                                                 NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      ___________

                      No. 16-3574
                      ___________


                MILKA A. ANDERSON,

                                               Appellant
                            v.

               THE BOEING COMPANY

                _____________________

             On Appeal from the District Court
          for the Eastern District of Pennsylvania
            (District Court No.: 2:15-cv-03073)
       District Judge: Honorable Legrome D. Davis
           ______________________________


        Submitted under Third Circuit LAR 34.1(a)
                    on April 28, 2017


Before: McKEE, VANASKIE, AND RENDELL, Circuit Judges


              (Opinion filed: June 19, 2017)
                                      ____________

                                      O P I N I O N*
                                      ____________
RENDELL, Circuit Judge

                                      I. Introduction

       Appellant Milka A. Anderson (“Anderson”) challenges the grant of summary

judgment in favor of her former employer, The Boeing Company (“Boeing”), which she

sued for discrimination, retaliation, and a hostile work environment under Title VII of the

Civil Rights Act of 1964 (“Title VII”), the Pregnancy Discrimination Act (“PDA”), 42

U.S.C. § 1981 (“§ 1981”), and the Pennsylvania Human Relations Act (“PHRA”).1

Because we agree with the District Court that none of Anderson’s claims has merit, we

will affirm.

       The parties are familiar with the facts and procedural posture to date, and we will

not repeat them.2 We exercise plenary review over a district court’s grant of summary

judgment, applying the same standard that the district court should have applied.

Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir. 2001). A court




   *
     This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
   1
      Anderson also sued Boeing for Intentional Infliction of Emotional Distress but has
not appealed the District Court’s grant of summary judgment to Boeing with respect to
that claim.
   2
     The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332(a). We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                             2
grants summary judgment if “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).

                        II. Discrimination and Retaliation Claims

       The District Court correctly articulated the standard for reviewing Anderson’s

discrimination and retaliation claims under Title VII, the PDA,3 § 1981, and the PHRA:

Because all of the claims are based on circumstantial rather than direct evidence of

discrimination, they are all subject to the three-part burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4 The first part of the

McDonnell Douglas test imposes a burden of production on the employee to establish a

prima facie case of discrimination or retaliation, which, if successful, raises an inference

of discrimination or retaliation.5 411 U.S. at 802. After a prima facie case is established,

the burden of production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its action or decision. Id. If the employer successfully

   3
     Title VII prohibits employment discrimination because of or based on, inter alia, an
individual employee’s sex. 42 U.S.C. § 2000e–2(a). The PDA is an amendment to Title
VII stating that the terms “because of sex” or “on the basis of sex” “include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U.S.C. § 2000e(k).
   4
     Claims brought under Title VII, the PDA, § 1981, and the PHRA are analyzed
coextensively. See, e.g., Mikell v. Marriott Int’l, Inc., 789 F. Supp. 2d 607, 614 (E.D. Pa.
2011) (applying McDonnell Douglas framework to claims under Title VII, § 1981, and
the PHRA); Jones v. Hosp. of Univ. of Pa., No. 03-cv-4938 (RBS), 2004 WL 1773725, at
*3 (E.D. Pa. Aug. 5, 2004) (applying McDonnell Douglas framework to a discrimination
claim under the PDA).
   5
     We have applied the McDonnell Douglas framework to claims of both
discrimination and retaliation. See Willis v. UPMC Children’s Hosp. of Pittsburgh, 808
F.3d 638, 645–46 (3d Cir. 2015) (discrimination); Marra v. Phila. Hous. Auth., 497 F.3d
286, 300 (3d Cir. 2007) (retaliation).

                                              3
articulates one, the burden returns to the employee, who must show by a preponderance

of the evidence that the employer’s proffered reason is pretextual. Id. at 804.

       A prima facie case of discrimination or retaliation requires a showing of an

adverse employment action.6 The adverse employment action is subject to specific

temporal requirements. Title VII requires a claimant to file a complaint with the EEOC

within 300 days of the alleged unlawful employment practice, and “[d]iscrete

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

alleged in timely filed charges.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165

(3d Cir. 2013) (internal citation and quotation marks omitted). Similarly, “[t]o bring suit

under the PHRA, an administrative complaint must first be filed with the [Pennsylvania

Human Relations Commission] within 180 days of the alleged act of discrimination.” Id.

at 164 (citing 43 Pa. Stat. § 959(h)). Section 1981 claims are subject to a four-year

statute of limitations but not a comparable administrative exhaustion requirement. 28

U.S.C. § 1658; see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382–83

(2004).

       The District Court’s thorough assessment of Anderson’s employment history at

Boeing yielded the correct conclusion that, because of these timeliness requirements, the

only alleged adverse action relevant to Anderson’s discrimination and retaliation claims

under Title VII, the PDA, and the PHRA is Anderson’s termination in 2013 that was



   6
     (See A. 19 (explaining what constitutes an adverse employment action in both the
discrimination and retaliation contexts).)

                                             4
done as part of Boeing’s reduction in force (“RIF”). 7 We therefore will only consider

the 2013 termination for purposes of the discrimination and retaliation claims brought

under Title VII and the PHRA. (Because § 1981 contains a relatively longer four-year

statute of limitations, all alleged events occurring on or after June 2, 2011 are timely for §

1981 purposes but ultimately are not sufficient to form the basis of a meritorious claim

under that statute.8)

       1. Discrimination

       We now turn to Anderson’s argument on appeal that she did indeed establish a

prima facie case with respect to her pregnancy-, gender-, race-, and national origin-based

discrimination claims. A prima facie case of discrimination under Title VII and the

PHRA in the context of a RIF requires an employee to show: (1) membership in a

protected class; (2) qualification for the position; (3) an adverse employment action; and

   7
      Anderson argues that the District Court erred by failing to apply the “continuing
violation” doctrine—which is an “equitable exception to the timely filing requirement,”
Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (internal citation omitted)—to
her discrimination and retaliation claims. Because Anderson did not argue that the
doctrine should be applied to those claims when she was before the District Court,
instead only arguing that it should apply to her hostile work environment claim, we find
that any contention on appeal that the continuing violation doctrine should apply to
Anderson’s discrimination and retaliation claims has been waived. See Shell Petroleum,
Inc. v. United States, 182 F.3d 212, 218 (3d Cir. 1999).
   8
      When confronted with a § 1981 claim, we ask whether the actions at issue qualify as
sufficiently adverse under the law. We fully agree with the District Court’s analysis that
“[t]he few actions that may have occurred after June 2, 2011—specifically, scolding,
shunning, requiring attendance at counseling sessions, and calling Anderson a liar—are
not sufficiently adverse actions. Though perhaps unpleasant, these actions did not result
in significant changes in Anderson’s employment status, nor are they the type of actions
that tend to dissuade employees from raising a discrimination claim.” (A. 22 n.12
(internal citations omitted).)

                                              5
(4) retention by the employer of similarly situated employees outside of the relevant

protected class. In re Carnegie Ctr. Assocs., 129 F.3d 290, 294–95 (3d Cir. 1997).

       The relevant timeline for purposes of Anderson’s pregnancy claim is that she gave

birth on April 5, 2010 and was terminated three years later on April 18, 2013. Her

pregnancy-based claim fails because she has not shown that she was either pregnant at or

near the time of her termination, or that she remained affected by a pregnancy- or

childbirth-related medical condition. See Solomen v. Redwood Advisory Co., 183 F.

Supp. 2d 748, 753–54 (E.D. Pa. 2002) (noting that “[w]hen the employee is not pregnant

at or around the time that she suffers the alleged adverse employment action, her

membership in the protected class is less clear,” granting summary judgment to employer

on PDA claim where employee gave birth more than 11 months before termination, and

citing cases with comparable outcomes); Kenney v. Ultradent Prods., Inc., No. 05-1581

(RMB), 2007 WL 2264851, at *5 (D.N.J. Aug. 6, 2007) (granting summary judgment to

employer on PDA claim where employee gave birth 18 months before adverse

employment action). Anderson’s argument on appeal that “the timing of the termination

should not be the sole dispositive factor as to whether pregnancy[-based] discrimination

took place” is technically correct (Appellant’s Br. 32), but she fails to advance her claim

with the requisite showing in the alternative that something about her pregnancy

continued to affect her three years after her child’s birth. To the contrary, her

allegations—particularly with regard to treatment by her supervisors in performance

reviews—are contradicted by the record. We therefore agree with the District Court that



                                              6
Anderson has not made the prima facie showing necessary to advance her pregnancy-

based discrimination claim.

        Anderson’s gender- and race-based discrimination claims fail because she has not

fulfilled the fourth criterion of the prima facie showing: retention of similarly situated

employees outside of her protected class.9 To the contrary, the other similarly situated

individuals employed by Boeing were in the relevant classes, i.e., female and African-

American. We therefore hold that the District Court was correct to find that Anderson

failed to make a prima facie case with respect to her gender- and race-based

discrimination claims.10

        2. Retaliation

        Anderson’s retaliation claims do not fare any better. Anderson alleges that she

was retaliated against because of her complaints regarding alleged gender-, pregnancy-,

race-, and national origin-based discrimination. An employee’s retaliation claims are

subject to the McDonnell Douglas three-part burden-shifting framework discussed supra.

To satisfy the first part and establish a prima facie case of retaliation, Anderson must

prove that she (1) engaged in a protected activity; (2) Boeing took adverse action against

   9
     Anderson’s brief on appeal appears to concede this failure as she pivots to her
alleged mistreatment without fulfilling the criteria of a prima facie case.
   10
      With regard to Anderson’s national origin-based discrimination claim, Boeing has
not contested Anderson’s ability to make a prima facie case. The District Court agreed
with Boeing that Anderson had failed to show discriminatory animus by Boeing. Though
Anderson contends on appeal that this holding was in error, she has not pointed to any
evidence in the record to support her argument. Further, we find she has waived this
argument given that she did not properly raise it before the District Court. See Shell
Petroleum, 182 F.3d at 218.

                                              7
her; and (3) a causal link exists between the protected activity and the adverse action.

Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006).11 The District Court

“assume[d] without deciding” that Anderson established a prima facie case of retaliation

(A. 45), and focused its analysis on whether Anderson had satisfied the third prong of the

McDonnell Douglas test, evidence of pretext. We agree with the District Court’s well-

reasoned analysis that Anderson has failed to offer more than speculation about any

possible pretext, and also note the contradictions between Anderson’s contentions and the

testimony contained in the record. We will therefore affirm the District Court’s award of

summary judgment to Boeing with regard to Anderson’s retaliation claims.

                           III. Hostile Work Environment Claim

        Anderson asserts that the District Court wrongfully rejected her claims for race-

and national origin-based harassment under Title VII, the PHRA, and § 1981, which all

“permit claims premised on a showing that discrimination based on a protected

characteristic created a hostile or abusive working environment.”12 (A. 110.) In order to

establish a hostile work environment claim, Anderson must show that (1) she suffered

intentional discrimination because of a protected characteristic; (2) discrimination was

   11
       Anderson’s retaliation claim under Title VII, the PDA, and the PHRA are subject to
this framework. She also brings a retaliation claim under § 1981, which carries the
additional requirement that Anderson show an underlying § 1981 violation. Estate of
Oliva v. State of New Jersey, 604 F.3d 788, 789 (3d Cir. 2010). We agree with the
District Court that there is no underlying § 1981 violation.
   12
      In her reply brief to the District Court and again on appeal, Anderson also asserts a
hostile work environment claim based on “sex (pregnancy and maternity leave).”
(Appellant’s Br. 23.) The District Court rightly dismissed this claim, noting that
Anderson did not allege this claim in her Complaint and may not belatedly do so now.

                                             8
“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.”13 Cardenas v. Massey, 269 F.3d 251, 260

(3d Cir. 2001).

        We agree with the District Court that “the record is devoid of evidence that could

give rise to a finding of race or national origin discrimination in the RIF process” or

“support an inference that any of the [non-layoff] actions were improperly motivated by

Anderson’s race or national origin.”14 (A. 112.) The District Court also comprehensively

captured our case law regarding the high threshold facing an employee who aims to bring

a successful work environment claim. Anderson’s hostile work environment claim thus

fails even to get off the ground and we will affirm the District Court’s award of summary

judgment in favor of Boeing with regard to the claim.

                                      IV. Conclusion

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

judgment in favor of Boeing and against Anderson in its entirety.




   13
      As they are in the context of discrimination and retaliation claims, Title VII, the
PHRA, and § 1981 are analyzed coextensively for purposes of a hostile work
environment claim.
   14
       Like the District Court, we will not address whether all of the alleged events satisfy
the timeliness criteria and conduct our analysis assuming that they do. But unlike the
District Court, having found that Anderson’s hostile work environment claims do not
fulfill even the first of these five criteria, we will not address the subsequent ones other
than to note that we agree with the District Court that those too have been left unmet.

                                              9
