                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                       No. 14-1237
                                     _______________

                                   MAURICE BURTON,

                                          Appellant

                                              v.

                           PENNSYLVANIA STATE POLICE;
                             KATHY JO WINTERBOTTOM
                                 _______________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                    (No. 1-11-cv-01968)
                          District Judge: Hon. Sylvia H. Rambo
                                     _______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 15, 2015

                Before: AMBRO, FUENTES, and ROTH, Circuit Judges

                                   (Filed: May 18, 2015)
                                       ____________

                                        OPINION*
                                       ____________
______________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:

       Maurice Burton, a former corporal in the Pennsylvania State Police (the “Police”),

appeals the District Court’s grant of summary judgment in favor of the Police and Kathy Jo

Winterbottom, a Police lieutenant. We affirm.

                                              I.

       Burton worked as a trooper and then corporal supervisor in the Police’s Bureau of

Research and Development (the “Bureau”). Beginning in 2007, several of Burton’s

supervisors noticed that he was spending an extraordinary amount of time at work—

sometimes two to four hours a day—with Pamela Yandrich, who was employed as the e-

library administrator. Burton’s supervisors initially addressed the issue informally. This

became a significant problem in maintaining the discipline and effectiveness of the Police’s

work environment. The real problem, Burton claims, was that he and Yandrich were of

mixed raced—Burton black and Yandrich white. Indeed, Burton interpreted comments

made to him by his colleagues, including an African-American colleague, as threats based

on race rather than attempts to stop excessive worktime fraternization.

       In early 2008, Burton began the process of testing for the rank of sergeant. Upon

learning that Lieutenant Walter Margeson was assigned to score the oral portion of the

exam, Burton objected, believing that Margeson held a negative view of him because of his

relationship with Yandrich. Burton eventually elected to keep Margeson on the panel and

have a consultant examine the test results. While candidates must score in the top 100 to be




                                              2
eligible for sergeant, Burton’s test scores ranked 244 out of 476. Consequently, he was not

promoted.

       Burton remained in his position as corporal supervisor where, despite repeated

informal reprimands, he continued to spend much worktime conversing with Yandrich. In

November 2008, after observing the two talking for over seven hours in two days,

Lieutenant Carl Harrison (himself an African-American) issued supervisor’s notations to

both Burton and Yandrich. A supervisor’s notation is a disciplinary measure used by the

Police that is placed in an employee’s personnel files for six months. If no further issue

arises during those six months, the notation is removed from the files.

       A few weeks later, at the Bureau’s holiday party, Lieutenant Richard Stein

approached Corporal Jack Reese and asked him whether he would be interested in taking

Burton’s position. Reese declined the offer and later informed Burton about his

conversation with Stein. Also in December 2008, Harrison asked Burton to cover the

upcoming Pennsylvania Farm Show, an assignment that Burton found insulting in light of

his supervisory position in the Bureau. After Burton complained about the assignment,

Harrison responded that the Bureau was short-staffed and that the “Farm Show Detail calls

for Trooper/Corporal assignment. You are a Corporal . . . and can be assigned as needed. .

. . By your logic, any assignment given that you are not in agreement with would be

retaliation.” App. 699-700.

       In January 2009, Burton met with Captain Martin Henry III, the Equal Employment

Opportunity director for the Police. During their meeting, Burton advised Henry of his

                                              3
recent treatment at the Bureau and his belief that the various incidents were racially

motivated. In addition, Burton told Henry that Stein had made inappropriate sexual

comments in the office. Following this meeting, the Police initiated a formal investigation

into these allegations led by Lieutenant Winterbottom. In connection with her investigation,

Winterbottom interviewed all relevant personnel, including Burton, Yandrich, and Stein.

Based on her report, the Police initially determined that the allegations were unfounded as

to disparate treatment but sustained as to Stein’s inappropriate comments.

       After further review, however, Major John Laufer concluded that the charge against

Stein was not sustained because Burton and Yandrich had credibility issues and were less

than truthful in their interviews. The Police then conducted a supplemental investigation

into Burton, believing that he may have committed infractions. Following this additional

investigation, the Police concluded that Burton discussed the sexual comments attributed to

Stein with two subordinates, made an inappropriate sexual remark himself, and was not

truthful when questioned about reading a confidential correspondence that he was not

authorized to read. As a result of these infractions, Burton was suspended for two days

without pay.

       Burton remained at the Bureau until he retired in July 2011, five years short of full

retirement. After he left, Burton sued the Police and Winterbottom asserting claims for

discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Pennsylvania Human Relations




                                              4
Act, 43 Pa. Stat. § 951 et seq.; and 42 U.S.C. § 1983. In an exhaustive decision, the

District Court granted summary judgment for the Police and Winterbottom.1

                                             II.

                                             A.

       We begin our analysis with Burton’s discrimination claims. Under the McDonnell

Douglas framework, the employee bears the initial burden of establishing a prima facie

case of discrimination by showing, among other things, that he suffered an adverse

employment action occurring under circumstances that could give rise to an inference of

discrimination. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). Once the

employee satisfies these elements, the burden of production shifts to the employer to

provide a legitimate, non-discriminatory reason for the adverse action. Smith v. City of

Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If the employer is able to provide such a

reason, the burden of production shifts back to the employee to demonstrate that the

proffered rationale was a pretext for discrimination. Id.

       Burton alleges that the Police discriminated against him on the basis of race by

issuing him a supervisor’s notation, failing to promote him to sergeant, and suspending him


1
  The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367.
Our jurisdiction is based on 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s grant of summary judgment and will affirm only if, “viewing the underlying
facts and all reasonable inferences therefrom in the light most favorable to the party
opposing the motion, we conclude that a reasonable jury could not rule for the nonmoving
party.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015) (internal quotation
marks and citations omitted). We apply the same standards to the claims under Title VII
and the Pennsylvania Human Relations Act. See Fogleman v. Mercy Hosp., Inc., 283 F.3d
                                              5
without pay. We agree with the District Court that Burton has not established a prima facie

case of discrimination and that, even if he had, the Police has offered legitimate, non-

discriminatory justifications for its actions.

       As to the supervisor’s notation, there was no adverse employment action because the

notation, which is placed in an employee’s files for six months, did not materially change

the terms or conditions of Burtons’s employment. See Weston v. Pennsylvania, 251 F.3d

420, 431 (3d Cir. 2001) (explaining that temporary reprimands not permanently affixed to

an employee’s file do not alter the employee’s status), abrogated on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In any event, the Police

has offered a non-discriminatory reason for its actions. Notwithstanding repeated warnings

from his supervisors, Burton continued to spend an inordinate amount of time socializing

with Yandrich while at work. As the District Court found, “[i]t speaks for itself that an

employer has a strong interest in ensuring a certain level of conduct and productivity within

the office.” Burton v. Pa. State Police, 990 F. Supp. 2d 478, 504 (M.D. Pa. 2014). Other

than his self-serving statements to the contrary, Burton has not shown that the Police’s

explanation was pretextual.

       Burton similarly fails to support his claim that the Police did not promote him to

sergeant because of discriminatory animus. He does not dispute that his test scores alone—

ranking 244 out of 476—disqualified him from eligibility for promotion.

       Burton maintains that the investigation that resulted in his two-day suspension was


561, 567 (3d Cir. 2002).
                                                 6
racially motivated. He points out that he was the only African-American among a group of

employees who made inappropriate sexual comments and he was the only one subject to

investigation. However, he ignores that the supplemental investigation arose during the

course of investigating Burton’s complaints about Stein’s alleged transgressions. During

that initial investigation, the Police learned of several infractions committed by Burton.

Moreover, Burton acknowledges that he was suspended for violating several Police field

regulations and he has not put forth evidence of similarly situated employees receiving less

severe punishments.

                                              B.

        We next turn to Burton’s retaliation claims. To establish a prima facie case of

retaliation, an employee must demonstrate that (1) he engaged in protected activity, (2) his

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

connection between the protected activity and the adverse action. Moore v. City of Phila.,

461 F.3d 331, 340-41 (3d Cir. 2006). We find that Burton has not shown a prima facie

case of retaliation and, moreover, the Police has articulated non-discriminatory reasons for

its actions.

        Burton appears to argue that he received a supervisor’s notation in retaliation for

complaining to Harrison and Stein that he was being unfairly targeted for his relationship

with Yandrich. This argument fails for the same reasons discussed above in connection

with his discrimination claim.

        Burton suggests that the Police retaliated against him by threatening him and

                                               7
attempting to remove him from the Bureau. Specifically, a statement by Stein that “I’d hate

to see you leave, though you do good work” was a “clear threat.” Stein then attempted to

replace Burton at the holiday party by offering his position to someone else. But neither

Stein’s comment nor the attempt to replace Burton qualifies as an adverse employment

action. And even if they did, Burton offers nothing to rebut the Police’s non-discriminatory

reason for these actions, namely, his excessive socializing.

       He maintains that his assignment to cover the Farm Show, which was “beneath his

position,” was an act of retaliation. However, the director of the Bureau testified that both

troopers and corporal supervisors could be tasked with covering the Farm Show. Burton

offers no rebuttal to this point. At most, the four-day assignment was a “petty slight[] or

minor annoyance[]” that does not rise to the level of a material adverse employment action.

Moore, 461 F.3d at 346.

       Burton alleges that the Police retaliated against him by making him the subject of an

investigation. For reasons similar to those discussed above, we reject this argument.

       Finally, Burton asserts that Winterbottom retaliated against him for exercising his

First Amendment right to freedom of association. In his view, as a public employee, his

relationship with Yandrich was protected activity. Notwithstanding much of it occurred

during work hours and interfered with their official duties, Burton cites no authority for the

proposition that work friendships are a constitutionally protected association. Moreover,

Winterbottom’s investigations arose as a result of Burton complaining to the Police’s Equal

Employment Opportunity director, not because of his relationship with Yandrich.

                                              8
                                             C.

       Arguing he “had no choice but to resign” in 2011, Burton asserts a claim for

constructive discharge. To establish this claim, an employee must show that “the employer

knowingly permitted conditions of discrimination in employment so intolerable that a

reasonable person subject to them would resign.” Mandel v. M & Q Packaging Corp., 706

F.3d 157, 169 (3d Cir. 2013) (internal quotation marks omitted).

       There is no evidence in the record to support constructive discharge. Many of the

incidents about which Burton complains occurred several years before he resigned. Nor

were the incidents he describes the result of discrimination. Burton was censured and

disciplined because of his excessive socializing with Yandrich in the office. Furthermore,

many of Burton’s allegations of mistreatment target Harrison and Stein, but they both left

the Bureau well before Burton did—Stein in early 2009 and Harrison in July 2010.

                                            III.

       For the foregoing reasons, we affirm the District Court’s order.




                                             9
