                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-4130
                                    ____________

                                LUCILLE OLIVIERI,

                                      Appellant

                                          v.

                            COUNTY OF BUCKS;
                   DAVID NEIL, JR., C/O COUNTY OF BUCKS;
                   AUDREY KENNEY, C/O COUNTY OF BUCKS
                                ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 2-09-cv-01240)
                      District Judge: Honorable Anita B. Brody
                                    ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 5, 2012

              Before: FUENTES, FISHER and COWEN, Circuit Judges.

                              (Filed: October 24, 2012)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Lucille Olivieri appeals the District Court’s order granting summary judgment to

Audrey Kenny and the County of Bucks on Olivieri’s claims of retaliation under 42
U.S.C. § 2000e-5 and sexual harassment under 42 U.S.C. § 1983 and 43 P.S. § 955(a).

For the reasons set forth below, we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Olivieri was a dispatcher in the Bucks County Communications Department from

1994 to 2010. During Olivieri’s employment, the County maintained a Human

Resources Policy on Non-Discrimination and Harassment (“the Policy”). 1 The Policy

gives an adequately broad definition of sexual harassment and “encourages reporting for

all perceived incidents of discrimination, harassment or retaliation, regardless of the

offender’s identity or position.” The Policy also includes both formal and informal

complaint procedures.

       The County conducts yearly training on the Policy with all employees. Human

Resources also hand-delivers a copy of each Policy revision to every County department

and requires County employees to acknowledge by signature that they have received the

revision and related training. Olivieri confirmed receiving copies of the Policy, its

revisions, and related training on April 1, 1999, April 10, 2001, October 21, 2004, and


       1
         The Policy was adopted on July 12, 1989. Revisions occurred on September 1,
1998, May 1, 2003, and December 21, 2005. The parties do not place any significance
on the fact that the Policy was revised during Olivieri’s employment.

                                              2
June 8, 2007. Olivieri’s supervisor, David Neil, Jr. (“Neil”), confirmed the same on

March 10, 1999, April 9, 2001, October 7, 2004, October 21, 2004, and June 6, 2007.

The County provides additional training for supervisors on all Human Resources policies

and requires that they pass a written test.

       Olivieri alleges that Neil began harassing her in 1994 while she was training to

become a dispatcher. He directed comments toward her such as “fucking cunt” and

would mutter “fucking bitch” as he walked by her. Neil’s inappropriate behavior was not

solely directed at Olivieri. A co-worker was once brought to tears because she heard Neil

refer to her as “a fat pig.” Neil also frequently touched co-workers, including Olivieri, in

inappropriate ways. Specifically, Neil would rub a female dispatcher’s shoulders and rub

his groin against her back. Neil’s conduct was also not limited to women or subordinate

employees. Neil referred to his male supervisor, Dennis Forsyth, as “fat pig” or “fat

mother fucker,” although Olivieri suspects that Forsyth did not hear these remarks.

       On April 12, 2004, Olivieri had a panic attack at work after Neil passed by her

console and called her a “fucking slut” under his breath. A few days later, Anne

Markowitz of Human Resources met with Olivieri to discuss the panic attacks and the

stresses of being an emergency call dispatcher. Olivieri mentioned to Markowitz that she

did not have a problem with the job; rather, she had a problem with Neil. The meeting

ended, however, without Olivieri telling Markowitz that Neil had been sexually harassing

employees.


                                              3
       On August 4, 2005, a fellow dispatcher filed a complaint about Olivieri. Squad

Coordinator Kathy Kaszarek received the complaint and, on August 9, 2005, conducted

interviews with Olivieri and her co-workers. Kaszarek inquired about whether

harassment was occurring in the room and whether it was a hostile work environment.

Although two co-workers reported work-related problems with Olivieri, no employee

reported problems with Neil.

       Olivieri testified that in 2006, Neil discovered that she was taking prescription

pain medication, which was “something he wanted.” Neil began to badger Olivieri for

pills every time that he saw her, and he flipped from being “nasty and insulting” to

“making a lot of sexual advances and propositions.” He offered to give her oral sex,

suggested that she do that for him, and bragged about his Viagra use. Olivieri was

embarrassed by these particular comments, but she did not report the comments to

Human Resources or to a supervisor.

       In 2007, Olivieri requested to change from day to night shifts. She informed

Koszarek that Neil was the reason for her request. Olivieri told Koszarek that she wanted

to avoid Neil’s mood swings and that Neil was hounding her for prescription drugs.

After Olivieri’s request to change shifts was granted, she “had little to no contact” with

Neil. At one point in her deposition testimony, Olivieri stated that after her shift change,

she interacted with Neil only every other Thursday for less than thirty seconds when she

would pick up her paycheck and that he had “little opportunity” to rub against her or look


                                             4
down her blouse. But, later, during the second day of her deposition testimony, Olivieri

asked to clarify her previous testimony and stated that Neil “stalked me and confronted

me and groped me until the day he retired.”

       In April 2007, Olivieri attended an off-site, multi-day continuing education class

where Department Training Coordinator Fred Blunt led a discussion about the workplace

environment. Olivieri testified that during the class, she shared that Neil was “tormenting

the women” and that “she was tired of the behavior in the boys club.” Olivieri, however,

did not inform Blunt of Neil’s specific behavior of sexual harassment. Soon after the

class, Blunt expressed concern about the crude workplace culture to a group of

Department employees that included Neil and Neil’s supervisor, Forsyth. Neil responded

by acknowledging that he needed to tone down his behavior.

       On or around April 18, 2008, Human Resources began to investigate Neil after an

employee, Christopher Mitchell, complained that Neil insinuated that Mitchell would not

be allowed to leave early unless he gave Neil prescription pain killers. After confirming

Neil’s inappropriate behavior with other employees, Human Resources told Neil that he

must resign or be fired. Neil retired on May 2, 2008.

       In August 2008, Olivieri filed a complaint with the Pennsylvania Human Rights

Commission (“PHRC”) against the County and Neil for sexual discrimination. On

March 20, 2009, Olivieri brought suit in the District Court against the County and Neil.




                                              5
Thereafter, Olivieri experienced a number of disciplinary issues. Olivieri alleges that she

was disciplined in retaliation for bringing her lawsuit.

       The County’s discipline system aims to punish violations of County policy in

levels of increasing severity. Generally, before formal discipline begins, an employee

receives informal counseling or a verbal warning for an infraction. Further violations

lead to a Step I warning, Step II reprimand, Step III suspension, and Step IV termination.

Discipline, however, need not proceed gradually. The discipline policy states that

“[t]hough the process is intended to be progressive, some violations may warrant the

bypassing of lower steps in the disciplinary process” and “[t]he immediate application of

actions such as suspension, demotion and dismissal may be necessary.”

       On May 18, 2010, Olivieri was seen using her cell phone while at work against

Department policy, which led to a Step I disciplinary notice. The notice referenced two

previous occasions on which Olivieri had been verbally warned about the same behavior.

At some point during Olivieri’s escalating discipline, Assistant Director of Human

Resources Meredith Dolan asked Deputy Director Audrey Kenny to take over as the sole

disciplinarian for Olivieri. According to Kenny, this was done because Olivieri

complained of harassment when lower-level supervisors disciplined her and Kenny

needed to ensure that discipline “was consistently applied.” Kenny testified that her role

in Olivieri’s discipline had nothing to do with Olivieri’s legal proceedings.




                                              6
       In June 2010, Olivieri committed three separate infractions, each of which

standing alone would have been sufficient to warrant Step II discipline: (1) Ed Boshell,

Olivieri’s supervisor, reported that she called him a “pussy” in anger, although Olivieri

denies using this word; 2 (2) Olivieri refused to give her cell phone to Boshell when he

observed her using it and called him a “liar”; and (3) Ginny Rosner, Olivieri’s co-worker,

reported: “I heard Lucy Olivieri [make] the comment that if she had to listen to my voice

anymore she’d put a bullet in the back of my head.”

       Olivieri’s eventual Step III discipline occurred because of her job performance:

on June 13, 2010, Olivieri fielded a call for a domestic disturbance but incorrectly coded

the call as a disorderly person incident. Olivieri’s eventual Step IV termination was

imposed for additional instances of poor job performance and insubordination: when

Squad Coordinator David Hagerty met with Olivieri on June 19, 2010, to review her

mishandled calls, Olivieri stated, “I could care less what you have to say.” She was

subsequently sent home for insubordination.

       Due to excused sick time and unpaid absences, Olivieri did not return to work

until June 28, 2010. When she did return to work, she was given a written notice of her

Step II discipline. For the next month and a half, Olivieri again did not report to work for

a variety of reasons including vacation, conferences, and sick time. Upon returning to


       2
        We agree with the District Court that this he-said, she-said dispute does not
concern a material fact. As noted, any one of Olivieri’s June 2010 infractions could have
warranted Step II discipline.

                                              7
work on August 23, 2010, Olivieri was given her Step III disciplinary notice and a Step

IV termination notice. On September 20, 2010, Olivieri amended the complaint in this

action to name Kenny as a defendant and to add retaliation claims.

       On August 15, 2011, the District Court granted summary judgment to the County

and Kenny on all claims. The District Court granted Olivieri’s voluntary dismissal of

Neil on November 7, 2011. On November 10, 2011, Olivieri filed a Notice of Appeal of

the order granting summary judgment to the County and Kenny.

                                             II.

       The District Court had federal question jurisdiction under 28 U.S.C. §§ 1331 and

1343. The District Court had supplemental jurisdiction over Olivieri’s state law claim

under 28 U.S.C. § 1367. This Court has jurisdiction under 28 U.S.C. § 1291.

       This Court exercises plenary review over a district court’s order granting summary

judgment. Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005). Summary

judgment is appropriate when the moving party has shown 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). A fact is material if it “might affect the outcome of the suit under

the governing law,” and the dispute is genuine if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (citation omitted). “Where the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue


                                              8
for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citation omitted).

                                             III.

                                             A.

       Olivieri brought suit against the County and Kenny under Title VII for disciplining

and terminating her in retaliation for bringing a sexual harassment action against the

County. Title VII prohibits employers from discriminating against employees because

they have “made a charge, testified, assisted, or participated in” a Title VII

“investigation, proceeding, or hearing.” 42 U.S.C. § 2000-e(a).

       Title VII retaliation actions based on a claim of pretext are subject to a burden-

shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973).

The plaintiff must first carry the initial burden of establishing a prima facie case by

tendering evidence 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. Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006).

       The burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the adverse employment action. McDonnell, 411 U.S. at

802. Once the employer meets this burden of production, the burden rebounds to the

plaintiff, who must then show by a preponderance of the evidence that the employer’s


                                              9
explanation is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). To

survive a motion for summary judgment in the employer’s favor, a plaintiff must produce

some evidence from which a jury could reasonably find pretext. Id. at 764.

       The District Court found that Olivieri failed to establish the causation element of

her prima facie case and that, even if she had established causation, she cannot rebut the

County’s legitimate, nondiscriminatory reasons for her discipline and termination. We

agree. Central to our holding is the fact that Olivieri’s repeated infractions were not

trivial; rather, her conduct was uniformly prohibited by policies applicable to all

employees. The fact that she received a Step IV termination for conduct that occurred

before she received a notice for Step II and Step III discipline does not indicate

retaliatory motive. The discipline policy states that “[t]hough the process is intended to

be progressive, some violations may warrant the bypassing of lower steps in the

disciplinary process” and “[t]he immediate application of actions such as suspension,

demotion and dismissal may be necessary.”

       Also, Kenny’s involvement in Olivieri’s discipline indicates neither a causal

connection nor pretext in the County’s decision-making. Because Olivieri had previously

complained of harassment when she received discipline from lower-level supervisors,

Kenny took over as the sole disciplinarian to ensure that Olivieri would not be treated

unfairly by individual supervisors and to ensure that discipline “was consistently

applied.” Kenny testified that her role in Olivieri’s discipline had nothing to do with


                                             10
Olivieri’s legal proceedings, and Olivieri has put forth only conclusory allegations to the

contrary. Olivieri therefore has failed to put forth evidence from which a reasonable jury

could infer that she was retaliated against in contravention of Title VII.

                                             B.

       Olivieri also brought suit against the County under 42 U.S.C. § 1983 for

deliberately ignoring Neil’s pattern of sexual harassment and failing to train Neil to

refrain from such harassment. Section 1983 states:

       Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State … subjects, or causes to be subjected, any
       citizen of the United States or other person within the jurisdiction thereof to
       the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at
       law . . . .

Local government bodies are “persons” within the meaning of § 1983. Monell v. New

York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). A local government,

however, cannot be held liable under § 1983 on a theory of respondeat superior. Id. The

touchstone of a § 1983 action is an allegation that an official policy is responsible for a

constitutional deprivation, but local governments may also be sued for constitutional

deprivations pursuant to a custom. Id. at 690-91.

       A custom can be proven by showing that a policymaker acquiesced to a course of

conduct that is so widespread as to have the force of law. Bd. of Cnty. Comm’rs v.

Brown, 520 U.S. 397, 404 (1997). This does not mean, however, that the policymaker

must be specifically identified by the plaintiff’s evidence; rather, practices so widespread

                                             11
as to have the force of law are ascribable to local government policymakers. Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). If custom is established by proof of

knowledge and acquiescence, then a single application of the custom can suffice to show

liability. Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir. 1989).

        Contrary to Olivieri’s contention that the County had a custom of tolerating Neil’s

conduct, the evidence does not demonstrate that Neil’s conduct was widespread to the

point that a policymaker must have known and acquiesced in it. When Olivieri met with

Anne Markowitz of Human Resources in April 2004, she failed to notify Markowitz of

Neil’s sexually harassing behavior. Moreover, in August 2005, when Squad Coordinator

Kathy Kaszarek interviewed Olivieri and her co-workers regarding a hostile work

environment, no employee reported problems with Neil. Instead, two employees reported

having work-related problems with Olivieri. In 2007, when Olivieri told Koszarek that

she wanted to avoid Neil’s mood swings and that he was hounding her for prescription

drugs, Olivieri was granted a shift change, after which she “had little to no contact” with

Neil.

        After the shift change, when Olivieri informed Department Training Coordinator

Fred Blunt that Neil was “tormenting the women” and that “she was tired of the behavior

in the boys club,” Blunt confronted Neil and Neil’s supervisor regarding his conduct. In

April 2008, when it was discovered that Neil’s conduct had not changed, Human

Resources informed Neil that he must resign or be fired.


                                             12
        We agree with the District Court’s conclusion that the evidence shows that a

single employee regularly sexually harassed some of his colleagues and subordinates

until more senior County officials learned of his behavior, at which time he was forced to

resign or be fired. At all times relevant to his case, the County maintained an official

policy that clearly prohibited sexual harassment. The County also provided updates and

training to employees with regard to revisions in the policy. There is no evidence of a

general custom tolerated by the County on which a reasonable fact finder could premise

liability. 3

                                             C.

        Olivieri also appeals the District Court’s order granting summary judgment to the

County with regard to her sexual harassment claim under the Pennsylvania Human

Relations Act (“PHRA”). The PHRA prohibits employers from discriminating against

any individual “with respect to compensation, hire, tenure, conditions, or privileges of

employment” because of an individual’s sex. 43 P.S. § 955(a). To bring a PHRA claim,

a plaintiff must file an administrative complaint with the PHRC within 180 days of the

alleged act of discrimination. 43 P.S. §§ 959(a), 959(h), and 962. “If a plaintiff fails to



        3
         Olivieri, on appeal, makes a conclusory assertion that the County failed to train
Neil to refrain from sexual harassment, yet Olivieri makes no real argument as to why the
District Court’s dismissal of this claim was in error. We agree with the District Court
that Olivieri has not supported her contention that the County was deliberately indifferent
in creating or implementing its training program, or that its training program caused her
injury.

                                             13
file a timely complaint with the PHRC, then he or she is precluded from judicial remedies

under the PHRA.” Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997).

        We agree with the District Court’s determination that Olivieri’s PHRA claim is

time-barred because she failed to adequately describe a single incident of discrimination

that occurred within 180 days of her filing with the PHRC. Olivieri filed her complaint

with the PHRC in August 2008. The alleged incidents of harassment occurred prior to

2007. There is no evidence that Olivieri was subjected to any sexual harassment after her

request to change shifts was granted in 2007. Olivieri testified that after her request to

change shifts was granted, she “had little to no contact” with Neil. Notably, Olivieri

points out that later, during the second day of her deposition testimony, she asked to

clarify previous testimony and then stated that Neil “stalked me and confronted me and

groped me until the day he retired.” Even if we ignore the contradiction in Olivieri’s

testimony, this vague statement is insufficient to create a genuine issue of material fact

for trial.

                                             IV.

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

summary judgment to Audrey Kenny and the County of Bucks on Olivieri’s claims of

retaliation and sexual harassment.




                                             14
