                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3062
                                     ____________

                                 RALPH P. BLAKNEY,

                                                      Appellant

                                            v.

                             CITY OF PHILADELPHIA;
                           LINDA TURNER; LYNN SPIRO;
                                 JOHN DOES 1-10
                                   ____________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 12-cv-06300)
                    District Judge: Honorable Ronald L. Buckwalter
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 6, 2014

            Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

                                 (Filed: March 19, 2014)
                                      ____________

                                       OPINION
                                     ____________

HARDIMAN, Circuit Judge.

      Ralph Blakney appeals the order of the District Court dismissing his civil rights

claims against the City of Philadelphia and two of its employees. We will affirm.
                                              I

       Because we write for the parties, we recount only the essential facts of this case.

Appellant Blakney, an African-American male, was hired by the City of Philadelphia in

July 1988 as Director of the Older Adult Center in the City’s Parks and Recreation

Department.

       Almost twenty years later, Blakney filed a complaint with the Equal Employment

Opportunity Commission (EEOC) alleging race discrimination. 1 After receiving a right-

to-sue letter Blakney sued the City of Philadelphia, along with his supervisor, Linda

Spiro, and the Director of Human Resources for the Parks and Recreation Department,

Lynn Turner (collectively, “City Defendants”). See Blakney v. City of Phila., No. 10-

4237, 2011 WL 4402962 (E.D. Pa. Sept. 22, 2011) (Prior Action).

       In January 2011, while that litigation was pending, Blakney voluntarily resigned

from his position to care for his terminally ill mother. Consistent with the Family and

Medical Leave Act (FMLA), he provided the City with formal documentation showing

that his mother was ill and that he assisted her. See 29 C.F.R. § 825.306. On September

22, 2011, the District Court granted summary judgment for the City, Turner, and Spiro in


       1
         Blakney’s complaint alleged he was discriminated against when, after taking leave to
serve as a political appointee, he was restored to his position as Older Adult Center Director
but denied a choice between two locations. He also alleged he was denied the opportunity to
interview for the Recreation Program Director position.



                                              2
the Prior Action. Four days later, Blakney hand-delivered a letter to the City’s Human

Resources Department demanding reinstatement to his prior position or to any available

position. Although Blakney watched as the letter was faxed to Director Turner, the City

filled the position and Blakney never received a response to his letter.

       On October 11, 2011, Blakney filed a notice of appeal in the Prior Action. Two

months later, he hand-delivered a second letter to the City’s Human Resources

Department asking for a list of positions to which he could be reinstated. Again, Blakney

watched as the letter was faxed to Director Turner, but received no response. On February

8, 2012, Blakney filed a complaint with the EEOC, this time alleging retaliation under

Title VII and the Pennsylvania Human Relations Act (PHRA). 2 The EEOC granted

Blakney a right-to-sue notice and he brought suit on November 8, 2012 in the District

Court, alleging retaliation in violation of Title VII and the PHRA. He sought relief

against the City under 42 U.S.C. § 1983. Additionally, he sought relief against Turner and

Spiro, whom he alleged were “the appointing authorized officials of the Parks and

Recreation Department responsible for approving Plaintiff’s reinstatement requests,”

under 42 U.S.C. § 1981. The City, Turner, and Spiro filed a motion to dismiss Blakney’s

amended complaint, which the District Court granted. Blakney timely appealed.




       2
           Two days later, Blakney voluntarily withdrew his appeal in the Prior Action.

                                              3
                                             II 3

       We exercise plenary review over the District Court’s decision to grant a motion to

dismiss. Anspach v. City of Phila., 503 F.3d 256, 260 (3d Cir. 2007). In doing so, we

presume the complaint’s well-pleaded facts to be true and view them in the light most

favorable to the non-moving party. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d

Cir. 2008). To survive a motion to dismiss, Plaintiff must allege sufficient facts, which,

taken as true, state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       Blakney alleges unlawful retaliation under Title VII and the PHRA. 4 Title VII

prohibits employers from discriminating against “any individual . . . because he has

opposed any . . . unlawful employment practice” under Title VII, or because he has “made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing” pursuant to Title VII. 42 U.S.C. § 2000e–3(a). To establish a prima facie case

of retaliation, plaintiff must show (1) he engaged in activity protected by Title VII; (2) the

employer took an adverse employment action against him; and (3) there was a causal

connection between the participation in the protected activity and the adverse

employment action. Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006).




       3
        The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.

                                              4
       The parties agree that Blakney established the first two elements of his prima facie

case: he engaged in protected activity under Title VII, having brought a race

discrimination complaint against the Parks and Recreation Department, whose failure to

rehire him constituted an adverse employment action. Accordingly, the sole question on

appeal is whether the District Court erred when it held that Blakney failed to plead the

third element of his prima facie retaliation case: causation.

       To satisfy the third prong, Blakney “must establish that his . . . protected activity

was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas Sw.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). We have previously held that

“temporal proximity between the employee’s protected activity and the alleged retaliatory

action may satisfy the causal link element of a prima facie retaliation claim, at least where

the timing is ‘unusually suggestive of retaliatory motive.’” Shaner v. Synthes, 204 F.3d

494, 505 (3d Cir. 2000) (internal citation omitted). “[T]he mere fact that adverse

employer action occurs after a complaint will ordinarily be insufficient to satisfy the

plaintiff’s burden of demonstrating a causal link between the two events.” Robinson v.

City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997).

       We have found that a temporal proximity of two days is unusually suggestive of

causation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (reversing summary


       4
         Because the analysis for adjudicating a retaliation claim under the PHRA is identical
to a Title VII inquiry, we need not address Blakney’s PHRA claim separately. Goosby v.
Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000).
                                              5
judgment for the defendant when plaintiff was fired two days after his employer received

notice of his EEOC complaint), but have held that a temporal proximity greater than ten

days requires supplementary evidence of retaliatory motive, see Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (finding that “where the temporal

proximity is not so close as to be unduly suggestive,” the appropriate test is “timing plus

other evidence”); see also Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760

(3d Cir. 2004) (two months is not unusually suggestive); LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (three months is not unusually

suggestive).

       We measure temporal proximity from the date on which the litigant first files a

complaint. See Jalil, 873 F.2d at 703. Here, Blakney filed an EEOC complaint in 2008

and sued in federal court in 2010. He voluntarily resigned in January 2011 and first

sought reinstatement in September 2011—four days after summary judgment was entered

against him in the Prior Action. He sought reinstatement a second time in December

2011. Thus, the period between the filing of the EEOC complaint and the City’s failure to

reinstate Blakney spans three years, which falls well short of the “unduly suggestive”

mark. See Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir. 2001) (finding that protected

activity that extended “over a substantial period of time” is “insufficient to establish

causation”).

       Because the temporal proximity here is not sufficiently close to imply direct

                                              6
causation, we apply the “timing plus other evidence” test to determine whether other

pleaded facts suggest retaliatory motive. Farrell, 206 F.3d at 280. We have held that such

“other evidence” may include, but is not limited to, a “pattern of antagonism” subjecting

plaintiff to a “constant barrage of written and verbal warnings and . . . disciplinary

actions, all of which occurred soon after plaintiff’s initial complaints.” Robinson v. Se.

Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993). Absent direct evidence of

antagonism, circumstantial evidence may be used to support an inference of antagonism.

For example, “a plaintiff may establish the connection by showing that the employer gave

inconsistent reasons for terminating the employee.” Farrell, 206 F.3d at 280-81.

       Our review of the record leads us to conclude that Blakney did not plead facts

showing that he was subject to retaliatory conduct during the period between his EEOC

claim in 2008 and his voluntary resignation in 2011. After he resigned, the only negative

conduct Blakney experienced at the hand of the Parks and Recreation Department was

passive at best—they ignored his reinstatement requests. Other than two trips to hand-

deliver letters demanding reinstatement, Blakney pleaded no contact with the Department

after his resignation.

       Nevertheless, Blakney claims we should infer antagonism from the City’s response

to his reinstatement demands, which he bases on (1) the “absolute silent treatment” he

received upon delivering his letters, (2) the fact that City Defendants “quickly filled” his

position after he sought reinstatement, and (3) City Defendants’ failure to reinstate him

                                              7
when, he claims, he was entitled to reinstatement pursuant to Civil Service Regulation

15.031. We disagree.

       The City’s decisions to ignore Blakney’s reinstatement requests and fill the

position with another employee were neutral acts that do not create an inference of

antagonism. Moreover, Blakney’s claim that he was entitled to reinstatement under Civil

Service Regulation 15.031 is belied by the text of the regulation itself:

       An employee who has resigned in good standing may be reinstated within one
       year to any position in the City service in the same class, in a comparable class,
       or in a lower class in the same or comparable series of classes having
       substantially the same qualification requirements, skills or aptitudes if such
       reinstatement is approved by the Director and by the appointing authority of
       the department in which the reinstatement is to be made.

Phila. Civ. Serv. Reg. 15.031 (emphasis added). Blakney seems to have misread this

regulation, replacing “may be reinstated” with “must be reinstated.” As the District Court

correctly noted, the language of the regulation is “intentionally discretionary in nature.”

Blakney v. City of Phila., No. 12-6300, 2013 WL 2411409 (E.D. Pa. June 4, 2013) at *6.

Because Blakney was not entitled to reinstatement, the City’s decision not to rehire him

does not support an inference of antagonism.

       For the reasons stated, the District Court properly found that “both the protected

activity and the adverse employment action continued over such an extended period of

time that it is impossible to make any inference of causation between them.” Id. at *5.

Accordingly, we will affirm the order of the District Court as it relates to Blakney’s Title

VII and PHRA claims.
                                               8
                                              III

         Our conclusion that the District Court did not err when it held that Blakney failed

to plead causation dictates the same result as to his claims against Turner and Spiro under

42 U.S.C. § 1981. The same three-prong test that applies to Title VII and PHRA claims

also applies to § 1981 claims. Cardenas, 269 F.3d at 263. Accordingly, “where a Title VII

and a § 1981 claim arise out of the same facts and circumstances and the Title VII claim

fails, the § 1981 claim must fail for the same reasons.” Blakney, 2013 WL 2411409, at *7

(internal citation omitted). Here, Blakney’s complaint incorporates by reference the same

set of facts for his Title VII and § 1981 claims. Therefore, “our discussion of the Title VII

claim above applies with equal force,” Cardenas, 269 F.3d at 263, and Blakney’s § 1981

claim fails. 5

                                              IV

         For the foregoing reasons, Blakney failed to state a plausible claim under Title VII,

the PHRA, 42 U.S.C. §§ 1981 or 1983. Therefore, we will affirm the order of the District

Court.




         5
          Blakney also seeks relief pursuant to 42 U.S.C. § 1983 and Monell v. Department
of Social Services of New York, 436 U.S. 658, 690 (1978), claiming his rights under 42
U.S.C. § 1981 were violated due to the City’s failure “to properly train, supervise,
discipline and control [the City Defendants] regarding [Blakney’s right] to be free from
unlawful retaliatory actions.” Because this claim is derivative of Blakney’s untenable
retaliation claim, it too must fail.

                                               9
