                                                                         NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 19-1565
                                       _____________

                               JACQUELINE HAMPSHIRE;
                                CHRISTIAN JABLONSKI,
                                                Appellants

                                              v.

                 BRANVILL BARD; JOANNE STRAUSS; PHILADELPHIA
                             HOUSING AUTHORITY
                                _______________

                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                  (D.C. No. 2-17-cv-04423)
                           District Judge: Hon. Harvey Bartle, III
                                      _______________

                         Submitted Under Third Circuit LAR 34.1(a)
                                    November 12, 2019

                Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.

                                 (Filed: November 25, 2019)
                                      _______________

                                        OPINION ∗
                                     _______________

JORDAN, Circuit Judge.

       The plaintiffs, two officers of the Philadelphia Housing Administration (PHA),

appeal the entry of summary judgment against them on their race and gender


       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
discrimination claims. They also appeal a protective order entered by the District Court.

We will affirm.

I.     BACKGROUND

       Jacqueline Hampshire, a white female, and Christian Jablonski, a white male,

(together, “the plaintiffs”) were law enforcement officers in the PHA’s police force. At

approximately 1:15 a.m. on March 10, 2016, they were on duty, sitting in a police vehicle

in a parking lot outside their jurisdiction, completing paperwork. Officer Jablonski was

in the driver’s seat and Officer Hampshire was the recorder, or the officer responsible for

completing necessary paperwork. Over the radio, they heard a notice that a Philadelphia

police department officer had attempted to stop a speeding vehicle in their area. The

vehicle passed the plaintiffs, and Officer Jablonski immediately pulled out of the parking

lot after it, activating his car’s emergency lights and sirens. The plaintiffs did not report

their pursuit, nor did they later add it to their log. They chased the vehicle at high speeds

for approximately 11 blocks. The plaintiffs contend that the speed estimated by the GPS

tracker, 85 mph, is unreliable, but they do not contest that they were driving at high

speeds in pursuit of the vehicle. When they lost sight of it, they pulled onto a side street.

Two blocks from where they turned, the vehicle they had been pursuing hit several light

posts and crashed into a building. It caught fire, and the driver died.

       Shortly thereafter, the plaintiffs took their log to their supervisor, Sergeant Evans. 1

They told him that they had attempted to stop a vehicle but provided no further details.


       1
        Sergeant Evans was suspended and demoted for neglect of duty and failure to
supervise, as a result of this incident.
                                              2
When the Philadelphia Police Department learned of the plaintiffs’ involvement in the

chase, they asked for an opportunity to question them. Officer Jablonski answered their

questions; Officer Hampshire did not.

       When PHA Chief Branvill Bard heard of the incident, he suspended the plaintiffs

for ten days with a recommendation for discharge. They were called into individual

meetings with Chief Bard, their union representative, PHA Chief Inspector Joseph

Marker, and a Human Resources representative, Joanne Strauss. They were read their

notices of suspension and asked if they had any questions. Neither asked any questions.

       Four days later, when he realized the investigation would take longer than 10 days,

Chief Bard reinstated the plaintiffs and placed them on administrative duty pending the

outcome of the internal investigation. The investigators finished their report on April 12,

2016 and determined that the plaintiffs’ conduct on March 10, 2016 violated several

department policies.

       On June 6, 2016, the plaintiffs were again called into individual meetings with

Chief Bard, Strauss, and their union representative. Again, they were permitted to ask

questions but did not do so. They were each given another notice of suspension without

pay for ten days with the recommendation for discharge based on the violation of PHA

policies. The notice of suspension lists the violations as (1) neglect of duty for failing to

comply with the Chief’s orders, (2) neglect of duty for failure to properly patrol area of

responsibility, (3) motor vehicle violations for failure to follow departmental procedures

involving pursuit, and (4) safe operation of police vehicles.



                                              3
       The next day, a union representative filed a grievance for them. A hearing was

held the following month and the plaintiffs were permitted to attend, though they did not

do so. Several union representatives were there on their behalf. On October 13, 2016,

Strauss, acting as grievance officer, upheld the terminations. The plaintiffs were

terminated that day and received termination letters. A union representative filed a

request for arbitration. Following an arbitration hearing, the arbitrator upheld the

plaintiffs’ terminations.

       The plaintiffs next filed their complaint in this case. During discovery, they

sought personnel files of certain third parties, in their quest to find comparators to show

discrimination. The PHA sought a confidentiality agreement for the internal disciplinary

report of a third party. The plaintiffs objected. As a result, the PHA sought a protective

order, which the District Court granted.

       At the close of discovery, the District Court granted summary judgment in favor of

the PHA and the two individual defendants, Bard and Strauss.

II.    DISCUSSION 2

        The plaintiffs contend that the District Court abused its discretion when it granted

a protective order over PHA personnel files. They also argue that the District Court



       2
        The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant
of a motion for a protective order for an abuse of discretion. Shingara v. Skiles, 420 F.3d
301, 305 (3d Cir. 2005). We review the District Court’s grant of summary judgment de
novo and “view inferences to be drawn from the underlying facts in the light most
favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir.
2010) (citation omitted). We also review the due process claim de novo. Bennett v.
                                              4
should not have entered summary judgment because there were disputed facts, and that

the Court improperly determined there were no comparators. All of their arguments are

unpersuasive.

       A.       Protective Order

       The plaintiffs object to the protective order regarding the personnel files of a third

party. They claim that the District Court should have applied the public right of access

standard, not the Rule 26 standard in deciding PHA’s motion. 3 See In re Avandia Mktg.,

Sales Practices and Prods. Liab. Litig., 924 F.3d 662 (3d Cir. 2019). We disagree. The

PHA moved for a protective order in the context of the exchange of documents between

parties, not in the context of filing the documents with the Court. Under such

circumstances, the appropriate standard is the Rule 26(c) standard we articulated in Pansy




Superintendent Graterford SCI, 886 F.3d 268, 273 (3d Cir. 2018).
       3
         The common law right of access standard is a “more rigorous” standard than the
Rule 26 standard. In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., 924 F.3d
662, 670 (3d Cir. 2019). When deciding whether to issue a protective order under Rule
26(c), a court “must balance the requesting party’s need for information against the injury
that might result if uncontrolled disclosure is compelled.” Id. at 671 (quoting Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)). In addition, the party seeking
the order “must demonstrate good cause,” a multi-factor analysis considering privacy
interests, why the party is seeking the information, the tendency toward embarrassment,
public health and safety considerations, fairness and efficiency, whether the party
benefitting from the order is a public entity, and whether the case involves important
public issues. Id. (quoting Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.
1995). In contrast, under the common law right of public access to the courts, there is a
presumption in favor of disclosure, so, to deny public access, a court “must articulate ‘the
compelling, countervailing interests to be protected,’ make ‘specific findings on the
record concerning the effects of disclosure, and provide[ ] an opportunity for interested
third parties to be heard.’” Id. at 672-73 (quoting In re Cendant Corp., 260 F.3d 183, 194
(3d Cir. 2001)) (alteration in original).
                                              5
v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), not the public right of access

standard. In re Avandia, 924 F.3d at 670. The District Court correctly applied the law

and did not abuse its discretion, so we will affirm its grant of the protective order.

       B.     Summary Judgment

       The plaintiffs also seek review of the District Court’s grant of summary judgment

against them. They contend that the Court improperly decided disputed material facts in

favor of the defendants and improperly assessed the sufficiency of comparator evidence.

Again, we disagree.

       Under Rule 56, a court may only grant summary judgment on a claim or defense if

“there is no genuine dispute as to any material fact[.]” Fed. R. Civ. P. 56(a). The

nonmoving party may oppose summary judgment “by any of the kinds of evidentiary

materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this

list that one would normally expect the nonmoving party to make [its] showing[.]”

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “[T]he 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, 247-48 (1986)

(emphasis omitted).

       The plaintiffs argue on appeal that the District Court inappropriately usurped the

role of the jury by deciding material facts, including the sufficiency of comparators. But

none of the disputed facts the plaintiffs identify are material because none of them, even



                                              6
if construed in favor of the plaintiffs, support a reasonable inference that either plaintiff

was terminated on the basis of race or gender discrimination. 4

       The plaintiffs next contend that it was not in the District Court’s purview to decide

whether the comparators they put forth were similarly situated. While it is true that the

sufficiency of evidence is typically an issue of fact for the jury, a court may nonetheless

grant summary judgment if no reasonable jury could find that the individuals identified

by the plaintiffs were similarly situated. See McDonald v. Village of Winnetka, 371 F.3d

992, 1002 (7th Cir. 2004) (“As a general rule, whether individuals are similarly situated

is a factual question for the jury. However, a court may properly grant summary

judgment where it is clear that no reasonable jury could find that the similarly situated

requirement has been met.”) (citation omitted). That is the case here. No reasonable jury




       4
         For example, the plaintiffs argue that the District Court erred when it decided
that PHA Directive O-11, which prohibits vehicle pursuits except in certain
circumstances not present here, was in effect on the date of the pursuit. If the Directive
was not in effect, they argue, that is evidence that the reasons for their firing were a
pretext for discrimination. That Directive, however, is but one of four bases for the
plaintiffs’ firing, and the plaintiffs cite no evidence that the other four bases would not
support their termination. Equally significant, even if the plaintiffs were terminated
pursuant to a not-yet-enacted Directive, that fact, standing alone or considered in context
with the entire record, does not support an inference of unlawful discrimination. Indeed,
while the parties disagree whether the Directive was in place on March 10, 2016, there is
no dispute that, if it was not in place, that was solely due to an administrative error. At
most, the plaintiffs’ pretext argument shows they were fired for a bad or mistaken reason,
but a reason nevertheless devoid of any discernable relation to their race or gender.
Therefore, the plaintiffs’ arguments regarding the Directive fail to raise a triable issue of
fact warranting denial of summary judgment.

                                               7
could find that the comparators the plaintiffs identified were similarly situated, so

summary judgment was appropriate. 5

       C.     Due Process claims

       Finally, the plaintiffs also claim that they were denied due process in the

termination process. They claim they were not allowed a hearing prior to their

terminations, in violation of Cleveland Board of Education v. Loudermill, 470 U.S. 532

(1985). That, however, is not supported by the record, which shows that they twice had

individual meetings with the Chief, with a union representative present, and they were

informed there of the reasons for their suspension and recommendation for termination.

Although the plaintiffs chose not to ask questions at those meetings, they could have

done so. The plaintiffs were thus provided sufficient notice of termination and a

constitutionally adequate opportunity to be heard.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the orders of the District Court.




       5
          The record shows that none of the comparators was similarly situated to the
plaintiffs. First, the plaintiffs named their supervisor, who, based on his position alone, is
not similarly situated. Another comparator they identified, Officer Brooks, is not
similarly situated because she engaged in conduct that differs fundamentally from the
plaintiffs’ high-speed chase. Officer Brooks was in her vehicle when she saw a car
commit a traffic violation. She activated the lights on her vehicle, but a few seconds
after, the car in question crashed into a parked car. Two men exited the car on foot, so
Officer Brooks also exited her vehicle and pursued the men on foot. The third situation
that the plaintiffs offer as similar involved two plaintiffs engaging in a vehicle pursuit.
The PHA, however, was unaware of the pursuit until after one of the officers no longer
worked for the PHA. The other officer, a black male, was terminated.
                                              8
