                                                                            NOT PRECEDENTIAL

                                 UNITED STATES COURT OF APPEALS
                                      FOR THE THIRD CIRCUIT
                                           ____________

                                                     No. 16-3616
                                                    ____________

                                          AURORA KIM PARADISIS,
                                                            Appellant

                                                             v.

                            ENGLEWOOD HOSPITAL MEDICAL CENTER
                               __________________________________

                              On Appeal from the United States District Court
                                        for the District of New Jersey
                                       (D.C. Civ. No. 2-13-cv-05936)
                               District Judge: Honorable Madeline C. Arleo
                                __________________________________

                             Submitted Pursuant to Third Circuit LAR 34.1(a)
                                           February 17, 2017

                     Before: RESTREPO, SCIRICA and FISHER, Circuit Judges

                                       (Opinion filed: February 24, 2017)
                                                ____________

                                                      OPINION
                                                    ____________


PER CURIAM

           Kim Paradisis appeals from an order of the District Court granting summary

judgment to her former employer. For the reasons that follow, we will affirm.





    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute biding precedent.
       Paradisis began working for Englewood Hospital & Medical Center in 1995 as a

student nurse intern. Between 1995 and 2001, she worked at the Hospital as a nursing

assistant, a Maternal Child Health (“MCH”) division float nurse, Care Manager of the

Pediatric Unit, and Patient Care Director of the Mother/Baby Unit. In 2001, she left full-

time employment at the Hospital to pursue other career opportunities, but continued at the

Hospital as a casual per diem nurse.

       On January 18, 2012, Paradisis was terminated from her casual per diem position

for failing to make herself available to work on a winter holiday, specifically New Year’s

Day. She filed a grievance with her Union, Health Professionals and Allied Employees

Local 5004, for unlawful termination. Documentation was provided to the Hospital

showing that Paradisis had missed work because she had pneumonia and she was

reinstated to her per diem status. She did not immediately return to work, however.

Instead, on August 29, 2012, she sent a letter to Filmore Flores, her supervisor, and

Shaija George, the Patient Care Director of the Neonatal Intensive Care Unit (“NICU”),

stating that, before she could return to work, the Hospital needed to provide her with

additional training. Specifically, Paradisis requested: (1) registration for the September

17, 2012 Neonatal Resuscitation Program (“NRP”) course; (2) registration for either the

October 20 or 27, 2012 Pediatric Advanced Life Support (“PALS”) course; and (3)

computer training and shadowing of an MCH float member through the neonatal,

pediatric, and Mother/Baby Unit.

       The Hospital met some but not all of Paradisis’ demands. She received NRP

training on September 17, 2012, but the Hospital told her that float nurses were not

required by the Hospital to obtain PALS certification. The Hospital also scheduled
                                           2
Paradisis for eight (8) hours of computer training during the first week of November

2012. Due to Superstorm Sandy, however, Paradisis received only four (4) of those

hours of computer training.

       Paradisis returned to work in January 2013. On January 31, 2013, she worked an

overnight shift in the Mother/Baby Unit. During and following that shift, three nurses,

Barbara Kontos, Anne Marie Ayala, and Gillian Rothenberg, brought certain

administrative and safety issues regarding Paradisis’ performance to the attention of

Patient Care Director George. The nurses reported that Paradisis had failed to submit an

OptiVox report on all patients, 1 failed to provide a Hepatitis B vaccine to a patient prior

to discharge, and failed to administer the Hospital’s Postpartum Depression Screening to

a patient prior to discharge. George initiated an investigation into the allegations and

confirmed that Paradisis had not fulfilled these requirements. George also received

additional complaints from a patient who reported that Paradisis was uncaring and did not

visit her room as often as the other nurses. Due to these allegations, George further

investigated whether Paradisis had complied with the Hospital’s Department of Nursing

Rounding Standard. George learned that Paradisis failed to sign the rounding sheets for

her patients on January 31, 2013, as required by Hospital policy. George’s investigation

revealed further that Paradisis inaccurately reported a baby’s weight and then failed to

alert medical staff to a potentially dangerous weight loss.

       On February 5, 2013, Flores emailed Paradisis to schedule a meeting to discuss the

issues that had arisen on her January 31st shift. Paradisis replied that she was not


1
  OptiVox is the name of the system that Hospital nurses use for non-urgent, routine shift-
to-shift reporting.
                                           3
available on the dates provided by Flores, and that she was confident that the care she had

provided to her patients was “stellar.” She also stated that “[i]dle gossip rooted in a gang

mentality from the Mother/Baby staff is not of interest to me.” On February 12, 2013,

Paradisis emailed George, Flores, and the Local President of the Union, complaining

about the training she had received upon her return to the Hospital, and on February 21,

2013, she filed a grievance through the Union, alleging that the Hospital had failed to

provide her with adequate education and training.

       On March 13, 2013, Paradisis, her union representative, George, and Flores met to

discuss the performance issues noted when Paradisis had worked the January 31st shift.

Following the meeting, the Hospital determined that Level 1 discipline, specifically, a

verbal warning, was justified. In a letter dated March 18, 2013, Paradisis was issued a

notice of discipline for violating the Hospital’s service excellence standards,

communication standards, and code of conduct safe clinical practice standards. The

notice of discipline was issued for Paradisis’ failure to enter an OptiVox shift report for

the incoming nurses; failure to administer a Hepatitis B vaccine, Postpartum Depression

Screening, and discharge screening on a patient; improper weighing of a baby without

adequate follow-up; complaints of an uncaring attitude towards a patient; and a failure to

properly perform and document rounding as required by Hospital policy. Meanwhile,

Paradisis’ grievance over inadequate training, although denied, resulted in the Hospital’s

agreeing to schedule an additional eight (8) hours of training, the date to be determined in

the future.

       On April 12, 2013, Paradis filed a charge with the U.S. Equal Employment

Opportunity Commission (“EEOC”), asserting that the Hospital had retaliated against her
                                        4
by unjustly disciplining her for demanding additional training. On April 19, 2013,

Paradisis’ union representative initiated a new grievance for unjust discipline and

retaliation for filing the inadequate training grievance. Following a grievance hearing on

May 2, 2013, the verbal warning-Level 1 discipline was upheld.

       On May 14, 2013, Patient Care Director George sent Paradisis her annual

performance evaluation for 2012. In the evaluation, Paradisis received a “Successful”

mark in every reviewable category except “Communication,” where she received a

“Needs Improvement.” In the category of “Expectations for Performance Improvement,”

George noted that Paradisis should “[r]eview and comply with Service excellence

standards, code of conduct and communication standards.” On June 7, 2013, Paradisis

notified the Hospital that she would be filing a grievance based on her 2012 performance

evaluation. On June 18th, however, her union representative advised her that the

grievance would be held in abeyance because the Union and Hospital were working on a

settlement.

       The Hospital then scheduled the previously promised additional training for

Paradisis for the evening of June 28, 2013. Patient Care Director George emailed

Paradisis’ union representative to confirm that Paradisis would be attending the training,

and Flores, her supervisor, emailed Paradisis seeking confirmation that she would attend

the June 28th training. On June 26th, Paradisis, instead of responding to the Hospital,

emailed her union representative and asked that representative to remind George and

Flores “of appropriate protocol during the grievance process.” Paradisis then failed to

attend the June 28 training, and, after this failure, the Hospital never scheduled her to

work again.
                                              5
       On October 4, 2013, Paradisis filed a civil action pro se in the United States

District Court for the District of New Jersey under Title VII of the Civil Rights Act of

1964 (“Title VII”). Paradisis alleged that the Hospital, in eliminating her per diem work,

had discriminated against her on the basis of her brown skin color and Puerto Rican

heritage. She also alleged that she was unjustly disciplined and given a poor performance

evaluation for demanding training and filing grievances with her Union. The Hospital

answered the complaint and discovery ensued. Paradisis was deposed and numerous

Hospital employees were deposed, including Patient Care Director George and Nurse

Kontos. At the close of discovery, the Hospital moved for summary judgment. Paradisis

opposed the motion. In an Order entered on September 6, 2016, the District Court

awarded summary judgment to the Hospital and explained its reasoning in a thorough

Opinion.

       Paradisis appeals. We have jurisdiction under 28 U.S.C. § 1291. We review a

District Court’s grant of summary judgment de novo. Alcoa, Inc. v. United States, 509

F.3d 173, 175 (3d Cir. 2007). In her brief, Paradisis argues specifically that the verbal

warning she received was fraudulent and contrived by the Hospital and based on events

which should not have resulted in discipline, and that her 2012 performance evaluation,

to the extent that she was criticized, was based on the contrived verbal warning. She

further argues that the Hospital retaliated against her and ultimately terminated her for

filing grievances, and that the Hospital’s actions were motivated by discriminatory

animus.

       We will affirm. Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a
                                              6
matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of

identifying evidence that shows an absence of a genuine issue of material fact, Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). In addition, the District Court is required to

view the facts in the light most favorable to the non-moving party and make all

reasonable inferences in her favor, see Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d

Cir. 1994). Furthermore, credibility determinations on material issues cannot be made in

the context of a motion for summary judgment, nor may a District Court weigh the

evidence. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998

F.2d 1224, 1230 (3d Cir. 1993).

       Nevertheless, the nonmoving party may not rest on mere allegations or denials,

Fed. R. Civ. Pro. 56(e)(2), (3). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). To defeat the Hospital’s motion for summary judgment, Paradisis was

required to designate specific facts by use of affidavits, depositions, admissions, or

answers to interrogatories showing that there was a genuine issue for trial. See Fed. R.

Civ. P. 56(c) (setting forth requirements for supporting or opposing party’s assertion that

a fact cannot be or is genuinely disputed). Ultimately, “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

       To prevail on a Title VII claim of discrimination, a plaintiff must first establish a

prima facie case. A prima facie case of discrimination based on skin color or national

origin requires that a plaintiff show the following: (1) she belongs to a protected class; (2)

she is qualified for the position; (3) she suffered some form of adverse employment
                                                7
action; and (4) the adverse employment action occurred under circumstances that give

rise to an inference of unlawful discrimination. St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 506-07 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To prevail

on a claim of Title VII retaliation, a plaintiff is required to show that: (1) she engaged in

activity protected by Title VII; (2) she suffered an adverse employment action; and (3)

there was a causal connection between her participation in the protected activity and the

adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d

Cir. 2006).

       If the plaintiff makes out a prima facie claim of discrimination and/or retaliation,

the burden shifts to the defendant, who must “articulate one or more legitimate, non-

discriminatory reasons for its employment decision.” Waldron v. SL Indus., Inc., 56 F.3d

491, 494 (3d Cir. 1995). If the defendant is able to articulate such a reason, the burden

shifts back to the plaintiff, who must demonstrate that the employer’s proffered reasons

were merely a pretext for intentional discrimination. McDonnell Douglas, 411 U.S. at

804. Specifically, to survive a motion for summary judgment in a Title VII case, a

plaintiff must point to evidence which: (1) “casts sufficient doubt upon each of the

legitimate reasons proffered by the defendant so that a factfinder could reasonable

conclude that each reason was a fabrication;” or (2) allows the factfinder to reasonably

conclude that “discrimination was more likely than not a motivating or determinative

cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.

1994). A plaintiff can demonstrate the latter by “showing that the employer in the past

had subjected [her] to unlawful discriminatory treatment, that the employer treated other,
                                            8
similarly situated persons not of [her] protected class more favorably, or that the

employer has discriminated against other members of [her] protected class or other

protected categories of persons.” Id. at 765.

       The District Court noted the appropriate legal standards, reviewed the summary

judgment record, and concluded that: (a) the Hospital’s decision not to provide Paradisis

with PALS training or the other requested training did not constitute an adverse

employment action because Paradisis failed to show that the training was required as a

condition of her employment as a per diem nurse; (b) the verbal warning issued

pertaining to Paradisis’ work on January 31, 2013 did not constitute an adverse

employment action, and, even if it did, Paradisis did not show that the Hospital’s reasons

for the verbal warning were a pretext for discrimination; (c) the 2012 performance

evaluation did not constitute an adverse employment action, and, even if it did, Paradisis

did not show that the Hospital’s reasons for the evaluation were a pretext for

discrimination; and (d) Paradisis did not show that the Hospital’s reason for removing her

from the work schedule – her failure to attend the June 28th orientation – was a pretext

for discrimination.

       We conclude that Paradisis’ arguments on appeal do not persuasively show that

the District Court erred in its determination that a trial was not warranted on her claim of

discrimination. We agree with the District Court that the Hospital’s decision not to

provide Paradisis with PALS training and the other requested training was not an adverse

employment action because it had no impact on the terms of Paradisis’ employment. An

actionable adverse employment action is “a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different
                                               9
responsibilities, or a decision causing a significant change in benefits.” Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Paradisis’ qualifications were never

at issue and she was permitted to work without the requested education and training. She

was not otherwise reprimanded, docked pay, suspended, or terminated due to her failure

to receive such training. Accordingly, this was not an adverse employment action within

the meaning of Title VII.

       As the District Court concluded in the alternative, we will assume that the verbal

warning-Level 1 discipline and the portion of Paradisis’ performance evaluation that was

not positive constitute adverse employment actions. In addition, the termination plainly

was an adverse employment action. Accordingly, having sufficiently established adverse

employment actions, Paradisis was required to show that the verbal warning,

performance evaluation, and her eventual termination occurred under circumstances that

give rise to an inference of unlawful discrimination. St. Mary’s Honor Center, 509 U.S.

at 506-07. We agree with the District Court that the Hospital proffered legitimate, non-

discriminatory reasons for each adverse action. The summary judgment record

establishes that the violations found by the Hospital in connection with Paradisis’ January

31st shift were based in fact and were not pretextual, fraudulent, or fabricated. That

Paradisis’ patients may not have been in any real danger or distress as a result of her

actions or omissions, as she appears to have asserted, does not mean that the violations

were “fraudulent.” Paradisis provided no evidence to show that the verbal warning was

improper besides her subjective belief that it was unwarranted, and thus she failed to cast

doubt on its validity. The “Needs Improvement” notation in the performance evaluation

regarding Paradisis’ communication skills was based on the verbal warning and notice of
                                           10
discipline issued to her, wherein it was concluded that she had violated the Hospital’s

service excellence and communication standards and code of conduct. Because the

verbal warning was legitimate, the “Needs Improvement” notation also was legitimate.

Last, Paradisis’ termination was based on her plainly inexcusable failure to attend the

additional training scheduled for June 28, 2013, which she herself had demanded in

connection with a grievance.

       Moreover, Paradisis did not provide competent evidence to show that her brown

skin color and/or Puerto Rican heritage was the motivating force behind the three adverse

employment actions. See McDonnell Douglas, 411 U.S. at 804; Fuentes, 32 F.3d at 762.

We thus agree with the District Court that she did not satisfy the fourth element of a

prima facie case of discrimination for any of these adverse employment actions.

Paradisis’ evidence of unlawful discriminatory treatment was scant indeed. She testified

in her deposition that, in November 2012, upon meeting her for the first time, Patient

Care Director George said “Oh, you’re Kim Paradisis? I pictured you big and tall.” She

further testified that, at a meeting on May 2, 2013 to discuss the requested training (and

other issues), Ann Marie Shears, the Vice President of Clinical Services, “mouthed” to

her “[w]hy don’t you pay for it yourself,” and “[y]ou people want everything handed to

you.” She testified that, at the close of the meeting, Shears gave her a handshake that was

much too hard. None of this even remotely demonstrates that the adverse employment

actions occurred under circumstances giving rise to an inference of intentional

discrimination based on skin color and/or national heritage. Even the statement “you

people” is too ambiguous to constitute evidence of discrimination where, as here, Shears

just as easily could have been referring to all nurses or all MCH float nurses, see
                                              11
Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 269 (3d Cir. 2010). Accordingly,

summary judgment on Paradisis’ claim of discrimination was proper.

       With respect to Paradisis’ retaliation claim, the District Court concluded, and we

agree, that, in part, Paradisis did not engage in protected activity, and where she did, she

failed to produce any evidence from which a reasonable factfinder could conclude that

the Hospital retaliated against her for engaging in protected activities. The “anti-

retaliation” provision of Title VII protects those who participate in certain Title VII

proceedings and those who oppose discrimination made unlawful by Title VII. See

Moore, 461 F.3d at 341. Opposition to discrimination can take the form of informal

protests of discriminatory employment practices, including making complaints to

management. Id. See also Curay-Cramer v. Ursuline Academy of Wilmington, Del.,

Inc., 450 F.3d 130, 135 (3d Cir. 2006).

       Filing grievances unrelated to discrimination does not, however, constitute

protected activity for purposes of a Title VII retaliation claim. See Barber v. CSX

Distribution Services, 68 F.3d 694, 701-02 (3d Cir. 1995). We agree with the District

Court’s “protected activity” determinations. Paradisis’ first grievance challenging her

January 2012 termination did not constitute protected activity. The Hospital terminated

her because she failed to work a winter holiday and she established that she was sick with

pneumonia and thus unable to work. The grievance she filed through her Union properly

made no reference whatever to discrimination based on skin color or national origin, and,

thus, it failed to identify any conduct proscribed by Title VII. Paradisis’ second

grievance asserted that the Hospital failed to provide her with adequate education and

training. This grievance also made no mention of any type of discrimination protected by
                                          12
Title VII and thus does not constitute protected activity. With respect to Paradisis’

grievance concerning unjust discipline (the verbal warning), the sole reference to

discrimination in this grievance was the reference to a contract section entitled “Non-

Discrimination.” The mere mention of discrimination, however, does not transform a

general grievance into opposition to unlawful activity under Title VII. See Slagle v.

County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006) (even though Title VII sets a “low

bar” for employees seeking protection against retaliation, vague allegations of

discrimination do not meet even this “low bar”). Since Paradisis’ unjust discipline

grievance barely mentioned discrimination, and she did not provide competent evidence

to show that she actually pursued a claim of discrimination when meeting with hospital

staff to resolve this grievance, it too does not constitute protected activity, id.

       Accordingly, Paradisis’ earliest protected activity was the filing of her first claim

with the EEOC on April 12, 2013.2 To establish the required causal connection between

an employee’s participation in a protected activity and an adverse employment action, a

plaintiff must show that the employer took “an adverse employment action after or

contemporaneous with the employee’s protected activity.” Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 279 (3d Cir. 2000). We agree with the District Court that any adverse

employment action which occurred before April 12, 2013, that is, the verbal warning-

Level 1 discipline, cannot form the basis of a retaliation claim. Accordingly, summary

judgment was proper on this aspect of Paradisis’ retaliation claim.




2
 Paradisis subsequently filed two more charges with the EEOC and eventually alleged
discrimination on the basis of skin color and national origin.
                                             13
       With respect to the partially negative performance evaluation, which George sent

to Paradisis on May 14, 2013, the Hospital asserted in its summary judgment motion that

it did not learn of the EEOC case until May 22, 2013, and thus there could not possibly

be a causal connection between the EEOC charge and the performance evaluation. We

note, however, that the close proximity of the two dates – when the Hospital says it

learned about the EEOC charge and when the performance evaluation was delivered to

Paradisis – might suggest a genuine issue for trial. Nevertheless, even assuming that

Paradisis could show for summary judgment purposes that the Hospital knew of the

EEOC filing before it evaluated her 2012 performance (which we do not decide), in the

circumstances presented here the temporal connection would not be enough to make a

showing of causation. The sole issue is whether the Hospital’s justification for the

performance evaluation was a pretext for retaliation. Paradisis has not met her burden

under McDonnell Douglas to show that the Hospital’s proffered reason for the

performance evaluation was pretextual. She neither presented evidence that would

permit a reasonable factfinder to doubt the legitimacy of the Hospital’s proffered reason,

nor has she adduced evidence from which a reasonable factfinder could conclude that an

“invidious discriminatory reason was more likely than not” the motivating or

determinative force behind the performance evaluation. Fuentes, 32 F.3d at 764.3 The

summary judgment record establishes that the “Needs Improvement” notation regarding

Paradisis’ communication skills was based on the verbal warning and notice of discipline

3
  We need not decide whether Paradisis failed to show pretext under the “but for”
causation standard applied to Title VII retaliation claims in University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013), because she failed
to make the required causation showing even under the traditional and less onerous
McDonnell Douglas framework.
                                             14
that were legitimately issued to her. Because Paradisis failed to cast doubt on the validity

of the verbal warning-Level 1 discipline (which was issued to her before she filed the

EEOC charge), she necessarily could not cast doubt on the validity of the performance

evaluation. A reasonable factfinder could not conclude, see Matsushita Electric

Industrial Co., 475 U.S. at 587, that the Hospital gave Paradisis a partially negative

performance evaluation because she engaged in the protected activity of filing an EEOC

charge of retaliation.

       Last, Paradisis’ termination indisputably occurred after the Hospital learned of the

original EEOC charge, but the summary judgment record shows, also indisputably, that

Paradisis was removed from the per diem nurse’s work schedule because she inexcusably

failed to attend the June 28th training, which had been arranged specially for her. The

summary judgment record shows that the date was acceptable to Paradisis, and that both

a nurse educator and MCH float nurse were to conduct the training, just as Paradisis had

requested. We agree with the District Court that no reasonable factfinder could conclude

that Paradisis’ termination was anything other than the result of her failure to attend this

training session, and was not in retaliation for her pursuit of a charge before the EEOC.

       For the foregoing reasons, we will affirm the order of the District Court awarding

summary judgment to the Hospital. Appellant’s motions for leave to file amended

supplemental appendix volumes I and II, an amended reply brief, an over-length amended

reply brief, and motion with exhibits to strike documents from Appellee’s supplemental

appendix all are denied.




                                             15
