                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                      No. 11-2606
                                    _______________

                                 SHEILA R. WARFIELD,
                                                  Appellant
                                             v.
                            SEPTA; LORRAINE MCKENZIE

                                    _______________

                     On Appeal from the United States District Court
                        For the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-10-cv-03023)
                       District Judge: Honorable Stewart Dalzell
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 23, 2012
                                  _______________

           Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

                            (Opinion filed: February 6, 2012)
                                   _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Plaintiff-appellant Sheila Warfield sued Defendants Southeastern Pennsylvania

Transportation Authority (“SEPTA”) and Lorraine McKenzie. She alleges race and sex

discrimination, as well as retaliation, under Title VII of the Civil Rights Act of 1964 (as
amended by the Civil Rights Act of 1991), 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981,

and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951, and violation of

her First and Fourteenth Amendment rights under 42 U.S.C. § 1983. The District Court

granted summary judgment to the Defendants, and Warfield appealed. We affirm. 1

                                 I.     BACKGROUND

       Because we write solely for the parties, we recite only the facts necessary to our

decision. Warfield is an African-American female who began working at SEPTA as an

Equal Employment Opportunity/Employee Relations Specialist in July 2007. She

primarily investigated internal allegations of discrimination and external complaints of

discrimination made to the Pennsylvania Human Relations Commission (“PHRC”) and

the federal Equal Employment Opportunity Commission.

       At the same time, SEPTA hired Thomas Comber, a white male, as an Employee

Relations Manager, a position that was a grade above Warfield’s. According to the

position description and his deposition testimony, he was responsible for handling

internal complaints between employees that did not involve allegations of discrimination,

retaliation or harassment, and for consulting on Performance Improvement Plans

(“PIPs”). He further testified that he only once handled an external complaint, and that

was at a time when the department was shorthanded.

       Both Warfield and Comber reported to McKenzie, an African-American female.

Soon after Warfield began her employment, McKenzie expressed concerns to Warfield


1
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
                                             2
about the latter’s ability to meet the demands of her position. McKenzie requested that

Warfield prepare daily logs of her work activities. Warfield complained to McKenzie

that the logs were unnecessary and time-consuming. With McKenzie’s approval,

Warfield stopped preparing them shortly before her first fiscal year evaluation, in which

McKenzie gave her an overall rating of “below expectations.” McKenzie placed

Warfield on a PIP for a period of 30 days. The PIP stated that if she failed to improve,

Warfield might be terminated.

       At the time she was placed on the PIP, Warfield informed McKenzie that she

believed McKenzie was treating her differently than Comber. Warfield also wrote a

formal response to the PIP, but did not mention that she believed that McKenzie was

treating her differently than Comber or that she was being discriminated against based on

her race or sex. Other than one discussion she had with McKenzie regarding a case she

was working on that was related to one of Comber’s cases, Warfield does not identify any

other instances when she complained to McKenzie about being treated differently than

Comber or being discriminated against based on her race or sex.

       McKenzie prepared two progress reports regarding Warfield’s PIP. These reports

concluded that Warfield was not meeting the demands of her position. In March 2009,

Warfield met with McKenzie as part of a mid-year performance evaluation, during which

McKenzie advised Warfield that her performance remained below expectations. On

April 13, 2009, McKenzie delivered to Warfield a notice of termination, which cited as

the reasons for her termination Warfield’s failure to perform her duties and to improve



                                             3
performance as outlined in the PIP. Warfield immediately was placed on suspension

pending imminent discharge.

       Two days later (April 15), Warfield submitted to McKenzie a written response in

which she stated that she had filed a complaint with the PHRC on Apri1 1. SEPTA

received service and copy of the complaint the next day, on April 16. Warfield officially

was terminated the next month.

       Warfield subsequently filed her action against SEPTA and McKenzie. In granting

the Defendants summary judgment, the District Court made three holdings that Warfield

contests on appeal. First, it determined that Comber was not “similarly situated” to

Warfield, and thus held that she had failed to establish a prima facie case of

discrimination based on her race or sex. Second, it held that Warfield had failed to show

that she had engaged in a “protected activity” prior to filing her PHRC complaint, or a

causal connection between the filing of the complaint and her official termination. It thus

held that she also had failed to establish a prima facie case of retaliation. Finally, the

Court ruled that Warfield had waived her claim of hostile work environment by raising it

for the first time in her response to the motion for summary judgment.

                                     II.    ANALYSIS

       We review a district court’s grant of summary judgment de novo. Ray v. Twp. of

Warren, 626 F.3d 170, 173 (3d Cir. 2010). Summary judgment is proper when, viewing

the evidence in the light most favorable to the non-moving party, there is no genuine

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

To defeat a motion for summary judgment, a non-moving party must present specific

                                              4
facts that demonstrate a genuine issue for trial. Meinhardt v. Unisys Corp. (In re Unisys

Sav. Plan Litig.), 74 F.3d 420, 433 (3d Cir. 1996). It may not “rest upon mere

allegations, general denials or . . . vague statements . . . .” Quiroga v. Hasbro, Inc., 934

F.2d 497, 500 (3d Cir. 1991), cert. denied, 112 S. Ct. 376 (1991).

Race and Sex Discrimination

       Warfield’s claims of race and sex discrimination are governed by the burden-

shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). 2 See Jones v. Sch. Dist. of Penn., 198 F.3d 403, 410 (3d Cir. 1999). In order to

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

member of a protected class; (2) she is qualified for the position; (3) she suffered an

adverse employment action; and (4) similarly situated persons who are not members of

her protected class were treated more favorably or that the circumstances of her

termination give rise to an inference of discrimination. Id. at 410-11. If a plaintiff

establishes a prima facie case of discrimination, the employer must offer a legitimate,

non-discriminatory reason for the adverse employment action. Id. at 410. If the

employer meets this burden, then the plaintiff must prove by a preponderance of the

evidence that the employer’s reason merely was a pretext for discrimination. Id.

       In their motion for summary judgment, SEPTA and McKenzie conceded that

Warfield had established the first three factors of a prima facie case of discrimination.


2
  Pennsylvania courts have interpreted the PHRA interchangeably with Title VII. See
Atkinson v. Lafayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006). The same analysis also
is used in § 1981 and § 1983 cases. See McKenna v. Pacific Rail Serv., 32 F.3d 820, 825
n.3 (3d Cir. 1994).
                                              5
The question, then, is whether she has introduced evidence that similarly situated persons

not of her protected class were treated more favorably or that the circumstances of her

termination give rise to an inference of discrimination.

       Warfield identifies Comber as her comparator, stating that they performed similar

duties and that he had performance issues similar to hers and was not disciplined.

Though “similarly situated” does not mean “identically situated,” a plaintiff must

demonstrate that she is similar to the alleged comparator in relevant respects. See

Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003). Warfield offers only her

own unsupported statements that Comber’s position did not differ from hers despite his

divergent title, grade level, stated responsibilities, and deposition testimony regarding his

duties. Indeed, during her deposition, Warfield acknowledged that she did not really

know what Comber’s position fully entailed. The District Court further noted that even if

Warfield and Comber had the same responsibilities, because Comber did not exhibit

performance problems similar to Warfield’s, they were not “similarly situated.”

       In addition to identifying “similarly situated” individuals, a plaintiff must

demonstrate that these individuals were treated more favorably. Simpson v. Kay

Jewelers, 142 F.3d 639, 646 (3d Cir. 1998). The focus of this determination is “on the

particular criteria or qualifications identified by the employer as the reason for the

adverse action.” Id. at 647. Warfield was given an unfavorable performance evaluation,

placed on a PIP, and ultimately terminated based on her alleged performance problems.

She again offers no evidence beyond her own unsupported assertions that Comber’s work



                                              6
product displayed the same deficiencies as alleged of her own. In this context, Comber

was not “similarly situated” to Warfield.

       Moreover, Warfield has not presented any other evidence that the circumstances of

her termination give rise to an inference of discrimination. She identifies examples of

disparate treatment outside her alleged performance issues, claiming that McKenzie

subjected her to excessive monitoring and scrutiny, as evidenced by McKenzie’s request

that Warfield prepare daily logs of her work activities, that McKenzie yelled at and

belittled her, and that McKenzie required her to wear business suits while allowing

Comber to dress more casually. These allegations do not imply discrimination. Warfield

thus has failed to offer evidence establishing a prima facie case of discrimination based

on her race and sex. 3

Retaliation

       We examine Warfield’s retaliation claim under the same burden-shifting analysis.

See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). To establish a prima

facie case of retaliation, a plaintiff must show that: (1) she was engaged in a protected

activity; (2) she suffered an adverse employment action; and (3) there was a causal

connection between the protected activity and the adverse action. See id. As with


3
  As noted, the District Court further concluded that even if Warfield had established a
prima facie case of discrimination, the record demonstrates that SEPTA terminated
Warfield based solely on her performance issues, which the Court determined was a
legitimate, non-discriminatory reason for the adverse employment action. It also
concluded that Warfield had not established that SEPTA’s reason for this action was
pretextual. Because we hold that Warfield did not offer evidence sufficient to establish a
prima facie case of discrimination, we need not address arguments regarding the
remaining steps of the burden-shifting framework.
                                             7
discrimination claims, if a plaintiff establishes a prima facie case, the employer must

show a legitimate, non-discriminatory reason for the adverse action. Moore v. City of

Phila., 461 F.3d 331, 342 (3d Cir. 2006). The burden then shifts back to the plaintiff to

demonstrate that the offered reason is pretextual. Id.

       The District Court determined that Warfield did not establish that she had engaged

in a “protected activity” prior to filing her PHRC complaint. We agree. Protected

conduct includes the filing of formal charges of discrimination and informal protests of

discriminatory activities, such as making complaints to management. See Barber v. CSX

Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995). It, however, does not include very

generalized complaints about unfair treatment. At a minimum, the conduct must convey

a protest of discriminatory practices such that it will be understood that a complaint about

an unlawful employment practice has been advanced. See Curay-Cramer v. Ursuline

Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006).

       Other than the filing of her PHRC complaint, Warfield argues that she engaged in

protected conduct when she repeatedly informed McKenzie that she believed McKenzie

was treating her differently than Comber. Warfield specifically identifies their

discussions of the daily logs, one of her assignments that was similar to one of Comber’s,

and her placement on the PIP. 4 She, however, concedes that she never told McKenzie

that she believed McKenzie was retaliating against her based on her race or sex.

4
  Warfield also states that she complained to Comber that she believed McKenzie was
treating him differently than her, and that, after she was placed on the PIP, she met with
SEPTA’s Senior Director of Human Resources to complain that she believed McKenzie
was treating her unfairly.

                                             8
Warfield nonetheless tries to bolster her argument by stating that, when she complained

to McKenzie, the latter told her that no one would believe her because McKenzie also

was a black female, that McKenzie must have perceived that Warfield’s complaint was

based on race and sex because Comber was the only white male in the department, and

that Warfield later gave an article to McKenzie that discussed same-race and same-sex

discrimination. Warfield’s generalized complaints to McKenzie (and others) were not

sufficient to place McKenzie or SEPTA on notice that Warfield was alleging that

McKenzie was engaging in an unlawful employment practice. Likewise, Warfield’s

other unsupported allegations do not present evidence sufficient to establish a genuine

issue of material fact that she engaged in “protected conduct.” The only protected

conduct Warfield established is the filing of her PHRC complaint. 5

       Warfield fails to offer any evidence demonstrating a causal connection between

the filing of the complaint and her official termination in retaliation. Knowledge of an

employee’s protected conduct is an essential element of establishing a causal connection.

See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Though Warfield

filed her complaint on April 1, 2009, she did not inform SEPTA of the complaint until

April 15, two days after she received the notice of termination. Warfield does not present

any evidence that SEPTA knew of the complaint prior to April 15. She instead argues

that, because she was not terminated officially until May 2009, the complaint was a factor

5
 Because we conclude that Warfield did not engage in “protected conduct” prior to filing
her PHRC complaint, we need not address arguments regarding whether Warfield can
establish a causal connection between this conduct and the identified adverse
employment actions.

                                             9
in SEPTA’s decision to issue its final termination letter. Yet Warfield again fails to

identify any evidence contradicting the clear message of the initial notice of

termination—that she was to be discharged. SEPTA decided to terminate her before it

was aware that she had filed a complaint with the PHRC. There is no evidence of a

causal connection between the complaint and her termination. Warfield thus has failed to

offer evidence establishing a prima facie case of retaliation. 6

Hostile Work Environment

       In her response to the Defendants’ motion for summary judgment, Warfield

argued that she was subjected to a hostile work environment based on McKenzie’s

preferential treatment of Comber, excessive monitoring of Warfield, and other acts that

Warfield believed affected her negatively. A plaintiff may not amend a complaint by

raising arguments for the first time in a brief in opposition to a motion for summary

judgment. See Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996); Josey v. John

R. Hollingsworth Corp., 996 F.2d 632, 641-42 (3d Cir. 1993). Because Warfield did not

allege that she was subjected to a hostile work environment in her complaint and did not

move to amend the complaint to make that claim, she has waived it.

                                       *   *   *    *   *

       For these reasons, we affirm.


6
  The District Court also concluded that even if Warfield had been able to establish a
prima facie showing of retaliation, the Defendants had provided a non-discriminatory
reason for her termination, which Warfield failed to demonstrate was pre-textual.
Because we hold that Warfield has failed to offer evidence establishing a prima facie case
of retaliation, we need not address arguments regarding the remaining steps of the
burden-shifting framework.
                                               10
