                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2007

Page v. Trustees Univ PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1008




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Recommended Citation
"Page v. Trustees Univ PA" (2007). 2007 Decisions. Paper 1447.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1447


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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 06-1008


                                JENNIFER PAGE,

                                         Appellant

                                         v.

                       TRUSTEES OF THE UNIVERSITY
                           OF PENNSYLVANIA;
                      UNIVERSITY OF PENNSYLVANIA;
                      UNIVERSITY OF PENNSYLVANIA
                      DEPARTMENT OF PUBLIC SAFETY


                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civil No. 03-cv-06815)
                   District Judge: The Honorable John P. Fullam


                           Argued on February 15, 2007

                   Before: SMITH and FISHER, Circuit Judges,
                            and DOWD, District Judge*

                             (Filed: March 21, 2007)




      *
       The Honorable David D. Dowd, Jr., Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
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              Jeremy H.G. Ibrahim (argued)
              1700 Race Street
              First Floor
              Philadelphia, PA 19103
                     Counsel for Appellant

              Joe H. Tucker, Jr.
              Bacardi L. Jackson
              Norrinda V. Brown (argued)
              Booth & Tucker
              1617 John H. Kennedy Boulevard
              Suite 1700
              Philadelphia, PA 19103
                     Counsel for Appellees


                                         OPINION


SMITH, Circuit Judge.

       Jennifer Page alleges that she was discriminated against by her employer because

of her need to express breast milk while at work. Page did not adduce sufficient evidence

to survive summary judgment. We will affirm the District Court.

       Jennifer Page was employed for several years as a police officer for the University

of Pennsylvania (“the University”). Page went on maternity leave in 2002. Upon her

return in November of that year, Page submitted a memorandum requesting “out of

service” (personal) time to express breast milk and was granted two such breaks during

her shift. Page asserts that despite this permission, her supervisors refused to allow her to

request a courtesy transport from her foot patrol to headquarters. She protested and was

assigned to a patrol closer to headquarters. She alleges that her supervisor nevertheless


                                              2
called for her on the radio and interrupted her in the locker room where she expressed

milk.

        Page claims that her supervisor required her to wear her cap while outside a patrol

car or headquarters, allowed other officers to spend more time buying coffee at a

convenience store, and checked on Page’s whereabouts during lunch and personal breaks.

Page also alleges that her supervisor criticized the manner in which she prepared time

sheets, briefly relieved her of her firearm, and assigned her insignificant tasks (such as

counting bicycles, arranging for other officers’ shoes to be shined, and for the captain’s

car to be washed and fueled). At the time she was assigned these tasks, Page was on

limited duty due to a back injury unrelated to her pregnancy. Page also alleged that,

although she filed a complaint with the Fraternal Order of Police on December 16, 2002,

she was not interviewed until January 6, 2002. Page resigned approximately two months

after her return from maternity leave, on or about January 14, 2003.

        After Page’s complaint was denied by the Fraternal Order of Police, she filed suit

in the United States District Court for the Eastern District of Pennsylvania. Page stated a

variety of claims, including race and pregnancy discrimination violating Title VII of the

Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy Discrimination Act

of 1978 (“the PDA”), 42 U.S.C. § 2000e et seq., Worker’s Compensation Act claims, and

Pennsylvania Human Relations Act claims. The University moved for summary

judgment on all of Page’s claims. The District Court granted the motion. Page

challenges on appeal only the dismissal of her claim for pregnancy discrimination

                                              3
violating Title VII.1

       We exercise plenary review when reviewing a district court’s grant of summary

judgment. Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d

Cir. 2003). Summary judgment is appropriate only if the record establishes that “there is

no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); FED.

R. CIV. P. 56(c). We view the facts in the light most favorable to the party opposing the

motion when making this determination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). We must consider whether the District Court was correct and whether Page

alleged sufficient facts to constitute a violation of Title VII.

       To establish a prima facie case of Title VII sex discrimination, Page must show (1)

that she belongs to a protected class, (2) that she suffered an adverse employment action

(3) under circumstances leading to an inference of unlawful discrimination. See Jones v.

Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). The University concedes

that Page is a member of a protected class. Therefore, we will assume, without holding,

that a complaint based on the need to express breast milk is cognizable under Title VII.

However, Page cannot satisfy the second or third elements of a Title VII claim.

       Page alleges that she was subjected to a hostile work environment as a result of her



       1
        The District Court had jurisdiction of this action arising under 42 U.S.C. § 2000e
(Title VII) under 28 U.S.C. § 1331. This Court has appellate jurisdiction under 28 U.S.C.
§ 1291.

                                               4
desire to take personal time to express breast milk. The Supreme Court has explained

that, in order to establish a hostile work environment, a plaintiff must show that the

harassment “was sufficiently severe or pervasive to alter the terms and conditions of [the

plaintiff’s] employment and create an abusive working environment.” Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). The Supreme Court instructs us:

       Workplace conduct is not measured in isolation; instead, whether an
       environment is sufficiently hostile or abusive must be judged by looking at
       all the circumstances, including the frequency of the discriminatory
       conduct; its severity; whether it is physically threatening or humiliating, or
       a mere offensive utterance; and whether it unreasonably interferes with an
       employee’s work performance. Hence, [a] recurring point in [our] opinions
       is that simple teasing, offhand comments, and isolated incidents (unless
       extremely serious) will not amount to discriminatory changes in the terms
       and conditions of employment.


Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (internal quotes and

citations omitted). See also Faragher v. Boca Raton, 524 U.S. 775, 788 (1998) (noting

that the standard for judging hostility under Title VII must be sufficiently demanding so

that the statute does not become “a general civility code”).

       Conduct must be both objectively and subjectively offensive to violate Title VII.

See Faragher, 524 U.S. at 787. Page established that she found the conduct subjectively

offensive. At several points, she stated that conduct was offensive because of the way in

which her supervisor looked at her or the tone in which he spoke to her. For example,

Page felt that one of her supervisors spoke to her in a manner that indicated that she

thought Page was a “pest,” and another discussed her personal time in a way that


                                              5
indicated disgust. Page did not allege any comments that, without her testimony as to

tone and manner, could be taken as derogatory, unprofessional, or motivated by animus

towards her desire to express breast milk while at work. Page alleges a variety of work-

related incidents were motivated by anger or disregard for her need to express breast milk

and created a hostile work environment.

       However, Page fails to establish that the alleged conduct was objectively

offensive–that a reasonable person in her position would have found the conduct “hostile

or abusive.” Clark County, 532 U.S. at 270; see also Faragher, 524 U.S. at 788. The

University demonstrates that other officers on light duty were subjected to the same

requirements and given the same apparently menial tasks. Page testified that running

errands for more senior officers was a common activity. Page’s direct supervisor,

Sergeant Farrell, testified that he ordered other officers to wear their hats, reprimanded

other officers for calling a car for non-emergency reasons, gave other officers the same

instructions for correctly filling out forms, and inquired about the whereabouts of other

officers who were temporarily absent from their posts. Other officers testified that they

were required to wear their hats when not in their vehicles, that personal time was not

guaranteed and could be interrupted, and that protocol required that sergeants locate

officers who could not be contacted via radio after three attempts.

       Nothing in Page’s testimony rebuts this evidence that similarly situated officers

were treated in a similar manner. Indeed, Page’s testimony undermines her claim by

showing that the University was working with her to address her concerns. She testified

                                              6
that the University provided her with two fifteen minute breaks to express breast milk,

that she was switched to a patrol route that included headquarters so that she could more

easily express breast milk in privacy, and that no officer directly questioned her need to

express breast milk.

       Page further undermined her own claim by testifying that the true motivation

behind the alleged harassment was her race and that her need to express breast milk was

an excuse or opportunity for race discrimination. Yet, Page has not pursued her race

discrimination claim on appeal.

       The District Court dismissed Page’s claim as she failed to meet the stringent

burden of showing a constructive discharge. See Pennsylvania State Police v. Suders,

542 U.S. 129, 133-34 (2004). Page’s hostile work environment claim survives this

determination, albeit subject to the Ellerth/Faragher affirmative defenses. See id. at

137-38; see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998);

Faragher, 524 U.S. at 807. However, Page also failed to meet the more forgiving burden

of showing a hostile work environment. Suders, 542 U.S. at 133-34.

       A reasonable finder of fact could not conclude, based on the record before us, that

Page suffered harassment rising to the level of a Title VII violation. We will affirm the

District Court’s decision.




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