                                                     NOT PRECEDENTIAL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

                                       No. 14-1771
                                      _____________

                                   TAMEKA BARNES,
                                               Appellant

                                             v.

                 NATIONWIDE MUTUAL INSURANCE COMPANY;
                        VICTOR M. VERBEKE, Esquire
                             _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-13-cv-02438)
                         District Judge: Hon. Anita B. Brody
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 21, 2015

           Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

                                 (Filed: January 23, 2015)
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Tameka Barnes challenges the District Court’s entry of summary judgment against

her on claims she brought pursuant to 42 U.S.C. § 1981 and the Pennsylvania Human

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Relations Act (“PHRA”). She specifically argues that she can establish a prima facie

case of disparate treatment based on her race because, contrary to the District Court’s

conclusion, she suffered an adverse employment action. Because the District Court’s

ruling about a lack of adverse employment action was correct, we will affirm.

I.     Background

       A.     Employment Overview

       In 2002, Nationwide Mutual Insurance Company (“Nationwide”) hired Barnes,

who is an African American woman, as an office manager at one of its offices in

Philadelphia, Pennsylvania. In October 2005, she applied for a position as a legal

secretary in Nationwide’s Trial Division Office in Philadelphia. She was given that

position. Barnes testified at her deposition that she received favorable performance

evaluations and appropriate bonuses and raises throughout her time as a legal secretary in

the Philadelphia office. In December 2007, she transferred to a legal secretary position at

Nationwide’s Conshohocken, Pennsylvania, office. Again, she testified that she received

favorable performance evaluations and appropriate raises and bonuses throughout her

time there. In November 2012, Barnes applied for a position as a legal secretary at

Nationwide’s Trial Division Office in Harleysville, Pennsylvania. Her application was

successful, and she received a $2,500 raise. Barnes is still employed as a legal secretary

at Nationwide’s Harleysville office.




                                             2
       B.     Barnes’s 2009 Internal Complaint

       On May 12, 2009, Barnes filed a complaint with Nationwide’s Office of Associate

Relations (“OAR”), 1 alleging that Victor Verbeke, the managing attorney of

Nationwide’s Conshohocken office, treated her unfairly because of her race.

Specifically, Barnes alleged that Verbeke was “lax with all the associates, except for

her,” that she was the only associate required to monitor the front desk, and that she had

heard from an anonymous source that Verbeke was watching her and was “trying to

create a paper trail” that would justify adverse action against her. (App. at 340a.) OAR

promptly investigated Barnes’s complaint, and as part of its investigation, it interviewed

Adrienne Oliphant (Barnes’s direct supervisor), Jeannette Burns-Young (another African

American legal secretary in the Conshohocken office), Donna DiPietro (one of Barnes’s

assigned attorneys), Verbeke, and Jesse Searfross (another of Barnes’s assigned

attorneys). At the conclusion of its investigation, OAR determined that there was no

evidence to support Barnes’s claim that Verbeke targeted her because of her race or

gender.

       C.     Barnes’s 2010 EEOC Complaint

       On October 4, 2010, Barnes filed a charge of race and gender discrimination with

the Equal Employment Opportunity Commission (“EEOC”), alleging that, after returning

from a leave of absence, she was notified that she was under investigation for “allegedly

accepting vendor gift cards” and for having non-work related documents on her


       “Associate” is evidently a term used within Nationwide as a synonym for
       1

“employee.”
                                             3
computer. (Barnes Br. at 9.) She also alleged that Verbeke had harassed her since 2008

in the following ways: (1) he routinely reviewed and pulled files from her computer in an

attempt to locate non-work related documents, which he did not do with other associates’

computers; (2) he eavesdropped on her phone conversations, which he did not do with

other associates; and (3) he would send emails to Oliphant regarding Barnes’s arrival and

departure times in hopes of initiating disciplinary action.

       After an investigation, the EEOC decided not to pursue Barnes’s matter further

and sent her a right-to-sue letter. The EEOC specifically explained that, as to the

allegation about vendor gift cards, an internal investigation by Nationwide had concluded

that Barnes did not accept or use gift cards from outside vendors. And, as to Barnes’s

allegation that Verbeke improperly accessed her computer and eavesdropped on her

phone calls, the EEOC noted that Nationwide regularly reminded employees that

company computers and telephones are subject to remote access and monitoring.

       D.     Barnes’s 2012 Internal Complaint

       In 2012, Barnes filed another complaint with OAR. The complaint was

investigated, and OAR concluded that the complaint involved claims that had already

been investigated during the previous internal complaint.

       E.     Barnes’s 2013 Lawsuit

       On May 1, 2013, Barnes filed a complaint in the United States District Court for

the Eastern District of Pennsylvania, alleging race discrimination claims under 42 U.S.C.

§ 1981 and the PHRA. She named Nationwide and Verbeke as defendants. In her

complaint, she alleged that Verbeke discriminated against her due to her race in the ways

                                              4
previously alleged in her EEOC complaint. She further alleged that, in addition to

sending emails to Oliphant about her arrival and departure times, Verbeke also sent

emails alleging she had made work-related errors. Barnes said that Verbeke did not

scrutinize white employees in the same way that he scrutinized black employees and that

he had targeted other black employees on two previous occasions.

       On February 27, 2014, the District Court granted summary judgment against

Barnes. It reasoned that Barnes’s race discrimination claim failed as a matter of law

because none of the alleged wrongs that she suffered as a result of Verbeke’s conduct

resulted in disciplinary action, negative performance reviews, changes in employment

status, or any other adverse employment action. To the contrary, the District Court

observed that Barnes continuously received favorable evaluations, bonuses, and raises

during her employment at Nationwide. As a result, the Court concluded that Barnes had

not suffered an adverse employment action. Barnes timely appealed.

II.    Discussion 2

       As noted above, Barnes argues that she suffered an adverse employment action

and that, as a result, the District Court incorrectly held that her discrimination claim

failed as a matter of law. Her argument is unpersuasive.


       2
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. 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) (internal quotation marks omitted). Summary judgment is appropriate where
the court is satisfied that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
                                              5
       The parties agree that the McDonnell Douglas burden-shifting framework applies

to Barnes’s race discrimination claims. Under that framework, Barnes must establish a

prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). If she succeeds, the burden shifts to the defendants to articulate some

legitimate, non-discriminatory reason for their actions. Id. If the defendants succeed,

then Barnes must prove by a preponderance of the evidence that the defendants’

purported legitimate reason is a mere pretext. Id. at 804.

       To establish a prima facie case of discrimination under section 1981 or the PHRA,

Barnes must show that: “(1) [she] is a member of a protected class; (2) [she] was

qualified for the position [she] sought to attain or retain; (3) [she] suffered an adverse

employment action; and (4) the action occurred under circumstances that could give rise

to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d

Cir. 2008) (Title VII); Brown v. J. KAZ, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009)

(“[T]he substantive elements of a claim under section 1981 are generally identical to the

elements of an employment discrimination claim under Title VII.”); Jones v. Sch. Dist. of

Phila., 198 F.3d 403, 409 (3d Cir. 1999) (noting that the same legal standard applies to

Title VII and PHRA claims).3 Because the District Court concluded that Barnes failed to

show that she suffered an adverse employment action, that issue is the focus of her

appeal.


       3
        Because the standard for addressing a section 1981 claim is the same as the
standard used to address a PHRA claim, the discussion of Barnes’s section 1981 claim
simultaneously addresses her PHRA claim and no further analysis of the latter is
required.
                                              6
         The phrase “adverse employment action” is linked to Title VII’s description of

employment actions that may not be based on an employee’s race. Title VII makes it

unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to [her] compensation, terms, conditions,

or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-

2(a)(1). Section 1981 similarly protects “the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship,” including an employment contract. 42

U.S.C. § 1981. Title VII and section 1981, therefore, do not provide relief for general

unpleasantness that can occur in the workplace, even if that unpleasantness may be

motivated by racial animus. Rather, those statutes provide relief only if discrimination is

“serious and tangible enough to alter an employee’s compensation, terms, conditions, or

privileges of employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.

2004) (internal quotation marks and citations omitted) (applying Title VII); see also

Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014) (applying section

1981).

         Termination, failure to promote, and failure to hire all constitute adverse

employment actions. See 42 U.S.C. § 2000e-2(a)(1) (making 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 compensation, terms, conditions, or privileges

of employment, because of such individual’s race, color, religion, sex, or national

origin.”). Similarly, actions that reduce opportunities for promotion or professional

growth can constitute adverse employment actions. See de la Cruz v. N.Y.C. Human Res.

                                               7
Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996) (stating that reduced prestige

and opportunity for professional growth, although “quite thin,” are sufficient to show

adverse employment action at summary judgment). Employment actions such as lateral

transfers and changes of title or reporting relationships have generally been held not to

constitute adverse employment actions. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998) (collecting cases stating that a “bruised ego;” a demotion without change in

pay, benefits, duties, or prestige; and a reassignment to a more inconvenient job did not

constitute adverse employment actions) (internal quotation marks omitted); Galabya v.

N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (stating that delay in reassignment,

transfer to purportedly inferior facilities, and change in the type of students taught are not

adverse employment actions); Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir.

1994) (concluding that changes to title and reporting relationship are not adverse

employment actions where plaintiff retained same grade level, benefits, and

responsibility).

       Barnes advances two arguments in her attempt to establish that she suffered an

adverse employment action. First, she argues that Verbeke subjected her to “disciplinary

accusations,” and that such conduct constitutes an adverse employment action. (Barnes

Br. at 23-25.) She says that, “[g]iven the sheer amount of disciplinary accusations”

leveled against her by Verbeke, “it is simply of no moment that Defendants[] ‘abstained’

from issuing formal discipline.” (Id. at 24 (emphasis omitted).) And she also says that

“[t]here comes a point where the sheer number of meritless issues raised about an

employee’s performance, even if they do not result in discipline, must be considered

                                              8
sufficient to constitute an adverse employment action.” (Id. at 24-25 (emphasis

omitted).)

       But regardless of whether “disciplinary accusations” can alter the conditions of an

employment contract for purposes of section 1981 – and we make no comment on that

assertion – the District Court rightly concluded that none of the “disciplinary

accusations” in this case constituted adverse employment actions. Section 1981 does not

grant federal courts the power to enforce good manners and proper etiquette in the

workplace; instead, it provides an avenue for employees to seek redress for significant

violations of civil rights. Barnes simply has not suffered a cognizable deprivation during

her employment at Nationwide under either section 1981 or the PHRA. Her brief

confirms as much when she acknowledges that, during her time in Conshohocken, she

received “overall favorable evaluations” and “appropriate raises and bonuses;” she “did

not receive any type of discipline, demotion, decrease in salary, written warning[;] nor

was she placed on a performance improvement plan.” (Barnes Br. at 7.) Bullying or

discrimination of any kind in the workplace is wrong, but not every wrong is a violation

of federal law.

       Barnes next argues that “[a]ny questions as to whether Verbeke’s actions were

done with discriminatory animus were disputes of material fact for trial” because “[a]

reasonable jury could have concluded that [she] was targeted by Verbeke on the basis of

her race and that Nationwide is vicariously liable for [Verbeke’s] actions[.]” (Id. at 13,

24.) That argument also fails. Assuming that Verbeke treated Barnes less than

respectfully on account of her race, her claimed injury is not redressable under section

                                             9
1981 unless she suffered an adverse employment action. Absent such an action,

Verbeke’s motivation for targeting her, no matter how odious, is legally irrelevant.

III.   Conclusion

       For the reasons noted, we will affirm the judgment of the District Court.




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