                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-2311
                                     _____________

                                     ROBIN CLARK

                                                    Appellant
                                             v.

                      PHILADELPHIA HOUSING AUTHORITY

                                     _____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-14-cv-05460)
                         District Judge: Hon. Cynthia M. Rufe
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 28, 2017
                                  ______________

            Before: AMBRO, VANASKIE and RESTREPO, Circuit Judges

                                 (Filed: August 14, 2017)
                                     ______________

                                        OPINION*
                                     ______________
VANASKIE, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Appellant Robin Clark asserted multiple violations of her rights, both under state

law and under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., by

her employer, the Philadelphia Housing Authority (PHA). Most notably, Clark alleged

that she had been punished and ultimately fired for taking time off from work, even

though she was rightfully entitled to take the time pursuant to the FMLA. The District

Court granted the PHA’s motion to dismiss for failure to state a claim, dismissing Clark’s

federal claims with prejudice and her state claims without prejudice. For the following

reasons, we will affirm the District Court’s dismissal order.

                                             I.

       Clark was hired by the PHA in 1997 and fired in 2002, before being reinstated by

an employment arbitration decision in 2004. The 2002 termination was precipitated by

what Clark called a violation of her rights under the FMLA. After being reinstated, Clark

maintained that the PHA continued to take negative employment action against her. The

specific complaints alleged by Clark were outlined by the District Court as follows: Clark

completed work that should have merited a higher title or higher pay from as early as

2004; she was demoted amid layoffs in 2007 from Clerk II to Clerk I, but she still

completed the same job functions as Clerk II for lower pay; she was not promoted to

Clerk II in 2007, even though others had been promoted; in 2009, PHA failed to address a

grievance she had filed with her union; and finally, in 2014, PHA changed the

requirements for a Hearing Coordinator position, necessitating a college degree,

something Clark did not possess. (App. a5). Clark claimed that all of this occurred

because she had exercised and continued to exercise her rights under the FMLA.

                                             2
      In April 2014, Clark told supervisors that she would again need to take leave due

to a serious medical condition but, according to Clark, PHA did not offer her leave under

the FMLA. Instead, she had to use her accrued sick time. Upon returning to work, she

alleged that she received a poor review where the PHA focused on her attendance.

Specifically, the written performance review stated, “Ms. Clark can improve on her

attendance record to enhance her career potential even further.” (App. a23-24).

      On September 22, 2014, Clark initiated this action against the PHA, asserting both

state and federal claims. In December of that same year, Clark filed an amended

complaint. The PHA filed a motion to dismiss the amended complaint for failure to state

a claim upon which relief may be granted. In April of 2015, the District Court granted

the PHA’s motion and dismissed Clark’s FMLA claims with prejudice and her state law

contract claim without prejudice. Clark moved for reconsideration and, before the district

court ruled on that motion, she timely appealed. The District Court ultimately denied her

reconsideration motion.

                                            II.

      The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have

jurisdiction under 28 U.S.C. § 1291. We exercises de novo review of the District Court’s

decision to dismiss a complaint for failure to state a claim. Max v. Republican Comm. Of

Lancaster Cnty., 587 F.3d 198, 200 (3d Cir. 2009).

                                           III.

      The District Court first concluded that all actions that took place before September

22, 2011, such as her being compelled to work “out of class” in 2004, her alleged

                                            3
demotion in 2007, and the PHA’s failure to address a grievance she filed in 2009, were

time-barred.1 In determining that the statute of limitations barred these claims, the

District Court rejected Clark’s invocation of the “continuing violations” exception to the

statute of limitations.

       On appeal, Clark does not invoke the continuing violations doctrine. Indeed, she

does not address directly the District Court’s statute of limitations ruling in either her

principal or reply brief. Instead, she argues that the District Court erroneously applied a

heightened pleading standard in concluding that she failed to plead an actionable FMLA

retaliation claim. Specifically, Clark claims that the District Court erred in failing to

accept as true her assertion that a pattern of antagonism due to her intermittent use of

FMLA leave dating back to 2004 supports a finding that the alleged adverse employment

actions she purportedly suffered in 2013 and 2014 were in retaliation for the exercise of

her FMLA rights.

       While at the motion to dismiss stage one does not have to plead all factual

allegations with specificity, a claimant still has to allege facts sufficient to show that her

claims are “plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In Phillips v.

County of Allegheny, we held that the factual allegations must be enough to “raise a right

to relief above the speculative level.” 515 F.3d 224, 234 (3d Cir. 2008). Put simply,

1
  To assert a timely claim under the FMLA, a plaintiff must file suit no later than two
years after the date of the last event constituting the alleged violation. 29 U.S.C. §
2617(c)(l). The limitations period can be extended to three years if the violation is
willful. 29 U.S.C. § 2617(c)(2). Assuming the violations were willful in this case, the
District Court correctly determined that the limitations period would preclude any claims
that accrued more than three years before the commencement of this action in 2014.

                                               4
there has to be enough in the complaint to suggest that discovery will reveal evidence of

every necessary element of the claim. Id. Thus, to assert a retaliation claim under the

FMLA, the plaintiff must allege facts from which it may be inferred that (1) she invoked

her right to FMLA-qualifying leave, (2) she suffered an adverse employment action, and

(3) the adverse action was causally related to her invocation of rights. Lichtenstein v.

Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012). As to the causation

prong of this tripartite test the plaintiff may rely upon “either an (1) unusually suggestive

temporal proximity between the protected activity and the allegedly retaliatory action, or

(2) a pattern of antagonism coupled with timing….” Budhun v. Reading Hosp. and

Medical Ctr., 765 F.3d 245, 258 (3d Cir. 2014).

       Clark asserts that there was a pattern of antagonism sufficient to support an

inference of retaliatory motive for the ultimate failure to be promoted in 2013 and 2014,

when others in her department were promoted. She also claims that the PHA changed the

requirements for the position of Hearing Coordinator in 2014 to include a college degree

in order to make her ineligible for the position in retaliation for her exercise of FMLA

rights. This pattern of harassment, according to Clark, arises from the following PHA

actions: (1) forcing her to work out of class from 2004 forward; (2) failing to promote her

from 2007 forward; and (3) failing to process her 2009 grievance.

       The shortcoming of this argument is that Clark alleged no adverse employment

action whatsoever from 2009 to 2013. As the District Court aptly noted, “[t]his four year

gap is fatal to showing a pattern in this case.” (App. 9). Clark cannot escape this

conclusion by asserting that there was a continuing failure to promote her from 2009 to

                                              5
2013 or that there was a continuing failure to process her 2009 grievance for allegedly

working “out of class.” The amended complaint simply does not allege facts that support

a reasonable inference that the failure to receive a promotion in 2013 or the change in the

eligibility for the Hearing Coordinator position were due to a desire by the PHA to

retaliate against Clark because she exercised her rights under the FMLA years earlier.

       Clark does allege that she received an adverse performance review after she

sought, but was denied, FMLA leave in April of 2014. That performance review, which

simply noted that she “can improve on her attendance record to enhance her career

potential even further,” does not constitute an adverse employment action sufficient to

support her retaliation claim. The Supreme Court has defined an adverse employment

action as a “significant change in employment status, such as hiring, firing, failing to

promote, reassignment, or a decision causing a significant change in benefits.”

Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749 (1998). In the context of this case,

Clark must allege facts from which it could be inferred that the unfavorable performance

review adversely affected the terms or conditions of her employment. See Weston v.

Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001), overruled in part on other grounds by,

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 (2006) (written reprimands

did not constitute adverse employment action sufficient to support a retaliation claim).

Clark has failed to allege any facts that suggest that this statement in her performance

review somehow adversely affected the terms or conditions of her employment.

       Clark’s final claim, interference under the FMLA also lacks sufficient merit. To

state a claim for interference under the FMLA, a plaintiff must establish:

                                              6
       (1) he or she was an eligible employee under the FMLA; (2) the defendant
       was an employer subject to the FMLA's requirements; (3) the plaintiff was
       entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his
       or her intention to take FMLA leave; and (5) the plaintiff was denied
       benefits to which he or she was entitled under the FMLA.


Ross v. Gilhuly, 755 F.3d 185, 191–92 (3d Cir. 2014) (quoting Johnson v. Cmty. Coll. of

Allegheny Cnty., 566 F.Supp.2d 405, 446 (W.D. Pa. 2008)). An employer interferes with

one’s rights under the FMLA by refusing to authorize FMLA leave or by discouraging an

employee from using such leave. 29 C.F.R. § 825.220(b).

       Clark bases her interference claim on the allegation that she was required to use

one week of accumulated sick leave in April 2014 because her employer failed to offer

her FMLA leave. As the District Court correctly stated, the FMLA provides that “[a]n

eligible employee may elect, or an employer may require the employee, to substitute any

of the accrued paid vacation leave, personal leave, or medical or sick leave of the

employee for leave provided.” 29 U.S.C. § 2612(d)(2)(B). At no point does Clark

suggest that she was not able to take FMLA leave upon returning to work or after she

used the accrued time. As such, the District Court properly dismissed this claim.2

                                            IV.

       For the foregoing reasons, we will affirm the Order of the District Court entered

April 22, 2015 dismissing Clark’s federal claims with prejudice and her state claim

without prejudice.

2
 Clark alleges that the District Court improperly abdicated jurisdiction of her state law
claims because it had incorrectly dismissed her federal claims. Because she has not
shown that she has a viable federal claim, the District Court acted well within its
discretion to decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(a), (c)(3).
                                             7
