                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4400
                                       ___________

                                   DIANNE HYLAND,
                                                Appellant

                                             v.

                            SMYRNA SCHOOL DISTRICT
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                         (D.C. Civil Action No. 1:10-cv-00875)
                      District Judge: Honorable Leonard P. Stark
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 14, 2015

         Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

                              (Opinion filed April 21, 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.
PER CURIAM

       Dianne Hyland appeals pro se from the order of the United States District Court

for the District of Delaware granting summary judgment against her in this employment

discrimination action. For the reasons that follow, we will affirm.

                                             I.

       This case involves allegations brought by Hyland against her long-time employer,

Smyrna School District (“Smyrna”).1 In April 2009, she filed a charge of discrimination

with the Delaware Department of Labor (“DDOL”) and the Equal Employment

Opportunity Commission (“EEOC”). Hyland, who is black, claimed that Smyrna had

denied her a promotion to a position with benefits because of her race, in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the

Delaware Discrimination in Employment Act (“DDEA”), 19 Del. Code Ann. § 710 et

seq. In June 2010, she filed another charge with the DDOL and the EEOC, alleging

racial discrimination and retaliation stemming from her decision to file the earlier charge.

After the charges were dismissed, Hyland obtained a right-to-sue letter from the EEOC

and, in October 2010, filed a pro se complaint against Smyrna in the District Court.2

       After undertaking discovery, both parties moved the District Court for summary

judgment. On September 30, 2014, the District Court issued an opinion addressing those


1
  Smyrna hired Hyland in 1990, and she indicated in her merits brief that she is still
employed by Smyrna. During the time period relevant to this appeal, Hyland worked in
positions in Smyrna’s Child Nutrition Program.
2
  Two attorneys entered their appearance on Hyland’s behalf in May 2011, but they
ultimately withdrew before the summary judgment stage of the case.

                                             2
motions. The District Court began by explaining that many of Hyland’s allegations of

racial discrimination were time-barred pursuant to 42 U.S.C. § 2000e-5(e) because the

alleged events arose more than 300 days before her first EEOC filing. As for the

allegations that were timely, the District Court held as follows: (1) Hyland had not

presented evidence from which it could be reasonably found that Smyrna’s stated reasons

for hiring Kristen Kahl, Alan Voshell, and Ethel Bogia (all of whom are white) for

positions with benefits instead of promoting Hyland were a pretext for discrimination;

and (2) Hyland had not met her burden of demonstrating even a prima facie claim of

discrimination with respect to Smyrna’s decision to hire Pam Messick (who is white) for

a position with benefits instead of promoting Hyland because Hyland had refused to take

the skills test that was required to apply for that position.

       The District Court then turned to Hyland’s claim that Smyrna had retaliated

against her after she filed her first DDOL/EEOC charge. Approximately 10 months after

that charge was filed, Smyrna received complaints from two employees that Hyland was

engaging in offensive behavior and making racially inappropriate comments. An

assistant superintendent and a supervisor in Hyland’s department met with Hyland to

discuss the complaints. Although a letter was placed in Hyland’s employment file to

memorialize the meeting, no disciplinary action was taken against her. The District

Court concluded that, even assuming Smyrna’s response to the employees’ complaints

constituted an adverse employment action against Hyland, she had not put forth evidence

from which a reasonable factfinder could find that there was a causal connection between


                                               3
her first DDOL/EEOC charge and that adverse employment action.

       In light of the above, the District Court granted Smyrna’s motion for summary

judgment and denied Hyland’s cross-motion. This timely appeal followed.3

                                            II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “We review a

district court’s grant of summary judgment de novo, applying the same standard as the

district court.” S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d

Cir. 2013). Summary judgment is appropriate when the “movant shows 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). Although the non-movant’s evidence “is to be believed,

and all justifiable inferences are to be drawn in h[er] favor in determining whether a

genuine factual question exists, summary judgment should not be denied unless there is

sufficient evidence for a jury to reasonably find for the nonmovant.” Barefoot Architect,

Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) (internal quotation marks and citation

omitted).

       We begin with Hyland’s claims of racial discrimination under Title VII. First, we

agree with the District Court that the claims that are based on alleged events that occurred

more than 300 days before Hyland filed her first charge with the EEOC are time-barred.

See 42 U.S.C. § 2000e-5(e); Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.


3
  The District Court granted Hyland’s timely motion to extend the time to appeal under
Federal Rule of Appellate Procedure 4(a)(5), and Hyland filed her notice of appeal within
the time required by that rule.

                                             4
2000) (explaining that 300-day limitation period governs Title VII claims brought by

plaintiffs in “deferral” states); Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 751 (3d

Cir. 1983) (indicating that Delaware is a deferral state), overruled on other grounds by

Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir. 1991) (en banc). “[D]iscrete

discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113 (2002). Because Hyland’s time-barred claims indeed concern discrete acts of alleged

discrimination, see Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013)

(stating that the failure to promote is a discrete act), they may not be considered in

evaluating her timely discrimination claims. We now turn to those timely claims.

       Hyland’s discrimination claims are governed by the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Makky v.

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Under that framework, the plaintiff must

first make a prima facie showing of discrimination. Id. If the plaintiff makes that

showing, “then an inference of discriminatory motive arises and the burden shifts to the

defendant to articulate a legitimate, non-discriminatory reason for the adverse

employment action.” Id. If the defendant articulates such a reason, “the inference of

discrimination drops and the burden shifts back to the plaintiff to show that the

defendant’s proffered reason is merely pretext for intentional discrimination.” Id. For

substantially the reasons provided by the District Court, we find no error in its application

of the McDonnell Douglas test to Hyland’s Title VII discrimination claims and agree that


                                              5
Smyrna was entitled to summary judgment on those claims.4

       We also agree with the District Court’s decision to grant summary judgment in

favor of Smyrna with respect to Hyland’s Title VII retaliation claim. “A prima facie case

of illegal retaliation requires a showing of (1) protected employee activity; (2) adverse

action by the employer either after or contemporaneous with the employee’s protected

activity; and (3) a causal connection between the employee’s protected activity and the

employer’s adverse action.” EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015)

(internal quotation marks omitted). For substantially the reasons given by the District

Court, it correctly concluded that Hyland failed to present sufficient evidence of a causal




4
  The District Court liberally construed Hyland’s complaint as raising challenges under
not only Title VII, but also the DDEA. District courts in this Circuit have disagreed as to
whether language in the DDEA prohibits a plaintiff from pursuing relief under both
statutes. See 19 Del. Code Ann. § 714(c) (“[The plaintiff] shall elect a Delaware or
federal forum to prosecute the employment discrimination cause of action so as to avoid
unnecessary costs, delays and duplicative litigation. A [plaintiff] is barred by this
election from filing cases in both [the Delaware] Superior Court and the federal forum.”).
Compare Brangman v. AstraZeneca, LP, 952 F. Supp. 2d 710, 724 (E.D. Pa. 2013)
(concluding that section 714(c) does not bar a plaintiff from bringing both Title VII and
DDEA claims in federal court), with Daughtry v. Family Dollar Stores, Inc., 634 F. Supp.
2d 475, 483 n.13 (D. Del. 2009) (concluding that section 714(c) precludes a plaintiff from
pursing relief under both Title VII and the DDEA). We need not resolve that split of
authority here, for even if Hyland can seek relief under both Title VII and the DDEA, she
still would not be able to survive summary judgment on her DDEA claim. The time to
file an administrative charge is shorter under the DDEA than under Title VII. See 19
Del. Code Ann. § 712(c)(1) (providing for 120-day time limit rather than 300-day time
limit). Furthermore, as the District Court indicated, the evidence needed to prevail under
the DDEA is generally the same as that needed to prevail under Title VII. Accordingly,
because Hyland’s Title VII claims fail, her DDEA claims fail, too.

                                             6
connection between her first DDOL/EEOC charge and the actions taken by Smyrna in

response to the complaints about Hyland to survive summary judgment.5

       We have considered Hyland’s various arguments and conclude that none has

merit.6 Accordingly, we will affirm the District Court’s judgment. Smyrna’s motion to

seal Volume II of its supplemental appendix is granted.




5
  Again, because the standards under Title VII and the DDEA are generally the same,
Hyland’s inability to survive summary judgment under Title VII dooms her claim under
the DDEA.
6
  Hyland appears to claim that Smyrna’s actions constituted harassment that subjected her
to a hostile work environment. But her complaint did not allege a hostile work
environment claim, nor did the District Court liberally construe the complaint as raising
such a claim. In any event, Hyland has not demonstrated that this claim would survive
summary judgment. See Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)
(explaining that, to establish a hostile work environment claim, a plaintiff must show that
“(1) [s]he suffered intentional discrimination because of [her] [race]; (2) the
discrimination was pervasive and regular; (3) it detrimentally affected [her]; (4) it would
have detrimentally affected a reasonable person of the same protected class in [her]
position; and (5) there is a basis for vicarious liability”) (certain alterations added and
quotation marks omitted). On another note, Hyland’s requests to strike certain portions
of Smyrna’s brief are denied. Contrary to her assertion, Smyrna does not seek to rely on
evidence or factual allegations presented for the first time on appeal.
                                               7
