                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2723
                                      ___________

                                 DOM WADHWA, MD,
                                           Appellant

                                            v.

              SECRETARY, DEPARTMENT OF VETERANS AFFAIRS
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Civil Action No. 10-cv-05094)
                     District Judge: Honorable Mary A. McLaughlin
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 27, 2012
            Before: SCIRICA, JORDAN and GREENBERG, Circuit Judges.

                               (Filed: November 30, 2012)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Appellant Dom Wadhwa, M.D. (“Wadhwa”), proceeding pro se, appeals from

orders entered by the United States District Court for the Eastern District of Pennsylvania

in his suit pursuant to Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §

2000e-16, granting the Secretary‟s motions to dismiss, dismissing his original and first
amended complaint without prejudice, and dismissing his second amended complaint

with prejudice. For the following reasons, we will affirm.

                                            I.

      Because we primarily write for the parties, we need only recite the facts necessary

for our discussion. In 2010, Wadhwa, a physician at the Philadelphia Veterans Affairs

Medical Center (“PVAMC”) in Philadelphia, Pennsylvania, filed a complaint against the

Secretary of the Department of Veterans Affairs, alleging that he was harassed when a

nurse complained about him to agency officials and when he was notified that he had to

contact the nurse to discuss his performance. Wadhwa further asserted that the PVAMC

created a hostile work environment by planning to take disciplinary action against him,

planning to place him on a performance improvement plan, and “staging” an unspecified

incident on August 19, 2010 to find a nondiscriminatory reason to discipline him. On

November 30, 2010, the PVAMC moved to dismiss his complaint for failure to state a

claim or, in the alternative, for a more definite statement of Wadhwa‟s claims. On

February 4, 2011, Wadhwa requested leave to amend his complaint to include claims

exhausted in an administrative case before the Equal Employment Opportunity

Commission (“EEOC”). After oral argument, on February 22, 2011, the District Court

granted the PVAMC‟s motion to dismiss and also gave Wadhwa leave to amend his

complaint to include those exhausted claims.

      On March 23, 2011, Wadhwa filed an amended complaint, alleging, among claims

either previously dismissed or not administratively exhausted, the following properly
                                            2
exhausted allegations: (1) the PVAMC subjected Wadhwa to harassment when the chief

of staff discussed retirement plans with him; when Wadhwa learned that another

physician had been hired for the position Wadhwa once held; when Wadhwa was accused

of failing to follow proper electronic message procedures and was informed that he could

be subjected to disciplinary action; and when the chief of staff ignored his request for

documentation; and (2) that he experienced retaliation when he learned that he was

denied the opportunity to apply for Job Vacancy No. 174-07 (a position as a staff

physician in the Emergency Department).1 In response, the PVAMC filed a motion to

dismiss or, in the alternative, for a more definite statement and to strike for failure to state

a claim because Wadhwa included issues outside the scope of the EEOC case. After oral

argument, on September 15, 2011, the District Court dismissed all of Wadhwa‟s claims

except for his claim of reprisal regarding Job Vacancy No. 174-07. The District Court

further ordered Wadhwa to file an amended complaint stating a proper reprisal claim

within thirty days.

       On November 7, 2011, Wadhwa filed another amended complaint including

allegations beyond the scope of his reprisal claim, which the District Court struck it its

entirety. Wadhwa then filed another amended complaint on January 11, 2012 and a

correction on January 17, 2012. In this complaint, Wadhwa alleged that he engaged in

protected activity by (1) filing a complaint with the EEOC in December 2004; and (2)


1
 These are the same claims for which Wadhwa moved for leave to amend his original
complaint prior to the District Court‟s February 18, 2011 order.
                                             3
contacting both an equal employment opportunity (“EEO”) counselor and the

Department‟s Inspector General‟s Office (“OIG”) regarding employee violations after a

June 9, 2006 incident during which he was threatened by a patient. He then asserts that

he was retaliated against when he was not selected for a staff physician position posted in

Job Vacancy 174-07. The PVAMC filed a motion to strike this amended complaint,

which the District Court denied. On February 23, 2012, the PVAMC filed a motion to

dismiss the amended complaint, and Wadhwa filed an untimely response on April 20,

2012. On May 7, 2012, the District Court granted the PVAMC‟s motion and dismissed

Wadhwa‟s amended complaint with prejudice. Wadhwa timely filed this appeal as to the

District Court‟s orders of February 22, 2011, September 15, 2011, and May 7, 2012.

                                               II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we “exercise plenary

review over a district court‟s grant of a motion to dismiss pursuant to Rule 12(b)(6).”

Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). When conducting this

review, “we must „accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.‟” Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008)). To survive a motion to dismiss, a complaint must contain sufficient

factual allegations, taken as true, to “state a claim to relief that is plausible on its face.”


                                                4
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556

U.S. 662, 677-78 (2009).

                                             III.

A.     February 22, 2011 Order

       The District Court properly granted the Secretary‟s motion to dismiss Wadhwa‟s

original complaint. First, the only proper defendant in a federal employee‟s Title VII

action is the head of the appropriate agency. 42 U.S.C. § 2000e-16; see also Sheridan v.

E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996). Accordingly, the

District Court properly dismissed the claims against individually named defendants.

       Wadhwa‟s original complaint also failed to state a claim of either retaliation or

hostile work environment against the Secretary. To establish a prima facie case of

retaliation under Title VII, a plaintiff must provide evidence that “„(1) []he engaged in

activity protected by Title VII; (2) the employer took an adverse employment action

against h[im]; and (3) there was a causal connection between h[is] participation in the

protected activity and the adverse employment action.‟” Moore v. City of Philadelphia,

461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386

(3d Cir. 1995)). An adverse employment action refers to “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Furthermore, the

complainant has the burden of stating a prima facie case; if he does, the burden then
                                              5
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the

adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

       Here, Wadhwa alleges that a nurse complained about him to agency officials and

that another PVAMC employee told him that he had to contact the nurse to discuss his

performance; however, he does not allege any adverse action as a result of this incident.

Furthermore, Wadhwa‟s claims that agency officials were planning to take disciplinary

action against him at some future time and to put him on a performance improvement

plan are insufficient to allege an actual harm or adverse action. Additionally, while

Wadhwa claims that agency officials “staged” an incident on August 19, 2010 to find a

nondiscriminatory reason to propose a disciplinary action against him, he neither

describes the incident nor states that any discipline was ever actually imposed.

       Wadhwa‟s original complaint also fails to establish a claim for hostile work

environment under Title VII. Because Wadhwa is claiming a hostile work environment

based upon his national origin, he must prove that “(1) he suffered intentional

discrimination because of his national origin; (2) the discrimination was pervasive and

regular; (3) it detrimentally affected him: (4) it would have detrimentally affected a

reasonable person of the same protected class in his position; and (5) there is a basis for

vicarious liability.” Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). Analysis of

hostile work environment claims requires an assessment of the totality of the

circumstances. Id. at 261; see also Faragher v. City of Boca Raton, 524 U.S. 775, 787-88


                                              6
(1998) (noting that “conduct must be extreme to amount to a change in the terms and

conditions of employment”).

       In his original complaint, Wadhwa alleges that a nurse made a single complaint

about his performance over a period of five months. Even assuming that Wadhwa‟s

allegations are true, this is insufficient to constitute the “pervasive and regular” behavior

required to sustain a hostile work environment claim. Accordingly, because Wadhwa‟s

original complaint failed to allege facts to state claims of either retaliation or hostile work

environment, the District Court properly granted the Secretary‟s motion to dismiss.

B.     September 15, 2011 Order

       The District Court properly granted in part the Secretary‟s motion to dismiss

Wadhwa‟s first amended complaint. Regarding Wadhwa‟s claim that he experienced

harassment when another doctor discussed retirement plans with him, Wadhwa admitted

that these were discussed in passing, and he never alleged that he was ever presented with

any retirement paperwork. Second, Wadhwa has not alleged that he was actually

disciplined despite the fact that he continued to send emails in direct contravention of the

request for him to stop his non-compliance with the PVAMC‟s electronic messaging

procedures. Third, Wadhwa‟s claim that he experienced harassment by the doctor

ignoring his request for documentation regarding his reassignment to the Compensation

and Pension department is belied by the record because Wadhwa admitted to receiving

responses to this request from direct supervisors and Human Resources officials. Finally,

Wadhwa‟s last claim alleges a hostile work environment when he learned that another
                                               7
physician had been hired for the position he once held in the Primary Care department.

No reasonable employee would consider learning of a former position being filled to be

abusive or hostile behavior.2 In sum, none of these claims demonstrate the “pervasive

and regular” behavior necessary to state a claim of harassment under Title VII. See

Cardenas, 269 F.3d at 260; see also Faragher, 524 U.S. at 788 (Title VII is not intended to

make employers liable for “„the ordinary tribulations of the workplace‟”).

       With regards to Wadhwa‟s claim that the PVAMC retaliated against him by

denying him the opportunity to apply for Job Vacancy 174-07, the District Court properly

granted the Secretary‟s motion for a more definite statement and denied the motion to

dismiss as to this claim. A motion for a more definite statement “is directed to the rare

case where because of the vagueness or ambiguity of the pleading the answering party

will not be able to frame a responsive pleading.” Schaedler v. Reading Eagle Publ‟n,

Inc., 370 F.2d 795, 798 (3d Cir. 1967). As noted by the District Court, the only fully

exhausted claim for reprisal in Wadhwa‟s amended complaint related to Job Vacancy

174-07. However, throughout their pleadings, both Wadhwa and the Secretary repeatedly

referred to Wadhwa‟s non-selection for a position in Primary Care. Accordingly, because

of the confusion, the District Court properly granted the Secretary‟s motion for a more

definite statement and allowed Wadhwa leave to file a second amended complaint


2
 Wadhwa‟s actual reassignment from Primary Care was not before the District Court
because it was the subject of an ongoing EEOC investigation. Accordingly, the District
Court properly separated Wadhwa‟s claim that he was harassed upon learning that his
position had been filled from his actual reassignment.
                                              8
regarding only his reprisal claim as to Job Vacancy 174-07. Cf. Fed. R. Civ. P. 15(a)(2)

(“The court should freely give leave [to amend] when justice so requires.”).

C.     May 7, 2012 Order

       The District Court properly dismissed Wadhwa‟s second amended complaint with

prejudice. As noted above, the first prong of a prima facie retaliation case requires the

plaintiff to demonstrate that he “engaged in activity protected by Title VII.” Nelson, 51

F.3d at 386. Title VII defines a protected activity as an instance where an employee has

opposed any practice made unlawful or has made a charge, testified, assisted, or

participated in an investigation under Title VII. See 42 U.S.C. § 2000e-3(a). “Whether

the employee opposes, or participates in a proceeding against, the employer‟s activity, the

employee must hold an objectively reasonable belief, in good faith, that the activity they

oppose is unlawful under Title VII.” Moore, 461 F.3d at 341. In his second amended

complaint, Wadhwa alleged that he filed an EEO complaint in 2004 and that he raised

concerns regarding security at the PVAMC with the OIG and an EEO counselor after an

encounter with a confrontational patient in 2006. Accordingly, Wadhwa adequately pled

the first element of a prima facie retaliation case.

       For the second prong of a retaliation case, Wadhwa must demonstrate “that a

reasonable employee would have found the alleged retaliatory actions „materially

adverse‟ in that they „well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.‟” Id. (quoting Burlington N. & Santa Fe. Ry. Co.

v. White, 548 U.S. 53, 68 (2006)). Here, Wadhwa alleged that he filed an application for
                                               9
Job Vacancy 174-07, but was neither interviewed nor selected for that position.

Accordingly, Wadhwa adequately pled the second element of a prima facie retaliation

case because of the adverse hiring decision.

       However, we agree with the District Court that Wadhwa insufficiently pled the

third and final element of a prima facie retaliation case. Wadhwa needed to demonstrate

a causal connection between his protected activity and the adverse action. See Marra v.

Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007). This Court has noted two

primary factors for this determination: timing and evidence of ongoing antagonism.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000); see also Woodson v.

Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997) (“[T]emporal proximity . . . is

sufficient to establish the causal link . . . . [A] plaintiff can [also] establish a link between

his or protected behavior and subsequent discharge if the employer engaged in a pattern

of antagonism in the intervening period.”). However, the “mere passage of time is not

legally conclusive proof against retaliation.” Robinson v. SEPTA, 982 F.2d 892, 894 (3d

Cir. 1993). A plaintiff can also demonstrate a causal connection through other types of

circumstantial evidence. See Farrell, 206 F.3d at 280-81.

       Here, approximately a year lapsed between the time when Wadhwa engaged in

protected activity in 2006 and when he was not selected for Job Vacancy 174-07.

Furthermore, approximately three years passed between his protected activity in 2004 and

his non-selection. Standing alone, this is insufficient to establish a causal connection

between the protected activity and the adverse action. See, e.g., Clark Cnty. Sch. Dist. v.
                                               10
Breeden, 532 U.S. 268, 273-74 (2001) (citing cases where the passage of three and four

months between the protected activity and the adverse action was insufficient, by itself,

to establish a causal connection).

       “[T]iming plus other evidence [is] an appropriate test where the temporal

proximity is not so close as to be „unduly suggestive.‟” Farrell, 206 F.3d at 280

(alteration in original). Here, however, Wadhwa has not identified who was aware of his

protected activity in 2004 and 2006, who was responsible for not selecting him for the

vacancy, and how his failure to be selected was in any way connected to his protected

activity. We disagree with Wadhwa that the fact that he was given no explanation for his

non-selection is sufficient to demonstrate a causal connection. Accordingly, the District

Court did not err in granting the Secretary‟s motion to dismiss and dismissing Wadhwa‟s

second amended complaint with prejudice. Furthermore, given the multiple times the

District Court allowed Wadhwa leave to amend his complaint, we do not see how any

further amendment to Wadhwa‟s complaint would save his claim. See Phillips, 515 F.3d

at 236 (“[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a

curative amendment, unless an amendment would be inequitable or futile.”).

                                             IV.

       We realize that Wadhwa has had a long and difficult history with the PVAMC.3

However, the District Court offered Wadhwa many opportunities to fairly present his


3
 This is not Wadhwa‟s first suit against the Secretary and the Department of Veterans
Affairs. In 2007, Wadhwa filed four civil actions in the United States District Court for
                                            11
claims and properly concluded that they are without merit. For the above reasons, as well

as those set forth by the District Court, we will affirm the District Court‟s orders granting

the Secretary‟s motions to dismiss and dismissing Wadhwa‟s final amended complaint

with prejudice. The Secretary has filed a motion for leave to file a supplemental

appendix, which we grant because the supplemental appendix contains only the

documents that were before the District Court that are relevant to this appeal.

Furthermore, we deny Wadhwa‟s motion to supplement his pro se appendix and request

for temporary medical leave, which is also construed as a motion to expand the record.4




the Eastern District of Pennsylvania against the Secretary. Two of these were appeals
from final agency decisions of the VA regarding equal employment opportunity
complaints. (See E.D. Pa. Civ. Nos. 07-2677 & 07-3301.) His third alleged unfair labor
practices under 5 U.S.C. § 7116(a)(1) & (a)(4). (See E.D. Pa. Civ. No. 07-2997.) His
fourth alleged a violation of 42 U.S.C. § 1981 and false arrest. The District Court
consolidated these four actions into a single proceeding over Wadhwa‟s objections and
granted the defendants‟ motion to dismiss. (See E.D. Pa. Civ. No. 07-3301.) This Court
affirmed that dismissal in 2010. See Wadhwa v. Sec‟y, Dep‟t of Veterans Affairs, No.
10-2270, 396 F. App‟x 881 (3d Cir. Oct. 7, 2010). Wadhwa also filed a complaint
alleging a violation of the Federal Tort Claims Act. (See E.D. Pa. 2:09-cv-02602). The
District Court dismissed the complaint without prejudice, and this Court affirmed the
District Court‟s judgment in 2010. See Wadhwa v. Nicholson, No. 09-3555, 367 F.
App‟x 322 (3d Cir. Feb. 16, 2010). Wadhwa also has a Freedom of Information Act
(“FOIA”)/Privacy Act action still pending in the United States District Court for the
District of New Jersey (D.N.J. Civ. No. 06-04362), which has resulted in two appeals to
this Court. (See Wadhwa v. Dep‟t of Veterans Affairs, No. 11-1781, 446 F. App‟x 516
(3d Cir. Sept. 29, 2011); Wadhwa v. Dep‟t of Veterans Affairs, No. 09-1835, 342 F.
App‟x 860 (3d Cir. Aug. 26, 2009).)
4
  Wadhwa‟s motion is properly characterized as a motion to expand the record because he
seeks to introduce a copy of an order entered on August 28, 2012 denying the
Department‟s motion for summary judgment in Wadhwa v. Dep‟t of Veterans Affairs,
D.N.J. Civ. No. 1:06-cv-04362. Because this order has no relevance to the instant appeal,
we deny Wadhwa‟s motion.
                                             12
