No Protected Activity, No Retaliation Claim

Kollman & Saucier
Kollman & Saucier

Title VII’s anti-retaliation provision prohibits discrimination (retaliation) against employees and applicants because the individual “has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”  42 U.S.C. § 2000e-3(a).  Employees and applicants who oppose discrimination proscribed by Title VII (covering race, color, religion, sex, and national origin) or who engage in the other activities identified above are protected from retaliation for engaging in Title VII protected activity.  Abney v. SEPTA, No. 2-20-cv-04435 (3d Cir. Oct. 18, 2023) explains the protected activity prerequisite for a viable Title VII retaliation claim.

William Abney started working for Southeastern Pennsylvania Transportation Authority (SEPTA) in 1992.  SEPTA promoted Abney to Assistant Director of Station Operations in 2014.  Abney reported in May 2017 that an employee he supervised did not comply with the organization’s uniform policy when she refused to remove her head scarf.  A SEPTA human resources representative told Abney that the scarf was a religious accommodation, that there was no policy violation, and recommended that Abney attend equal employment opportunity training.  Abney then complained to his supervisor about HR’s recommended training and “her general demeanor towards him.”  Abney did not allege discrimination in this complaint.

Over the following year, six of the employees Abney supervised complained about his “aggressive and intimidating management style.”  SEPTA investigated the complaints and none of the investigations resulted in disciplinary action.  Abney did not allege discrimination during the investigatory process.

In October 2018, Abney filed an internal workplace violence report following an altercation with a subordinate.  The Inspector General’s Office investigated the matter and determined that the allegations were unsubstantiated.  In this complaint, Abney again did not allege discrimination. 

In December 2018, Abney complained to SEPTA’s EEO Department director about the Department’s investigations into his job performance, contending that he was being “targeted.” Abney did not allege that he was discriminated against based on any characteristic protected under Title VII.

Abney filed an EEOC charge in April 2019, claiming that SEPTA officials retaliated against him when they informed him that he may be subject to discipline if further complaints were made against him and required that he attend “Respect and Civility in the Workplace” training.  Abney did not allege in his charge that he was discriminated based on race, religion, sex, national origin, or color.

In August 2019, a cashier complained to SEPTA’s EEO Department that Abney harassed her via inappropriate text messages and berating her in public.  The Department investigated and concluded that Abney had sent “flirtatious” message to the cashier, Abney had not been truthful during the investigation, and that he had inappropriately confronted the cashier on the job.  Management recommended that Abney be demoted and required to attend anti-harassment training.  Abney appealed the demotion through internal process, however, the recommended demotion was upheld at each step, including arbitration.

Abney filed suit, alleging that SEPTA retaliated against him in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act for making numerous complaints.  The trial court granted SEPTA’s motion for summary judgment, reasoning that Abney had not engaged in protected activity under Title VII.  The Third Circuit affirmed.  As the appellate court stated:  “Being the subject of an EEO investigation conducted by one’s employer does not exclude an employee from the protection of Title VII.  Failing to allege the employee was discriminated against on the basis of a Title VII protected ground does.”  Abney’s failure to allege that SEPTA discriminated against him under Title VII meant that his claim could not survive because the conduct he claimed to be protected activity was not.

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