Coleen Remp v. Alcon Laboratories Inc

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, HARDIMAN and GREENAWAY JR., Circuit Judges. Total Pages: 10. Judge: GREENAWAY JR. Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2208
_____________
COLEEN A. REMP,
Appellant
v.
ALCON LABORATORIES, INC.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-13-cv-06407)
District Judge: Honorable Lawrence F. Stengel
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 19, 2017
Before: FISHER, * HARDIMAN, and GREENAWAY, Jr., Circuit Judges.

(Filed: July 25, 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.

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GREENAWAY, JR., Circuit Judge.
Appellant Coleen Remp (“Remp”) seeks reversal of the District Court’s decision to
grant a Motion for Summary Judgment in favor of Appellee Alcon Laboratories, Inc.
(“Alcon”). For the reasons stated herein, we will affirm the District Court.
I.

BACKGROUND
Remp began working at Alcon as an employee in 1992. She received promotions

within Alcon’s purchasing department in 1993, 1995, 1998, and 2003. In 2010, 2011,
2012, and 2013, Remp received raises in pay, and for several months in 2011, Remp
supervised a temporary employee.
On two occasions, Remp advanced more slowly than Jeffrey Wolf (“Wolf”), a
younger man. In 2008, Remp applied for a “lateral move” into Alcon’s planning
department, App. 77, but Alcon filled the position with Wolf. In 2012, Wolf received an
unannounced “development opportunity” to fill a vacancy created by another employee’s
temporary absence. App. 92. This development opportunity was not a promotion and
did not include any additional compensation.
Shortly after learning that Wolf had received this 2012 development opportunity,
Remp met with her immediate supervisor, Kenneth Stevenson, and the Human Resources
Manager, William McQueen. At the meeting, she objected to Alcon’s decision to
provide Wolf with this development opportunity and expressed her concern that she had
fallen victim to discrimination. The parties disagree on the exact words used during this
meeting and the implications of those words. They agreed, however, in their respective
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depositions, that McQueen told Remp that filing a discrimination suit against Alcon
could lead to a lawsuit and an internal investigation performed by the Business Practices
Office (“BPO”). Remp testified that McQueen said, “I’m going to call BPO on you” and
“I’m going to also sue you for defamation of character.” App. 108. McQueen attested, “I
said, do you realize that if you go out and you speak about other people in a very negative
manner without being able to back it up, you could—this could be a BPO call or
somebody could take legal action against you.” App. 591.
On November 26, 2012, Remp filed an EEOC Charge of Discrimination alleging sex
discrimination, age discrimination, and retaliation. On August 23, 2013, Remp received
an EEOC Notice of Right to Sue, and on November 7, 2013, she filed suit in the United
States District Court for the Eastern District of Pennsylvania. Alcon filed a Motion for
Summary Judgment and the District Court granted that motion. Remp now appeals the
District Court’s Order.
II.

JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.
“We exercise plenary review over a district court’s grant of summary judgment.”
Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). “We will affirm if
‘there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 104 (3d Cir.
2017) (quoting Fed. R. Civ. P. 56(a)).

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III.

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ANALYSIS
Remp brings three types of claims. First, she claims that Alcon discriminated

against her because of her sex and age when it hired Wolf for the lateral position in 2008
and gave him the development opportunity in 2012. She brings her sex discrimination
claims pursuant to 42 U.S.C. § 2000e-2 (“Title VII”) and 43 Pa. Cons. Stat. § 953
(“PHRA”); and she files her age discrimination claims pursuant to 29 U.S.C. § 623
(“ADEA”) and the PHRA. Second, Remp argues that Alcon retaliated against her during
her meeting with Stevenson and McQueen when McQueen told her that her actions could
lead to a lawsuit and an internal investigation against her. She makes this complaint
pursuant to 42 U.S.C. § 2000e-3. Third, Remp asserts that Alcon intentionally inflicted
emotional distress on her, a tort under Pennsylvania common law, when it performed and
failed to correct the discriminatory and retaliatory behavior described above. We find
these three arguments unavailing and affirm the District Court.1
A.

Discrimination Claims
To resolve complaints brought pursuant to Title VII or the ADEA, we use the

burden shifting test established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). We
rely on the same framework for PHRA complaints. Kautz v. Met-Pro Corp., 412 F.3d
463, 466 n.1 (3d Cir. 2005). To carry the initial burden under this test, the employee

Because we find Remp’s substantive claims unpersuasive, we need not address
Alcon’s procedural defense.
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must first show (1) that the employee “belong[ed] to a protected class”; (2) that the
employee “was qualified for the position”; (3) that the employee “was subject to an
adverse employment action”; and (4) that “the employer continued to seek out individuals
with qualifications similar to the plaintiff’s to fill the position.” Sarullo v. U.S. Postal
Serv., 352 F.3d 789, 797 (3d Cir. 2003).
The parties agree that this is the appropriate test. They come to different
conclusions, though, because they disagree about, first, whether a statute of limitations
prevents us from considering Remp’s failed attempt to secure the 2008 lateral position
and, second, whether Wolf’s 2012 development opportunity qualifies as an adverse
employment action. We answer both of these questions in Alcon’s favor.
1. Statute of Limitations
The statute of limitations prevents Remp from challenging Alcon’s 2008 decision
to hire Wolf for the lateral position.
“A plaintiff ‘must exhaust all required administrative remedies before bringing a
claim for judicial relief.’” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d
Cir. 2013) (quoting Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)). Filing a
Charge of Discrimination with the EEOC and procuring a Notice of the Right to Sue
satisfy this exhaustion requirement for the purposes of Title VII, id., and the ADEA,
Ruehl v. Viacom, Inc., 500 F.3d 375, 382 (3d Cir. 2007). Dual-filing an EEOC Charge of
Discrimination meets the PHRA’s prerequisites. Mandel, 706 F.3d at 163.
A plaintiff may not challenge discrete acts that occurred more than 300 days
before the plaintiff exhausted administrative remedies. 42 U.S.C. § 2000e-5(e)(1).
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“Discrete acts” include “termination, failure to promote, denial of transfer, or refusal to
hire . . . .” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
This law prevents Remp from contesting Alcon’s 2008 decision to hire Wolf for
two reasons. First, the 2008 decision occurred more than 300 days before Remp
exhausted the administrative remedies because Remp filed her Charge of Discrimination
on November 26, 2012, and because the disputed action occurred sometime between
January 8, 2008, and June 8, 2008. Second, the 2008 decision qualifies as a discrete act
because discrete acts include “failure to promote” and “denial of transfer,” id. at 114, and
because the 2008 decision to hire Wolf, not Remp, for the lateral position resembles
either a failure to promote or a denial of transfer.
2. Adverse Employment Action
Remp’s challenge to Alcon’s 2012 decision to place Wolf in a development
position fails on the burden shifting test’s third prong because Remp has not shown that
this decision qualifies as an “adverse employment action.” Sarullo, 352 F.3d at 797.
The Supreme Court has interpreted “adverse employment action” to mean “a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998). We have added other employment decisions to this list of adverse employment
actions, such as placing an employee in a potentially less profitable sales position,
Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 319 (3d Cir. 2000); failing to
rehire someone, Sarullo, 352 F.3d at 800; suspending someone without pay, Weston v.
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Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); and revoking a person’s office,
dismissing her secretary, and assigning her less work, Durham Life Insurance Co. v.
Evans, 166 F.3d 139, 153–54 (3d Cir. 1999). We have circumscribed the limits of this
doctrine by finding that merely reprimanding someone, Weston, 251 F.3d at 431, or only
suspending an individual with pay, Jones v. Southeastern Pennsylvania Transportation
Authority, 796 F.3d 323, 326 (3d Cir. 2015), do not amount to adverse employment
actions.
Remp has not shown that Alcon took an adverse employment action when it
placed Wolf in the 2012 development position. As an initial matter, Remp conceded
during her deposition that the decision “wasn’t a promotion,” a model adverse
employment action, but was, instead, “just a development opportunity for Mr. Wolf . . . .”
App. 92. Along the same lines, Remp also admitted that the position did not entail an
“increase in salary at that point in time . . . .” Id.
Instead, she argues that the development position would give Wolf supervisory
experience, and that this supervisory experience would make Wolf eligible for a
promotion. Stevenson, Remp’s immediate supervisor, agreed that this interim position
would provide Wolf with supervisory experience and would “potentially” prepare him for
a promotion. App. 350.
The decision to place Wolf in the development position did not rise to the level of
an adverse employment action, however, because Remp has not shown that the placement
increased Wolf’s opportunity for advancement relative to her. Two undisputed facts
support this assertion. First, as Remp admits, she had already gained supervisory
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experience, the benefit afforded by the development opportunity. Second, as Stevenson
asserts and Remp fails to refute, placing Wolf in the development position did not make
him qualified for a single promotion that fell beyond Remp’s reach because, again, she
too had supervisory experience.
B.

Retaliation Claim
Remp’s retaliation claim fails for a similar reason, namely her inability to show

that she suffered an adverse employment action:
To establish discriminatory retaliation under Title VII, a plaintiff must
demonstrate 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 between her participation in the protected activity and
the adverse employment action.
Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). In this context, acts of
retaliation qualify as adverse employment actions if they “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Moore v. City
of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006), as amended (Sept. 13, 2006) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). However, “An
employee’s decision to report discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often take place at work and that all
employees experience.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68.
In Estate of Oliva ex rel. McHugh v. New Jersey, we interpreted Burlington’s
reasonable worker standard and found that transferring a state trooper from one station to
another and making his daily commute four and a half miles longer would not have
dissuaded a reasonable worker from making or from supporting a charge of
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discrimination because the trooper failed to show that the transfer “was more than a
trivial inconvenience.” 604 F.3d 788, 799 (3d Cir. 2010).
Remp’s claim falls below the bar set by Estate of Oliva ex rel. McHugh. Remp
alleges that Alcon’s Human Resource Manager retaliated against her after she reported
alleged discrimination by warning her that someone could file an anti-defamation suit
against her, and by threatening to report Remp to the department responsible for internal
discipline. As Remp admits, though, Alcon has not disciplined her and no one has filed
suit against her. As a result, Remp has failed to show that these hollow threats amounted
to “more than . . . trivial inconvenience[s],” id., or could “have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co., 548 U.S. at 68.
C.

Intentional Infliction of Emotional Distress
Remp has not shown that Alcon intentionally inflicted emotional distress on her.

To make a successful intentional infliction of emotional distress claim, a plaintiff must
identify actions “of an extreme or outrageous type.” Cox v. Keystone Carbon Co., 861
F.2d 390, 395 (3d Cir. 1988) (internal quotation marks omitted). Extreme or outrageous
actions are “atrocious, and utterly intolerable in a civilized society.” Id. They “go
beyond all possible bounds of decency . . . .” Id.
Remp claims that Alcon intentionally inflicted emotional distress on her when one
of its employees warned her of a potential lawsuit and threatened to report her to Alcon’s
internal discipline department. This claim fails for two reasons. First, Remp has not
identified actions “of an extreme or outrageous type.” As explained above, the protested
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actions, warnings of an internal investigation or a lawsuit, do not amount to adverse
employment actions for the purpose of a retaliation claim, let alone “atrocious” acts,
“intolerable in a civilized society.” Id. Second, Remp has not proffered any evidence to
suggest that she suffered any emotional distress as a result of these actions. Indeed, she
admitted in her deposition that she has never visited a psychiatrist. Thus, this claim must
fail.
IV.

CONCLUSION
For the foregoing reasons we will affirm the District Court.

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