BOYKINS v. SEPTA
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 4/13/17. 4/13/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In this action, Plaintiff Jamar Boykins (“Boykins”) asserts claims for race discrimination
and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2 et seq., and the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951-63, against his employer,
Southeastern Pennsylvania Transportation Authority (“SEPTA”). SEPTA has moved for
summary judgment on all claims. (Doc. No. 22). For the reasons that follow, SEPTA’s Motion
will be granted.
I. FACTUAL BACKGROUND
Boykins has been employed by SEPTA as an electrician since December 12, 1998.
Defendant’s Statement of Uncontested Material Facts ¶ 1 [hereinafter “Def.’s Facts”]; Plaintiff’s
Responses to Defendant’s Statement of Uncontested Material Facts ¶ 1 [hereinafter “Pl.’s Resp.
Facts”]. 1 He is an African-American. Complaint (Doc. No. 1) ¶ 9. Boykins currently serves as
a first-class electrician in SEPTA’s Bridges and Building Department of its Railroad Division.
This statement of facts is drawn primarily from the uncontested portions of the parties’
statements of undisputed material facts. Where facts are contested, references will be to the
evidence submitted in support of and in opposition to the present Motion.
Def.’s Facts ¶¶ 3-4; Pl.’s Resp. Facts ¶¶ 3-4. SEPTA’s Building and Bridges Department has
two sub-departments: Maintenance and Construction. Def.’s Facts ¶ 5; Pl.’s Resp. Facts ¶ 5.
The Maintenance Department is tasked with preventative maintenance and repair of stations,
shops and any facilities on the regional railroad. Def.’s Facts ¶ 5; Pl.’s Resp. Facts ¶ 5. The
Construction Department is tasked with new construction or construction that would be greater
than a maintenance project. Def.’s Facts ¶ 5; Pl.’s Resp. Facts ¶ 5. Boykins is employed in the
Maintenance Department. See Def.’s Facts ¶ 8; Pl.’s Resp. Facts ¶ 8. At the time relevant to the
events at issue here, Gerald McGovern (“McGovern”) was the Assistant Director in charge of the
Maintenance Department in which Boykins worked. See Def.’s Facts ¶¶ 6-8; Pl.’s Resp. Facts
¶¶ 6-8. McGovern became Assistant Director in either 2005 or 2006. Pl.’s Br. Ex. F, at 13
[hereinafter “McGovern Dep.”]. In 2013, three maintenance managers reported to McGovern.
See id. at 12-13. Each of those maintenance managers was Caucasian. Pl.’s Resp. Facts ¶ 7;
McGovern Dep. at 12-16, 52-53.
Under SEPTA’s Employment, Hiring, Promotion and Transfer Procedures Manual, job
descriptions for vacancies are prepared by the manager or supervisor who is seeking to have a
job filled (the “Hiring Manager”) with the concurrence of a representative of the Human
Resources Department (the “Recruiter”). Plaintiff’s Concise Statement of Disputed Material
Facts (Doc. No. 29-2) ¶ 33 [hereinafter “Pl.’s SDF”]; Pl’s Br. Ex. P-3, at 2. SEPTA’s procedures
call for the Recruiter to conduct an initial screening of applications to determine which
applicants are minimally qualified and for the Hiring Manager to select interviewees from those
minimally-qualified applicants. Pl.’s SDF ¶ 33; Pl.’s Br. Ex. P-3, at 2. Interviews are conducted
by a panel of two to five interviewers. Def.’s Facts ¶ 13; Pl.’s Br. Ex. P-3, at 4. The panel
members “should be diverse.” Pl.’s Br. Ex. P-3, at 4. Prior to the interview, the Hiring Manager,
in conjunction with the Recruiter, prepares questions that must be the same for all interviewees,
as well as recommended responses to those questions. Id. “The recommended responses should
serve as a guide in evaluating candidates’ answers.” Id. The interview panel members are to
determine applicants’ suitability for the position “based on [the] individual’s qualifications and
experience, which can be assessed from responses to the questions.” Id. Each interviewer is to
complete an Employment Evaluation Form, ranking the applicants. Id. at 5. At the conclusion
of the interviews the individual panel members’ rankings are to be combined by the Hiring
Manager, and the candidate with the highest combined rating is to be offered the position. Id.
Boykins applied for a number of positions as a maintenance manager between 2013 and
2015. He bases his claim of racial discrimination on SEPTA’s failure to promote him to the
position of maintenance manager in the Maintenance Department of the Railroad Division,
position #14-110-EMC and failure to interview him for the positions of maintenance manager in
the Maintenance Department, position #14-260-EMC, and maintenance manager in the
Construction Department of the Bridges and Building Division, position #15-071-EMC. Pl.’s
Br. at 1. He also contends that SEPTA failed to interview him for positions #14-260-EMC and
#15-071-EMC in retaliation for his having filed a complaint of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). Id.
SUMMARY JUDGMENT STANDARD
Under the well-established summary judgment standard, “[t]he court shall grant summary
judgment if 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). “Summary judgment
is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.’” Williams v. Wells Fargo
Bank, No. 14-2345, 2015 WL 1573745, at *3 (E.D. Pa. Apr. 9, 2015) (quoting Wright v.
Corning, 679 F.3d 101, 105 (3d Cir. 2012)).
[T]he plain language of Rule 56[a] mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who 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. 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. The moving party is
“entitled to judgment as a matter of law” because the nonmoving party has failed
to make a sufficient showing on an essential element of [his or] her case with
respect to which [he or] she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“By its very terms, this standard [that there be no genuine issue as to any material fact]
provides that the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986) (emphasis in original). A material fact is one that “might affect the outcome of the
suit under the governing law.” Id. at 248.
When ruling on a motion for summary judgment, the court shall consider facts in the light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006). To prevail on summary judgment, however, “the non-moving party must present more
than a mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably
find for the [non-moving party].’” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013)
(quoting Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)); see also
Anderson, 477 U.S. at 252.
Boykins Has Failed to Meet His Burden to Survive Summary Judgment on
His Discrimination Claims_________________________________________
Title VII racial discrimination claims are analyzed under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2 Under that
framework, a plaintiff’s initial burden is to establish a prima facie case, by showing that he or
she: (1) belongs to a protected class; (2) was qualified for the position; (3) suffered some form of
adverse employment action; and (4) the adverse employment action occurred under
circumstances that give rise to an inference of unlawful discrimination. Id. If a plaintiff makes
out a prima facie case the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its employment decision. Paradisis v. Englewood Hosp. Med. Ctr.,
___ F. App’x ___, No. 16-3616, 2017 WL 728688, at *4 (3d Cir. Feb. 24, 2017) (citing Waldron
v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995)). “If the defendant is able to articulate such a
reason, the burden shifts back to the plaintiff, who must demonstrate that the employer’s
proffered reasons were merely a pretext for intentional discrimination.” Id. (citing McDonnell
Douglas, 411 U.S. at 804). At that point, the plaintiff “must point to evidence which: (1) ‘casts
sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a
factfinder could reasonably conclude that each reason was a fabrication;’ or (2) allows the
factfinder to reasonably conclude that ‘discrimination was more likely than not a motivating or
“It is well-settled that claims under Title VII and the PHRA [the Pennsylvania Human
Relations Act] are analyzed under the same general framework at the summary judgment stage.”
Epps v. First Energy Nuclear Operating Co., No. CIV. A. 11-1462, 2013 WL 1216858, at *17
(W.D. Pa. Mar. 25, 2013) (citing Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F. App’x
209, 213 n.2 (3d Cir. 2011)). Boykins does not argue that Pennsylvania law provides him with
any different arguments or applies any standard different from those governing Title VII claims.
Accordingly, Boykins’s PHRA claims will not be discussed separately from his Title VII claims.
determinative cause of the adverse employment action.’ . . . A plaintiff can demonstrate the latter
by ‘showing that the employer in the past had subjected him [or her] to unlawful discriminatory
treatment, that the employer treated other, similarly situated persons not of his [or her] protected
class more favorably, or that the employer has discriminated against other members of his [or
her] protected class or other protected categories of persons.’” Id. (quoting Fuentes v. Perskie,
32 F.3d 759, 762 (3d Cir. 1994)).
A plaintiff’s subjective belief that race played a role in an employment decision is not,
alone, sufficient to establish an inference of discrimination. Wilson v. Blockbuster, Inc., 571 F.
Supp. 2d 641, 647 (E.D. Pa. 2008) (citing Jones v. United Parcel Service, 214 F.3d 402, 407 (3d
Cir. 2000)). Instead,
“[t]o discredit the employer’s proffered reason ... the plaintiff cannot simply show
that the employer’s decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. Rather, the nonmoving plaintiff
must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its actions that a reasonable factfinder could rationally find them unworthy of
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108–09 (3d Cir. 1997) (quoting Fuentes, 32 F.3d
at 765). “[T]he plaintiff must point to evidence with sufficient probative force that a factfinder
could conclude by a preponderance of the evidence that [discrimination] was a motivating or
determinative factor in the employment decision.” Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 644-45 (3d Cir.1998). “For example, the plaintiff may show that the
employer has previously discriminated against [him or] her, that the employer has discriminated
against other persons within the plaintiff’s protected class or within another protected class, or
that the employer has treated more favorably similarly situated persons not within the protected
class.” Id. at 645 (citing Fuentes, 32 F.3d at 765).
Here, Boykins asserts that he was qualified for maintenance manager position #14-110EMC and that SEPTA instead hired a less qualified white applicant. Pl.’s Br. at 3-4. For the
purposes of the present motion, SEPTA does not dispute that Boykins has established a prima
facie case regarding this position. Def.’s Br. at 13-14. Instead, it contends that it did not
promote Boykins to the position because he was not the most qualified applicant. Id. at 14-16.
SEPTA established a three-person panel of interviewers for position #14-110-EMC, consisting of
the Hiring Manager for the position, McGovern, a SEPTA Recruiter, John Broughton, and a
SEPTA Affirmative Action Officer, Melissa Cooper. Def.’s Facts ¶ 33. All three interviewers
were Caucasian. Pl.’s Resp. Facts ¶ 36. Boykins applied for and was selected to interview for
the position. Id. ¶ 34; Def’s Facts ¶ 34. Each candidate was asked the same 10 questions. Def.’s
Facts ¶ 36; see McGovern Dep. at 54-74; Pl.’s Br. Exs. P-44 to -46. The interviewers gave the
applicants numerical ratings for their responses to each of the questions and then created a total
score for each candidate. See Pl.’s Br. Exs. P-44 to -46; Def’s Br. Ex. 19. They then ranked the
candidates in order based on the total scores given to their responses to the 10 interview
questions. Def.’s Br. Ex. 19. At the conclusion of all the interviews for the position, the
interviewers filled out a SEPTA Consensus Panel Ranking and Employment Evaluation Form on
which they combined the scores given to each candidate by each of the three interviewers and
then ranked the candidates in order based on their total combined scores. Id. Boykins finished
seventh of the 11 candidates. Id. The candidate who ranked first, James Schneider
(“Schneider”), who is Caucasian, was given the position. See id.; Def.’s Facts ¶¶ 39-40; Pl.’s
Resp. Facts ¶¶ 39-40.
SEPTA contends that Schneider was better qualified than Boykins based on their relative
experience in construction. Reply (Doc. No. 32) at 6. The first of the 10 interview questions
asked of all applicants reflected that construction experience would be a major consideration in
selecting a candidate for the position:
The posting for this position is titled Maintenance Manager, however; we
are looking for someone with a strong background in Construction. Please
describe your education, training, and experience as they relate to the
Construction Industry. Tell us about some of the projects you have
worked on and what type of supervisory experience you have. And finally
why do you feel you are the most qualified for this position?
Pl.’s Br. Ex. P-44, at 2. Schneider had training in civil engineering at Drexel University,
although he did not obtain a degree. Def.’s Br. Ex. 22, at 1. He had five years’ experience as a
carpenter/locksmith first class in SEPTA’s Buildings and Bridges Department, during which he
“performed carpentry in all phases of construction and maintenance of stations and car shops”
and had served as a “backfill” manager. Id. at 2. Schneider served as the employee in charge for
outside contractors. Id. Prior to joining SEPTA, Schneider owned and operated his own
construction company for six years, performing residential and commercial remodeling. Id. In
that position, he supervised contractors. Def.’s Facts ¶ 45; Pl.’s Resp. Facts ¶ 45; Def’s Br. Ex.
22. Schneider also worked for six years as a project manager and foreman for a company that
performed residential and commercial remodeling. Def.’s Br. Ex. 22. In that position, he
managed projects from start to finish and supervised multiple crews of employees. Id. In
addition, Schneider had seven years’ experience as a lead carpenter. Id.
In contrast, Boykins graduated from a vocational technical high school with a
concentration in electrical construction. Pl.’s Br. Ex. P-6, at 2. He obtained a diploma in
residential and commercial electricity from Orleans Technical Institute. Id. At the time of his
application, Boykins had worked at SEPTA as an electrician in SEPTA’s Buildings and Bridges
Department’s Maintenance Department for 15 years. Id. at 1, 3. His resume described his work
at SEPTA as: “Installation, Maintenance, Repair and Test of Electrical Equipment within Rail
Road Facilities.” Id. at 2. His resume did not reflect any work experience in construction or in
trades other than as an electrician. Id.
In light of these facts, SEPTA has more than met its burden to articulate a legitimate,
nondiscriminatory reason for its decision not to promote Boykins to position #14-110-EMC. It
has established that he lacked the relevant credentials in construction that were required for the
position. The burden thus falls upon Boykins to “demonstrate that the employer’s proffered
reasons were merely a pretext for intentional discrimination.” Paradisis, 2017 WL 728688, at *4
(citing McDonnell Douglas, 411 U.S. at 804).
Boykins argues that SEPTA’s stated reasons for not promoting him are pretextual
because he was better qualified for the position than Schneider, since he had worked at SEPTA
for much longer than Schneider had. Pl.’s Br. at 4. However, SEPTA’s proffered explanation
that, in hiring a manager for a construction-related position, SEPTA valued Schneider’s
extensive construction experience over Boykins’s 15 years’ experience as a SEPTA employee, is
not objectively unreasonable. It does not “‘demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” that a jury reasonably could find that reason
pretextual. Keller, 130 F.3d at 1108–09 (quoting Fuentes, 32 F.3d at 765).
Boykins next attempts to show that a jury could conclude that discrimination was more
likely than not a motivating or determinative cause of SEPTA’s decision not to promote him to
position #14-110-EMC. He focuses his arguments on the premise that McGovern, the Hiring
Manager for the position, was motivated by prejudice. See Pl.’s Br. at 10-11. Boykins first
argues that he can show past discrimination by McGovern because McGovern had “a history of
only promoting Caucasian workers to maintenance manager positions in the department.” Id. at
10. The evidence reflects, however, that prior to the hiring for position #14-110-EMC,
McGovern had only hired one person as a maintenance manager. McGovern Dep. at 12-15.
That does not provide a statistically significant sample sufficient to show prior discrimination.
Burns v. Potter, No. CIV. A. 1:04CV2793, 2007 WL 406201, at *5 (M.D. Pa. Feb. 2, 2007);
Khair v. Campbell Soup Co., 893 F. Supp. 316, 334 n.18 (D.N.J. 1995); Shieh v. Lyng, 710 F.
Supp. 1024, 1033 (E.D. Pa. 1989), aff’d, 897 F.2d 523 (3d Cir. 1990). Moreover, the race of
prior persons promoted is meaningless without evidence regarding whether African-American
applicants were denied the promotion or the relative qualifications of the applicants. Ezold v.
Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 543 (3d Cir. 1993). 3
Boykins further contends that McGovern violated SEPTA’s promotional policies and
procedures by interviewing applicants who did not meet the minimum qualifications for the
position. Pl.’s Br. at 10-11. McGovern testified that he “offered an interview to the majority of
the people from bridges and buildings department who applied for this position whether they
were qualified or not so that they could . . . understand the interview process,” and so that he
could learn their qualifications. McGovern Dep. at 44. Given that Boykins was offered an
interview and that, as discussed above, the applicant chosen was qualified and was rated the
highest by all three panel members, Def.’s Br. Ex. 19, the fact that McGovern chose to grant
interviews to additional candidates who were not qualified does not logically create any
inference of discriminatory motive.
Boykins claims, moreover, that McGovern violated SEPTA policy by forming an allCaucasian interview panel. He bases his argument that such a panel violated SEPTA policy on a
Moreover, to the extent Boykins attempts to look beyond McGovern’s department to find a
pattern of discrimination, the evidence is unchallenged that as of January 2015, the overall
distribution of minorities among management throughout SEPTA was 41%. Def.’s Facts ¶ 48;
(Footnote continued on next page.)
statement in the deposition of an Affirmative Action Officer, Carol O’Neal (“O’Neal), that,
generally, after selecting the candidates to be interviewed, she and the Hiring Manager would
“talk about whether or not if there is a[n affirmative action] goal in a position to make sure that
the panel is representative of the goal.” Pl.’s Br. at 11. In addition, SEPTA’s policies and
procedures manual states that panel members “should be diverse.” Id. Ex. P-3, at 4. The policies
and procedures manual does not articulate a definitive requirement for a diverse interview panel,
and O’Neal’s statement does not establish that SEPTA followed any such definitive policy in
other hiring processes. Moreover, the mere fact that a single interview panel for a single SEPTA
position was all Caucasian does not alone create an inference of discriminatory intent. It is shear
speculation to believe that Caucasian panelists necessarily were biased against African-American
applicants based solely on their race. See Carr v. New Jersey, No. 9-913, 2012 WL 3757028, at
*4 (D.N.J. Aug. 28, 2012), aff’d, 534 F. App’x 149 (3d Cir. 2013). “Although the race and/or
gender of the individual(s) responsible for a hiring decision is certainly relevant, it is insufficient
to establish a prima facie case of discrimination without more.” Iadimarco v. Runyon, 190 F.3d
151, 156 (3d Cir. 1999).
Furthermore, Boykins has not alleged that the two panel members other than McGovern
were motivated by discriminatory animus. Yet, all three panel members rated him between fifth
and tenth place among the candidates, and it was McGovern who gave Boykins the highest
ranking of fifth. 4 Def.’s Br. Ex. 19, at 2. All three panel members ranked Schneider as first.
see Pl.’s Resp. Facts ¶ 48.
The Consensus Panel Ranking Form for the interviews indicates that McGovern ranked
Boykins tenth while Melissa Cooper ranked him fifth. Def.’s Br. Ex. 19, at 1. McGovern’s and
Cooper’s individual Employment Evaluation Forms, however, show that the rankings were the
reverse. Id. at 2, 4.
Def.’s Br. Ex. 19. Moreover, Boykins has not submitted evidence that could reasonably lead a
jury to believe that McGovern was racially biased. As discussed above, Boykins’s belief that
McGovern had a discriminatory animus against African-Americans because of his purported
history of promoting only white people is groundless. In fact, McGovern was the Hiring
Manager for another position for which Boykins claims discriminatory failure to promote him,
position #15-071-EMC, and in that instance, McGovern selected an African-American for the
promotion. 5 Def.’s Facts ¶¶ 81, 84; see Pl.’s Resp. Facts ¶ 81, 84.
Based on his groundless assertion that McGovern was prejudiced, Boykins asserts that
“McGovern inserted his own prejudicial motives in scoring plaintiff as compared to his
preferred candidate.” Pl.’s Br. at 11 (emphasis in original). Boykins claims that McGovern
did this by scoring his answers to the interview questions using his own subjective opinions
rather than doing so based on the suggested answers to the questions that were prepared before
the interview. Id. His support for that argument is that the notes that McGovern took during the
interviews did not fully document each interviewee’s responses to each of the questions and that
McGovern stated in his deposition that the numerical score he assigned for each question
represented his own “interpretation of [the candidate’s] answers.” Pl.’s Br. at 11; see McGovern
Dep. at 57. McGovern further explained, however, that the recommended responses that he had
prepared prior to the interview were merely suggested responses and not required responses. Id.
at 58. He assigned a score based on his subjective assessment of how well the interviewee’s
answers covered the points that he was looking for. See id.
SEPTA also hired an African-American to another of the eight positions that Boykins
asserts that he applied for but was not given for discriminatory reasons, position #14-260-EMC.
Def.’s Facts ¶ 53; see Pl.’s Resp. Facts ¶ 53; Def.’s Br. Ex. 35.
The question that spurred this colloquy at McGovern’s deposition was question number
one regarding construction industry experience that is quoted above. The suggested answer to
the question was:
Candidate should reveal formal education, trade school, apprenticeship and other
types of construction training. Demonstrate a thorough knowledge of
construction practices, their supervisory experiences as related to the construction
industry, description of some of the projects they have worked on and a thorough
understanding of the position.
Pl.’s Br. Ex. P-44, at 2. Boykins does not explain how an interviewer could assign a numeric
score to a candidate’s response based on the suggested answer without applying some subjective
judgment. The score necessarily is based on a subjective evaluation of the responses that is
guided by the suggested answer. Thus, to say that “McGovern inserted his own [allegedly]
prejudicial motives in scoring” Boykins merely because he recorded his subjective judgment of
how well Boykins’s response covered the points that McGovern had included in the suggested
answer provides no evidence of a discriminatory motive.
Boykins also argues that he can establish discriminatory motive by showing that SEPTA
engaged in additional discriminatory promotion activity after it denied him the promotion to
position #14-110-EMC. Pl.’s Br. at 13. Specifically, he contends that SEPTA demonstrated its
discriminatory motivation by not selecting him to interview for two other positions that he
applied for subsequently: positions #14-260-EMC and #15-071-EMC. See id. at 6-7, 14, 16-17.
Boykins asserts that he met the qualification requirements for position #14-260-EMC. Id.
at 6; Pl.’s SDF ¶ 15. Because McGovern was not the Hiring Manager for position #14-260EMC, see Def.’s Br. Ex. 31, it is difficult to see how Boykins's rejection for that position is
evidence of McGovern’s alleged discriminatory intent. Moreover, the posting for that position
listed as a requirement: “supervise force account construction projects in the following trades
carpentry, plumbing, masonry, painting, welding, electrical, HVAC and all related job site and/or
project trades.” Def.’s Br. Ex. 32, at 2. Boykins resume did not reflect that he had work
experience in disciplines other than as an electrician. Pl.’s Br. Ex. P-6. The Prospective
Employee Processing form for that position indicates that the Hiring Manager for that position
denied Boykins an interview because he “lack[ed] relevant experience.” Id. Boykins challenges
the determination that he lacked relevant experience solely on the basis of his own deposition
testimony in which he stated that he did have experience in force account construction in the
“electrical trade and some HVAC.” Def.’s Br. Ex. 5, at 108. He acknowledged in his
deposition, however, that he did not have such experience in any of the other trades listed in the
position posting. Id. Thus, Boykins has failed to establish the basic element of his prima facie
case that he was qualified for the position for which he claims he was rejected because of
discrimination, see McDonnell Douglas, 411 U.S. at 802, let alone that SEPTA’s reasons for not
selecting him for an interview were pretextual. His rejection for position #14-260-EMC provides
no evidence of subsequent discriminatory conduct.
As for position #15-071-EMC, the candidate who was selected for that position was
African-American. Def.’s Facts ¶ 85; Def’s Br. Ex. 55; see Pl.’s Resp. Facts ¶ 85. Boykins,
therefore, cannot demonstrate that he was not selected to interview for the position because of
racial discrimination. See Schiedemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470
F.3d 535, 539 (3d Cir. 2006) (plaintiff asserting failure to promote claim must show that a person
who is not in the protected class was treated more favorably).
Thus, just as Boykins has failed to demonstrate any genuine issue of pretext, he also has
failed to point to any evidence on which a jury reasonably could conclude that discrimination
was more likely than not a motivating or determinative cause of SEPTA’s decision not to
promote him. Accordingly, he has failed to satisfy his burden, and his racial discrimination
claims cannot survive summary judgment.
SEPTA Is Entitled to Summary Judgment on Boykins’s Retaliation Claims
Boykins claims that SEPTA retaliated against him because he filed an internal complaint
and a complaint with the EEOC in October 2014. He alleges the following seven instances of
retaliatory conduct: (1) he was not selected to be interviewed for position #14-260-EMC; (2) he
was not selected to be interviewed for position #15-071-EMC; (3) McGovern did not grant his
requests to receive NORAC training; 6 (4) on one occasion in October 2014, SEPTA’s Chief
Engineer of the Engineering, Maintenance and Construction Department yelled at him and
pointed his finger in his face, making contact with his face; (5) on one occasion an employee of
SEPTA’s Inspector General’s Department allegedly followed him as he drove from one SEPTA
facility to another; (6) in 2016, his supervisor required him to fill out an incident report for a
2013 car accident; and (7) on one occasion in May 2015, McGovern “got real hostile with
[Boykins] as he proceeded to tell [Boykins] to put his vest on.” Def.’s Ex. 5, at 190.
See Pl.’s Br. at 16-22.
“To establish a prima facie case of retaliation under Title VII, a plaintiff must tender
evidence that: ‘(1) [he or] she engaged in activity protected by Title VII; (2) the employer took
an adverse employment action against [him or] her; and (3) there was a causal connection
between [his or] her participation in the protected activity and the adverse employment action.’”
Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala
NORAC stands for Northeast Operating Rules Advisory Committee, which is a committee
formed by numerous railroads to establish common rules for the operation of the railroads. See
Northeast Operating Rules Committee, NORAC Operating Rules, 3 (10th ed. 2011), available at
(Footnote continued on next page.)
Coll., 51 F.3d 383, 386 (3d Cir.1995)). To qualify as an adverse employment action, retaliatory
conduct must be such that it “‘might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Moore, 461 F.3d at 341 (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). The third element of the test requires proof of
“but-for” causation. Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517,
2533 (2013). “This requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Id.
The most glaring deficiency in Boykins’s claims for failure to interview him for the two
positions listed is that he cannot raise a genuine issue of fact regarding whether the SEPTA
personnel that made the interview decisions actually knew at the time that Boykins had filed a
charge of discrimination. Boykins’s sole basis for his claim that they did know about his
discrimination charge is a memo that the Director of the EEO/AA, Employee Relations
Department sent to the Director of the Maintenance Department—McGovern’s supervisor—as
well as to other senior SEPTA officials, informing them that Boykins had filed his complaint
with the EEOC. Pl.’s Br. Ex. P-37. The memo directs that: “[i]f [Boykins] is presently
employed by the Authority, contact the EEO/AA/ER staff member prior to any changes in
his/her employment status.” Id. Boykins infers that the Director of the Maintenance Department
informed the Hiring Managers for the two positions listed above about Boykins’s charge. Pl.’s
Br. at 17. He makes this assumption despite the fact that the memo was addressed only to
personnel who were senior to the Hiring Managers and bore the following instructions in bold
NOTE: This notice and any other documentation pertaining to the
EEO/AA/ER Department’s processing of [Boykins’s] complaint SHOULD
NOT be included in the employee’s personnel or work record. Additionally
the complaint should not be a matter of discussion except when assisting the
EEO/AA/ER Department in the investigative process.
Pl.’s Br. Ex. P-37 (emphasis in original).
McGovern, who was the Hiring Manager for position #15-0571-EMC, testified that he
did not know that Boykins had filed a charge at the time he decided not to interview him for the
position. McGovern Dep. at 38-42. Stephen Kish, who was the Hiring Manager for position
#14-260-EMC also testified that he had not been informed of Boykins’s charge at the time he
decided not to interview him for the position. See Def.’s Br. Ex. 11, at 72-75. Boykins’s
assertion that McGovern and Kish knew about Boykins’s charge merely because their superiors
had been informed of it is nothing but speculation. Speculation is not adequate to establish a
genuine issue of fact to prevent summary judgment. Ridgewood Bd. of Educ. v. N.E. ex rel.
M.E., 172 F.3d 238, 252 (3d Cir. 1999); Carvalho v. Aircraft Serv. Int’l, Inc., No. CIV. A. 122430 JLL, 2013 WL 5567164, at *7 (D.N.J. Oct. 8, 2013).
Moreover, even if Boykins could establish that McGovern and Kish knew that he had
filed a discrimination charge, his claims of retaliatory conduct are insufficient to meet his
burden. As discussed supra in Section III(A), Boykins’s application showed that he did not
possess the requisite experience to qualify for position #14-260-EMC. As a result, he cannot
demonstrate that he would have been granted an interview but for the fact that he filed his
discrimination complaint. Similarly, the posting for position #15-071-EMC specified that to be
qualified, an applicant “[m]ust have extensive experience in all aspects of welding, blue print
reading, fabrication of structural steel components, rebar installation and rigging. Must have
experience in bridge construction and repair and catenary construction, maintenance and
inspection.” Def.’s Br. Ex. 39, at 2. Boykins’s resume did not reflect that he met those
requirements. 7 See Pl.’s Br. Ex. P-6.
Boykins asserts that he was denied NORAC training in retaliation for his discrimination
charge. Pl.’s Br. at 17-18. The denial of training can constitute retaliation if the training would
“contribute significantly to the employee’s professional advancement.” Burlington, 548 U.S. at
57. Boykins has presented evidence that shows only that one position that he applied for
required a NORAC certification—position #15-071-EMC—and that he was not otherwise
qualified for that position. He has presented no evidence that there were positions that he would
have been qualified for if he had a NORAC certification. Moreover, maintenance managers—
the positions Boykins applied for—in the Bridges and Buildings Department are not required to
have NORAC certifications. Thus, he has not presented evidence to establish that obtaining
NORAC certification would have significantly advanced his career. McGovern testified that
within the Bridges and Building Department, only welders, carpenters and masons, as well as
Boykins attempts to show that he was qualified for the position by pointing to his deposition
testimony that he had “some” experience in some of the listed trades. Pl.’s Br. at 17; see Def.’s
Br. Ex. 5, at 149-50 (Boykins Deposition). McGovern made the decision that Boykins was not
qualified based on his resume, not on his deposition testimony given years later. Boykins’s
argument that McGovern changed the initial form job description to include a NORAC
certification requirement with the specific intent to exclude him from consideration rests entirely
on hearsay. See Def.’s Br. Ex. 5, at 151-55. Hearsay evidence can only be considered on
summary judgment if the party presenting it explains how it will present the evidence at trial in
an admissible form. See Fraternal Order of Police, Lodge 1 v. Camden, 824 F.3d 231, 238 (3d
Cir. 2016). Boykins has not attempted such an explanation. Also, Boykins’s statement that the
“only difference” between position #14-110-EMC, for which he was granted an interview, and
position #15-071-EMC, for which he was not, is that the latter position required NORAC
certification, Pl.’s SDF ¶ 19, is simply false. The experience requirement quoted above was not
included in position #14-110-EMC. See Def.’s Ex. 18, at 2. Moreover, the NORAC
certification requirement is irrelevant because Boykins could not meet the other requirements of
(Footnote continued on next page.)
their helpers, were required to have NORAC certification. McGovern Dep. at 24. Boykins was
an electrician. McGovern further testified that positions in NORAC training sessions were
limited and that preference for those sessions was given to employees whose positions required
that certification. Id. at 21-22. Boykins has failed to produce any evidence to show that
McGovern’s explanation was pretextual. 8
As for Boykin’s other allegations of retaliatory conduct, they do not constitute the type of
adverse employment action necessary to show retaliation. Boykins’s contention that he was
followed once by an SEPTA Inspector General’s office employee is insufficient. Boykins does
not allege that SEPTA took any action against him as the result of the alleged surveillance.
“Without negative consequences, [an] investigation alone is not an adverse employment action.
Rosati v. Colello, 94 F. Supp. 3d 704, 714 (E.D. Pa. 2015); see also Jones v. Se. Pa. Transp.
Auth., 796 F.3d 323, 326 (3d Cir. 2015) (holding that, even when an employee is placed on paid
administrative leave during an investigation, that investigation does not amount to an adverse
employment action for Title VII purposes). Similarly, two incidents over two years in which a
superior yelled at him and being forced to fill out an allegedly unnecessary accident report form
are the type of de minimis incidents that cannot support a retaliation claim. See Suppan v.
Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000). “Courts have declined to find adverse action
where the ‘alleged retaliatory acts were criticism, false accusations or verbal reprimands.’”
Revell v. Jersey City, 394 F. App’x 903, 906 (3d Cir. 2010) (quoting Brennan v. Norton, 350
Boykins alleges that other electricians in McGovern’s department were given NORAC
training. Pl.’s SDF ¶ 56. His only citation to support that allegation, however, is to his counsel’s
own statements made to a witness in deposition questioning. Id. The witness denied knowing
whether counsel’s statements were accurate. See Pl.’s Br. Ex. D, at 17-20.
F.3d 399, 419 (3d Cir. 2003)). “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, 548 U.S. at 68.
For the reasons discussed above, Boykins has failed to raise a genuine issue of material
fact regarding whether he can meet his evidentiary burden to establish either racial
discrimination or retaliation and consequently, SEPTA is entitled to summary judgment. An
appropriate Order follows.
Dated: April 13, 2017
BY THE COURT:
/s/ Marilyn Heffley
UNITED STATES MAGISTRATE JUDGE
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