                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 13-4282
                                    ______________

                                  LARRY THOMAS,
                                          Appellant

                                            v.

                              CITY OF PHILADELPHIA
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. No. 2-12-cv-03250)
                      District Judge: Hon. Berle M. Schiller
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 8, 2014
                                  ______________

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

                                  (Filed: July 15, 2014)
                                    ______________

                                       OPINION
                                    ______________

SHWARTZ, Circuit Judge.

      Larry Thomas filed suit against the City of Philadelphia (the “City”), his former

employer, claiming that he was the victim of racial discrimination. The District Court

granted summary judgment in favor of the City. We will affirm.
                                             I

       Larry Thomas, an African-American, was employed by the Philadelphia Water

Department (“PWD”) for nearly twelve years before his retirement on June 10, 2010.

When he retired, Thomas was a Water Distribution Repair Worker in the “Shut-Off

Unit,” which required that he visit customers who had not paid their water bills and either

collect their payments or shut off their water service. App. 69. After he finished visiting

the delinquent customers, Thomas was on call to restore water service to customers who

paid their bills. Thomas often waited for these restoration calls in his City-owned car

parked in front of his home, which he believed his supervisor authorized.

       On April 9, 2010, the City’s Office of the Inspector General, which investigates

allegations of employee misconduct, received a confidential complaint that Thomas

       comes home during the day in his PWD [C]ity vehicle and parks on his
       block and leaves it running for several hours. Thomas does personal
       errands, including going to the supermarket and picking up junk from the
       street and taking it to the salvage yard in his personal vehicle, while his
       [C]ity vehicle is parked on his block running for several hours at a time.

App. 156. The complaint specifically listed incidents on April 5, 2010, when Thomas left

his car running for four hours, and April 6, 2010, when he left the car running for two

hours while he was elsewhere. The Office of the Inspector General forwarded the

complaint to the PWD human resources department, where Human Resources Manager

Francis X. Meiers forwarded it to Ivor Griffiths, a Human Resources associate. Griffiths

investigated the complaint by driving to Thomas’s home where, on May 27, 2010, he and

a co-worker observed Thomas sitting in his City-owned vehicle for thirty minutes to an

hour. Griffiths contacted Thomas’s supervisor, Ralph Allen, who in turn called Thomas

                                             2
and asked where he was. Thomas falsely told Allen he was in a neighborhood other than

his own. Allen then summoned Thomas back to his union headquarters and suspended

him pending a pre-disciplinary hearing.

       On May 28, 2010, PWD sent Thomas a notice that a pre-disciplinary hearing

would be scheduled to investigate the allegations that Thomas was at home when he was

supposed to be working, and warned that “severe disciplinary action” could be taken.

App. 208. The letter also explained that Thomas had the right to the assistance of a union

representative during the hearing and would be entitled to appeal any discipline in excess

of a ten-day suspension to the Civil Service Commission. On June 9, 2010, Thomas

received notice that the hearing had been scheduled for the following morning and that

his union representative would be present. Griffiths was to conduct the hearing and

Meiers was to act as the hearing officer. As the hearing officer, Meiers was to hear the

evidence and make a recommendation to the PWD commissioner concerning what, if

any, disciplinary action to take. Before the hearing began, Meiers and Griffiths spoke

with Jeff Gilliam, Thomas’s union representative. Thomas was not provided a copy of

the complaint, but Meiers told Gilliam that PWD considered the evidence against

Thomas “very strong,” and Griffiths said that PWD would permit Thomas to retire rather

than proceed with the hearing and risk being fired. App. 31. Thomas told Gilliam he

would retire, no hearing was held, and Thomas’s retirement took effect on June 10, 2010.

Thomas later changed his mind about retirement and contacted his union, but received no

response. On September 29, 2010, he filed an appeal with the Civil Service Commission,

which was dismissed as untimely. He later filed a complaint with the Pennsylvania

                                            3
Human Relations Commission and the U.S. Equal Employment Opportunity Commission

(“EEOC”); the EEOC investigated but closed its file on October 27, 2011, because it was

unable to conclude that there had been a violation of the antidiscrimination statutes.

       Thomas filed the Complaint in the United States District Court for the Eastern

District of Pennsylvania, alleging violations of 42 U.S.C. § 1981 and the Pennsylvania

Human Rights Act (“PHRA”), 43 Pa. Stat. Ann. § 955. The City moved to dismiss the

§ 1981 claim based on this Court’s holding in McGovern v. City of Phila., 554 F.3d 114

(3d Cir. 2009), that § 1983 is the exclusive remedy for claims against state actors for

violations of rights guaranteed in § 1981. The District Court denied the motion and held

that because the Complaint referred to § 1983, Thomas had stated a viable claim under

that statute. After discovery, the City moved for summary judgment on all claims, which

the District Court granted. Thomas now appeals.

                                            II1

       We apply the burden-shifting framework explained in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), to Thomas’s § 19832 and PHRA discrimination claims.

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 & n.1 (1993) (assuming that


       1
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. This Court’s “review of the grant or denial of summary
judgment is plenary . . . .” Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418
(3d Cir. 2013). Summary judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We apply the same standard the District Court applied, viewing facts and
making reasonable inferences in the non-moving party’s favor. Hugh v. Butler Cnty.
Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005).
       2
         It appears that the District Court treated the Complaint as adequately alleging an
Equal Protection claim.
                                             4
McDonnell Douglas applies to § 1983 claims and setting forth the elements for a prima

facie case under Title VII); Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431-32

(3d Cir. 1997) (applying McDonnell Douglas to an Equal Protection claim arising from

alleged employment discrimination); Gomez v. Allegheny Health Servs., Inc., 71 F.3d

1079, 1084 (3d Cir. 1995) (holding that the PHRA “is construed consistently with

interpretations of Title VII” and applying McDonnell Douglas). At the first step, Thomas

must establish a prima facie case of discrimination, meaning he must show that: (1) he is

a member of a protected class; (2) he satisfactorily performed his required duties; (3) he

suffered an adverse employment action; and (4) the adverse employment action occurred

“under circumstances that raise an inference of discriminatory action . . . .” Sarullo v.

U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).

       The District Court found that Thomas did not adduce facts showing that he

suffered an adverse employment action or that raise an inference of discrimination.

Because we agree with the District Court that Thomas has failed to carry his initial

burden on the fourth element, we will assume that Thomas experienced an adverse

employment action and affirm without reaching that issue.

       Thomas alleges that two circumstances give rise to an inference of discrimination:

(1) the pre-disciplinary hearing was scheduled at “breathtaking” speed, whereas it took

approximately a year to terminate a white PWD employee (“Comparator One”); and (2)

Meiers treated him unfairly by prejudging the case and failing to consider punishment

less than termination, whereas Meiers merely demoted a white PWD employee



                                             5
(“Comparator Two”) who had been in an inappropriate location during work hours.

Appellant Br. 18-19.

       The undisputed facts do not support Thomas’s assertions that the circumstances

surrounding the pre-disciplinary hearing were discriminatory. While Thomas received

the letter setting the hearing date only one day beforehand, that letter indicated that

Thomas’s union representative had been involved in scheduling the hearing.

Additionally, Thomas testified in his deposition that it was his union representative,

rather than the City, who refused to show him the complaint against him. Finally,

contrary to Thomas’s assertions that Meiers had pre-judged his case, Meiers’s

uncontradicted testimony indicated that a range of disciplinary options was available and

that the purpose of the hearing was to permit Thomas to tell his side of the story before a

disciplinary recommendation was made.

       Moreover, Thomas’s reliance on the two comparators is misplaced. One way to

meet the fourth element of a prima facie case is to show “that the employer has treated

more favorably similarly situated persons not within the protected class.” Jones v. Sch.

Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999). Here, both alleged comparators

differed from Thomas. While one year elapsed between the first complaint against

Comparator One and his termination (in contrast to the two months between the

complaint against Thomas and his retirement), Comparator One was in fact terminated,

and therefore cannot be said to have been treated more favorably than Thomas, who was

permitted to retire. As to Comparator Two, he was not similarly situated because he was

only alleged to have been in an inappropriate location once at the end of a work day, in

                                              6
contrast to Thomas who was alleged to have been away from his workplace three times,

in the middle of the work day.3 Thus, Thomas has not met his “burden of demonstrating

that similarly situated persons were treated differently.” Simpson v. Kay Jewelers, 142

F.3d 639, 645 (3d Cir. 1998).

      We therefore agree with the District Court that there is nothing in the record that

supports an inference that Thomas’s race played a role in his separation from PWD.4

                                           III

      For the foregoing reasons, we will affirm.




      3
          Thomas initially claimed that there were five additional comparators who
received more lenient treatment for infractions, but four of them were in fact terminated
and PWD was unable to identify the remaining one.
        4
          Because Thomas has not shown that he was the victim of discrimination, we
need not address whether Meiers was a policymaker whose actions could subject the City
to liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and its progeny.
                                            7
