                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 10-2230
                                  ____________

                               SHIRLEY L. SMITH,
                                           Appellant

                                         v.

                    VIRGIN ISLANDS PORT AUTHORITY;
          VIRGIN ISLANDS PORT AUTHORITY GOVERNING BOARD;
            FORMER EXECUTIVE DIRECTOR GORDON A. FINCH,
                     individually and in his official capacity;
             ASSISTANT EXECUTIVE DIRECTOR DAVID MAPP,
                     individually and in his official capacity;
                   EXECUTIVE DIRECTOR DARLAN BRIN,
                      individually and in his official capacity
                                  ____________

                         On Appeal from the District Court
                     of the Virgin Islands – Appellate Division
                                Division of St. Thomas
                               (D.C. No. 3-02-cv-00227)
                     District Judge: Honorable Juan R. Sánchez
                                    ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 5, 2011

          Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

                              (Filed: January 9, 2012)
                                   ____________

                            OPINION OF THE COURT
                                 ____________

FISHER, Circuit Judge.
       This appeal arises from the District Court’s orders dismissing, on Federal Rule of

Civil Procedure 12(b)(6) and summary judgment grounds, a series of employment-related

claims raised by Shirley L. Smith. Since no substantial question is presented by Smith’s

appeal, we will summarily affirm.

                                             I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Smith was employed by the Virgin Islands Port Authority (“VIPA”) as its Public

Information Officer (“PIO”) from April 1999 until her resignation and departure in

January 2003. Smith was interviewed and recruited by Executive Director Gordon Finch.

She received an offer letter and standard employee handbook, which she was not asked

to, and did not, sign. Saddled with sub-par assistants, Smith often took on extra work,

which led to stress and related health problems, including loss of voice from a persistent

medical condition. She was granted leave under VIPA’s compensatory leave and

donated leave programs from November 2000 until April 2001, which she used to regain

her voice. She returned to work only briefly: an altercation with another employee led to

her suspension until August 21, 2001. Smith did not return to work after serving her

suspension, and was denied donated leave for the indefinite future, which she sought to

resolve her voice condition. In November 2001, she requested, and was granted, twelve


                                              2
weeks of leave under the Family and Medical Leave Act (“FMLA”), followed by another

twelve weeks for medical appointments. She did not return to work until June 3, 2002.

      VIPA offered Smith a number of accommodations upon her return, and she soon

regained the use of her voice. After Darlan Brin took over for Gordon Finch as

Executive Director in January 2003, VIPA instituted cost-cutting measures resulting in

restrictions on her use of a company vehicle and company-issued laptop. Smith alleged

that, after returning to work, many people accused her of lying about her illness. Smith

also levied sexual harassment allegations against two Board members, VIPA’s police

chief, and Brin. She was never promoted.

      Over the course of four complaints and ten years of litigation, Smith has asserted a

broad array of employment-related claims against VIPA.1 The District Court granted

VIPA’s motions to dismiss claims from Smith’s First Amended Complaint under Rule

12(b)(6) on January 2, 2005, and her remaining claims on summary judgment in its

orders of August 29, 2008 and March 31, 2010. Smith timely appeals.

                                            II.

      The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We

have jurisdiction pursuant to 28 U.S.C. § 1291.



      1
         We incorporate by reference the District Court’s more thorough recitation of the
procedural and factual history in this case, although we note, where relevant, the legal
basis of Smith’s claims.


                                            3
       We exercise plenary review over the dismissal of a complaint for failure to state a

claim. Jones v. ABN Amro Mortg. Grp., Inc., 606 F.3d 119, 123 (3d Cir. 2010). We

determine whether, accepting all factual allegations as true, the plaintiff may be entitled

to relief. Id. In reviewing a district court’s decision to grant a motion for summary

judgment, we apply the same standard as the district court. See Levy v. Sterling Holding

Co., 544 F.3d 493, 501 (3d Cir. 2008). Summary judgment is appropriate if, after

drawing all reasonable inferences in favor of the nonmoving party, “there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.”

Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009); see Fed. R. Civ. P. 56(c).

We may summarily affirm if no substantial question is presented by the appeal. See 3d

Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

                                             III.

       We consider only those arguments which Smith raises with more than a “passing

reference.” See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26

F.3d 375, 398 (3d Cir. 1994). We address Smith’s contentions of error chronologically,

beginning with the order of January 2, 2005, in which the District Court dismissed

several claims under Rule 12(b)(6).

       First, Smith’s arguments concerning the District Court’s disposition of her First

Amended Complaint, before considering her Second Amended Complaint, are baseless:

the claims she contends were erroneously dismissed were not dismissed at that juncture,


                                              4
but rather dismissed later on summary judgment. Thus, her Second Amended Complaint

was not needed to cure any deficiency, see Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.

2000), and consequently, neither the District Court’s decision to adopt the 2005 order in

considering her Second Amended Complaint, nor its subsequent denial of her motion to

reconsider, was prejudicial. See Brennan v. Norton, 350 F.3d 399, 416 (3d Cir. 2003).

       Second, the District Court did not err in dismissing her claim under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 121101-12213. The District Court

reasonably concluded that, as an “alter ego” of the Virgin Islands, cf. SIU de P.R., Caribe

Y Latinoamerica v. V.I. Port Auth., 42 F.3d 801, 803-804 (3d Cir. 1994), itself a

territorial extension of United States sovereignty, see, e.g., United States v. Hyde, 37 F.3d

116, 121 (3d Cir. 1994), VIPA was exempted from ADA liability because, under 42

U.S.C. § 12111(5)(B)(i), the United States is not a covered employer.2 Additionally, the

2008 ADA amendments which Smith argues require reversal, see 42 U.S.C. § 12103

(defining Virgin Islands as a “State” under the ADA), do not apply retroactively. See

Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994) (delineating factors for




       2
        Having determined that VIPA was not a covered employer, we do not address
whether VIPA would be immunized under the Eleventh Amendment.


                                             5
determining retroactivity); e.g., Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 34 n.3

(1st Cir. 2009) (holding 2008 ADA amendments non-retroactive).3

       Moving to the District Court’s dismissal of Smith’s Title VII claims on summary

judgment on August 29, 2008, we find that decision proper as well. First, the District

Court did not grant summary judgment prematurely, even though Smith had not yet taken

depositions of several VIPA employees. The Court relied on what Smith alleged to have

occurred, and so additional discovery would not have affected the summary judgment

decision. Second, any error in the District Court’s consideration of her Title VII

retaliation claim at this juncture, despite the alleged lack of notice, was harmless, because

that claim was premised on the same factual allegations as Smith’s other Title VII claims,

which the Court accepted as true. See In re Rockefeller Ctr. Props., Inc. Secs. Litig., 184

F.3d 280, 287 (3d Cir. 1999).

       Third, the District Court meticulously applied Title VII doctrine in dismissing

Smith’s claims. Smith has not indicated which “circumstantial evidence” the District

Court ignored in its mixed-motive theory analysis of her Title VII claims, see Desert

Palace, Inc. v. Costa, 539 U.S. 90, 98-99 (2003), and we detect none: the ninety-one

page opinion thoroughly considered all evidence that Smith submitted or alleged.

Further, Smith’s challenges to the District Court’s denial of her Title VII anti-retaliation

       3
        We will not address Smith’s clearly meritless contentions that the District Court
erred by filing the January 2, 2005 order on a Sunday, and by addressing this defect sua
sponte.


                                              6
claim continue to rely solely on a loose proximity in time to show causation between her

protected Title VII activities and the alleged adverse employment actions. Thus, we must

reach the same conclusion as the District Court: she has not substantiated a causal link

adequate to support this Title VII violation, see Jalil v. Avdel Corp., 873 F.2d 701, 708

(3d Cir. 1989), a failing which equally undermines her reliance on the continuous

violation doctrine. See West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995).4

       Smith also asserts that the District Court improperly “acted as a trier of fact” in

dismissing her constructive discharge claim. However, she challenges only one basis for

the decision, and we agree with the District Court’s alternative reasoning: her resignation

letter shows that “the alleged workplace hostility alone was not so unbearable as to cause

her to resign,” and that her resignation was in fact driven by disagreements over her role

as PIO. Thus, the alleged harassment did not rise to the required level of “something

more” than offensive behavior. See Pa. State Police v. Suders, 542 U.S. 129, 146-47

(2004).

       Smith’s evidentiary contentions are likewise unpersuasive. First, notwithstanding

the relevance of a former assistant’s allegations of harassment by Brin, Smith has not

challenged the District Court’s determination that these unproven claims in unsworn

       4
         Although Smith’s appeal only discusses her Title VII retaliation claim, we agree
with the District Court that the continuous violation doctrine did not apply to her hostile
work environment claims, since the record could not establish that Brin’s conduct was
part of “a continuous pattern of derogatory remarks, rude behavior, and discriminatory
conduct.” See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 482 (3d Cir. 1997).


                                              7
documents could not be used to oppose summary judgment. See Fowle v. C & C Cola,

868 F.2d 59, 67 (3d Cir. 1989). Additionally, the District Court had discretion under

Federal Rule of Evidence 403 not to admit evidence from Smith’s unemployment

benefits hearing, which it determined would only confuse the proceedings. See Coleman

v. Home Depot, Inc., 306 F.3d 1333, 1345 (3d Cir. 2002). Finally, we accord great

deference to the District Court’s order barring Smith from filing supplemental documents

without leave, after all briefing and discovery had been completed for the final summary

judgment ruling, and see no abuse of discretion given Smith’s continual disregard of

procedural rules. See Drippe v. Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010).5

       Moving last to the District Court’s 2010 summary judgment order, we find no

error. First, Smith submits that the Court erred in regarding VIPA’s statement of facts as

undisputed, because her verified complaint served as an affidavit for summary judgment

purposes. See Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985). However, a party

opposing a motion for summary judgment must cite to specific materials in the record

that demonstrate the existence of a disputed issue of material fact. Fed. R. Civ. P.

56(c)(1)(A). The District Court adhered to Rule 56 and local rule 56.1, finding that

Smith’s complaint failed to reference specific evidence in the record or any of her



       5
        Likewise, the District Court’s order barring Smith from directly contacting VIPA
employees did not prevent her from contacting VIPA’s lawyer first, or from deposing
witnesses she sought to depose, as is evident from the record.


                                             8
voluminous attachments. We, like the District Court, see no reason to excuse this

noncompliance. See McNeil v. United States, 508 U.S. 106, 113 (1993).

      Second, based on the undisputed facts, the District Court did not err in dismissing

Smith’s breach of contract or FMLA claims. There was no evidence that VIPA ever

entered into any employment contract with Smith or intended its employee handbook to

function as an agreement. See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 115 (3d

Cir. 2003). Moreover, her requests for FMLA leave were neither denied nor interfered

with. In fact, Smith was granted far more than the requisite twelve weeks of FMLA

leave, and therefore could not prevail on the grounds that VIPA denied or interfered with

her FMLA request. See Callison v. City of Philadelphia, 430 F.3d 117, 120 (3d Cir.

2005).6

                                           IV.

      In sum, Smith’s appeal presents no substantial question. Accordingly, we will

summarily affirm the judgment of the District Court.




      6
         Smith, in cursory fashion, also submits that the Virgin Islands Donated Leave
Act, V.I. Code Ann. tit. 3 §, 583, creates a private right of action. However, she has
identified no rights-creating language in the statute, and conceded as much before her
claim was dismissed on this basis. See Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3d
Cir. 2007). Her cursory appeal of her claim under the Rehabilitation Act, 29 U.S.C.
§ 794, is likewise unsupported.


                                            9
