                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 19-3789
                                      __________

                                 RAFAEL K. CHIEKE,
                                            Appellant

                                            v.

  COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
   JOHN E. WETZEL; SHIRLEY MOORE SMEAL; CHRISTOPHER OPPMAN;
    WILLIAM D. SPRENKLE; KATHRYN MCVEY; MARC GOLDBERG; TY
                    STANTON; TIMOTHY MUSSER
                         ________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (M.D. Pa. No. 1:17-cv-00003)
                     District Judge: Honorable Matthew W. Brann
                                  ________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 2, 2020

 Before: KRAUSE and PHIPPS, Circuit Judges, and BEETLESTONE, * District Judge.


                                  (Filed: July 8, 2020)




                                   _______________

      *
        Honorable Wendy Beetlestone, United States District Court for the Eastern District
of Pennsylvania, sitting by designation.
                                       OPINION †
                                    ________________

KRAUSE, Circuit Judge.

       Rafael Chieke appeals the District Court’s grant of summary judgment in favor of

his former employer and supervisors, collectively the Pennsylvania Department of

Corrections (DOC), on his various Title VII claims of discrimination, hostile work

environment, and retaliation, as well as parallel claims brought under the Pennsylvania

Human Relations Act (PHRA). For the following reasons, we will affirm.

I.     Discussion 1

       We begin with Chieke’s various Title VII and PHRA claims based on events prior

to October 25, 2015 and February 26, 2016. Chieke concedes that those claims are time-

barred unless he establishes a “continuing violation,” Mandel v. M & Q Packaging Corp.,

706 F.3d 157, 165 (3d Cir. 2013); see also 42 U.S.C. § 2000e-5(e)(1); 43 Pa. Stat. and

Cons. Stat. Ann. § 959(h), which he attempts to do by arguing that the acts of discrimination

he allegedly suffered amounted to a hostile work environment. At issue, however, are

discrete acts—failure to reclassify, failure to promote, and constructive termination—each



       †
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       1
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a) and we
have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment de
novo and will affirm if “there is no genuine dispute as to any material fact” and if, viewing
the facts in the light most favorable to Chieke, the DOC is nonetheless “entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d
Cir. 2013).
                                             2
of which is individually actionable and therefore may not be aggregated to make a

“continuing violation.” 2 See O’Connor v. Newark, 440 F.3d 125, 127 (3d Cir. 2006).

Accordingly, the District Court properly determined that claims based on actions outside

of the statutory periods were time-barred.

       What remains of Chieke’s disparate treatment and retaliation claims fails on the

merits. 3 Both of these claims are governed by the three-step burden-shifting framework of

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Carvalho-Grevious

v. Del. State Univ., 851 F.3d 249, 257 (3d Cir. 2017) (retaliation); Jones v. Sch. Dist. of

Phila., 198 F.3d 403, 410 (3d Cir. 1999) (disparate treatment). And regardless of whether

Chieke established a prima facie case on either claim, both fail at step three—the

requirement that the plaintiff establish that the legitimate, nondiscriminatory reason

proffered by the employer for the adverse action is pretextual, Carvalho-Grevious, 851

F.3d at 257.



       2
         Because these “individually actionable allegations cannot be aggregated” to form
a hostile work environment claim, O’Connor, 440 F.3d at 127, Chieke’s hostile work
environment claim also fails on the merits. And in any case, Chieke has not established
the kind of “severe or pervasive” discrimination required to succeed on that claim. See
Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006).
       3
          In his briefing, Chieke also mentions, but arguably failed to preserve, a
constructive discharge claim which he only notes in passing and which is not the subject
of any argument. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). Even if
this claim is not waived, however, Chieke has not established the elements of a constructive
discharge claim, which requires evidence that an employer “knowingly permitted
conditions of discrimination in employment so intolerable that a reasonable person subject
to them would resign,” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir.
1996).

                                             3
       Here, the DOC proffered a legitimate, nondiscriminatory reason for failing to

reclassify Chieke’s position: At the time of Chieke’s request, the DOC was merging with

the Pennsylvania Board of Probation and Parole, and there was not an apparent need to

reclassify his position under that circumstance. Chieke attempts to establish pretext by

arguing that because he had consistently received exemplary performance reviews, the

DOC’s decision to not reclassify his position must have been discriminatory. But because

he fails to present evidence “contradicting the core facts” put forward by the DOC, Kautz

v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005), this assertion is insufficient to meet his

burden. Likewise, Chieke failed to rebut the DOC’s nondiscriminatory explanation that it

denied Chieke’s request for additional staff and funds because Chieke was able to meet his

goals with current staffing levels.

II.    Conclusion

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment.




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