PHILLIPS v. SEPTA

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/12/2018. 02/12/2018 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTHONY PHILLIPS,

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Plaintiff,
v.
SEPTA,
Defendant.

CIVIL ACTION
NO. 16-0986

M E M O R A N D U M

EDUARDO C. ROBRENO, J.

February 12, 2018

Plaintiff alleges racial and national origin
discrimination and retaliation in violation of Title VII and the
PHRA against SEPTA, his former employer. SEPTA has moved for
summary judgment on all claims. For the reasons discussed below,
the Court will GRANT SEPTA’s motion for summary judgment as to
all counts.

I.

FACTUAL BACKGROUND1
Plaintiff Anthony Phillip2 brings this action against

his employer Southeastern Pennsylvania Transportation Authority
1

The facts are presented in the light most favorable to
Plaintiff, the non-moving party.
2

Although the Complaint (ECF No. 1) states that
Plaintiff’s last name is “Phillips,” Plaintiff testified at his

(“SEPTA”) for discrimination and retaliation under Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.
Cons. Stat. §

951 et seq.

Phillip was born in Trinidad and identifies himself as
Caribbean and black. Compl. ¶ 9, ECF No. 1. He was hired by
SEPTA on or about November 5, 2007, as a Track General Laborer
and currently works for SEPTA as an Elevator & Escalator
Specialist. Id. ¶ 8.
Phillip asserts that his co-worker at SEPTA, Fred
Sutton, “subject[ed] Plaintiff to continuous harassment and [a]
hostile work environment because of his national origin.” Id.
¶¶ 10, 13, 15, 16. Phillip alleges several comments made by
Sutton between 2010 and 2014. Id. Specifically, Sutton stated,
“You foreigners come to America, and take away good American
jobs,” on one occasion, and other another occasion stated,
“[F]oreigners come here, get welfare, and take money from the
government.” Id. ¶¶ 10, 11; see also Pl. Dep. 70 ¶¶ 12-19, 86 ¶¶
8-19. As to both of these instances, Phillip complained to
Director Rodney Martinez. Compl. ¶¶ 11-12, 14. Martinez met with
Sutton about these comments and directed him not to make similar
comments in the future but no disciplinary action was taken. Id.

deposition that his last name is actually “Phillip.” See Pl. Dep.
10, ¶¶ 12-16, ECF No. 18-4.

2

¶¶ 12, 14. Still later, Sutton called Phillip an “asshole” and
told him that he “was a no-body where Plaintiff came from, and
Plaintiff wants to come to America to be somebody.” Id. ¶¶ 15,
16; see also Pl. Dep. 86 ¶¶ 8-19.3
In addition, Phillip alleges that in March 2014,
“someone put toilet paper[] on his ‘jaw-box,’ suggesting that
Phillip was ‘shit.’” Compl. ¶ 17. Phillip again reported this
incident, this time to Michael Nesmitt, a backfill foreperson,
who in turn reported it to Assistant Director Jesse Fleck and
Foreperson Ed Nazerio. Id. Again, Phillip alleges, SEPTA did not
take disciplinary action against Sutton. Id. Phillip argues that
this constituted a hostile work environment.
Phillip next alleges that in April 2014, SEPTA
declined to promote him to a back fill foreperson position,
selecting “American-born co-workers” instead. Id. ¶ 18. Phillip
also alleges that SEPTA denied him another promotion to the
position of Maintenance Manager in May 2014. Id. ¶ 19. According
to Phillip, SEPTA selected Matt Treuger, a Caucasian, for the
position, even though Phillip was “highly qualified” and “more
qualified than Mr. Treuger.” Id. ¶¶ 19, 25; see also Pl. Dep.
183 ¶¶ 20-25, 184 ¶¶ 1-17. Phillip alleges that Treuger had not
gone through the Elevator & Escalator Specialist Apprentice
3

Phillip also claims that another co-worker, William
Hannigan, told Plaintiff to go back to his country. Pl. Dep. 87 ¶¶
10-25, 89 ¶¶ 1-12.

3

Program, while Phillip had. Compl. ¶ 21. In addition, according
to Phillip, Treuger was not eligible for promotion at the time
he applied for the Maintenance Manager position because he had
not yet worked at SEPTA for six months, as required by SEPTA’s
promotion policy. Id. ¶¶ 22-23. Based on these facts, Phillip
claims SEPTA discriminated against him on account of his
national origin and race by denying him promotion to a
“backfill” foreperson position (a temporary position wherein an
employee fills in for an absent foreperson) and to a maintenance
manager position. Id. ¶¶ 29, 35.
Finally, Phillip alleges that SEPTA subjected him to
adverse, retaliatory treatment by denying him the backfill
opportunity and maintenance manager positions, because he
“engaged in protected activities” by complaining to SEPTA about
his co-workers’ conduct. See id. ¶¶ 32, 38.

II.

PROCEDURAL HISTORY
Phillip claims that as a result of SEPTA’s

“discriminatory” and “retaliatory” practices, he suffered loss
of wages and earnings, loss of benefits, loss of future earning
power, loss of back and front pay, mental anguish, emotional
distress, humiliation, and damage to reputation. Id. ¶¶ 30, 33,
36, 39. He seeks damages in excess of one hundred thousand
dollars.
4

Phillip filed his Complaint, together with a demand
for jury trial, on March 2, 2016. ECF No. 1. Prior to filing the
Complaint, Plaintiff filed charges against SEPTA with the Equal
Employment Opportunity Commission (“EEOC”) and the Pennsylvania
Human Relations Commission (“PHRC”). Id. ¶ 5. On December 11,
2015, the EEOC issued Phillip a right to sue letter. Id. at 12.
Plaintiff timely filed the Complaint within the 90-day statutory
period set forth in the letter. Id. SEPTA filed an Answer on
June 28, 2016. ECF No. 3.
After an unsuccessful settlement conference, the
resolution of several motions to compel, and the completion of
discovery (including Phillip’s deposition), SEPTA filed the
instant Motion for Summary Judgment, ECF No. 18, and Phillip
filed a response, ECF No. 21.

III. LEGAL STANDARD
Summary judgment is awarded under Federal Rule of
Civil Procedure 56 when “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); Liberty Mut. Ins. Co. v.

Sweeney, 689 F.3d 288, 292 (3d Cir. 2012). “A motion for summary
judgment will not be defeated by ‘the mere existence’ of some
disputed facts, but will be denied when there is a genuine issue
of material fact.”

Am. Eagle Outfitters v. Lyle & Scott Ltd.,
5

584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

A fact is “material”

if proof of its existence or non-existence might affect the
outcome of the litigation, and a dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views all
facts in the light most favorable to the non-moving party.
“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.”

Pignataro v. Port

Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)).

While the moving party bears the initial burden of

showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party, who
must “set forth specific facts showing there is a genuine issue
for trial.”

IV.

Anderson, 477 U.S. at 250.

DISCUSSION
Plaintiff Anthony Phillip brings racial and national

origin discrimination claims under Title VII and the PHRA, as
well as retaliation claims under both statutes. The same legal
standards apply to Title VII and PHRA claims. Connelly v. Lane
6

Constr. Corp., 809 F.3d 780, 791 n.8 (3d Cir. 2016) (citing
Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n.3
(3d Cir. 2000)). Further, the same standards apply to claims
under Title VII and the PHRA on a summary judgment motion. Jones
v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).
Accordingly, the Court’s analysis of the Title VII claims also
applies to the PHRA claims.

A.

Discrimination
In his Complaint, Phillip set forth three factual

bases for his discrimination claim: (1) failure to promote to
backfill foreperson in 2014; (2) failure to promote to the
maintenance manager position; and (3) hostile work environment.
Additionally, Phillip attempts to lay out a fourth factual basis
for his discrimination claims in his response to SEPTA’s motion
for summary judgment: failure to promote to backfill foreperson
in 2013.
Title VII makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his [or
her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). The PHRA
makes it unlawful “[f]or any employer because of the race,
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color, religious creed, ancestry, age, sex, national origin or
non-job related handicap or disability . . . to discharge from
employment ... or to otherwise discriminate against such
individual.” 43 Pa. Stat. Ann. § 955(a).
Phillip’s claims are subject to the three-step burdenshifting inquiry under McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). See, e.g., Flores v. Danberg, No. 152026, 2017 WL 3638205, at *3 (3d Cir. Aug. 24, 2017). To satisfy
the first step of the McDonnell Douglas inquiry, Phillip must
establish a prima facie case of discrimination in SEPTA’s
decision not to promote him. To do so, he must show that: (a) he
was a member of a protected class; (b) he was qualified for the
position to which he applied; (c) he suffered some form of
adverse employment action; and (d) the adverse employment action
occurred under circumstances that give rise to an inference of
unlawful discrimination. Id. (citing St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993)).
If Phillips is able to show a prima facie case of
discrimination at step one, the burden of production shifts to
SEPTA at step two to “articulate one or more legitimate, nondiscriminatory reasons for its employment decision.” Id. (citing
Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995)).
If SEPTA is able to articulate such a reason, then
Phillips, at step three, must then demonstrate that SEPTA’s
8

proffered reasons were merely a pretext for intentional
discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 804).
While the burden of production shifts, the employee always has
the ultimate burden of persuasion to prove intentional
discrimination. Id. (citing Jones, 198 F.3d at 410.

1.

Backfill Foreperson Positions

A backfill foreperson role is a temporary position,
wherein an employee is selected to stand-in when a foreperson is
on leave. Phillip alleged in his Complaint that SEPTA denied him
a backfill opportunity in 2014 because of his national origin,
and instead awarded it to his “American-born” co-workers, Lona
Haley and Phillip Caltagirone. However, Phillip now concedes
that backfill positions are awarded based on seniority, and that
Haley and Caltagirone were more senior than Phillip. Pl. Br. 14,
ECF No. 21. Thus, Phillip concedes that SEPTA did not
discriminate against him regarding the backfill opportunity in
2014. Accordingly, the 2014 backfill opportunity does not
establish a discrimination claim.
In Phillip’s response to the summary judgment motion,
he newly alleges that he was improperly denied a backfill
position in 2013 as well. In support of this new allegation,

9

Phillip offers only his own self-serving affidavit,4 Pl. Mot. Ex.
N, at ¶¶ 15-16, ECF No. 21, which is not enough to create a
genuine issue of material fact. For one, generally, “conclusory,
self-serving affidavits are insufficient to withstand a motion
for summary judgment.” Gonzalez v. Sec’y of Dep’t of Homeland
Sec., 678 F.3d 254, 263 (3d Cir. 2012) (quoting Kirleis v.
Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir.
2009)).
In any event, this new, essentially unsupported
allegation concerns a separate and distinct event from those
alleged in the complaint. Thus, Phillip is attempting to raise
an entirely new claim in his response to the motion for summary
judgment. A plaintiff is permitted to introduce new facts into
the record at the summary judgment stage. See Bell Atl. v.
Twombly, 550 U.S. 544, 563 (2007) (“[O]nce a claim has been
stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.”).
However, a plaintiff cannot introduce new legal theories or
claims through an opposition to a motion for summary judgment.
See myService Force, Inc. v. Am. Home Shield, No. 10-6793, 2013
4

Phillip’s affidavit is not a “sham affidavit” because,
although it makes claims outside of his prior pleadings and
deposition, it does not directly contradict them, at least with
regards to the backfill positions. See Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (“A sham
affidavit is a contradictory affidavit that indicates only that the
affiant cannot maintain a consistent story or is willing to offer a
statement solely for the purpose of defeating summary judgment.”).

10

WL 180287, at *12 (E.D. Pa. Jan. 17, 2013) (“Federal pleading
standards do not allow a party ‘to raise new claims at the
summary judgment stage’”) (quoting Dewees v. Haste, 620 F. Supp.
2d 625, 635 n.7 (M.D. Pa. 2009)); see also Bell v. City of
Phila., 275 F. App’x 157, 160 (3d Cir. 2008) (non-precedential)
(“A plaintiff ‘may not amend his complaint through arguments in
his brief in opposition to a motion for summary judgment.’”)
(quoting Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir.
1996)). Thus, Phillip’s self-serving affidavit is insufficient
to create a genuine issue of material fact as to the 2013
backfill position, and, even if it were, the new claim cannot be
added here. Accordingly, the alleged discrimination regarding
the backfill positions cannot support the discrimination claims.

2.

Maintenance Manager Position

Phillip claims that he was discriminated against based
on his race and national origin when he was given an interview,
but not hired, for a promotion to maintenance manager. SEPTA
does not contest, at least for the purposes of its summary
judgment motion, that Phillip has satisfied his burden under
McDonnell Douglas step one to establish a prima facie case of
discrimination. Accordingly, under McDonnell Douglas step two,
SEPTA proffers a legitimate, non-discriminatory reason why it
did not promote Phillip to maintenance manager. Namely, SEPTA
11

contends that Phillip did not perform as well in the interview
as two other candidates – one of whom got the job. Accordingly,
pursuant to McDonnell Douglas step three, the burden shifts to
Phillip to demonstrate that this reason is pretext.
To show pretext, “the non-moving plaintiff must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder
could rationally find them ‘unworthy of credence.’” Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (quoting Ezold v. Wolf,
Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992))
(emphasis omitted). In his effort to show pretext, Phillip
raises the new allegation in his response to SEPTA’s Motion for
Summary Judgment that the interview for maintenance manager was
“stacked against” him. Pl. Br. 20, ECF No. 21; see also Pl. Mot.
Ex. N, at ¶ 25, ECF No. 21.
The selection process for the maintenance manager
position was conducted pursuant to SEPTA’s policies. First, the
vacancy was posted, and nine applicants responded. SEPTA
management then narrowed the applicant pool, selecting four
applicants to be evaluated by a three-person interview panel.
The interview panel was composed of two of Phillip’s managers,
Jesse Fleck and Rodney Martinez, as well as a third person,
Richard Ziegler. The four applicants selected to interview were
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Phillip, Matthew Trauger, Eric Jackson, and Robert Hoyle. During
the interviews, each candidate was asked the same set of ten
weighted questions, which were each scored on a 0-10 point
system. The candidates were then ranked based on their scores.
Trauger was ranked first, with a total score of 239. Jackson was
ranked second, (scoring 210); Phillip was ranked third, (scoring
178); and Hoyle was ranked fourth (scoring 155).
In his response to the Motion for Summary Judgment,
Phillip does not contest that the maintenance manager position
is awarded to the candidate with the highest interview scores.
Rather, the essence of his claim is that Fleck’s attitude toward
Phillip during the interview was “antagonistic,” thereby
demonstrating a discriminatory animus.5 Id. at 19-20. Phillip’s
discriminatory interview theory fails for two reasons.
First, it was raised for the first time in his brief
opposing the instant Motion for Summary Judgment. See Ragland v.
Comm’r New Jersey Dep’t of Corr., No. 16-3315, 2017 WL 5900556,
at *2 (3d Cir. Nov. 30, 2017); see also Kocher v. Larksville
Borough, 926 F. Supp. 2d 579, 604 (M.D. Pa.), aff’d, 548 F.
App’x 813 (3d Cir. 2013) (“[A] plaintiff may not expand his
claims to assert new theories for the first time in response to

5

The only evidence of Fleck’s “antagonistic” behavior is
Phillip’s own self-serving affidavit, attached to his response to
the Motion for Summary Judgment.

13

a summary judgment motion”) (quoting Desparois v. Perrysburg
Exempted Village Sch. Dist., 455 Fed. App’x 659, 666 (6th Cir.
2012)); Dewees v. Haste, 620 F. Supp. 2d 625, 635 (M.D. Pa.
2009) (explaining that, “to the extent Plaintiff is attempting
to expand upon his original allegations through argument in his
brief it is impermissible”); Anderson v. Consol–Pennsylvania
Coal Co., 740 F. Supp. 1126, 1130 (W.D. Pa. 1990) (“[W]e will
not allow plaintiffs to expand their theory of the case at this
late date in an effort to avoid summary judgment.”).
Second, Phillip has not presented sufficient evidence
to allow a reasonable factfinder to find that that SEPTA’s
legitimate non-discriminatory reason (poor interview
performance) was mere pretext under McDonnell Douglas step
three. Poor performance in an interview is recognized as a
legitimate non-discriminatory reason for failure to hire or
promote. See, e.g., Carr v. New Jersey, 534 Fed. App’x 149, 152
(3d Cir. 2013); McCann v. Astrue, 293 Fed. App’x 848, 852 (3d
Cir. 2008). SEPTA has presented sufficient evidence that,
although the interviewers concluded that Phillip was qualified,
he was ranked third behind Trauger and Jackson because of his
interview performance. See ECF No. 18 at 4 n.3. Phillip has not
presented sufficient evidence to rebut SEPTA’s contention that
Phillip was ranked third in interview performance. Further, the
panel had concerns about Plaintiff’s reluctance to consider
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input from his coworkers. Id. Accordingly, the alleged
discrimination regarding the maintenance manager position cannot
support the discrimination claims.

3.

Hostile Work Environment

Phillip’s third basis for his discrimination claim is
a hostile work environment theory, based on his coworkers’
alleged comments and conduct. To state a hostile work
environment claim, a plaintiff must show that “1) the employee
suffered intentional discrimination [because of his membership
in a protected class,] 2) the discrimination was severe or
pervasive, 3) the discrimination detrimentally affected the
plaintiff, 4) the discrimination would detrimentally affect a
reasonable person in like circumstances, and 5) the existence of
respondeat superior liability.” Mandel v. M & Q Packaging Corp.,
706 F.3d 157, 167 (3d Cir. 2013).
To state a hostile work environment claim, “[t]he
plaintiff must subjectively perceive the environment to be
hostile or abusive, and conditions must be such that a
reasonable person would have the same perception.”
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715 (3d Cir.
1997); see also Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80–81 (1998) (holding Title VII should not be construed
as a general civility code); Harris v. Forklift Sys., 510 U.S.
15

17, 21 (1993) (holding that the “mere utterance of an .

.

epithet which engenders offensive feelings in an employee

.
.

.

. does not sufficiently affect the conditions of employment to
implicate Title VII”) (quoting Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986). Accordingly, “offhand comments,
and isolated incidents (unless extremely serious)” are not
sufficient to sustain a hostile work environment claim. Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998). Rather, the
“conduct must be extreme to amount to a change in the terms and
conditions of employment.” Id.6
Phillip has based his hostile work environment claim
on approximately six remarks by his co-workers, as well as the
contention that, on multiple occasions, his co-workers “put
toilet papers on Plaintiff’s jaw-box; suggesting that Plaintiff
was ‘shit.” Compl. at 4, ECF No. 1. Of the comments, only three
referenced to Phillip’s national origin, and none referred to
Phillip’s race. Specifically, the alleged comments were: (1)
“You foreigners come to America, and take away good American
jobs”; (2) “Foreigners come here, get welfare, and take money
6

The McDonnell Douglas framework does not apply to a
hostile work environment claim because “there is no legitimate
justification for [a hostile work] environment, and thus recourse
to the McDonnell Douglas test is not warranted.” Moody v. Atl. City
Bd. of Educ., 870 F.3d 206, 213 n.11 (3d Cir. 2017) (quoting
Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 943 (6th Cir.
2000)). In any event, the result here is the same whether or not
the McDonnell Douglas steps apply. Phillips fails to state a prima
facie case, so even under McDonnell Douglas, his claim would fail
under step one.

16

away from the government”; (3) a co-worker calling Phillip an
“asshole”; (4) a coworker’s statement that “Plaintiff was a nobody when Plaintiff came from, and Plaintiff wants to come to
America to be somebody.” Id. at ¶¶ 10-17; see also Pl. Dep. 70
¶¶ 18-19, 86 ¶¶ 7-20, 87 ¶¶ 14-17, 89 ¶¶ 1-12. Phillip alleges
that these comments, as well the toilet paper incident, occurred
over a four-year period - between 2010 and 2014.
Phillip’s evidence fails to establish the second prong
of a hostile work environment claim, namely the requirement that
the alleged harassment be severe or pervasive. See Clair v.
Agusta Aerospace Corp., 592 F. Supp. 2d 812, 822 (E.D. Pa. 2009)
(Robreno, J.) (“[F]ive stray remarks by co-workers during the
course of a twenty-one month employment do not amount to
pervasive and regular discrimination as a matter of law.”); see
also Pineda v. Phila. Media Holdings LLC, 542 F. Supp. 2d 419,
428–29 (E.D. Pa. 2008) (holding that sporadic comments like
“what kind of Puerto Rican are you?” made by plaintiff’s coworkers were not “pervasive and regular” for the purpose of a
hostile work environment claim); Barbosa v. Tribune Co., No. 01–
1262, 2003 WL 22238984, *3 (E.D. Pa. Sept. 25, 2003) (finding
that the alleged discrimination was not “pervasive and regular”
where plaintiff could only point to seven specific comments
during eighteen months of employment). Because Phillip has not

17

established that the alleged harassment was severe or pervasive,
he fails to state a prima facie hostile work environment claim.
In sum, Phillip has not carried his burden of showing
that SEPTA’s legitimate, non-discriminatory reasons for denying
him either the 2014 backfill position or the maintenance manager
position were pretext, and Phillip cannot add a new claim
regarding the 2013 backfill position here. Further, Phillip’s
hostile work environment theory fails because he has not
established that the alleged harassment was severe or pervasive.
Accordingly, Phillip’s discrimination claim fails under both
Title VII and the PHRA.

B.

Retaliation
In addition to discrimination, Phillip claims that he

was retaliated against in violation of Title VII and the PHRA.
Specifically, Phillip claims that SEPTA denied him the backfill
opportunity in 2014, as well as the maintenance manager
position, because Phillip complained to his supervisors about
harassment from his co-workers. To establish a prima facie case
of retaliation, a plaintiff must demonstrate that (1) he or she
engaged in activity protected by Title VII; (2) he or she
suffered an adverse employment action after or contemporaneous
with the protected conduct; and (3) there was a causal
connection between the participation in the protected activity
18

and the adverse employment action. Moore v. City of Phila., 461
F.3d 331, 340–41 (3d Cir. 2006).
The Supreme Court has clarified that, as in this case,
a plaintiff making a claim of retaliation under Title VII “must
establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer.” Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). The causation
requirement for retaliation purposes is different than other
Title VII discrimination actions: “Title VII retaliation claims
must be proved according to traditional principles of but-for
causation . . . [t]his requires proof that the unlawful
retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Id. at 338.
Applying this framework here, Phillip has not
established that his complaints about his co-workers were a butfor cause for the adverse employment decisions at issue in this
case. As discussed previously, Phillip did not receive the 2013
backfill position on the basis of seniority, and he did not
receive the maintenance manager position due to his interview
performance. Accordingly, there is no but-for causal connection
between Phillip’s complaints and SEPTA’s employment decisions as
to Phillip, and Phillip’s retaliation claim fails.

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V.

CONCLUSION
For the reasons discussed above, both Phillip’s claims

for discrimination and retaliation fail as a matter of law.
Accordingly, the Court will GRANT SEPTA’s Motion for Summary
Judgment as to all claims.
An appropriate order follows.

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