                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 15-3676


                                    ROSLYN ODEN,
                                                Appellant
                                         v.

                            SEPTA; STACY RICHARDSON

                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:14-cv-06197)
                      District Judge: Honorable Mark A. Kearney
                      ____________________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                on Tuesday June 7, 2016

            Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges

                            (Opinion filed: November 4, 2016)


                                        OPINION*


KRAUSE, Circuit Judge.

       Roslyn Oden appeals the District Court’s grant of summary judgment in favor of

her former employer, the Southeastern Pennsylvania Transportation Authority

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
(“SEPTA”), on Oden’s claims under the Americans with Disabilities Act and the

Pennsylvania Human Relations Act, and in favor of her former supervisor, Stacey

Richardson, on Oden’s claims under 42 U.S.C. § 1983. For the reasons that follow, we

will affirm.

I.     Background

       In 2011, after more than twenty years as a SEPTA bus operator, Oden was

medically disqualified from the position due to a diagnosed sleep disorder and other

disabilities,1 and, with the approval of her doctor, assumed a position as a SEPTA

cashier. Upon starting the position, Oden approached Richardson, her new supervisor,

with requests for accommodation for Oden’s disabilities—namely, flexible reporting

times, use of sick time, personal time, and break time. Instead of discussing

accommodations with Oden, Richardson allegedly stated that Oden would have to

transfer to another department. Oden did not transfer and continued working as a cashier.

       On January 31, 2013, Richardson observed Oden sleeping or being inattentive at a

cashier booth and initiated an investigation into Oden’s conduct. Based on three hours of

video footage, the investigation uncovered multiple violations of SEPTA employee rules.

For example, Oden was reading from her cellular phone for forty minutes, and she later

left her cashier booth for seventy-five minutes, which resulted in twenty unregistered




       1
        The parties do not dispute that Oden’s medical conditions are disabilities as
defined under the Americans with Disabilities Act and the Pennsylvania Human
Relations Act.

                                            2
fares. Because of these violations, SEPTA terminated Oden’s employment on February

27, 2013.

       Oden filed a Charge of Discrimination against SEPTA with the Pennsylvania

Human Relations Commission and with the United States Equal Employment

Opportunity Commission on July 26, 2013. She then proceeded to the District Court,

where she brought discrimination and retaliation claims against SEPTA under the

Americans with Disabilities Act (“ADA”) and against SEPTA and Richardson under the

Pennsylvania Human Relations Act (“PHRA”), as well as Equal Protection and First

Amendment claims against Richardson individually under 42 U.S.C. § 1983.

       The District Court granted summary judgment to SEPTA and Richardson on the

grounds that (1) any failure-to-accommodate claims were time-barred under the ADA

and the PHRA; (2) Oden could not establish, for purposes of her discrimination and

retaliation claims under both statutes, that SEPTA and Richardson’s nondiscriminatory

reasons for terminating her were pretextual; and (3) Oden did not establish that

Richardson treated similarly situated employees differently from Oden in violation of the

Equal Protection Clause, nor did Oden make statements on a matter of public concern

that would merit First Amendment protection. This appeal timely followed.




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III.   Discussion 2

       We review a district court’s grant of summary judgment de novo, Faush v.

Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015), and will affirm when the

moving party has established that “there is no genuine dispute as to any material fact”

and, viewing the facts in light most favorable to the non-moving party, “the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Moore v. City of Phila.,

461 F.3d 331, 340 (3d Cir. 2006). Such is the case here. We address in turn Oden’s

(1) failure-to-accommodate claims, (2) discrimination and retaliation claims, and

(3) § 1983 claims against Richardson.3

       First, although Oden continues to press the merits of her failure-to-accommodate

claims on appeal, she does not challenge the District Court’s conclusion that those claims

are time-barred. That conclusion appears to be well-founded as Oden alleges that

Richardson responded to her 2011 request for accommodation with immediate

disapproval, and Oden did not file her administrative discrimination charge with the

relevant agencies until July 2013—well beyond the 300-day deadline for ADA claims,

see 42 U.S.C. § 12117(a); id. § 2000e-5(e)(1), and the 180-day deadline for PHRA

claims, 43 Pa. Cons. Stat. § 959(h). In any event, because she does not dispute the time
       2
        The District Court had subject-matter jurisdiction over Oden’s ADA and § 1983
claims pursuant to 28 U.S.C. § 1331, and over Oden’s PHRA claims pursuant to 28
U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
       3
        On appeal, Oden also asserts hostile work environment and retaliatory
harassment claims. Because she did not raise those claims before the District Court,
however, she has waived them. Thompson v. Real Estate Mortg. Network, 748 F.3d 142,
150 n.7 (3d Cir. 2014).

                                             4
bar on appeal, Oden has waived review of this issue. See Gonzalez v. AMR, 549 F.3d

219, 225 (3d Cir. 2008).

       Second, we agree with the District Court that Oden did not establish that SEPTA

and Richardson’s nondiscriminatory reason for terminating her was pretextual. Under the

McDonnell Douglas burden-shifting framework that applies to both her ADA and PHRA

claims,4 Oden had the initial burden of establishing a prima facie case of discrimination

or retaliation; if she did, then SEPTA and Richardson were required to articulate a

legitimate, nondiscriminatory reason for the adverse action they took against Oden. See

Shellenberger, 318 F.3d at 187; Olson, 101 F.3d at 951. At that point, Oden could defeat

a summary judgment motion only with evidence that would allow a factfinder reasonably

(1) to disbelieve SEPTA and Richardson’s nondiscriminatory reason, or (2) to believe

that discrimination or retaliation was the determinative cause of SEPTA and

Richardson’s adverse action. See Shellenberger, 318 F.3d at 187; Olson, 101 F.3d at

951-52.

       Here, even assuming that Oden established a prima facie case with regard to her

2013 termination,5 she did not meet her burden at the third step of the McDonnell



       4
          See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003)
(retaliation); Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)
(discrimination). We apply the same liability standards to Oden’s ADA and PHRA
claims because the two statutes are “to be interpreted consistently” and “have the same
standard for determination of liability.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266,
274 (3d Cir. 2012).
       5
        Although Oden argues that we should apply the McDonnell Douglas framework
to a number of other alleged “adverse actions” that she contends were taken against her
                                            5
Douglas analysis to adduce sufficient evidence from which a reasonable jury could find

that SEPTA and Richardson’s nondiscriminatory reasons for terminating her were false

or that a discriminatory or retaliatory reason motivated the termination. That is, she does

not deny serious violations of SEPTA’s employee rules, and thus has not provided any

evidence that would allow a reasonable jury either to disbelieve SEPTA’s

nondiscriminatory and non-retaliatory reasons for terminating her, or to believe that any

discriminatory or retaliatory animus would have “had a determinative effect” on her

termination. Shellenberger, 318 F.3d at 187; see also Olson, 101 F.3d at 951.

       Finally, we perceive no error in the District Court’s entry of summary judgment on

Oden’s § 1983 claims against Richardson individually. To establish her Equal Protection

claim, Oden was required to “prove the existence of purposeful discrimination” by

showing that she “received different treatment from that received by other individuals

similarly situated.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014)

(brackets and internal quotation marks omitted) (quoting Andrews v. City of Phila., 895

F.2d 1469, 1478 (3d Cir. 1990)). Oden failed to produce such evidence. Although Oden

mentions another cashier whom Richardson did not discipline, that cashier was not

“similarly situated” because she was not alike “in all relevant aspects.” Id. (internal

quotation marks omitted) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.



for discriminatory and retaliatory reasons, any claims arising from those actions are either
time-barred or—as to her November 2012 suspension from work without pay—waived
for failure to argue that it constituted an independent adverse action in the District Court.
See D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268 n.7 (3d Cir. 2014).

                                              6
2008)). Oden, for example, left her cashier booth for seventy-five minutes while there is

no evidence that the other cashier left her assigned work location at all.

       Oden fares no better as to her First Amendment retaliation claim, which turns on

whether the speech in question involves “a matter of public concern,” Flora v. Cty. of

Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455

F.3d 225, 241-42 (3d Cir. 2006)), or merely “matters of purely personal interest,” such as

“mundane employment grievances,” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467

(3d Cir. 2015). Here, the speech on which Oden relies is her request for her individual

accommodations. We have held, however, that requests of this nature fall squarely into

the category of “mundane employment grievances” and are not protected speech under

the First Amendment. Munroe, 805 F.3d at 467-70. The District Court thus correctly

granted summary judgment on Oden’s § 1983 claims.

IV.    Conclusion

       For the foregoing reasons, summary judgment was warranted on all of Oden’s

claims and we will affirm the judgment of the District Court.




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