. At this meeting, Brown alleges that he 

was not read any Miranda rights and was not informed that he had a right to union 

representation under NLRB v.J. Weingarten, Inc., 420 U.S. 251, 267 (1975). During the 

course of the meeting, Brown claims that he was threatened by a SEPTA detective and a 

Philadelphia Police Officer if he did not answer their questions. Brown signed each page 

of the Philadelphia Police Department Investigation Interview Record (“IIR”). 

As a result of the OIG meeting, an informal hearing was held between SEPTA and 

Brown’s Union. At the hearing, Brown’s supervisor proposed a resolution of terminating 

Brown’s employment. After several administrative appeals by Brown, his termination 

was upheld. Brown then filed a complaint in the District Court alleging that he was 

discriminated against on the basis of race in violation of the Civil Rights Act, 42 U.S.C. 

§§ 1981 and 1983. The District Court. found that Brown failed to provide evidence to 
3

support his claims and thus granted summary judgment in favor of SEPTA. Brown timely 

appealed.

II.

We have jurisdiction over the District Court’s order. 28 U.S.C. § 1291. We 

review de novo an award of summary judgment, “applying the same test that the District 

Court should have applied and viewing the facts in the light most favorable to the 

nonmoving party.” Schneyder v. Smith, 653 F.3d 313, 318 (3d Cir. 2011). Summary 

judgment is appropriate only 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). Moreover, the nonmoving party cannot rely only on allegations in the 

complaint to defeat summary judgment; rather, he "must rely on affidavits, depositions, 

answers to interrogatories, or admissions on file." GFL Advantage Fund, LTD v. Colkitt, 

272 F.3d 189,199 (3d Cir. 2001) (citing Bhatla v. U.S. Capital Corp., 990 F.2d 780, 787 

(3d Cir.1993)). We may summarily affirm on any basis supported by the record. Murray 

v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

III.

The District Court granted SEPTA’s motion for summary judgment after finding 

that Brown failed to meet the requirements of 42 U.S.C. §§ 1981 and 1983. We agree. 

Section 1983, which Brown relies on for his constitutional claims, provides private 

citizens with a means to redress violations of federal law committed by state officials. 

For the purposes of § 1983, SEPTA is treated as a municipal agency when determining its 

liability, if any. See Bolden v. SEPTA, 953 F.2d 807, 821, 830 (3d Cir. 1991) (en banc); 
4

Searles v. SEPTA, 990 F.2d 789, 790 (3d Cir. 1993). However, SEPTA cannot be held 

liable for the acts of its employees under respondeat superior or any other theory of 

vicarious liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978). 

Rather, SEPTA can only be held liable for an unconstitutional policy, custom, or practice. 

Monell, 436 U.S. at 691-92; City of Canton v. Harris, 489 U.S. 378 (1989); Berg v. Cnty. 

of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000). 

A. Fourth Amendment Claims

The Fourth Amendment prohibits unreasonable search and seizures. See U.S. 

Const. amend. IV. A Fourth Amendment seizure occurs when someone is “detained by 

means intentionally applied to terminate his freedom of movement.” Berg, 219 F.3d at 

269. Evidence of a seizure includes the “threatening presence of several officers, the 

display of a weapon by an officer, some physical touching of the person . . . or the use of 

language or tone of voice indicating that compliance with the officer’s request might be 

compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). Brown argues that 

his Fourth Amendment rights were violated during the OIG meeting when the officers 

threatened to arrest him if he did not answer their questions. However, Brown does not 

provide any evidence suggesting that the officers displayed their weapons or physically 

touched him during the interview. See GFL Advantage Fund, LTD., 272 F.3d at 199 

(stating the nonmoving party cannot rely on mere allegations in the pleadings). Thus, the 

District Court properly granted summary judgment in favor of SEPTA on Brown’s 

Fourth Amendment claim. 

B. Fifth Amendment Claims
5

Brown claims that his Fifth Amendment privilege against self-incrimination was 

violated because he was interrogated at the OIG without being given Miranda warnings 

as well as being subjected to threats, and denied legal representation. Brown claims that 

the information received was the result of an unlawful interrogation.

As an initial matter, Fifth Amendment protections are generally limited to criminal 

proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 316 (1976); Chavez v. Martinez, 

538 U.S. 760, 778 (2003) (Souter, J., concurring). Brown may not base a § 1983 claim 

for a violation of constitutional rights on the mere fact that the police questioned him in 

custody without providing Miranda warnings when there is no claim that Brown’s 

answers were used against him at trial. Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003). 

Brown does not provide any evidence showing how the information he provided to the 

OIG has been or will be used against him in a criminal proceeding. Thus, his Fifth 

Amendment rights have not been violated, and the District Court order granting summary 

judgment for SEPTA on the Fifth Amendment claim was proper.

C. Fourteenth Amendment

Brown raised both equal protection and due process claims. Brown’s equal 

protection claims largely revolve around his view that he was treated differently from 

similarly situated employees because of his race. Generally, there are many factors that 

can be relevant to this fact intensive inquiry. See Sprint/United Mgmt. Co. v. 

Mendelsohn, 552 U.S. 379. 388 (2008). Courts have included factors such as “showing 

that the two employees dealt with the same supervisor, were subject to the same 

standards, and have engaged in similar conduct without such differentiating or mitigating 
6

circumstances as would distinguish their conduct or the employer’s treatment of them.” 

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). 

Although none of the other employees shared supervisors, performed similar 

work, held a similar status, or committed a similar violation as Brown, Brown argues that 

they were all similarly situated because they were all subject to the same SEPTA human 

resources policies. This , however, does not support Brown’s assertion that the other 

employees were similarly situated. Even if the other employees were similarly situated, 

Brown fails to demonstrate how the disparate treatment was a result of a SEPTA policy, 

custom, or practice. Brown also claims that SEPTA’s human resource policy prohibits 

disciplinary action against employees unless they are arrested, charged, or convicted. 

However, Brown fails to specify the actual policy, practice, or custom and instead makes 

an unsupported assertion. Because Brown cannot point to an offending SEPTA policy, 

practice, or custom, we will affirm the district court order granting summary judgment 

for SEPTA dismissing Brown’s equal protection claim.

Brown also appears to be making both substantive and procedural due process 

claims. In regards to the substantive due process claim, it appears that Brown is arguing 

that he has a fundamental property interest in his job. However, we have held that 

continued public employment does not constitute a fundamental right. See Nicholas v. 

Pa. State Univ., 227 F.3d 133, 141-43 (3d Cir. 2000). Thus, the District Court order 

granting summary judgment in favor of SEPTA on Brown’s substantive due process 

claim was proper.
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Brown additionally argues that he was denied procedural due process when 

SEPTA ordered him to report to the OIG for an interview without being told the reason 

for the interview. For a procedural due process claim to be successful under § 1983, 

Brown must claim that he was deprived of an individual interest encompassed within the 

Fourteenth Amendment and the procedures available did not provide due process of law. 

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Here, Brown fails to demonstrate 

how SEPTA’s grievance procedures were insufficient. We have held that SEPTA’s 

comprehensive union grievance procedures satisfy due process requirements. Dykes v. 

SEPTA, 68 F.3d 1564, 1571 (3d Cir. 1995). Brown’s assertion that he was not told the 

reason for the interview falls short of establishing a violation of his right to procedural 

due process.

D. Section 1981 Claims

Brown also claims that SEPTA violated his rights under the Civil Rights Act, 42 

U.S.C. § 1981, by discriminating against him on the basis of race. We have held that 

“[t]he express cause of action for damages created by § 1983 constitutes the exclusive 

federal remedy for violation of the rights guaranteed in § 1981 by” entities such as 

SEPTA. McGovern v. City of Phila., 554 F.3d 114, 120-21 (3d Cir. 2009). Here, Brown 

has not provided any evidence demonstrating that he was discriminated against on the 

basis of race by SEPTA. Brown argues that SEPTA has a policy to not take disciplinary 

action against an employee, unless the employee has been arrested, charged, and 

convicted of the crime. However, Brown fails to identify any specific SEPTA custom or 

policy that caused his injury and instead makes an unsupported assertion. Moreover, he 
8

still provides insufficient evidence demonstrating that he was treated differently from 

other employees who were not African American. Because Brown fails to satisfy the 

requirements of section 1981, the District Court properly granted SEPTA’s motion for 

summary judgment. 

IV.

For the reasons set forth above, we will affirm the district court’s order granting 

SEPTA’s motion for summary judgment. Brown’s motion for the appointment of 

counsel is denied.