DLD-276                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-2960
                                     ___________

                                  THOMAS FIELDS,
                                        Appellant

                                           v.

                                    SEPTA
                     ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (E.D. Pa. Civil No. 10-cv-02868)
                    District Judge: Honorable William H. Yohn, Jr.
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 25, 2011

          Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.

                             (Filed: September 21, 2011 )
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Thomas Fields, proceeding pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania granting summary judgment in favor of

Southeastern Pennsylvania Transportation Authority (“SEPTA”) in his employment
discrimination action. For the reasons that follow, we will affirm the judgment of the

District Court.

       Fields, who is African-American, worked as a track laborer for SEPTA. Fields

and his co-employee, Anthony Squitiere, had a verbal altercation at work. SEPTA fired

both men for violating SEPTA’s zero tolerance policy against violence in the work place.

At the time of the altercation, Fields had worked for SEPTA for less than three months

and was a probationary employee. Squitiere, however, was a union member who had

worked for SEPTA for several years. Squitiere filed a grievance through the union and

ultimately had his position reinstated.

       Fields filed a lawsuit against SEPTA in District Court pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17, claiming racial discrimination

based on the fact that Squitiere, who is Caucasian, was reinstated and he was not. The

District Court granted SEPTA’s motion for summary judgment. The District Court

decided that Fields had failed to establish a prima facie case of discrimination because he

and Squitiere were not similarly situated and there were no circumstances giving rise to

an inference of unlawful discrimination. This appeal followed.

       Under the burden-shifting framework established in McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973), a plaintiff bringing an employment

discrimination claim under Title VII has the initial burden to establish a prima facie case

of discrimination. Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.

1999). A plaintiff must show (1) he is a member of a protected class; (2) he was

                                             2
qualified for his position; (3) he was subjected to an adverse employment action; and

(4) the action was taken under circumstances giving rise to an inference of unlawful

discrimination. See id. at 410-11.

       We agree with the District Court that Fields failed to show circumstances giving

rise to an inference of unlawful discrimination. The record reflects that SEPTA

terminated both Fields and Squitiere based on their violations of its policy against work

place violence. Fields and Squitiere were not similarly situated because Fields was a

probationary employee at the time of the altercation and Squitiere was a union member

with the ability to use the grievance process. Squitiere’s discharge was upheld at his first

level grievance hearing. He was reinstated at a second level hearing based on his clean

work record and progressive discipline was imposed. Absent any evidence giving rise to

an inference of unlawful discrimination, the District Court did not err in entering

summary judgment for SEPTA on Fields’ claim of racial discrimination. 1

       Accordingly, because this appeal does not raise a substantial question, we will

affirm the judgment of the District Court.


       1
         Fields also appears to assert in a statement attached to his complaint that he was
terminated in retaliation for indicating that he wished to pursue criminal assault charges
against Squitiere. SEPTA did not address this assertion in its summary judgment motion.
To the extent Fields asserts a First Amendment retaliation claim, such a claim fails as a
matter of law because Fields did not engage in constitutionally protected conduct. Fields
states that he asked his foreman for a written report of the incident and he was told that if
he pursued the matter further he would be fired. Fields does not state that he in fact
pursued criminal charges against Squitiere. See Ambrose v. Township of Robinson, 303
F.3d 488, 493 (2002) (holding First Amendment claim requires actual protected conduct).


                                             3
