                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-31-2004

Sloan v. Pittsburgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4121




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 03-4121
                                     ____________

                                  SHIRLEY SLOAN,

                                                  Appellant

                                           v.

                           CITY OF PITTSBURGH;
                   KATHLEEN KRAUS, individually and as
                  Acting Director of Public Safety Department;
               ROBERT MCNEILLY, individually and in his capacity
                   as Chief of Police of the City of Pittsburgh;
             CATHLEEN MCNEILLY, individually and in her capacity as
               Commander of the City of Pittsburgh Police Department
                                 ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 02-cv-01938)
                     District Judge: Honorable Robert J. Cindrich
                                    ____________

                                 Argued July 13, 2004

              Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                (Filed : August 31, 2004)

Edward A. Olds (Argued)
1007 M ount Royal Boulevard
Pittsburgh, PA 15223
       Attorney for Appellant
Susan E. M alie
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219

Brian P. Gabriel (Argued)
U.S. Steel Tower, Suite 660
600 Grant Street
Pittsburgh, PA 15219
       Attorneys for Appellees
                                      ____________

                                 OPINION OF THE COURT
                                      ____________

FISHER, Circuit Judge.

       Shirley Sloan, a Police Department Lieutenant and a black female, filed suit

against the City of Pittsburgh and her superiors on September 3, 1998, asserting, inter

alia, a racially hostile work environment, disability discrimination, First Amendment

retaliation and Equal Protection claims. Sloan appeals the denial of her request for partial

summary judgment and the grant of summary judgment in favor of the City, over which

we exercise plenary review.

       The district court granted summary judgment to the defendants on all claims, only

four of which Sloan has challenged. The district court found that Sloan failed to meet her

burden of proving the applicability of issue preclusion with respect to the factual findings

supporting her receipt of Heart and Lung Act benefits, that other claims were untimely,

and that she failed to produce evidence sufficient to establish that she experienced a


                                             2
racially-hostile work environment or suffered from a disability under the Rehabilitation

Act. The district court also determined that Sloan failed to produce evidence from which

a jury could reasonably infer that she was subjected to adverse employment actions

because of her race or that Sloan was subjected to retaliatory employment actions. We

affirm, even accepting all of Sloan’s evidence as true and construing all the evidence in

the light most favorable to her, as we must, in reviewing a motion for summary judgment.

Fed. R. Civ. P. 56(c).

       Because the parties are familiar with the factual and procedural background of this

case, we comment only regarding those facts that are pertinent to our disposition of this

appeal.

                                     I. Issue Preclusion

       In the district court Sloan moved for partial summary judgment pursuant to Fed. R.

Civ. P. 56(d), for a finding that certain facts had been conclusively determined by the

Pennsylvania courts in granting her benefits under the Heart and Lung Act:

       Issue preclusion is appropriately invoked if: (1) the issue decided in the
       prior adjudication was identical with the one presented in the later action,
       (2) there was a final judgment on the merits, (3) the party against whom the
       plea is asserted was a party or in privity with a party to the prior
       adjudication, and (4) the party against whom it is asserted has had a full and
       fair opportunity to litigate the issue in question in a prior action.

Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 548 (3d Cir 1996).

       Although there was a final judgment on the merits, at least two of the four factors

necessary for issue preclusion are not present in this case.


                                              3
       First, the issues decided in the Heart and Lung Act litigation are not identical to the

issues here. We previously determined that the legal issues presented in a Pennsylvania

Workers’ Compensation hearing were not identical to issues in a Title VII case, for

purposes of determining whether issue preclusion applied. Dici, 91 F.3d at 549.1

Likewise, the standards, governing law, and policies for Sloan’s Heart and Lung Act

benefit claims under Pennsylvania law are different from the federal constitutional and

discrimination claims at issue here. Consequently, issue preclusion is inappropriate in

this case.

       Second, this litigation involves four defendants, only one of whom was a party to

the prior adjudication. Issue preclusion is only appropriate if the party against whom it is

invoked was also a party, or was in privity with a party, in the previous adjudication.

Privity, for purposes of issue preclusion, is not established by the mere fact that persons

may be interested in the same question or in proving the same facts. Day v.

Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1316 (Pa. Super. 1983). Sloan failed

to meet her burden of showing that the defendants are in privity with a party in the

previous adjudication. Therefore, it is inappropriate to invoke issue preclusion.




       1
        There is a difference in the scope of the Heart and Lung Act and Workers’
Compensation Act in Pennsylvania. The Heart and Lung Act covers police and
firefighters, while the Workers’ Compensation Act covers all other employees injured in
the course of employment.

                                              4
                              II. Hostile Work Environment2

       From the beginning of 1996 there were several incidents which Sloan alleges are

evidence of intentional discrimination because of her race.3

       First, in four or five instances, Sloan’s car was parked illegally and it was ticketed

while other cars were not ticketed. Second, officers requested permission from Sloan to

search her home to determine if her son’s minor girlfriend and her grandchild were at the

home. The girlfriend’s mother had contacted the police, complaining that the girl was

truant and staying in Sloan’s house, and Sloan was interfering with parental authority.


       2
       There are five elements to a hostile work environment claim:
       (1) the employee suffered intentional discrimination because of her [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 race in that position; and
       (5) the existence of respondeat superior liability.
Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir 1999).
       3
         The district court noted a two-year statute of limitations period for Sloan’s hostile
work environment claims. However, this court has previously addressed the applicable
statute of limitations of 300 days for Title VII claims. Burgh v. Borough Council of
Montrose, 251 F.3d 465, 471-474 (3d Cir. 2001). A claimant has 300 days from the date
of the adverse employment decision to file a claim with the EEOC if she files first with a
state or local agency. 42 U.S.C. § 2000e-5(e)(1). Sloan filed a complaint with the
Pittsburgh Human Relations Commission on October 4, 1996, claiming workplace
harassment based upon race and sex, and harassment of her sons. Sloan filed a claim with
the EEOC on February 3, 1998. Any incident that occurred more than 300 days prior to
February 3, 1998, which is April 9, 1997, is outside of the statute of limitations.
        Sloan argues that the incidents that occurred prior to December 28, 1995, are
within the 300-day statute of limitations because they form part of a continuing violation.
However, those prior incidents do not form part of a continuing violation because they
involve different actors and are of a different nature than the prior alleged harassment of
her sons. See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997).

                                              5
The mother accused Sloan of harboring a runaway. Third, shells from Sloan’s service

revolver were checked for comparison to all open shootings in the North Side. There

were a number of shootings, and one of Sloan’s sons was a suspect in two of the

shootings. In fact, a test to determine if Sloan’s son had discharged a firearm initially

came back positive, but the crime lab report disappeared. Fourth, Sloan was forced to

remove a basketball hoop from in front of her house after a neighbor complained.

       Fifth, Sloan was transferred from the police chief’s office and assigned to a newly

created court liaison position in the municipal courts when her previous position was

eliminated. There was no change in rank, pay, or schedule. Sloan wanted to continue to

work a light duty, inside job, and this is what she received. She did not have a desk, a

telephone, or an office. She produced no work product, and was not reprimanded. She

was not assigned any duties, nor given a job description. After Sloan refused this position

and stopped working, another officer was assigned this position under the same starting

conditions and thrived.

       Finally, within the statute of limitations, Sloan was denied Heart and Lung

benefits, her request to return to work in a light-duty capacity was refused,4 and Sloan

was ordered to turn in her weapon after she complained of stress.




       4
        “The rejection of a proposed accommodation is a single completed action when
taken, quite unlike the ‘series of separate acts’ that constitute a hostile work environment
and ‘collectively constitute’ an unlawful employment practice.” Elmenayer v. ABF
Freight System, Inc., 318 F.3d 130, 135 (2d Cir. 2003).

                                              6
       There is no indication that any of these incidents of which Sloan complained were

motivated by intentional race discrimination. There is no evidence of adverse comments

or conduct by her co-workers in any position she held. She never received any official

demotion, suspension, or criticism at work. There is no evidence of animosity in the

workplace. There is no allegation of misconduct or maltreatment from those that Sloan

worked with. In fact, Sloan received one promotion, and admitted that coworkers

encouraged her to seek another promotion in November 1994.

       Even if this court considers the time-barred actions of the defendants involving

Sloan’s sons, these actions do not amount to actionable intentional discrimination against

Sloan on account of her race. Sloan failed to allege events that fulfilled the first element

of a hostile work environment claim; therefore, her claim fails without need to address

any other elements.

                             III. First Amendment Retaliation

       Under 42 U.S.C. § 1983, to claim retaliation for the exercise of First Amendment

rights, the plaintiff must prove: (1) he or she engaged in a protected employee activity;

(2) the employer took an adverse employment action after or contemporaneous with the

protected activity; and (3) a causal link exists between the protected activity and the

adverse action. Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).




                                              7
          The only actions that are not time-barred are the denial of Heart and Lung Act

benefits, the denial of Sloan’s request to return to work, and the order to turn in her

weapon after she complained of stress.5

          Sloan alleges that she participated in the protected activities of filing numerous

complaints with the Office of Municipal Investigations between October 1994 and

December 1996, joining a civil rights lawsuit against the police department in March

1996, and filing a complaint with the Pittsburgh Human Relations Commission in

October 1996. Sloan claims that these activities resulted in adverse employment actions

consisting of the refusal to allow Sloan to return to work and Sloan’s transfer to court

duty. 6

          There is no evidence to support a causal link between the protected activity and

any adverse employment action. First, Sloan had previously made accusations of

harassment, and was allowed to return to work in January of 1996. Second, no protected

activity occurred in a time that was close to the decision not to allow Sloan to return to



          5
        The 42 U.S.C. § 1983 claim here is subject to a two-year statute of limitations. §
1983 incorporates the state’s personal injury limitations period. Pennsylvania’s statute of
limitations for personal injury is two years. 42 Pa. Cons. Stat. Ann. § 5524 (West Supp.
1998). This suit was filed in September 1998, so any conduct which occurred prior to
September 1996 is time-barred. The continuing violation theory does not apply, because
the incidents that occurred after September 1996 involve different actors and are of a
different nature than the prior alleged harassment.
          6
       Although outside the statute of limitations, Sloan’s transfer was not an adverse
employment decision. As discussed above, there was no change in rank, pay, or schedule,
merely a change in duty. Sloan received a light duty, inside job, as she requested.

                                                8
work. Third, there is no indication that the Gates Company, the independent entity who

made the determination of Sloan’s ability to return to work, was aware that Sloan engaged

in any protected activity.

       Finally, there is no evidence that the reasons given by the City of Pittsburgh for

delaying and denying Sloan’s request to return to work are pretextual. The reason the

City of Pittsburgh gave for denying Sloan’s request to return to work is that the ability to

use a gun is an essential duty of a police officer, and Sloan stated that she could not carry

a gun. The decision was delayed because Sloan repeatedly failed to provide requested

additional medical information to process her request. Consequently, because there is no

causal link between Sloan’s protected activities and the adverse employment actions, her

claim must fail.

                                   IV. Rehabilitation Act

       To show discrimination under the federal Rehabilitation Act, the employee must

show (1) that he or she has a disability; (2) that he or she is otherwise qualified to perform

the essential functions of the job, with or without reasonable accommodations by the

employer; and (3) that he or she was nonetheless terminated or otherwise prevented from

performing the job. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).

       To have a disability, a plaintiff must prove a physical or mental impairment that

limits a major life activity. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,

195 (2002). Sloan alleges that she suffers from the disabilities of depression, anxiety,



                                              9
panic attacks and sleeplessness, and that these disabilities substantially limit the major life

activities of driving, sleeping, and working.

       Sloan has not alleged any substantial limitation in any of her major life activities.

Driving is not considered a major life activity. Chenoweth v. Hillsborough County, 250

F.3d 1328, 1329-30 (11th Cir. 2001).

       Difficulty sleeping is a common problem, and not a limitation of a major life

activity unless the plaintiff shows a uniquely severe affliction, which Sloan did not do.

Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1998). Sloan did not

describe an inability to sleep, but an exhaustion that caused her to go to sleep at 9:00 p.m.

and awake at 5:00 or 6:00 a.m. (resulting in eight or nine hours of sleep).

       Sloan is not substantially limited in the major life activity of working. “The

inability to perform a single, particular job does not constitute a substantial limitation in

the major life activity of working.” Sutton v. United Airlines, Inc., 527 U.S. 471, 491

(1999) (citation and quotation omitted). Plaintiffs must allege they are unable to perform

in a broad class of jobs. Id. Sloan alleges that her physician has cleared her to perform

all light duty work that does not involve carrying a firearm. This is not a substantial

limitation.

       Since Sloan has not alleged that she is substantially limited in any major life

activity, she has not shown that she suffers from any legally recognized disability.




                                                10
                                    V. Equal Protection

       Sloan’s equal protection claims are minimally stated in a single paragraph in her

brief and provide a single citation. Sloan merely asserted that it is obvious that she has

prima facie case because “[s]he is African-American, the city rejected her application to

return, she was qualified for the light duty position which she sought, and the city had

available positions.”

       Because Sloan failed to allege any evidence of a similarly situated employee

treated differently, this claim must fail. Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d

Cir. 1998).

       Based on the foregoing, we find that summary judgment was properly granted to

the City of Pittsburgh and partial summary judgment was properly denied to Sloan in this

case. Consequently, we will affirm the August 17, 2003 Memorandum Opinion and

Order of the District Court.

________________________




                                             11
