                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-4251
                                    _____________

                                PHYLLIS ATKINSON,

                                        Appellant

                                           v.

              NORTH JERSEY DEVELOPMENTAL; CAROLE WOLKE

                                    _____________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                                  (D.C. No. 06-05485)
                        District Judge: Hon. Peter G. Sheridan

                             Submitted September 20, 2011

           Before: AMBRO, CHAGARES, and ALDISERT, Circuit Judges.

                               (Filed December 1, 2011)
                                     ____________

                                      OPINION
                                    ____________

CHAGARES, Circuit Judge.

      Phyllis Atkinson appeals the District Court’s grant of summary judgment to the

North Jersey Developmental Center and its employee Carole Wolke (hereinafter

“NJDC”) on her claims of racial discrimination and retaliation. Atkinson contends that

Wolke discriminated against her in giving her a low performance review, issuing her a
warning for arriving late to work, denying her vacation requests, having her job duties

adjusted, and engaging her in a heated argument where Wolke said she would “fix” her.

Additionally, Atkinson maintains that based on her complaints regarding these

discriminatory acts, NJDC retaliated against her. For the reasons that follow, we will

affirm the judgment of the District Court.

                                              I.

       We write for the parties’ benefit and recite only the facts essential to our

disposition. Phyllis Atkinson is an African-American woman who was employed by

NJDC as a clerk transcriber from 1980 until her retirement in September 2007. In the fall

of 2003, Carole Wolke, a Caucasian woman, was NJDC’s Assistant Director of Nursing

and became Atkinson’s immediate supervisor. In April 2004, Wolke performed

Atkinson’s performance assessment review (“PAR”), assigning her a score of twenty-

four out of a possible thirty and citing specific areas where Atkinson could improve her

job performance. Wolke noted that this score indicated that Atkinson met the essential

criteria for the majority of her job responsibilities and exceeded the essential criteria in

the remaining duties. Despite the fact that Wolke’s assessment was an improvement over

Atkinson’s two previous PAR scores, she was not content with her review and requested

a meeting with Wolke to discuss her score. Wolke and Atkinson never met to review the

PAR. On September 24, 2004, Wolke sent a letter to the Director of Nursing Roxanne

Lotts complaining about her PAR score, Wolke’s favoritism towards other employees,

and that she was overworked with paperwork and felt underappreciated for the amount of



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work she performed. Wolke never received a copy of this letter. Eventually, Atkinson’s

PAR score was raised to a twenty-seven.

       On December 1, 2004, Atkinson and Wolke exchanged heated words, when

Wolke confronted her regarding statements she made to other co-workers that Wolke was

a racist. Atkinson contends that, during this conversation, Wolke stated that she would

“fix” Atkinson if the comments continued. Following the argument, Atkinson wrote

another letter to Lotts recounting the confrontation and clarifying that she felt that Wolke

discriminated against her “like a racist” because of past incidents.

       Atkinson, on March 22, 2004, requested a vacation leave for the Thanksgiving

holiday. NJDC’s vacation policy required that Atkinson submit all such requests no later

than March 15, 2004. When she received no response, Atkinson re-submitted the request

on November 19, 2004. On that same day, Wolke denied her request for vacation.

Despite this denial, a NJDC supervisor later granted Atkinson the vacation leave.

       On February 14, 2005, Atkinson called NJDC around eleven in the morning,

informing the staff that she would be late to work and stating that she would not arrive

for another hour. Atkinson called back to work around one in the afternoon requesting an

emergency administrative leave day. A supervisor granted her request, but she was able

to report to work shortly afterwards. Because Atkinson was supposed to report to work at

nine in the morning and did not call in to give notice that she would be late until around

eleven, Wolke issued her a “Red A” disciplinary notice. This notice, however, was later

removed from Atkinson’s record.



                                             3
       Atkinson also alleges that during this time period Caucasian co-workers were

treated more favorably than her. Specifically, Atkinson contends that NJDC employee

Donna Corroda, a Caucasian female, received a new desk and computer from Wolke,

whereas Wolke told Atkinson she did not need a desk or computer to perform her job

duties. At all times, however, Atkinson had a desk and computer and, eventually, her

desk was replaced with new furniture.

       On February 28, 2005, Atkinson filed a New Jersey Grievance Procedure Form,

complaining about suffering emotional distress and headaches related to harassment in

the workplace. The complaint did not include allegations of racial discrimination.

Atkinson alleges that in response to this filing her new supervisor, Michael Buongiorno,

started micromanaging her work. On March 28, 2005, Atkinson filed a Discrimination

Complaint with the New Jersey Department of Personnel. Following this filing, Atkinson

took an extended sick leave until June 2005. Atkinson, upon her return, complained that

she did not receive all her job responsibilities back, but admitted that she did not have a

problem with the reduction in work because her duties were overwhelming. From 2005

through 2007, Atkinson took a series of medical leaves and retired in June 2007.

       Atkinson filed a pro se complaint in the District Court of New Jersey, alleging

race discrimination and retaliation under Title VII of the Civil Rights Act.1 On October

5, 2010, the District Court granted summary judgment to NJDC, finding that Atkinson

did not present a prima facie case of retaliation under Title VII because she had not


1
 The District Court dismissed all of Atkinson’s claims under New Jersey Law Against
Discrimination. Atkinson does not appeal this dismissal.
                                              4
demonstrated a causal connection between any alleged protected activity and a materially

adverse action by NJDC. Similarly, the District Court granted summary judgment on

Atkinson’s discrimination claim, concluding that she had failed to show an adverse

employment action to satisfy a prima facie claim of discrimination. Further, even if such

a prima facie case could be made, the District Court found that NJDC had articulated a

legitimate, nondiscriminatory reason for its actions and Atkinson had failed to show that

these reasons were pretext for discrimination. Atkinson filed a timely appeal.

                                             II.

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

appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s

grant of summary judgment is plenary, and we apply the same legal standard as it should

have. Vitalo v. Cabot Corp., 399 F.3d 536, 542 (3d Cir. 2005). A party is entitled to

summary judgment “if 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). In conducting our analysis, we must view the record in the light most favorable to

Atkinson, and must draw all reasonable inferences in her favor. See Vitalo, 399 F.3d at

542. To defeat summary judgment, however, Atkinson must “show[] that the materials

cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).

                                             III.

       Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of such

                                              5
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

Additionally, Title VII contains an anti-retaliation provision which provides that it is “an

unlawful employment practice for an employer to discriminate against any of his

employees . . . because [the employee] has opposed any practice made an unlawful

employment practice.” Id. § 2000e-3(a).

       In the absence of direct evidence of discrimination or retaliation, as here, a

plaintiff may prove her claim according to the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas,

the plaintiff bears the initial burden of establishing a prima facie case of unlawful

discrimination or retaliation. Id. at 802. If the plaintiff succeeds, the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory reason for

its decision. Id. Once the employer meets its “relatively light burden,” the burden of

production returns to the plaintiff, who must show by a preponderance of the evidence

that the employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763

(3d Cir. 1994). Accordingly, once an employer has proffered a legitimate,

nondiscriminatory reason, the plaintiff “generally must submit evidence which: 1) casts

sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a

factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the

factfinder to infer that discrimination was more likely than not a motivating or

determinative cause of the adverse employment action.” Id. at 762. Because the ultimate

issue is whether “discriminatory animus” motivated the employer, it is not enough to

show that the employer made a “wrong or mistaken” decision. Id. at 765 (citations

                                              6
omitted). Rather, the plaintiff must uncover “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the employer’s explanation that

would allow a reasonable factfinder to believe that the employer did not truly act for the

asserted reason. Id.

       For Atkinson to maintain a prima facie case of racial discrimination, she must

show that (1) she is African American; (2) she was qualified for the position; (3) she

experienced an adverse employment action; and (4) similarly situated persons who are

not African American were treated more favorably. Jones v. Sch. Dist. Phila., 198 F.3d

403, 410-11 (3d Cir. 1999). We are not persuaded that Atkinson has demonstrated a

prima facie case of discrimination, as she has failed to show she experienced an adverse

employment action or that similarly situated persons not in her protected class were

treated more favorably. The only possible adverse employment action that Atkinson

raises is the reduction in her workload, which the record demonstrates was requested by

Atkinson herself through her complaints about feeling overwhelmed by her job duties.

To the extent that Atkinson alleges that her PAR score, vacation leave, and “Red A”

disciplinary notice resulted in adverse employment actions, we note that these complaints

were adjusted in Atkinson’s favor. Further, we agree with the District Court that the

record does not demonstrate that NJDC or Wolke treated non-African Americans more

favorably, as Atkinson’s allegations appear self-serving and contradictory to her

deposition testimony. Therefore, we agree with the District Court that Atkinson has not

established a prima facie case of race discrimination.



                                             7
       To establish a prima facie case of retaliation, Atkinson must show: (1) she

engaged in protected activity; (2) she suffered an adverse employment action; and (3) a

causal link exists between the protected activity and the adverse employment action. Jalil

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). We conclude that Atkinson has failed

to sustain a prima facie claim of retaliation because she failed to raise an instance where

she engaged in a protected activity, and, similar to her discrimination claim, there is no

evidence that Atkinson suffered an adverse employment action. As a result, we agree

with the District Court that Atkinson cannot maintain a prima facie case of retaliation.

       Moreover, even assuming that Atkinson could demonstrate a prima facie case of

discrimination and retaliation, NJDC has proffered legitimate nondiscriminatory reasons

for all of its actions – for example, Atkinson’s job performance and tardiness in

submission of her vacation request and arrival to work – and Atkinson has failed to show

these reasons were a pretext for discrimination. Therefore, we conclude that Atkinson’s

discrimination and retaliation claims have no merit and will affirm the District Court’s

grant of summary judgment.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             8
