                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 09-2873




                   HOWARD LEBOFSKY,
                                Appellant
                          v.

                  CITY OF PHILADELPHIA




         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                    (D.C. No. 2-06-cv-05106)
           District Judge: Honorable J. William Ditter




           Submitted Under Third Circuit LAR 34.1(a)
                      September 13, 2010

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                  (Filed: September 17, 2010 )


                           OPINION
SLOVITER, Circuit Judge.

       Appellant Howard Lebofsky, an attorney who was formerly employed in the Law

Department of the City of Philadelphia, appeals from the District Court’s grant of

summary judgment for defendant City of Philadelphia (“City” or “Law Department”).

After he accepted a higher-paying job with a private law firm, Lebofsky filed a complaint

against the City alleging age discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and race discrimination and

retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as

amended, 42 U.S.C. §§ 2000e, et. seq. We will affirm.

                                              I.

       Lebofsky was hired in 1996 at age forty-six as a deputy city solicitor in the special

litigation unit, where he focused on defending the City in discrimination and retaliation

actions. Within four years he was named the acting chief deputy of the unit.

       In February 2000, the mayor appointed Kenneth Trujillo as the new city solicitor.

Trujillo merged the labor and employment functions of the special litigation unit into one

new department. Lebofsky’s position as acting chief deputy solicitor was terminated and

a new supervisory position, labor and employment chief deputy solicitor, was created.

Despite Lebofsky’s professed interest in that position, Trujillo selected Peter Winebrake,

a thirty-four-year-old white male, from outside the Law Department. Lebofsky was then

fifty years old.



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       According to Lebofsky, soon after Winebrake was appointed as chief deputy,

Winebrake told him that he “wanted to bring on board new, young attorneys to staff the

unit.” App. at B-689. Lebofsky warned Winebrake that such a comment could be

construed as evidence of an intent to engage in illegal age discrimination and could “get

the City . . . into trouble here.” App. at B-690. Lebofsky then complained of

Winebrake’s “new, young attorneys” statement to William Thompson, the chief of

litigation. A few days after Lebofsky’s complaint, Winebrake instructed Lebofsky “to get

[his] clients on the phone right now and tell them [he] won’t be practicing employment

law anymore.” App. at B-693. Lebofsky reported the incident to Thompson. Lebofsky

also contends that Winebrake then instructed members of the labor and employment unit

not to speak with him.

       Donna Mouzayck, the person responsible for investigating discrimination

complaints within the Law Department, overheard one of the conversations between

Thompson and Lebofsky. Mouzayck spoke to Winebrake about his “new, young

attorneys” comment and was satisfied that “there was [not] age discrimination going on

here at all.” App. at B-838. Mouzayck also recalled speaking with at least two other

employees about the incident.

       Lebofsky was then assigned to a new position, senior attorney functioning as

special counsel on litigation matters, which Trujillo characterized as one with “some level

of prestige,” App. at B-1227, and one “where [Lebofsky] could be successful,” App. at B-



                                             3
1229. Lebofsky, by contrast, characterized it as “a dead-end position” and a demotion.

Appellant’s Br. at 16. His first assignment in this new position was to assist Trujillo in

developing a new, affirmative litigation unit. Lebofsky was not assigned to lead this new

unit, but instead Trujillo selected Shelley Smith, a thirty-five-year-old African-American

woman.

       A few months later, in February 2001, Lebofsky advised Mouzayck that he was

leaving the Law Department for private practice. Mouzayck proposed a “special

portfolio” of high profile matters that Lebofsky could handle in an apparent effort to

convince him to stay. App. at B-834. Lebofsky met with Trujillo and Mouzayck and

stated that he would stay if the City conducted an investigation into Winebrake’s alleged

age discrimination and gave him the title of chief deputy. Neither request was granted.

       A week later, Lebofsky submitted a resignation memorandum. It set forth no

conditions on which he would withdraw his resignation; it did not say that he was leaving

because “there was a refusal to do an investigation,” App. at B-780, nor did it allege

discrimination. Lebofsky thereafter accepted a position at a local law firm, which paid

him twenty percent more than he earned at the Law Department.

       On September 28, 2001, Lebofsky filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) alleging unlawful race and age

discrimination and retaliation. Lebofsky thereafter filed a complaint in the District Court

alleging, inter alia, claims under the ADEA and Title VII. The District Court granted



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summary judgment for the City, concluding that “no reasonable finder of fact could

conclude that Lebofsky was subjected to a hostile work environment, constructively

discharged, or retaliated against . . . .” Lebofsky v. City of Phila., No. 06-cv-5106, 2009

WL 1507581, at *21 (E.D. Pa. May 29, 2009).

       Lebofsky appealed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We review its order

under 28 U.S.C. § 1291. Our review is plenary and we apply the same standard as the

District Court. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010).1

                                             III.

       A. Lebofsky’s Retaliation and Discriminatory Treatment Claims

       To establish a prima facie retaliation claim under Title VII, the plaintiff must

demonstrate that (1) he engaged in protected activity; (2) after or contemporaneous with

that protected activity, he was subject to a materially adverse employment action 2 ; and (3)


                    1
                       Summary judgment will be granted “if the pleadings, the
            discovery and disclosure materials on file, and any affidavits show
            that there is no genuine issue as to any material fact and that the
            movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
            56(c)(2). “The evidence of the non-movant is to be believed, and
            all justifiable inferences are to be drawn in his favor.” Anderson
            v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
                    2
                     In considering the second element of a prima facie case,
            the inquiry is whether the alleged retaliation “well might have
            dissuaded a reasonable worker from making or supporting a charge
            of discrimination.” Moore v. City of Phila., 461 F.3d 331, 341 (3d

                                              5
a causal connection existed between the protected activity and the adverse employment

action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007).

       In its memorandum of law supporting summary judgment, the City acknowledged

“[Lebofsky’s] allegation that he complained” and assumed that he could “establish the

first element of his retaliation claim.” App. at B-328 n.7. We therefore accept arguendo

that Lebofsky’s complaints constituted protected activity.

       Even so, Lebofsky’s claim of retaliation fails because the City took no adverse

employment action against him within 300 days of his EEOC charge.3 To pursue an

employment discrimination claim under Title VII or the ADEA, an employee must first

file a charge with the EEOC within 300 days of an adverse employment action or of

notification to the employee of such an action. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. §

626(d)(1)(B).4 Lebofsky filed his charge of discrimination with the EEOC on September

28, 2001. Therefore, to meet the statute of limitations requirement, Lebofsky must show

that at least one adverse employment action occurred after December 2, 2000 – 300 days

earlier.


            Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
            U.S. 53, 68 (2006)).
                   3
                      For this reason, in addition to the other reasons cited by
            the District Court, Lebofsky’s claims of age discrimination under
            the ADEA, race discrimination under Title VII, and a hostile work
            environment also fail.
                   4
                       The parties agree that 300 days is the applicable
            limitations period in this case.

                                             6
       As the District Court noted, no such action occurred within 300 days of his EEOC

charge. Lebofsky contends that his EEOC charge was not untimely “[u]nder the federal

discovery rule,” Appellant’s Br. at 34, because he did not know he was demoted until

“after several weeks in the position,” Appellant’s Br. at 33. That post hoc

characterization, however, belies Lebofsky’s testimony that he viewed the position as “a

demotion” as early as November 30, 2000, App. at B-703, and that he “kn[e]w [he] had to

get out” of the Law Department “and that’s what [he] tried to do,” App. at B-708. He

“start[ed] looking for another position . . . [a]lmost immediately after” Shelley Smith was

promoted. App. at B-709. Indeed, within days of the announcement of her promotion,

Lebofsky applied for new employment elsewhere.

       The only allegedly adverse employment action Lebofsky identifies as occurring

within the limitations period was during a meeting just prior to his resignation. There,

according to Lebofsky, Trujillo “made it absolutely clear that” no investigation would

ensue. App. at 780. Lebofsky had “never seen [Trujillo] so angry.” App. at 780. The

District Court correctly noted that “Mouzayck had already investigated.” Lebofsky, 2009

WL 1507581, at *12. Indeed, she spoke with several employees, including Winebrake,

and was satisfied that no unlawful discrimination had occurred. The evidence that

Trujillo was aware of this fact is uncontroverted.

       Lebofsky next asserts that we should disregard the 300-day time bar because,

“[u]nder the continuing violation theory, a plaintiff may pursue a claim for discriminatory



                                             7
or retaliatory conduct that began prior to the filing period if he can demonstrate that act is

part of an ongoing practice o[r] pattern of discrimination . . . .” Appellant’s Br. at 35

(citing West v. Phila. Elec. Co., 45 F.3d 744 (3d Cir. 1995)). Although we have found

that a filing requirement may be tolled in the context of a Title VII hostile work

environment claim, see West, 45 F.3d at 754, we have only done so when at least one

adverse employment action occurred within the filing period. This is not such a case, as

the District Court correctly concluded.

       B. Lebofsky’s Constructive Discharge Claim

       Lebofsky contends that he suffered constructive discharge due to “a persistent

pattern of discriminatory and retaliatory treatment.” Appellant’s Br. at 39. To find

constructive discharge, a court “need merely find that the employer knowingly permitted

conditions of discrimination in employment so intolerable that a reasonable person

subject to them would resign.” Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.

1984). In Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993), we

identified several factors that may be indicative of constructive discharge: (1) threat of

discharge; (2) suggesting or encouraging resignation; (3) a demotion or reduction of pay

or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job

responsibilities; and (6) unsatisfactory job evaluations. Id.

       Turning to these factors, Lebofsky testified that the Law Department threatened

him with discharge when he sought out work in his role as senior attorney and Mouzayck



                                               8
told him to “find work to do or . . . be fired.” App. at B-714. However, when Lebofsky

told Mouzayck that he was leaving the Law Department for private practice, Mouzayck

tried to convince him to stay. She proposed a “special portfolio” of matters for him to

handle. App. at B-834. There is no basis for a determination that his resignation was

suggested or encouraged by the Law Department.

       Lebofsky asserts that his transfer to the position of senior attorney was a “de facto

demotion,” Appellant’s Br. at 32, because he was “assigned work that was not desirable

and was much less significant than what [he] had been doing previously; [he] was being

given little to no work to do the majority of the time; and, [he] was denied a secure place

in the organization structure.” App. at B-344. He complains he was moved into a less

desirable office, lost an assigned secretary, and his name was omitted from settlement

documents.

       The District Court correctly concluded that “no reasonable finder of fact asked to

consider the litany of real or perceived slights suffered by Lebofsky, alone or collectively,

could conclude that he suffered under conditions that could be objectively described as

being so intolerable that he had no [re]course but to quit.” 5 Lebofsky, 2009 WL 1507581,

at *21 (citing Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir. 1992)).




                    5
                       Our conclusion is buttressed by the facts that Lebofsky
             remained in his supposedly “intolerable” position for several
             months without complaint and that he was willing to reconsider his
             resignation if he were given the title of chief deputy.

                                              9
Accordingly, summary judgment was properly entered against Lebofsky on his

constructive discharge claim.

                                           IV.

      For the above stated reasons, we will affirm the District Court’s order granting

summary judgment in favor of the City.




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