                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                   No. 16-1256
                                  ____________

                       PATRICIA JENNINGS-FOWLER,

                                                    Appellant

                                         v.

                        CITY OF SCRANTON;
               MAYOR CHRISTOPHER DOHERTY, Individually;
                UNKNOWN ADDITIONAL DECISION MAKER



                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                     (D. C. Civil Action No. 3-14-cv-00969)
                 District Judge: Honorable Malachy E. Mannion


                           Argued on October 5, 2016

          Before: SHWARTZ, GREENBERG and ROTH, Circuit Judges


                       (Opinion filed: February 23, 2017)


Cynthia L. Pollick     (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640

                 Counsel for Appellant
Kevin M. Conaboy       (Argued)
Abrahamsen, Conaboy & Abrahamsen
1006 Pittston Avenue
Scranton, PA 18505

                     Counsel for Appellees



                                       O P I N I ON


ROTH, Circuit Judge:

       Patricia Jennings-Fowler appeals the dismissal of three of her claims, the entry of

summary judgment on one claim, and the denial of leave to further amend her Complaint.

We will reverse the grant of summary judgment on the due process claim and the order,

dismissing her retaliation claim. We will affirm the District Court in all other regards.

                                             I.

       Jennings-Fowler worked for the City of Scranton for over fifteen years, as a

Housing Inspector for ten years. During this time, she openly supported Mayor

Doherty’s opponents, complained about sex discrimination, and filed a charge with the

Equal Employment Opportunity Commission (EEOC). She was subsequently placed

under video surveillance. Thereafter, the City presented Jennings-Fowler with a Notice

of Charges and called her into a termination meeting on September 25, 2013. At that

meeting, Jennings-Fowler was given a corrected Notice of Charges and suspended


This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
without pay. She was eventually terminated on October 2, 2013.

       On May 20, 2014, Jennings-Fowler filed suit against the City, Mayor Doherty in

his capacity as mayor, and an “Unknown Decision Maker.” Her Second Amended

Complaint contains five causes of action: (1) violation of her due process rights for

insufficient pretermination process (Due Process Claim), (2) retaliation for her political

activities (Political Retaliation Claim), (3) violation of her equal protection rights through

selective video surveillance (Equal Protection Claim), (4) gender discrimination and

hostile work environment claims (Gender Discrimination Claims), and (5) retaliation for

filing a charge with the EEOC (Gender Retaliation Claim).

       Defendants moved to dismiss all causes of action against Mayor Doherty1 and the

Equal Protection Claim and the Gender Discrimination Claims against the City. On

December 29, 2014, the District Court granted all the defendants’ motions and dismissed

both Retaliation Claims sua sponte. Jennings-Fowler filed a Motion for Reconsideration

and a Motion for Leave to file a Third Amended Complaint, both of which were denied

on July 2, 2015. Defendants filed a motion for summary judgment on Jennings-Fowler’s

Due Process Claim against the City, which the District Court granted on January 12,

2016. This appeal, which seeks review of all of the district judge’s dispositive rulings

except for dismissal of the Political Retaliation Claim and of defendant Doherty,




1
 Jennings-Fowler does not explicitly appeal the dismissal of claims against Mayor
Doherty or allege separate claims against the Unknown Decision Maker. We only
discuss claims against the City, but note that the sufficiency of the allegations does not
depend on the identity of the defendant, except where otherwise specified.
                                              3
followed.2

                                           II.3

      We exercise plenary review over a dismissal pursuant to 12(b)(6), as well as over

a grant of summary judgment, and make all inferences in favor of the nonmoving party.4

                                            A.

      Jennings-Fowler challenges the grant of summary judgment on her Due Process

Claim, alleging insufficient pretermination process.

      Jennings-Fowler first claims that she received insufficient notice because of errors

in the first Notice of Charges. This was remedied, however, by the provision of a

corrected Notice of Charges at the beginning of the termination meeting.5

      We agree with Jennings-Fowler, however, that the content of the corrected Notice

of Charges was also deficient. Jennings-Fowler was entitled to “oral or written notice of

the charges against h[er], an explanation of the employer’s evidence, and an opportunity



2
  Jennings-Fowler appeals the denial of her motion for reconsideration of dismissal of her
claims, which is generally reviewed for abuse of discretion. We will not address the
denial of reconsideration because Jennings-Fowler also appeals the dismissal of her
claims, which we review under the more favorable de novo standard.
3
  The District Court had jurisdiction under 28 U.S.C. § 1331, and exercised supplemental
jurisdiction over the Pennsylvania Human Relations Act (PHRA) claims. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
4
  See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (dismissal
pursuant to 12(b)(6)); Nat’l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d
Cir. 2013) (summary judgment).
5
  Jennings-Fowler does not argue that the timing of the corrected Notice of Charges left
her no time to prepare for the termination meeting. Even if she did, providing notice at
the start of a predeprivation hearing does not necessarily violate due process. Morton v.
Beyer, 822 F.2d 364, 369 (3d Cir. 1987) (noting the Supreme Court’s “continued
adherence to the view that advance notice is not a per se requirement of due process”).
                                            4
to present h[er] side of the story”6 in connection with the termination meeting. Failure to

describe the nature of evidence supporting termination violates due process.7 Here, the

second and third charges did not provide the requisite description: both used boilerplate

language to accuse Jennings-Fowler of “[t]heft, willful destruction, willful defacement or

willful misuse of City Property[,]” and “[i]ntentionally falsifying or altering any City

record or report[.]” Further, Jennings-Fowler specifically asked whether any video or

photographic evidence existed to support these charges and was falsely told that it did

not. The use of boilerplate language in the charges, coupled with the defendants’ explicit

lie, denied Jennings-Fowler a sufficient explanation of the evidence against her.

       Since it is sufficient that the charges that were the main focus of the termination

hearing failed to provide an explanation of the evidence against Jennings-Fowler,8 we

will reverse the District Court’s grant of summary judgment on this claim and remand it

for further proceedings.

                                             B.

       Jennings-Fowler appeals the District Court’s dismissal of her Equal Protection

Claim, premised on the defendants’ selective enforcement of a “secret surveillance”


6
  Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (emphasis
added). See also Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74, 80 (3d
Cir. 1989) (“[A] sina qua non of a meaningful hearing is a sufficient explanation of the
employer’s evidence to permit a meaningful response.”).
7
  See, e.g., Homar v. Gilbert, 89 F.3d 1009, 1018-19 (3d Cir. 1996), rev’d on other
grounds, 520 U.S. 924 (1997).
8
  In Tucker, plaintiffs were accused of two infractions, one for which sufficient notice
was given and one for which it was not. 868 F.2d at 80. This Court vacated the district
court’s grant of summary judgment because one charge was insufficiently detailed, even
though the plaintiffs were not terminated for that charge per se.
                                             5
program against her.

       A selective enforcement claim under the 14th Amendment lies where a facially

valid law is enforced in a discriminatory way.9 A factual predicate of any selective

enforcement claim is the existence of a law, rule, or policy. The District Court found that

such a policy did not exist,10 and we agree. While alleged facts must be accepted as true

at this stage even if “unrealistic or nonsensical,”11 no facts are alleged to establish that

surveillance was a nondiscretionary policy or rule by defendants. Thus, we will affirm

the District Court’s dismissal of this claim.

                                                C.

       Jennings-Fowler appeals the dismissal of her sex discrimination claims under Title

VII, the Pennsylvania Human Resources Act (PHRA), and Section 1983. Since the

courts interpret PHRA claims coextensively with Title VII claims,12 we will address these

together before turning to the Section 1983 claims.

                                                1.

       To establish a hostile work environment under Title VII and the PHRA, a plaintiff

must allege, inter alia, that the discrimination faced was severe or pervasive as




9
  Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).
10
   Jennings-Fowler v. City of Scranton, No. 14-0969, 2014 WL 7384748, at *5 (M.D. Pa.
Dec. 29, 2014), reconsideration denied, 2015 WL 4066946 (M.D. Pa. July 2, 2015).
11
   Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009)).
12
   See Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006); Winkler v.
Progressive Bus. Publications, No. 16-938, 2016 WL 4141152, at *3 (E.D. Pa. Aug. 4,
2016).
                                                6
determined by the totality of the circumstances. 13 Relevant factors in this determination

include “the frequency of the . . . conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.”14 Jennings-Fowler claims that a male

coworker, Shelly Roberts, slammed photos on her desk and demanded that she explain a

work decision; complained that she was at an inspection even though she was supposed

to be there; asked her to redo her work, even though it was better than that of her male

counterparts; and disparaged her in front of her peers and the public. These incidents,

while annoying and possibly embarrassing, do not rise to the level of humiliating or

threatening, and did not unreasonably interfere with Jennings-Fowler’s job.

       Jennings-Fowler’s disparate treatment claim similarly fails. The prima facie case

for sex discrimination requires Jennings-Fowler to show, inter alia, that she suffered an

adverse employment action.15 Although Jennings-Fowler does not explicitly allege any

adverse employment action, her Complaint can be read to allege constructive discharge.16

The degree of harassment necessary to prove constructive discharge is greater than the

minimum needed to prove a hostile work environment.17 Because the conduct alleged is


13
   Mandel, 706 F.3d at 167-68.
14
   Id. at 168 (internal quotations and citation omitted).
15
   Shramban v. Aetna, 262 F. Supp. 2d 531, 538 (E.D. Pa. 2003), aff’d, 115 F. App’x 578
(3d Cir. 2004).
16
   Jennings-Fowler claims that her male co-workers “received preferential treatment since
they were not subject to Mr. Roberts’ harassment,” JA 58, and that “[d]espite
complaining, the [City] refused to remedy the hostile working environment.” JA 57.
17
   Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006) (citing
Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992), aff’d, 511 U.S. 244
(1994)).
                                               7
not sufficiently severe or pervasive to constitute a hostile work environment claim, it also

falls short of a constructive discharge claim. For these reasons, the claims under Title

VII and the PHRA fail.

                                             2.

       Jennings-Fowler’s hostile work environment claim, pursuant to Section 1983, also

fails. Such a claim may only lie against a municipality if the injury was caused by

“execution of a government’s policy or custom.”18 Policy is made “when a

decisionmaker . . . issues an official proclamation, policy, or edict,” and custom involves

practices “so permanent and well settled as to virtually constitute law.” 19 Jennings-

Fowler argues that the City’s actions constituted official policy and custom by “ma[king]

the official decision not to correct the harassment” and not providing gender

discrimination training. Neither allegation rises to the level of policy or custom. A

municipality may also be held liable due to the actions of a particular policymaker, when

a particular “policymaker is responsible either for the policy or, through acquiescence, for

the custom.”20 Here, Jennings-Fowler seems to allege that the Unknown Decision Maker

was a policymaker who acquiesced in Roberts’s harassment.21 Such acquiescence is only

actionable if “authorized policymakers approve a subordinate’s decision and the basis for

18
   Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (internal
quotation marks and citation omitted), superseded in part by statute, Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1072; see also, Robinson v. City of Philadelphia,
No. 15-1574, 2015 WL 5965003 at *7 (E.D. Pa. October 13, 2015).
19
   Andrews, 895 F.2d at 1480 (internal quotation marks and citations omitted).
20
   Andrews, 895 F.2d at 1480.
21
   Jennings-Fowler merely alleges that the Unknown Decision Maker is a policymaker;
however, identifying policymakers is a legal question for the court to decide. See Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
                                             8
it.”22 Here, no facts suggest that the Unknown Decision Maker approved of Roberts’s

behavior and the sexually discriminatory basis for it.

       Insofar as Jennings-Fowler alleges supervisory liability for her hostile work

environment claim, courts must determine whether the defendant had actual supervisory

authority over the harassing coworker.23 If so, the plaintiff must then establish the

defendant’s “personal direction or . . . actual knowledge and acquiescence” in the

harassment, which “must be pled . . . with appropriate specificity.” 24 Jennings-Fowler

fails to allege that either individual defendant had actual supervisory authority over

Shelly Roberts. Even assuming supervisory authority, Jennings-Fowler’s Complaint fails

to allege facts suggesting that defendants acquiesced in the harassment. In the absence of

any additional allegations, we decline to infer that the individual defendants participated

or acquiesced in Jennings-Fowler’s harassment. Thus, her sex discrimination claims

under Section 1983 fail as well.



22
   Andrews, 895 F.2d at 1481 (internal quotations and citation omitted) (emphasis in
original); see also Albright v. City of Philadelphia., 399 F. Supp. 2d 575, 594 (E.D. Pa.
2005).
23
   “[A defendant] can[not] be held liable under § 1983 for failing to take action to correct
the behavior of an individual over whom he had no actual control” and a higher-ranked
individual does not necessarily have supervisory authority over a lower-ranked employee.
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997), abrogated on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
24
   Andrews, 895 F.2d at 1478 (internal quotation marks and citation omitted). We have
not reexamined this theory of Section 1983 liability in the wake of the Ashcroft v. Iqbal,
556 U.S. 662 (2009), but have noted that it may have been altered by that decision. See
Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011)
(“To date, we have refrained from answering the question of whether Iqbal eliminated—
or at least narrowed the scope of—supervisory liability . . ..”). We need not answer this
question here, however, as Jennings-Fowler’s claims fail for other reasons.
                                             9
                                             D.

       Finally, Jennings-Fowler argues that the District Court’s sua sponte dismissal of

her Gender Retaliation claim improperly deprived her of “notice of any vulnerability

contained in Count V [the Gender Retaliation Claim].” We agree. A court may sua

sponte dismiss a claim without affording the plaintiff notice and an opportunity to

respond but “[a]s a general proposition, sua sponte dismissal is inappropriate unless the

basis is apparent from the face of the complaint.”25

       Jennings-Fowler’s Gender Retaliation Claim requires her to demonstrate that: (1)

she engaged in protected conduct, (2) her employer took adverse action against her, and

(3) a causal link exists between the protected conduct and the adverse action.26 Jennings-

Fowler’s Complaint clearly satisfies the first two elements; only causality seems to be in

question. The temporal proximity of Jennings-Fowler’s protected activities and her

suspension and termination give rise to a sufficient inference of causality at this stage.27

       Accordingly, we will reverse the District Court’s sua sponte dismissal of Jennings-

Fowler’s Gender Retaliation Claim, as it is not “patently meritless.”




25
   Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002); accord Roman v. Jeffes, 904 F.2d 192,
196 (3d Cir. 1990) (noting that “a court may sua sponte raise the issue of the deficiency
of a pleading under Rule 12(b)(6) provided that the litigant has the opportunity to
address the issue either orally or in writing”) (emphasis added).
26
   Connelly, 809 F.3d at 789.
27
   See Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (noting
that a causal connection can be demonstrated by “an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action”); Mack v.
Yost, 427 F. App’x 70, 73 (3d Cir. 2011) (finding that a plaintiff had satisfied causality by
alleging that adverse action was taken a week after the exercise of protected conduct).
                                             10
                                            E.

       Finally, Jennings-Fowler appeals the District Court’s decision to deny her Motion

for Leave to Amend. We review denial of leave to amend for abuse of discretion.28

       Jennings-Fowler argues that the District Court erred in its finding of undue delay,

as she still had seven days to amend the Complaint under the Case Management Order.

Despite this, the decision to deny leave to amend was not an abuse of discretion. The

majority of the new facts alleged in the proposed Third Amended Complaint only support

claims which should have survived the motion to dismiss. To the extent that the Third

Amended Complaint contains facts alleging a new theory of sex discrimination, the

District Court properly denied leave because of Jennings-Fowler’s “repeated failure to

cure deficiencies by amendments previously allowed.”29

       For the above reasons, we will affirm the District Court’s decision to deny

Jennings-Fowler leave to file a Third Amended Complaint.

                                           III.

       Thus, we will reverse the District Court’s grant of summary judgment on

Jennings-Fowler’s Due Process Claim and sua sponte dismissal of Jennings-Fowler’s

Gender Retaliation Claim and remand for further proceedings. We will affirm the

District Court on all other counts.




28
  In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
29
  Cornell & Co., Inc. v. Occupational Safety & Health Rev. Comm’n, 573 F.2d 820, 823
(3d Cir. 1978) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
                                            11
