                                                       NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ___________

                            No. 12-3820
                            ___________

WILLIAM GREER; CARL RIVERS; MARILYN LENNOX; ROY MONTFORD;
      KEVIN ALDRIDGE; SUSAN BYRD; ELIZAH WARREN, JR.

                                  v.

                    *MONDELEZ GLOBAL, INC.

            Carl Rivers, Marilyn Lennox, Elizah Warren, Jr.,
                                                           Appellants

             *(Amended Per Clerk’s Order of 11/09/2012)
                   _______________________

            On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                D.C. Civil Action No. 2-09-cv-05936
                    (Honorable Legrome D. Davis)
                          ______________

            Submitted Pursuant to Third Circuit LAR 34.1(a)
                           January 9, 2014

       Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

                       (Filed: October 22, 2014)

                         _________________

                     OPINION OF THE COURT
                        _________________




                                  1
SCIRICA, Circuit Judge.

       Plaintiff Marilyn Lennox brought suit against Kraft Foods Global, Inc., asserting

claims of employment discrimination and retaliation in violation of 42 U.S.C. § 1981 and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d and 2000e (hereinafter

“Title VII”), together with a claim for a violation of the Pennsylvania Wage Payment and

Collection Law, 43 Pa. Cons. Stat. § 260.1, for withholding wages from her. The District

Court, in a thorough opinion, granted Kraft’s motion for summary judgment on all

counts, holding that Lennox’s allegations did not constitute an actionable discrimination

claim under Title VII. The court also dismissed her unpaid wages claim for lack of

evidence. Lennox filed a timely notice of appeal and seeks relief on all counts. We will

affirm.1

                                            I.

       Plaintiff Marilyn Lennox worked as a Distribution Center Supervisor at Kraft’s

Philadelphia bakery from September 2008 until November 2009. Lennox, an African-

American woman, alleges she was subjected to a series of racially and sexually

discriminatory actions and retaliation by her coworkers during her time at Kraft. To

support her claim of discrimination, she testified to comments and acts made by her

colleagues over the course of five months that she contends constitute discrimination and

retaliation.2


1
  The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
  Most of these acts and comments came from co-workers Chu and Ozias: that she
probably voted for Obama; that a hip-hop magazine must be hers; that she probably lived
                                            2
       Lennox reports that these incidents began in November 2008, but articulates no

race based incidents after January 2009 and no incidents of any kind after March 2009.

She reports complaining to her supervisors about these incidents in February and March

2009. In October 2009, Kraft approached Lennox to revisit her individual development

plan and to discuss an opportunity for promotion to front line production coach, a

position two grade levels higher than the position she held at the time. Despite the

opportunity for advancement described by Kraft, Lennox submitted a letter of resignation

on October 26, 2009, and worked for two more weeks until her employment ended in

November 2009.

                                             II.

       Lennox argues on appeal that the District Court erred in granting summary

judgment3 to Kraft because (1) there were genuine issues of material fact concerning


in a rough area; that she probably listened to rap and R&B; that the reason she did not
have a boyfriend was because she was hardheaded; a question as to where she lived since
she is a young woman; a question as to whether she was wearing her pajamas at work; a
reference to her as being “prissy” and “Miss Princess”; a colleague pressuring her to
swap vacation times; her trainer responding harshly when she asked how to perform
some tasks; a colleague making a racially offensive joke in her presence (although not
toward her); a colleague telling Lennox that a fellow employee did not like her; a
colleague asking her to write up an employee for a violation that Lennox did not believe
the employee had committed; a pornographic magazine being left out on a piece of
machinery in the factory; and a sexually suggestive image being posted on the
refrigerator in the break room.
3
  We exercise plenary review over an order granting a defendant’s motion for summary
judgment. Miller v. Eichelay Eng’rs, 886 F.2d 30, 35 (3d Cir. 1989). A court may grant
summary judgment where the moving party shows that “there is no genuine issue of
material fact and the movant is entitled to summary judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In opposing a motion for summary judgment, the nonmovant may not rely
on his pleadings alone, but must produce evidence that demonstrates a genuine issue of
fact for trial. Fed. R. Civ. P. 56(c) & (e). If the record, taken as a whole, could not lead a
                                              3
whether she suffered an adverse employment action and thus demonstrated a prima facie

case of discrimination; (2) she proved the elements of a retaliation claim under Title VII;

and (3) there were genuine issues of material fact as to whether Kraft withheld wages

from her.

                                              A.

       Discrimination claims under Title VII, as well as § 1981,4 are governed by a

burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff has the initial burden

of proving by a preponderance of the evidence a prima facie case of discrimination. Id. at

802. If the plaintiff succeeds, then the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the action. Id. If the defendant articulates such a

reason, then the plaintiff has the opportunity to prove by a preponderance of the evidence

that the reasons offered by the defendant were a pretext for discrimination. Id.

       To prove a prima facie case of discrimination, a plaintiff must produce evidence

that (1) she is a member of a protected class; (2) she was qualified for the position that

she sought to attain or retain; (3) she suffered an adverse employment action; and (4) the

action occurred under circumstances that could give rise to an inference of


rational trier of fact to find for the nonmovant, there is no genuine issue for trial, and
summary judgment must be granted in favor of the movant. Matsushita Elec. Indus. Co.,
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
4
  Because the substantive elements of an employment discrimination claim brought under
§ 1981 are identical to those brought under Title VII, § 1981 claims are also governed by
the McDonnell Douglas burden-shifting framework. Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 267 (3d Cir. 2010); see also Brown v. J. Kaz, Inc., 581 F.3d 175, 181–82
(3d Cir. 2009).
                                              4
discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–12 (3d Cir. 1999). Kraft

does not contest the first or second element, but contends that Lennox did not suffer any

adverse employment action and thus cannot establish a prima facie case of

discrimination.5

       An adverse employment action can generally be demonstrated by a hiring, firing,

failure 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,

749 (1998). Alternatively, a plaintiff may prove an adverse employment action by

proving that he or she was subjected to a hostile work environment. Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 66–67 (1986); see also Cardenas v. Massey, 269 F.3d 251,

260 (3d Cir. 2001) (holding that a hostile work environment is a basis for various

discrimination claims, including § 1981 claims). Lennox contends she suffered an

adverse employment action in the form of a hostile work environment.

       To demonstrate a hostile work environment, a plaintiff must show (1) she suffered

intentional discrimination because of her sex or race; (2) the discrimination was pervasive

and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the

discrimination would detrimentally affect a reasonable person of the same sex in that

position; and (5) respondeat superior liability exists. Andrews v. City of Phila., 895 F.2d

1469, 1482 (3d Cir. 1990).



5
 Because we find Lennox failed to demonstrate an adverse employment action, we need
not address the fourth element, which deals with whether a discriminatory inference can
be drawn from such an action.
                                              5
       The threshold for pervasiveness and regularity of discriminatory conduct is high.

A hostile work environment is actionable under Title VII only if it is so severe and

pervasive that it “alters the conditions of the victim’s employment” and creates an

“abusive working environment.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270

(2001). The environment must be objectively hostile, not just hostile in the plaintiff’s

view. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Whether an environment is

sufficiently hostile or abusive is determined by considering the totality of the

circumstances, including the “frequency of the conduct; its severity, and whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Breeden, 532 U.S. at

271 (quotation marks and internal citations omitted).

       Lennox’s claim fails because the conduct she alleges does not rise to the level of

severity necessary to prove a hostile work environment. Discriminatory behavior must be

sufficiently severe to establish a hostile work environment. Simple teasing, offhand

comments, and isolated incidents do not amount to “discriminatory changes in the terms

and conditions of employment.” Id. (quoting Faragher v. Boca Raton, 524 U.S. 775, 786

(1998)). “Mere offensive utterances” are insufficient to create a hostile environment,

even if they engender offensive feelings in an employee. Id.; see Caver v. City of

Trenton, 420 F.3d 243, 262 (3d Cir. 2005). In Weston v. Pennsylvania, we found that a

plaintiff’s allegation that he was subjected to a series of offensive “comments, jokes and

jibes” was insufficient to state a Title VII claim, absent a change in a “term, condition or

privilege” in his employment. 251 F.3d 420, 427–28 (3d Cir. 2001), abrogated on other

                                              6
grounds as recognized by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006). Lennox’s claims do not constitute a hostile work environment because her

colleague’s alleged statements, while unprofessional, are “mere offensive utterances”

rather than severe, threatening, or humiliating conduct. Breeden, 532 U.S. at 271. Lennox

does not show how the alleged statements that suggest racial animus are objectively

hostile acts that altered the “terms and conditions” of her employment. Id. at 270. She

also fails to show how the comments support her claim that her workplace was

“permeated with discriminatory intimidation, ridicule, and insult.” Harris, 510 U.S. at 21

(quoting Meritor, 477 U.S. at 67). Taken together, these comments are not the type of

severe and pervasive conduct necessary to constitute a hostile work environment. The

alleged acts, although unprofessional, similarly do not constitute an “objective change in

the conditions” of her employment. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205

(3d Cir. 2001) (quoting Faragher, 524 U.S. at 787). Considering all of Lennox’s

allegations together, they do not give rise to a triable issue of fact concerning whether

Lennox was subjected to a hostile work environment.

       Moreover, Lennox cannot establish respondeat superior liability by Kraft. For

respondeat superior liability to exist, a plaintiff must “demonstrate that the employer

failed to provide a reasonable avenue for complaint, or, if the employer was aware of the

alleged harassment, that it failed to take appropriate action.” Weston, 251 F.3d at 427. An

employer’s investigation into a harassment complaint need not be perfect to satisfy this

standard. Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997). Instead, whether an



                                              7
employer’s response is adequate turns on “whether the action was reasonably calculated

to prevent further harassment.” Id.


       The only concrete instance in which Lennox reported a racial incident to Kraft

occurred in a February 2009 email.6 In response to Lennox’s email, Kraft met with the

employees involved in the alleged incident and ordered them to stop making the

comments. Lennox cannot point to any specific racial incident that she reported or

articulate the occurrence of any concrete event after Kraft’s meeting with the employees.

Accordingly, no respondeat superior liability exists, as Kraft’s response addressed

Lennox’s concerns and was “reasonably calculated to prevent further harassment.” See

id.


       Finally, Lennox fails to show that her colleagues’ behavior created a hostile work

environment by unreasonably interfering with her employment. Discriminatory behavior

may also contribute to a hostile work environment if it produces a “constructive alteration

in the terms or conditions of employment” in the form of severe or pervasive

discrimination. Burlington Indus., Inc., 524 U.S. at 752. Lennox fails to demonstrate any

such constructive alteration. She stayed at Kraft for eight months following the final

recorded incident of discriminatory behavior, until she voluntarily resigned.7 During this


6
  Although Kraft supplied an independent Helpline on which to report complaints,
Lennox never used the line to report any of her concerns.
7
  Lennox also contends that she was constructively discharged from Kraft, and that this
discharge constitutes an adverse employment action. To make out a constructive
discharge claim, a plaintiff must show greater severity or pervasiveness than the
minimum required to prove a hostile working environment. Spencer v. Wal-Mart Stores,
                                             8
time, Lennox did not complain to her supervisors about any incidents of discriminatory

conduct.

       Considering the totality of the circumstances, the conduct Lennox alleges does not

rise to the level of severity, pervasiveness, and regularity required for a hostile work

environment claim. Accordingly, we find the District Court correctly granted summary

judgment on Lennox’s claim of discrimination under 42 U.S.C. § 1981 and Title VII.

                                             B.

       Lennox’s second claim is that the court erred in granting summary judgment to

Kraft on her retaliation claim. Under Title VII, it is unlawful “for any employer to

discriminate against any of his employees . . . because [the employee] has opposed any

practice made an unlawful employment practice by [Title VII], or because [the employee]

has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” Breeden, 532 U.S. at 269.

       To make out a prima facie case of retaliation, “a plaintiff must show that: (1) the

employee engaged in a protected employee activity; (2) the employer took an adverse

employment action after or contemporaneous with the employee’s protected activity; and

(3) a causal link exists between the employee’s protected activity and the employer’s

adverse action.” Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir.


Inc., 469 F.3d 311, 317 n. 4 (3d Cir. 2006) (quoting Landsgraf v. USI Film Prods., 968
F.2d 427, 430 (5th Cir. 1992), aff’d, 511 U.S. 244 (1994)). Because Lennox failed to
establish conduct sufficient to establish a hostile work environment, her constructive
discharge claim fails. Further, Lennox continued to work at Kraft for eight months past
the last reported discriminatory incident, which undermines her argument that she had no
choice but to resign in light of the discriminatory acts.
                                              9
1999). The anti-retaliation provision of Title VII covers only those employer actions that

are “materially adverse to a reasonable employee or job applicant” and would “dissuade a

reasonable worker from making or supporting a charge of discrimination.” Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

       Lennox’s retaliation claim fails because she does not provide evidence of any

retaliatory acts that occurred following her complaint to her supervisors in February

2009. She alleges only that her supervisors failed to respond to her complaints and that

her colleagues’ behavior did not improve. On the evidence presented, this is not enough

to support a claim of retaliation. Accordingly, we agree with the District Court that

Lennox fails to demonstrate retaliation.8

                                             C.

       Finally, Lennox challenges the court’s grant of summary judgment on the unpaid

wages claim. Lennox alleges Kraft failed to pay her for the last week that she worked, but

she fails to provide any evidence that she was not paid. And Kraft has produced evidence

that she was paid. On a motion for summary judgment, the nonmovant must produce

evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56(c) & (e).

Lennox has failed to meet her burden. Accordingly, we will affirm the District Court’s

grant of summary judgment in Kraft’s favor.


8
  Lennox argues on appeal that her supervisor retaliated in the form of an offer to transfer
into another department. Because she does not raise this issue until the appellant’s reply
brief, neither Kraft nor the District Court had the opportunity to consider it. “We
generally refuse to consider issues that the parties have not raised below.” Freeman v.
Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 2013). Accordingly, we decline
to address it.
                                             10
                                          III.

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

summary judgment to Kraft.




                                           11
