GLD-410                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-2467
                                      ___________

                                LAWRENCE BROWN,
                                             Appellant
                                      v.

                                     SEPTA
                      ____________________________________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                (D.C. Civil No. 11-cv-07366)
                  District Judge: Honorable Thomas N. O’Neill, Junior
                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 29, 2013
            Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                          (Opinion filed: September 10, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Pro se Appellant Lawrence Brown appeals the District Court’s order granting

Appellee's motion for summary judgment. For reasons set forth below, we will

summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                            I.
       Brown, a former Southeastern Pennsylvania Transportation Authority (“SEPTA”)

employee, alleges that SEPTA violated his constitutional rights and discriminated against

him because of his race. Specifically, Brown claims that SEPTA violated 42 U.S.C. §§

1981 and 1983, as well as the Fourth, Fifth, and Fourteenth Amendments, during an

investigation that ultimately led to his termination. Furthermore, Brown claims that he

was treated differently than similarly situated individuals outside of his protected class.

SEPTA terminated Brown due to his attempt to fill a fraudulent prescription while

dressed in his SEPTA uniform and using his SEPTA prescription card.

       Brown, who worked as a cashier, was ordered to report to the SEPTA Office of

Inspector General (“OIG”) in November 2009. At this meeting, Brown alleges that he

was not read any Miranda rights and was not informed that he had a right to union

representation under NLRB v.J. Weingarten, Inc., 420 U.S. 251, 267 (1975). During the

course of the meeting, Brown claims that he was threatened by a SEPTA detective and a

Philadelphia Police Officer if he did not answer their questions. Brown signed each page

of the Philadelphia Police Department Investigation Interview Record (“IIR”).

       As a result of the OIG meeting, an informal hearing was held between SEPTA and

Brown’s Union. At the hearing, Brown’s supervisor proposed a resolution of terminating

Brown’s employment. After several administrative appeals by Brown, his termination

was upheld. Brown then filed a complaint in the District Court alleging that he was

discriminated against on the basis of race in violation of the Civil Rights Act, 42 U.S.C.

§§ 1981 and 1983. The District Court. found that Brown failed to provide evidence to



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support his claims and thus granted summary judgment in favor of SEPTA. Brown timely

appealed.

                                            II.

       We have jurisdiction over the District Court’s order. 28 U.S.C. § 1291. We

review de novo an award of summary judgment, “applying the same test that the District

Court should have applied and viewing the facts in the light most favorable to the

nonmoving party.” Schneyder v. Smith, 653 F.3d 313, 318 (3d Cir. 2011). Summary

judgment is appropriate only when 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). Moreover, the nonmoving party cannot rely only on allegations in the

complaint to defeat summary judgment; rather, he "must rely on affidavits, depositions,

answers to interrogatories, or admissions on file." GFL Advantage Fund, LTD v. Colkitt,

272 F.3d 189,199 (3d Cir. 2001) (citing Bhatla v. U.S. Capital Corp., 990 F.2d 780, 787

(3d Cir.1993)). We may summarily affirm on any basis supported by the record. Murray

v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                            III.

       The District Court granted SEPTA’s motion for summary judgment after finding

that Brown failed to meet the requirements of 42 U.S.C. §§ 1981 and 1983. We agree.

Section 1983, which Brown relies on for his constitutional claims, provides private

citizens with a means to redress violations of federal law committed by state officials.

For the purposes of § 1983, SEPTA is treated as a municipal agency when determining its

liability, if any. See Bolden v. SEPTA, 953 F.2d 807, 821, 830 (3d Cir. 1991) (en banc);

                                             3
Searles v. SEPTA, 990 F.2d 789, 790 (3d Cir. 1993). However, SEPTA cannot be held

liable for the acts of its employees under respondeat superior or any other theory of

vicarious liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978).

Rather, SEPTA can only be held liable for an unconstitutional policy, custom, or practice.

Monell, 436 U.S. at 691-92; City of Canton v. Harris, 489 U.S. 378 (1989); Berg v. Cnty.

of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000).

                              A. Fourth Amendment Claims

       The Fourth Amendment prohibits unreasonable search and seizures. See U.S.

Const. amend. IV. A Fourth Amendment seizure occurs when someone is “detained by

means intentionally applied to terminate his freedom of movement.” Berg, 219 F.3d at

269. Evidence of a seizure includes the “threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person . . . or the use of

language or tone of voice indicating that compliance with the officer’s request might be

compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). Brown argues that

his Fourth Amendment rights were violated during the OIG meeting when the officers

threatened to arrest him if he did not answer their questions. However, Brown does not

provide any evidence suggesting that the officers displayed their weapons or physically

touched him during the interview. See GFL Advantage Fund, LTD., 272 F.3d at 199

(stating the nonmoving party cannot rely on mere allegations in the pleadings). Thus, the

District Court properly granted summary judgment in favor of SEPTA on Brown’s

Fourth Amendment claim.

                               B. Fifth Amendment Claims

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       Brown claims that his Fifth Amendment privilege against self-incrimination was

violated because he was interrogated at the OIG without being given Miranda warnings

as well as being subjected to threats, and denied legal representation. Brown claims that

the information received was the result of an unlawful interrogation.

       As an initial matter, Fifth Amendment protections are generally limited to criminal

proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 316 (1976); Chavez v. Martinez,

538 U.S. 760, 778 (2003) (Souter, J., concurring). Brown may not base a § 1983 claim

for a violation of constitutional rights on the mere fact that the police questioned him in

custody without providing Miranda warnings when there is no claim that Brown’s

answers were used against him at trial. Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003).

Brown does not provide any evidence showing how the information he provided to the

OIG has been or will be used against him in a criminal proceeding. Thus, his Fifth

Amendment rights have not been violated, and the District Court order granting summary

judgment for SEPTA on the Fifth Amendment claim was proper.

                                C. Fourteenth Amendment

       Brown raised both equal protection and due process claims. Brown’s equal

protection claims largely revolve around his view that he was treated differently from

similarly situated employees because of his race. Generally, there are many factors that

can be relevant to this fact intensive inquiry. See Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379. 388 (2008). Courts have included factors such as “showing

that the two employees dealt with the same supervisor, were subject to the same

standards, and have engaged in similar conduct without such differentiating or mitigating

                                              5
circumstances as would distinguish their conduct or the employer’s treatment of them.”

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).

       Although none of the other employees shared supervisors, performed similar

work, held a similar status, or committed a similar violation as Brown, Brown argues that

they were all similarly situated because they were all subject to the same SEPTA human

resources policies. This , however, does not support Brown’s assertion that the other

employees were similarly situated. Even if the other employees were similarly situated,

Brown fails to demonstrate how the disparate treatment was a result of a SEPTA policy,

custom, or practice. Brown also claims that SEPTA’s human resource policy prohibits

disciplinary action against employees unless they are arrested, charged, or convicted.

However, Brown fails to specify the actual policy, practice, or custom and instead makes

an unsupported assertion. Because Brown cannot point to an offending SEPTA policy,

practice, or custom, we will affirm the district court order granting summary judgment

for SEPTA dismissing Brown’s equal protection claim.

       Brown also appears to be making both substantive and procedural due process

claims. In regards to the substantive due process claim, it appears that Brown is arguing

that he has a fundamental property interest in his job. However, we have held that

continued public employment does not constitute a fundamental right. See Nicholas v.

Pa. State Univ., 227 F.3d 133, 141-43 (3d Cir. 2000). Thus, the District Court order

granting summary judgment in favor of SEPTA on Brown’s substantive due process

claim was proper.



                                            6
       Brown additionally argues that he was denied procedural due process when

SEPTA ordered him to report to the OIG for an interview without being told the reason

for the interview. For a procedural due process claim to be successful under § 1983,

Brown must claim that he was deprived of an individual interest encompassed within the

Fourteenth Amendment and the procedures available did not provide due process of law.

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Here, Brown fails to demonstrate

how SEPTA’s grievance procedures were insufficient. We have held that SEPTA’s

comprehensive union grievance procedures satisfy due process requirements. Dykes v.

SEPTA, 68 F.3d 1564, 1571 (3d Cir. 1995). Brown’s assertion that he was not told the

reason for the interview falls short of establishing a violation of his right to procedural

due process.

                                  D. Section 1981 Claims

       Brown also claims that SEPTA violated his rights under the Civil Rights Act, 42

U.S.C. § 1981, by discriminating against him on the basis of race. We have held that

“[t]he express cause of action for damages created by § 1983 constitutes the exclusive

federal remedy for violation of the rights guaranteed in § 1981 by” entities such as

SEPTA. McGovern v. City of Phila., 554 F.3d 114, 120-21 (3d Cir. 2009). Here, Brown

has not provided any evidence demonstrating that he was discriminated against on the

basis of race by SEPTA. Brown argues that SEPTA has a policy to not take disciplinary

action against an employee, unless the employee has been arrested, charged, and

convicted of the crime. However, Brown fails to identify any specific SEPTA custom or

policy that caused his injury and instead makes an unsupported assertion. Moreover, he

                                              7
still provides insufficient evidence demonstrating that he was treated differently from

other employees who were not African American. Because Brown fails to satisfy the

requirements of section 1981, the District Court properly granted SEPTA’s motion for

summary judgment.

                                            IV.

       For the reasons set forth above, we will affirm the district court’s order granting

SEPTA’s motion for summary judgment. Brown’s motion for the appointment of

counsel is denied.




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