                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 15-3686
                                       __________

                                  MARIE T. SELVATO,

                                                  Appellant
                                             v.

                                         SEPTA
                                       __________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (District Court Civil No. 2-14-cv-04919)
                      District Judge: Honorable Wendy Beetlestone

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 16, 2016

      BEFORE: AMBRO, NYGAARD, and VAN ANTWERPEN,* Circuit Judges


                                  (Filed: August 8, 2016)
                                        __________

                                       OPINION**
                                       __________


*
 The Honorable Franklin Van Antwerpen participated in the decision in this case, but
died before the opinion could be filed. This opinion is filed by a quorum of the court. 28
U.S.C. § 46 and Third Circuit IOP 12.1(b).
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.

       Marie Selvato appeals the District Court’s order granting summary judgment to

Southeastern Pennsylvania Transportation Authority (SEPTA). She claims that the

District Court erred by ignoring factual disputes and by improperly evaluating evidence

that she asserts substantiated her Title VII claims, brought pursuant to 42 U.S.C. § 2000e-

2(a)(1). We will affirm.

       This opinion does not have any precedential value. Therefore, our discussion of

the case is limited to covering only what is necessary to explain our decision to the

parties.

       Under Title VII, “it shall be an unlawful employment practice 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 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). In Pennsylvania, claimants are required first to file a claim

with the Equal Employment Opportunity Commission (EEOC). Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). To be timely, a complaint must be

filed with the EEOC within 300 days of an unlawful employment action. Id. Selvato

filed a charge with the Equal Opportunity Commission on July 17, 2013 claiming that

SEPTA unlawfully terminated her on December 20, 2012 because of her gender and as

retaliation for her complaints about sexual harassment she suffered on the job. She also

asserts that, from 2004 through the time of her termination, SEPTA discriminated against


                                              2
her by subjecting her to a hostile work environment in which she was sexually harassed.

There is no dispute that Selvato’s termination falls within the 300-day period for a timely

claim. However, the District Court determined that a majority of the acts she alleges as

sexual harassment are time-barred. Selvato challenges this conclusion.

       Selvato alleges she was sexually harassed between 2004 until she was terminated.

This timeframe includes acts that occurred well beyond the 300-day window imposed by

law. Nonetheless, when an employee alleges a hostile work environment, discriminatory

acts “can occur at any time so long as they are linked in a pattern of actions which

continues into the applicable limitations period.” O’Connor v. City of Newark, 440 F.3d

125, 127 (3d Cir.2006). The District Court found that the record was composed of three

distinct periods. The first period covers acts she claims are sexual harassment by SEPTA

supervisors and co-workers that occurred between 2004 and 2009. In the second period,

from 2009 through August 2012, the record is devoid of any evidence of sexual

harassment by SEPTA employees towards Selvato.1 The third period extends from

September 2012 through Selvato’s termination in December 2012. During this period,

Selvato alleges that SEPTA supervisor James Stevens made two remarks to her that

constitute evidence of sexual harassment. Stevens told her that he was “stalking her

Facebook pictures” because he had gone to school with Selvato’s sister. He also told

Selvato that he would like to “pet” a flower on her blouse because it looked soft, but also



1
 Selvato did not affirmatively assert to the District Court that acts of harassment
persisted throughout the period between 2009 and August 2012. Therefore, there is no
basis on which we can reasonably infer that harassment happened during this time.
                                             3
said he was afraid that she would slap him. Appx. 281-82. Selvato complained to

SEPTA’s Equal Employment Opportunity (EEO) specialist about these comments.

       Sevlato asserts that, collectively, this record shows a continuous pattern, from

2004 through 2012, of harassing comments and acts by SEPTA co-workers and

supervisors, and a persistent institutional failure to respond to any of her complaints.

Selvato argues it is this alleged institutional failure to respond that enables her to

aggregate all of the evidence of harassing comments and acts from 2004 onward into a

hostile work environment claim.

       Even if we were to accept the premise that SEPTA did not adequately respond to

Selvato’s complaints, she fails to cite to any authority for her theory that an employer’s

failure to remedy is, itself, evidence of a continuous pattern of unlawful conduct. Given

the lack of evidence of harassing conduct between 2009 and August 2012, we conclude

that the District Court correctly ruled that this gap breaks the continuity necessary to

establish a continuous pattern of unlawful action. As a result, evidence of harassment

occurring before 2009 is well beyond the required 300 days from the date of filing, and is

outside of the body of evidence that can be considered by the District Court for her

hostile work environment claim under a continuing violation theory. The District Court

properly construed the continuing violation doctrine narrowly (Tearpaock-Martini v.

Borough of Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014)), and did not err by

considering only evidence of unlawful acts that fell within the 300 days preceding July

17, 2013, the date she filed a charge with the EEOC. Because of this, Selvato’s hostile



                                               4
work environment claim is limited to the two comments made by supervisor James

Stevens in the later part of 2012.

       To make a hostile work environment claim, Selvato has the prima facie burden of

proffering evidence to show the following elements: “1) the employee suffered

intentional discrimination because of his/her sex, 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, 706 F.3d at 165. Therefore, at summary

judgment, it was the District Court’s task to judge whether any reasonable jury could

conclude from the record that the alleged harassment was severe and pervasive. This

inquiry included assessing the frequency of the acts and whether they were physically

threatening or merely offensive utterances. Mandel, 706 F.3d at 168. We conclude that

the District Court did not err by determining that the two comments by Stevens

(concerning stalking pictures on Facebook and “petting” flowers on her blouse), though

offensive, did not rise to the frequency or level of physical threat necessary to establish a

prima facie hostile work environment claim.2

       Next, Selvato challenges the District Court’s decision to dismiss the claim that her

termination was gender discrimination. She supports this assertion with both direct and



2
 Selvato asserts that acts between 2004 and 2009 can be considered here under a totality
of the circumstances analysis. However, even if we were inclined to do so, the three-year
period devoid of evidence of any harassment prevents a claim of severe and pervasive
conduct.

                                              5
indirect evidence.3 Her direct-evidence argument employs a mixed-motive theory. She

recognizes that SEPTA claims she was terminated for violating sick leave policy. But,

she contends that SEPTA also inappropriately weighed gender-related considerations

against her in their decision. The fatal problem with her claim is that there is no evidence

that the decision-makers, Michael Lyles, SEPTA Director, and John Reynolds, SEPTA

Senior Director of Transportation, relied on any facts other than those focused upon her

infraction of the sick-leave policy in their decision to terminate her. Selvato’s claim that

gender-related factors influenced their decision is pure speculation.

       Her case comprised of indirect evidence is wholly grounded in a contention that,

although she was terminated for feigning illness in violation of the sick leave policy,

similarly situated male employees were not terminated for the same conduct. However,

there are problems with each of the comparators she posits. Dennis Zappone worked in a

different position, for a different supervisor, and he retired before any disciplinary actions

took place. These differences disqualify any comparison between him and Selvato. As

for Michael Howley and Paul Dauria, the record provides no evidence that they actually

feigned any illness. We may not rely on Selvato’s bald assertions to infer otherwise.

Given that there is no evidence that the decision-makers had any awareness of the

comments made by Stevens, nor any evidence that Stevens had any role in her

termination, we conclude that the District Court did not err by dismissing this claim.



3
 Selvato focuses upon her indirect evidence argument on appeal. However, there is
overlap in the arguments she presents. Therefore, we address her claim grounded in
direct evidence in an abundance of caution.
                                              6
       Selvato also contends that her termination violated Title VII because it was in

retaliation for her complaints about sexual harassment. To establish a prima facie case of

retaliation under Title VII, a plaintiff must show that: “(1) she engaged in activity

protected by Title VII; (2) the employer took an adverse employment action against her;

and (3) there was a causal connection between her participation in the protected activity

and the adverse employment action.” Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d

Cir.1995). The District Court correctly ruled that Selvato failed to provide any evidence

that her claims of harassment made to SEPTA had any causal connection to her

termination. Although there is no dispute that the complaints were protected activity, the

temporal distance between her 2009 report to SEPTA’s Equal Employment Opportunity

office and her termination, without more, eliminates it as a legitimate but-for cause of

retaliation.

       Her second harassment report is much closer to her termination. But the subject of

her report was the conduct of her supervisor James Stevens. As noted above, the persons

who ultimately made the decision to terminate her were Lyles and Reynolds, not Stevens.

However, Selvato claims that Stevens, along with a former supervisor and the EEO

specialist who received her harassment complaint, influenced Lyles and Reynolds to fire

her. But she provided no direct evidence of such influence to the District Court, or,

indeed, any evidence that Lyles and Reynolds were even aware of her protected activity

(the sexual harassment complaint). Merely showing that Lyles or Reynolds

communicated with Stevens, or the EEO specialist, or another supervisor—where such

communication is consistent with the job responsibilities of all concerned—is not

                                             7
enough. Selvato provided nothing on which a reasonable inference of influence could be

based to meet her burden to establish a prima facie retaliation claim.

       Finally, Selvato asserts that she was not, in fact, feigning illness.4 She attempts to

twist her disagreement with SEPTA’s findings about this into evidence that SEPTA

retaliated against her. We are not persuaded by this circuitous argument. Therefore, we

conclude that the District Court did not err by dismissing Selvato’s retaliation claim. 5

       For all of these reasons, we will affirm the order of the District Court granting

summary judgment in favor of SEPTA.




4
 She contends that she was, in fact, suffering from a back injury, and that the sick leave
policy did not prevent her from making the day trip to New York City to see the taping of
a television show. However, the plain words of the sick leave policy state: “Employees
are expected to remain at home, except for medical treatment.” Appx. 337.
5
  Because we conclude that Selvato did not make out a prima facie claim of
discrimination, we need not address her arguments that SEPTA’s stated reason for the
termination—violation of the sick leave policy—is pretext.
                                              8
