                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 10-2058
                    _____________

             DEBORAH MIECZKOWSKI,
                           Appellant

                           v.

          YORK CITY SCHOOL DISTRICT;
          DELORIS PENN; TRESA DIGGS
                 _____________

      Appeal from the United States District Court
          for the Middle District of Pennsylvania
               (D.C. Civil No. 1:07-cv-01102)
     District Judge: Honorable Christopher C. Conner
                      _____________

       Submitted Under Third Circuit LAR 34.1(a)
                   January 14, 2011

Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

               (Filed: February 18, 2011)

                     ____________

                      OPINION
                    _____________
VANASKIE, Circuit Judge


       In this reverse race discrimination and First Amendment retaliation case arising in

the public employment context, Plaintiff Deborah Mieczkowski appeals the District

Court’s grant of summary judgment in favor of York City School District (“School

District”), Tresa Diggs, and Deloris Penn. For the reasons that follow, we will affirm.

                                             I.

       We write only for the parties and assume their familiarity with the factual and

procedural history of this case. Mieczkowski was employed by the School District from

February 2004 until June 22, 2007. In July 2006, she became assistant superintendent of

the School District. Mieczkowski, a Caucasian, brought this action against the School

District, Tresa Diggs (the School District’s superintendent), and Deloris Penn (the School

District’s director of human resources), asserting race discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42

U.S.C. § 1981, equal protection and retaliation claims under 42 U.S.C § 1983, and civil

conspiracy under Pennsylvania law. 1

       Mieczkowski made a number of allegations in support of her claim of race

discrimination that she maintains on appeal, including that: (1) in December 2005,

Mieczkowski attempted to discipline an African American principal, but Diggs, who is

African American, warned Mieczkowski not to impose discipline upon the principal


       1
         Although Mieczkowski argues that in addition to discrimination, she had also
asserted a hostile work environment claim, the District Court properly found that she
failed to present such a claim in the Complaint.
                                             2
because the school board president, who is also African American, “would not like it”

(Compl. ¶ 23); (2) on October 11, 2006, at a meeting of the School District’s board of

directors, an African American board member made a comment to Penn, who is also

African American, to the effect that Penn was disproportionately disciplining African

American employees, and stated that “it’s about time you went after some whites” (id. ¶¶

25-26); (3) Mieczkowski was excluded from two executive sessions of the school board;

(4) Mieczkowski was arbitrarily asked to cancel vacation days; (5) Mieczkowski was

verbally reprimanded for arriving late to a meeting while other African American

personnel who were consistently late for meetings were never reprimanded; and (6) as

assistant superintendent, Mieczkowski was paid less than Diggs when Diggs was

assistant superintendent, and was also paid less than subordinate African American

employees.

      In addition to the above allegations, Mieczkowski relies on the events immediately

preceding her departure from the School District. On November 29, 2006, Diggs

requested a meeting with Mieczkowski, which was attended by Penn. At the meeting,

Diggs attempted to give Mieczkowski a letter addressing Mieczkowski’s failure to ensure

the timely submission of the Alternative Education Report and the Educational

Assistance Program (“EAP”) Report to the Pennsylvania Department of Education.

Diggs wrote that the “letter [was] to remind [Mieczkowski] of the importance of

following through with the requirements of submitting necessary reports for [her] area of

responsibility.” (A. 167o.) Diggs informed Mieczkowski that the Department of

Education had informed the School District that if the EAP Report was not completed by

                                            3
November 22, 2006, the School District would not receive $800,000 in funding, and if

the Alternative Education Report was not submitted, the School District would not

receive $2 million. Diggs stated that Mieczkowski’s “failure to submit these reports in a

timely manner jeopardized $2.8 million in future district funds,” and that it was her

“expectation that this situation will never occur again.” (Id.) Mieczkowski refused to

accept Diggs’s letter, informed Diggs that she could give the letter to Mieczkowski’s

secretary, stated that she wanted legal representation, and then left the room.

Mieczkowski testified that neither Diggs nor Penn objected to her request to have counsel

present.

       On or about December 1, 2006, Diggs sent Mieczkowski a letter requesting

another meeting. Although that second letter is not in the record, Mieczkowski testified

that in the letter Diggs accused her of insubordination for refusing the first letter and

requesting legal representation. Diggs testified that her accusation of insubordination

only related to Mieczkowski’s refusal to accept the letter and the allegedly disrespectful

manner in which Mieczkowski refused the letter by shoving the letter back at Diggs.

       In December, there was a second meeting, attended by Mieczkowski,

Mieczkowski’s attorney, Diggs, Penn, and the School District’s attorney. At the meeting,

the parties discussed the contents of Diggs’s November 29 letter to Mieczkowski.

Although both letters from Diggs were placed in Mieczkowski’s personnel file, the

record does not indicate that the School District took any formal action against

Mieczkowski, nor that the School District ever considered either terminating or

disciplining her.

                                              4
       Mieczkowski claims that as a result of these events, she suffered emotional

distress, anxiety, insomnia and elevated blood pressure, and did not return to work after

December 1, 2006. On June 22, 2007, after exhausting accumulated leave time,

Mieczkowski took a disability retirement.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and

1367(a), and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review over the District Court’s grant of summary judgment, and

apply the same standard as the District Court in determining whether summary judgment

was appropriate. Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010).

Under that standard, summary judgment is warranted only “if the movant shows that

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). “In making this determination, we must view

the facts in the light most favorable to the nonmoving party and draw all inferences in

that party’s favor.” Stratechuk v. Bd. of Educ., South Orange-Maplewood Sch. Dist., 587

F.3d 597, 603 (3d Cir. 2009) (internal quotation marks omitted).

                                            III.

       In the absence of direct evidence of discrimination, a plaintiff may prove

discrimination under the familiar burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff bears

the initial burden of establishing a prima facie case of discrimination. In McDonnell

Douglas, the Supreme Court held that a plaintiff may establish a prima facie case of race

                                             5
discrimination by showing “(i) that he belongs to a racial minority; (ii) that he applied

and was qualified for a job for which the employer was seeking applicants; (iii) that,

despite his qualifications, he was rejected; and (iv) that, after his rejection, the position

remained open and the employer continued to seek applicants from persons of

complainant’s qualifications.” Id. at 802. The Court noted that “[t]he facts necessarily

will vary in Title VII cases,” and that its “specification . . . of the prima facie proof

required from respondent is not necessarily applicable in every respect to differing factual

situations.” Id. at 802 n.13. The test may also be articulated in more generally applicable

terms:

               [T]he plaintiff must first establish a prima facie case of
               discrimination by showing that: (1) s/he is a member of a
               protected class; (2) s/he was qualified for the position s/he
               sought to attain or retain; (3) s/he suffered an adverse
               employment action; and (4) the action occurred under
               circumstances that could give rise to an inference of
               intentional discrimination.

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

         In Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999), we recognized that because

the first prong of the McDonnell Douglas test “requires plaintiff to establish his or her

identity as a member of a minority group, the literal application of the test would

preclude its use by White plaintiffs alleging ‘reverse discrimination.’” Id. at 158.

Consequently, we held that “all that should be required to establish a prima facie case in

the context of ‘reverse discrimination’ is for the plaintiff to present sufficient evidence to

allow a fact finder to conclude that the employer is treating some people less favorably

than others based upon a trait that is protected under Title VII.” Id. at 161.

                                               6
       If a plaintiff establishes a prima facie case of discrimination, the burden then shifts

to the employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action. Id. at 157. If the employer offers evidence of a legitimate, non-

discriminatory reason for its adverse action, to defeat summary judgment “the plaintiff

must point to some evidence, direct or circumstantial, from which a fact finder could

reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2)

believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Id. at 166 (quoting Fuentes v. Perskie, 32

F.3d 759, 764 (3d Cir. 1994)) (internal quotation marks omitted).

       Even under the modified prima facie standard in reverse discrimination cases, a

plaintiff must establish that she suffered an adverse employment action. Stanziale v.

Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000). We have defined an “adverse employment

action” as an action by an employer that is “‘serious and tangible enough to alter an

employee’s compensation, terms, conditions, or privileges of employment.’” Cardenas

v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (quoting Robinson v. City of Pittsburgh, 120

F.3d 1286, 1300 (3d Cir. 1997)).

       After carefully analyzing every alleged discriminatory incident and circumstance,

the District Court concluded that Mieczkowski had failed to establish that she had

suffered any adverse employment action, and that even assuming any of the incidents

amounted to an actionable adverse employment action, she had failed to show that she

was being treated less favorably than others on account of her race. Accordingly, the



                                              7
District Court concluded that Mieczkowski had failed to establish a prima facie case of

race discrimination under Title VII and § 1981. 2

       Mieczkowski concedes that while employed with the School District she did not

suffer a reduction in pay or benefits, a demotion, the loss of a promotion, or a

termination. She argues, however, that her alleged constructive discharge, the fact that

she was “hired at a disparately diminished rate of pay,” and the two letters of reprimand

constitute discrete adverse employment actions. (Appellant’s Br. at 37.) We find

Mieczkowski’s contentions to be without merit.

       Certainly, a constructive discharge, if it occurred, constitutes an adverse

employment action. See Hill v. Borough of Kutztown, 455 F.3d 225, 247 n.32 (3d Cir.

2006). Contrary to Mieczkowski’s assertion, however, the District Court did address her

constructive discharge claim. The District Court specifically found that “the evidence of

record fails to support her allegation that she was constructively discharged by any action

or actions that Defendants took during the time Plaintiff worked in the School District.”

Mieczkowski v. York City Sch. Dist., No. 1:07-cv-1102, 2009 WL 6093594, at *6 (M.D.

Pa. Dec. 21, 2009).

       To establish a constructive discharge, Mieczkowski was required to show that

“‘the employer knowingly permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would resign.’” Aman v. Cort

Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996) (quoting Goss v. Exxon Office

       2
         “In the Third Circuit, the elements of employment discrimination under Title VII
are identical to the elements of a section 1981 claim.” Schurr v. Resorts Int’l Hotel, Inc.,
196 F.3d 486, 499 (3d Cir. 1999) (internal quotation marks omitted).
                                             8
Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984)). Notwithstanding the medical reasons

Mieczkowski cites for her departure from the School District, we are unable to conclude

that any of the alleged discriminatory incidents and circumstances, alone or taken

together, would compel a reasonable person in Mieczkowski’s position to resign. In this

regard, Mieczkowski was aware of pay differentials and never formally complained about

that matter prior to December 1, 2006. Moreover, the letters of reprimand, only one of

which is before us, are not such as to cause a reasonable person to conclude that

resignation was required to avoid intolerable working conditions. Nor do the other

matters raised in Mieczkowski’s Complaint, singularly or in combination, rise to the level

of intolerable working conditions. Consequently, the District Court correctly concluded

as a matter of law that Mieczkowski was not subject to a constructive discharge when she

stopped coming to work after December 1, 2006.

       Mieczkowski also argues that a discriminatory salary disparity between her and

her African American co-workers establishes an adverse employment action. 3 She

contends that, as assistant superintendent, she was paid less than Diggs when Diggs was

assistant superintendent, and that she was paid less than certain subordinate African

American employees. While an unwarranted salary disparity can constitute an adverse

employment action, see Stanziale, 200 F.3d at 105-06, we agree with the District Court

that Mieczkowski failed to present evidence supporting an inference that any differential

in this case was not warranted.

       3
         Notably, Mieczkowski states that she is not presenting an equal pay claim, but is
instead pointing to salary differentials as evidence of disparate treatment. (Appellant’s
Br. at 36.)
                                             9
       Initially, we find it noteworthy that while negotiating her compensation for the

assistant superintendent position, Mieczkowski had reviewed the salary information for

Diggs and other School District employees, and, consequently, when executing her

contract, was entirely cognizant of the pay disparities she now alleges were

discriminatory. More significantly, however, Mieczkowski failed to present any

evidence – beyond the mere fact that she earned less than her African American

predecessor and certain subordinate African American employees – from which a

reasonable trier of fact could find that the salary disparities were the result of race

discrimination. Indeed, as the District Court found, “the evidence shows that the School

District’s salaries and pay increases were tied to numerous factors such [as] seniority,

professional certifications, and changes in salary structure dictated by budgetary

concerns.” Mieczkowski, 2009 WL 6093594, at *9. Thus, even assuming Mieczkowski

established a prima facie case of race discrimination on the basis of the cited salary

disparities, she has failed to present any evidence to rebut the wholly legitimate and non-

discriminatory factors that may justify her earning less than either her predecessor or

subordinates. In other words, Mieczkowski failed to show that she was similarly situated

to her alleged comparators. See Stanziale, 200 F.3d at 107. Accordingly, we find that the

District Court properly determined that Mieczkowski failed to present evidence showing

that any salary disparity constituted an adverse employment action.

       Finally, Mieczkowski argues that the two letters of reprimand she received in

November and December 2006 immediately preceding her departure from the School

District were adverse employment actions. In Weston v. Pennsylvania, 251 F.3d 420 (3d

                                              10
Cir. 2001), we rejected the district court’s presumption that written reprimands adversely

affected the terms and conditions of employment, holding that the burden is on the

plaintiff “to establish how these two [written] reprimands effect[ed] a material change in

the terms or conditions of his employment.” Id. at 431. In other words, reprimands that

do not “effect a material change in the terms or conditions of . . . employment” cannot be

considered adverse employment actions. Id. In determining in Weston that the two

written reprimands did not qualify as adverse employment actions, we observed that the

plaintiff “was not demoted in title, did not have his work schedule changed, was not

reassigned to a different position or location in the [workplace], did not have his hours or

work changed or altered in any way, and that he was not denied any pay raise or

promotion as a result of these reprimands.” Id. We further noted the fact that the

reprimands were placed in the plaintiff’s personnel file for a period of six months, and

were thus “of a temporary nature,” and “were not permanently affixed to [the plaintiff’s]

file.” Id.

       To distinguish Weston, Mieczkowski relies on the fact that in her case the letters

of reprimand were permanently placed in her personnel file. We do not think this

distinction is sufficient to establish that her letters of reprimand were adverse

employment actions. Weston rejected a presumption that written letters of reprimand

caused a material change in the terms or conditions of the plaintiff’s employment. Id.

Weston makes clear that in order to constitute an adverse employment action, the letters

had to have effected a material change in the terms or conditions of Mieczkowski’s

employment. Beyond alleging that the letters of reprimand were unjustly issued and

                                             11
placed in her permanent personnel file, Mieczkowski has not demonstrated how the

letters materially changed her employment status. In the absence of such evidence, and

in light of the fact that the letters neither warned of future disciplinary action nor

termination, we find that Mieczkowski failed to demonstrate that the letters constituted

adverse employment actions. 4

       Moreover, we agree with the District Court that even if the two letters of

reprimand constituted adverse employment actions, Mieczkowski has not presented

evidence to show that the letters were the result of discriminatory animus. In support of

her claim that the November 29 letter of reprimand raises an inference of discrimination,

Mieczkowski argues that the reprimand was unjust. Mieczkowski specifically argues that

she was not at fault for the late submission of the reports because a portion of one of the

late reports had to be completed by an outside contractor, and the contractor had failed to

complete its portion of the report on time. She also points to a November 30, 2006 email

from the Department of Education to Mieczkowski which states that although the funding

connected to the Alternative Education Report had been “held” pending the report’s

submission, “[a]t no time was York City School District in jeopardy of losing the funds.”

(A. 290.) Mieczkowski therefore argues that a reasonable jury could find that Diggs

“knew that [Mieczkowski] was not responsible for the delay” and conclude that any

discipline was “contrived” and discriminatory. (Appellant’s Br. at 31-32.)


       4
          It is noteworthy that Mieczkowski never returned to work after the second
reprimand was issued and eventually took a disability retirement. Thus, the inclusion of
the letters in her personnel file could not have adversely affected her advancement, pay
increases, or other employment prospects.
                                              12
       Mieczkowski seems to miss the point in her repeated insistence that she was not at

fault – the record establishes that as assistant superintendent it was her responsibility to

submit the reports, regardless of any circumstances affecting her ability to discharge that

responsibility. Moreover, the November 30 email from the Department of Education

does not establish that on November 29 Diggs was aware that the School District’s

funding was not in jeopardy. Indeed, Diggs received an email on November 19 from the

Department of Education informing her that the department was “still holding the 06/07

Alt Ed Demo Grant ($2M) until York City has submitted the 2005/2006 Alt Ed End of

Year Report” and asking that Diggs “rectify this issue URGENTLY.” (A. 262.)

Consequently, we cannot say that the reprimand following the late submission of the

reports was so “unjust,” or that the concern that the failure to timely submit the reports

jeopardized funding was so unfounded, that the reprimand raises an inference of

discrimination.

       Mieczkowski emphasizes that at a school board meeting approximately two

months prior to the first letter of reprimand, an African American member of the School

District’s board of directors made a comment to Penn to the effect that Penn, as director

of human resources, was disproportionately disciplining African Americans and told her

that “it’s about time you went after some whites.” (Compl. ¶ 26.) Mieczkowski asserts

that “[t]hereafter, Penn pursued Plaintiff . . . as a way to satisfy the District’s desire to go

after whites.” (Appellant’s Br. at 8.)

       “We have generally held that comments by those individuals outside of the

decisionmaking chain are stray remarks, which, standing alone, are inadequate to support

                                               13
an inference of discrimination.” Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d

Cir. 1997). There is nothing in the record to suggest that either the board member who

told Penn to go “after whites” or Penn had any involvement in the decision to reprimand

Mieczkowski, or that Diggs was motivated by the board member’s comment in her

decision to reprimand Mieczkowski. Accordingly, we find that the District Court

correctly concluded that even if the letters of reprimand constituted adverse employment

actions, Mieczkowski failed to show that Diggs treated Mieczkowski less favorably than

other employees based on her race.

       In sum, we find that the District Court correctly concluded that Mieczkowski

failed to show that she suffered an adverse employment action. We also agree that even

if Mieczkowski successfully alleged an adverse employment action, none of the alleged

incidents or circumstances raise any inference of discrimination. We will therefore

affirm the grant of summary judgment in favor of Appellees on the Title VII and § 1981

discrimination claims. Furthermore, because the lack of evidence to support her

discrimination claims is also fatal to her § 1983 equal protection claim, we will also

affirm the grant of summary judgment on that claim. See Chambers ex rel. Chambers v.

Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009) (“To bring a

successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must

prove the existence of purposeful discrimination.” (internal quotation marks omitted)).

                                            IV.

       “To state a First Amendment retaliation claim, a public employee plaintiff must

allege that his activity is protected by the First Amendment, and that the protected

                                            14
activity was a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561

F.3d 179, 184 (3d Cir.2009). “[T]he key question in determining whether a cognizable

First Amendment claim has been stated is whether ‘the alleged retaliatory conduct was

sufficient to deter a person of ordinary firmness from exercising his First Amendment

rights.’” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna,

203 F.3d 228, 235 (3d Cir. 2000)).

       Mieczkowski contends that she was accused of insubordination as a result of her

request for counsel. 5 Even assuming, as the District Court did, that Mieczkowski’s

request for counsel was constitutionally protected speech, we are unable to conclude that

Mieczkowski presented sufficient evidence of a retaliatory action that would be sufficient

to constitute actionable conduct.




       5
         Mieczkowski’s Complaint alleged that “[o]n or around December 1, 2006,
Defendant Diggs issued a second written discipline letter from the defendant York
County School District alleging insubordination because the Plaintiff requested to secure
legal advice in dealing with the first discipline letter. This misconduct violated plaintiff’s
1st Amendment rights.” (Compl. ¶ 32.) In her brief in opposition to the motion for
summary judgment, she also characterized the protected activity as “speech, i.e.,
requesting time to consult a lawyer.” (Pl.’s Br. in Opp’n to Defs.’ Mot. for Summ. J. at
17.) In her appellate brief, Mieczkowski submits that “the issue of requesting a lawyer
does not capture the full nature of plaintiff’s protected activities.” (Appellant’s Br. at
42.) She argues that “[w]hile [she] did not file a formal complaint of discrimination,
there is evidence that she questioned and complained to Diggs, Penn, and others about the
treatment to which she was being subjected, and such complaints or reports of
mistreatment are inherently matters of public concern, which are protected by the First
Amendment.” (Id. at 44.) Because she never argued in the District Court that she was
retaliated against for such activities, the argument is waived. See United States v.
Lockett, 406 F.3d 207, 212 (3d Cir. 2005). In any event, because Mieczkowski failed to
satisfy the adverse action and causation elements of a retaliation claim, the question of
what constitutes First Amendment-protected conduct is academic.
                                             15
          The second letter of reprimand that Mieczkowski claims constitutes actionable

retaliatory conduct is not in the record, and we are therefore unable to review whether its

language could support Mieczkowski’s claim. As we found above, our holding in

Weston makes clear that the written reprimand did not constitute an adverse employment

action. 251 F.3d at 431. Although a letter that does not rise to the level of an adverse

employment action may nonetheless support a prima facie case of First Amendment

retaliation, see Suppan, 203 F.3d at 234, it will only do so if it is sufficient to deter a

person of ordinary firmness from exercising free speech rights, McKee, 436 F.3d at 170.

Mieczkowski has not shown that the second letter she received would have any such

effect.

          Mieczkowski’s own representations indicate that the letter was prompted by her

refusal to accept the November 29 letter of reprimand. Mieczkowski does not dispute the

fact that she refused to take the November 29 letter. Receipt of a follow-up letter

accusing an employee of insubordination under these circumstances would not deter a

reasonable person from requesting counsel.

          Furthermore, beyond Mieczkowski’s own allegation, there is nothing in the record

suggesting a causal connection between the request for counsel and the written

reprimand. As Mieczkowski testified, Diggs and Penn never objected to the request, and

a second meeting was eventually held at which both parties were represented by counsel.

Consequently, we find that the District Court correctly determined that Mieczkowski

failed to present sufficient evidence that her request for counsel was a substantial factor



                                               16
in Diggs’s subsequent charge of insubordination, and we will therefore affirm the grant of

summary judgment on the First Amendment retaliation claim.

                                             V.

      There is no liability for civil conspiracy where there is no liability for the act or

acts underlying the conspiracy. See Boyanowski v. Capital Area Intermediate Unit, 215

F.3d 396, 407 (3d Cir. 2000). Because we find that the District Court properly entered

summary judgment against Mieczkowski on her civil rights claims, we will also affirm

the grant of summary judgment on her civil conspiracy claim under Pennsylvania law.

                                             VI.

      For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment in favor of Appellees.




                                             17
