JENKINS v. SEPTA

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

ANGELIQUE JENKINS, : CIVIL ACTION

Plaintiff, :

v. :

:

SEPTA, :

Defendant. : NO. 19-2180

MEMORANDUM

Kenney, J. May 10, 2021

Plaintiff Angelique Jenkins (“Jenkins”) pro se brings this employment action against her

former employer, Defendant Southeastern Pennsylvania Transportation Authority (“SEPTA”).

Jenkins alleges SEPTA retaliated against her and discriminated against her on the basis of her

gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title

VII”). She also alleges her termination occurred in violation of her procedural due process rights

and that she was wrongfully discharged. SEPTA moves for summary judgment on all of her claims,

and for the reasons that follow, we will grant its motion in its entirety.

I. FACTUAL BACKGROUND1

SEPTA hired Angelique Jenkins as a bus operator in 2008. Defendant’s Concise Statement

of Material Facts, ECF No. 52-1 ¶ 1. Throughout her employment with SEPTA, she was

represented by Transport Workers Union Local 234 (“the Union”) under a Collective Bargaining

Agreement (“CBA”). Id. ¶ 3. Jenkins alleges she worked for SEPTA without incident until Shwana

Rogers became her manager in January 2017. Am. Compl. at 3. Jenkins believed Rogers targeted

her with purported customer complaints, which she complained of to Thomas Marcucci, a

supervisor. ECF No. 52-2, Ex. A, at 34:11–24. Marcucci told Jenkins Rogers was “a great person”

1 The facts are presented in the light most favorable to Jenkins, the nonmoving party.

and asked Jenkins to give her a chance, which Jenkins agreed to do. Id. at 37:2–5. Nothing came

of Jenkins’ complaint. Id. at 38:3.

In March or April 2017, after Jenkins asked the “cleaning girl” for paper towels, and the

“cleaning girl” denied her request, explaining “management said we couldn’t have them,” Jenkins

and the “cleaning girl” “had words.” Am. Compl. at 3. The “cleaning girl” spoke with Rogers,

which prompted Jenkins to “defuse” the situation by speaking with Rogers. Am. Compl. at 3.

Jenkins’ conversation with Rogers left her in tears. Id. She alleges Rogers told her “I use to not

like you, but you remind me of a kitten.” Id. A few weeks later, the “cleaning girl” vacuumed

under Jenkins feet as she ate lunch and dust flew into her food. Id. On May 16, 2017, Jenkins

complained about Rogers to SEPTA’s Equal Employment Opportunity/ Affirmative Action

Department (“SEPTA’s EEOD”) for unfair treatment, harassment, improper comments, and

targeting her with discharge by planting an undercover supervisor on her bus to catch her in a

policy or rules violation. ECF No. 52-4, Ex. P at 24–30; ECF No. 58 at 3 (explaining she made the

complaint only against Rogers). After investigating Jenkins’ complaint, SEPTA found her

allegations of unfair harassment and unfair treatment were not substantiated. See ECF No. 52-5,

Ex. Q at 2–3.

In April 2017, SEPTA recommended Jenkins’ termination for substandard performance

and violations of SEPTA rules and policies. Id. ¶ 5. The Union intervened on her behalf, filing a

grievance and recommending SEPTA reinstate her subject to a Last Chance Agreement per the

CBA. ECF No. 52-3, Ex. E. Jenkins signed the Last Chance Agreement on July 6, 2017, which

imposed a one-day suspension without pay and a year-long probationary period to begin on May

24, 2017. ECF No. 52-2, Ex. B. The Last Chance Agreement provided that should Jenkins commit

any infraction “for which discipline is justified,” she would be terminated immediately. Id. Jenkins

agreed the Last Chance Agreement would resolve all claims related to her termination, and that

the “last step discipline” would remain on her disciplinary record for 730 calendar days. Id.

Operating a bus on June 28, 2017, Jenkins allegedly struck a pole. ECF No. 52-5, Ex. S at

7. She did not report the incident or inform SEPTA. Id. A foreman discovered unreported damage

to the bus, took photos and submitted a report to SEPTA. Id. at 7–8. SEPTA requested video and

watched the footage on August 2, 2017. On August 4, Jenkins was removed from service. Id. On

August 8, SEPTA held an Informal Hearing charging her with several violations of SEPTA policy

and her Last Chance Agreement. ECF No. 52-3, Ex. G. The Union filed a grievance contesting her

proposed discharge arguing that SEPTA had no proof an accident occurred or that Jenkins was at

fault for the unreported damage. ECF No. 52-1 ¶ 17; ECF No. 52-5 at 9. A Formal Hearing

followed on August 24, 2017. ECF No. 52-5, Ex. S at 7. Discussion about her proposed discharge

continued and the parties reached a settlement on January 17, 2018 reinstating Jenkins to her

position subject to the Last Chance Agreement. ECF No. 52-3, Ex. H.

In May 2018, Jenkins transferred to a train operator position on the Market-Frankford line.

ECF No. 52-1 ¶ 2; Am. Compl. at 4. On February 7, 2019, at 30th Street Station, Jenkins, intending

to allow a wheelchair-bound passenger on board, reopened the doors on the wrong side. ECF No.

52-4, Ex. L. at 9. She reported her mistake to the train dispatcher, allowed passengers to leave the

train and waited for her supervisor to arrive. Id. Jenkins completed an incident report admitting

that she opened the doors on the wrong side of the train. ECF No. 52-1 ¶ 30. After investigating,

SEPTA again charged Jenkins with violating SEPTA rules and her Last Chance Agreement and

proposed her discharge. ECF No. 52-4, Ex. K. The Union again filed a grievance contesting

Jenkins’ proposed discharge. ECF No. 52-1 ¶ 30. SEPTA held an informal hearing where the

Union rejected Jenkins’ proposed discharge and requested a formal hearing. Id. ¶ 40. At the formal

hearing, Jenkins testified that she had committed the infraction, and SEPTA’s hearing officer

upheld her termination, permitting her to continue to work until the third hearing. Id. ¶ 44. At the

third hearing, Jenkins again acknowledged her infraction, but argued that SEPTA’s equipment

facilitated her mistake and claimed SEPTA was looking to discipline her because she had

expressed an intent to run for President of the Union. Id. ¶¶ 48–49. The hearing officer again

upheld her termination. Id. ¶ 52.

Jenkins asked the Union to take her case to arbitration, which it refused, explaining “there

is no way to win your case in arbitration.” ECF No. 52-2, Ex. O at 21 (“SEPTA had ‘just cause’

to discharge you.”). On March 9, 2019, Jenkins filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) challenging her termination and received a Right-to-Sue

letter on April 26, 2019. ECF No. 2 at 10.

Jenkins timely filed her complaint on May 20, 2019.2 See ECF No. 2. SEPTA answered on

July 17, 2019, see ECF No. 10, and moved for judgment on the pleadings under Rule 12(c). See

ECF No. 18. We granted SEPTA’s motion and dismissed Jenkins’ Complaint without giving her

leave to amend. See ECF No. 22. Jenkins appealed our dismissal. The Court of Appeals for the

Third Circuit vacated our judgment and remanded because it could not say “with certainty that

amendment would be futile, as Jenkins made some bare allegations…suggesting she might be able

to state a Title VII claim…” See Jenkins v. SEPTA, 801 Fed. App’x. 71 (3d. Cir. 2020) (emphasis

in original). On remand, Jenkins filed an amended complaint. See ECF No. 29. SEPTA answered

her amended complaint and the parties conducted discovery. See ECF No. 30. On March 22, 2021,

2 To bring a Title VII suit in Pennsylvania, claimants must first file a complaint with the EEOC within three

hundred days of an unlawful employment action. Selvato v. SEPTA, 143 F. Supp. 3d 257, 264 (E.D. Pa. 2015), aff’d,

658 F. App’x 52 (3d Cir. 2016). The time period for discrete acts—e.g. terminations, failures to hire, failures to

promote–begins when the unlawful employment action occurred.

SEPTA moved for summary judgment. See ECF No. 52. Jenkins responded on April 8, 2021, see

ECF No. 53. SEPTA replied on April 26, see ECF No. 55, and Jenkins filed a surreply on May 3,

2021. See ECF No. 58.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute of material fact and

the movant is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(a). The moving party

bears the initial burden of proving a lack of any genuine issues of material fact. See Matsushita

Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 & n. 10 (1986). The nonmoving

party must then “come forward with specific facts showing there is a genuine issue for trial.” Id.

(internal citations and quotation marks omitted). A factual dispute is “material” if it “might affect

the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). And a dispute is “genuine” if “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Id.

All facts “should be viewed in the light most favorable to the non-moving party, with all

reasonable inferences [drawn] in that party’s favor.” Jutrowski v. Township of Riverdale, 904 F.3d

280, 2988 (3d Cir. 2018) (quoting Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ.,

470 F.3d 535, 538 (3d Cir. 2006) (internal quotation marks omitted)). Summary judgment is

warranted where the nonmoving party “fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the burden of proof

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In such a situation, there can be

no genuine issue as to any material fact, since a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. (internal

citations and quotation marks omitted).

We liberally construe pro se filings and pro se civil rights claims to make sure we address

the merits. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, on a motion for summary

judgment, Rule 56 requires pro se plaintiffs—like represented parties—to point to competent

evidence in the record capable of refuting a defendant’s motion for summary judgment. See

Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017). That a non-movant is proceeding pro

se does not relieve her of Rule 56(e)’s requirement to produce evidence that raises a genuine issue

of material fact. Id.

III. DISCUSSION

SEPTA seeks judgment in its favor on every claim Jenkins makes in her amended

complaint. We construe Jenkins’ amended complaint as asserting four claims:3 1) gender

discrimination in violation of Title VII, 2) retaliation based on Jenkins’ gender in violation of Title

VII, 3) denial of procedural due process, and 4) wrongful discharge.

A. Violations of Title VII

Jenkins alleges gender-based termination and retaliatory termination under Title VII.

i. Gender-based discrimination

Jenkins alleges SEPTA discriminated against her on the basis of gender by firing her for

opening the doors on the wrong side of the train when male employees were not fired for the same

conduct. ECF No. 53 at 3. Title VII provides that employer may not “discharge ... or ... discriminate

against any individual with respect to ... compensation, terms, conditions, or privileges of

employment because of such individual's ... sex[.]” 42 U.S.C. § 2000e–2(a)(1). Under the burden-

3 SEPTA’s brief in support of its motion for summary judgment advocates for judgment in its favor on her claim

under the National Labor Relations Act (“NLRA”), to the extent we construe her amended complaint to assert it.

ECF No. 52 at 33–34. We do not construe her amended complaint as asserting one, but note that if it did, the NLRA

did not cover Jenkins as the employee of a political sub-division. See Jackson v. Temple Univ. of Com. Sys. of

Higher Educ., 721 F.2d 931, 933 (3d Cir. 1983); Crilly v. Southeastern Pennsylvania Transportation Authority, 529

F.2d 1355 (3d Cir.1976).

shifting schema the Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), a plaintiff must first establish a prima facie case. If she succeeds, the burden of

production shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse

employment action. Then, the plaintiff may counter by showing the employer’s proffered reason

is a pretext for gender discrimination. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 539 (3d Cir. 2006).

To make out her prima facie case of gender discrimination at the summary judgment stage,

Jenkins must present evidence sufficient to show she “(1) is a member of a protected class; (2) was

qualified for the position she held; (3) was fired from that position; and (4) suffered adverse action

under circumstances that give rise to an inference of discrimination.” Johnson v. St. Luke's Hosp.,

307 F. App’x 670, 671-72 (3d Cir. 2009). SEPTA does not dispute that Jenkins meets the first

three elements of her prima facie burden, but argues that she offers no evidence sufficient to

support an inference of discrimination, and even if she does, she cannot establish pretext.

To support an inference of discrimination, employees may present comparator evidence,

or “evidence that [the employer] treated ‘similarly situated’ individuals not within [the

employee’s] protected class more favorably than it treated [the employee].” See Darby v. Temple

Univ., 216 F. Supp.3d 535, 542 (E.D. Pa. 2016) (quoting Wilcher v. Postmaster Gen., 441 F. App’x

879, 881 (3d Cir. 2011)). Employees may also support an inference of discrimination with other

evidence, including “evidence of similar [gender] discrimination of other employees, or direct

evidence of discrimination from statements or actions by her supervisors suggesting [gender]

animus.” Golod v. Bank of Am. Corp., 403 F. App’x 699, 702 n.2 (3d Cir. 2010).

The record does not contain evidence sufficient to support an inference of discrimination.

Jenkins’ opposition brief speculates “[s]everal male employees were either terminated and brought

back or not terminated.” See ECF No. 53 at 4. Her brief identifies two male employees by name

whose disciplinary records she requested in discovery. Jenkins claims the two men were also

charged with the same rule violation while on a Last Chance Agreement but remain employed by

SEPTA. Id. at 3. However, Jenkins has not adduced any evidence showing these two men were

similarly situated beyond her bare assertions. No record evidence exists to suggest these men “dealt

with the same supervisor, were subject to the same standards, and had engaged in similar conduct

without such differentiating or mitigating circumstances as would distinguish their conduct or the

employer’s treatment of them.” Thompson v. Kellogg’s USA, 619 F. App’x 141, 146 (3d Cir.

2015). Absent any evidence that these men “held similar positions, had similar disciplinary

records, were subject to a Last Chance Agreement, or reported to the same decisionmakers when

they made these mistakes,” we cannot infer that her termination was discriminatory. See id.

Aside from her bald assertions about the two similarly situated male employees, Jenkins

has no evidence of gender discrimination of other employees, or direct evidence via comments or

actions evincing gender animus. Her claim rests on unsupported allegations that “many of the

female employees at the depot [complained] about mistreatment after Ms. Rogers became

supervisor.” See Am. Compl. at 3. At this stage, Jenkins’ bare allegations do not support the

conclusion that SEPTA terminated her under circumstances giving rise to an inference of

discrimination. Cf Mammen v. Thomas Jefferson Univ., No. CV 20-0127, 2021 WL 843604, at

*13 (E.D. Pa. Mar. 5, 2021) (identifying several gender-based remarks and evidence that women

held dissimilar positions). As Jenkins has not established her prima facie case, we will not reach

whether a reasonable factfinder could find pretext. Accordingly, Jenkins’ claim that she was fired

because of her gender does not survive summary judgment.

ii. Gender-based retaliation

Title VII forbids employers from retaliating against an employee “because [she] opposed

any practice made unlawful by this section ... or because [she] has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. 2000e-3(a). We analyze retaliatory termination claims under the

McDonnell Douglas burden-shifting framework where, as here, the employee relies on

circumstantial evidence to infer retaliation. See Starceski v. Westinghouse Electric Corp., 54 F.3d

1089, 1095 n.4 (3d Cir. 1995).

Again, Jenkins bears the burden of establishing her prima facie case. In a retaliatory

termination case, she must establish that: (1) she engaged in a protected activity; (2) the employer

took a materially adverse action against her; and, (3) there was a causal connection between the

protected activity and the employer’s action. Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d

Cir. 2006). SEPTA does not dispute that Jenkins’s termination was a materially adverse action.

Instead, it asserts that Jenkins cannot establish that she engaged in protected activity or that her

purportedly protected activity was causally connected to her termination. See ECF No. 52 at 21–

24.

a. Protected activity

Jenkins argues that her verbal complaint about her supervisor, Shwana Rogers, to Thomas

Marcucci, and her written complaint about Rogers to SEPTA’s EEOD were protected activity.

SEPTA argues that because neither complaint objected to treatment she experienced because of

her gender, or any other protected class, her complaints cannot constitute protected activity. See

ECF No. 52 at 21–22.

“General complaint[s] of unfair treatment” do not constitute protected activity. See Curay-

Cramer v. Ursuline Acad. of Wilmington, Del., 450 F.3d 130, 135 (3d Cir. 2006). Rather, to

constitute protected activity, it must be “possible to discern from the context of the [employee’s]

statement that [she] opposes an unlawful employment practice” Id. Jenkins did not allege gender,

or any other unlawful discrimination, in her written and verbal complaints. In her complaints, she

objected to Rogers’ attitude towards her, including the comment that she “use to not like [Jenkins],

but [she] remind me of a kitten,” and Rogers’ attempts to catch her in a policy or rules violation.

Significantly, while her complaints objected to unfair treatment, they did not complain of unfair

treatment engaged in because of a protected characteristic. Thus, we agree with SEPTA, that

Jenkins did not engage in protected activity.

b. Causal connection

SEPTA asserts that Jenkins fails to show that decisionmaker responsible for her

termination was aware of her protected activity and fails to present evidence sufficient to support

an inference of causation. As a threshold matter, an employee must establish that the

decisionmaker responsible for the adverse action was aware of her protected activity when he or

she acted. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196–97 (3d Cir. 2015) (“The plaintiff,

however, cannot establish that there was a causal connection without some evidence that the

individuals responsible for the adverse action knew of the plaintiff’s protected conduct at the time

they acted.”). Then, “[t]o establish the requisite causal connection a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal

link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007). For temporal

proximity to establish a causal connection, “the timing of the alleged retaliatory action must be

unusually suggestive of retaliatory motive ....” Krouse v. American Sterilizer Co., 126 F.3d 494,

503 (3d Cir.1997).

The record does not suggest that the decisionmakers responsible for her March 2019

termination knew of her verbal or written complaints. Even if she could establish their knowledge,

Jenkins cannot establish a causal connection between her March or April 2017 (verbal) and May

2017 (written) complaints and her March 2019 termination. The two-year period between her

complaints and her termination is not so “unusually suggestive” of a link that Jenkins “may rely

on the temporal proximity” between the events. Moore v. Sec’y U.S. Dep’t of Homeland Sec., 718

F. App'x 164, 166 (3d Cir. 2017) (quoting Daniels, 776 F.3d at 193); see also Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989) (finding two days unduly suggestive of causation). Being unable

to rely on temporal proximity to establish a link, she must identify other evidence to show a causal

connection.

No pattern of antagonism coupled with timing exists in the record to establish a causal link.

Neither set of proposed discharges and reinstatements—the April 2017 proposed discharge and

July 2017 Last Chance Agreement reinstating Jenkins; and the August 2017 proposed discharge

and January 2018 reinstatement—appears to be related to Jenkins’s complaints. Both sets of

disciplinary actions—and Jenkins’ ultimate termination—were SEPTA’s responses to her

violations of SEPTA rules and policies. Without any evidence of a causal connection between her

purportedly protected activity and her 2019 termination, Jenkins’ retaliation claim cannot survive

summary judgment.

B. Due Process violation

Jenkins alleges she was “discharged without due process.” Am. Compl. at 4. We apply a

two-step inquiry to procedural due process claims: (1) whether the plaintiff has “a property interest

protected by procedural due process,” and (2) “what procedures constitute ‘due process of law.’”

Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (quoting Gikas v. Wash. Sch. Dist., 328 F.3d

731, 737 (3d Cir.2003)). Jenkins clearly has a constitutionally protected interest in not being

terminated from her position as a train operator. See Dykes v. Se. Pennsylvania Transp. Auth., 68

F.3d 1564, 1570 (3d Cir. 1995).

To pass constitutional muster, SEPTA’s deprivation of Jenkins’ property should be

preceded by notice and opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 542 (1985). “Public employees are entitled to ‘notice of the charges against [them], an

explanation of the employer’s evidence, and an opportunity to present [their] side of the story’

before their employment is terminated.” Bond v. City of Bethlehem, 505 F. App’x 163, 167 (3d

Cir. 2012) (quoting Loudermill, 470 U.S. at 546). Under Loudermill, the employee must be given

an opportunity for a hearing before [she] is deprived of any significant property interest.” 470 U.S.

at 542.

In Jenkins’ case, SEPTA, by all accounts, SEPTA followed its typical grievance/arbitration

procedure. See generally Am. Compl. In fact, before her termination, she partook in three levels

of the grievance procedure required by the CBA between SEPTA and the Union. Dykes, See 68

F.3d at 1565 (“[W]here an adequate grievance/arbitration procedure is in place and is followed, a

plaintiff has received the due process to which [she] is entitled under the Fourteenth

Amendment.”). The availability of arbitration, which the union declined to pursue given its doubts

about the strength of Jenkins’ claims, alone satisfied due process. See Harris v. Se. Pa. Transp.

Auth., 205 F. App’x 39, 41 (3d Cir. 2006). Nonetheless, the records of the grievance procedures

show Jenkins, via her Union representative, had the opportunity to be heard and to present

evidence, and did so. Jenkins’ due process claim does not survive summary judgment.

C. Wrongful Discharge

Jenkins’ allegations that the rule violation leading to her termination was “not a

dischargeable offense,” liberally construed, make a wrongful discharge claim. See Am. Compl. at

4. Jenkins’ claim cannot survive summary judgment. Under Pennsylvania law, at-will employees

may sue former employers for wrongful discharge in violation of public policy. See Coppola v.

Jneso-Pocono Med. Ctr., 400 F. App’x 683, 684 (3d Cir. 2010). The common law cause of action

aims “to provide a remedy for employees with no other recourse against wrongful discharge.” Id

(citing Phillips v. Babcock & Wilcox, 349 Pa.Super. 351, 503 A.2d 36 (1986)). But “union

employees enjoy contractual protection against discharge without ‘proper cause’ as part of their

collective bargaining agreement” and thus have other recourse against wrongful discharge. Id. As

a union employee subject to a collective bargaining agreement, Jenkins may not pursue a wrongful

discharge claim against her former employer. See id. Accordingly, her wrongful discharge claim

does not survive summary judgment.

IV. CONCLUSION

For the foregoing reasons, we will grant SEPTA’s motion for summary judgment. An

appropriate order follows.

BY THE COURT

/s/ Chad F. Kenney

________________________

CHAD F. KENNEY, JUDGE