RITA W. GRUBER, Judge.
Rios was charged in the Carroll County Circuit Court with five counts of delivery of a controlled substance, Class Y felonies, and an enhancement penalty for proximity to certain facilities. Rios was sixteen at the time of the alleged crimes. Rios's sole point in this interlocutory appeal is that the circuit court erred in denying his motion to transfer his case to the juvenile division of circuit court. We hold that the circuit court did not clearly err and we affirm its order.
Rios was seventeen at the time the transfer hearing was held.
The charges stem from an investigation conducted by John Bailey, the chief of police of the Green Forest Police Department. Four months into his investigation working with a confidential informant, Officer Bailey set up several drug buys with Rios and his co-defendant, Eduardo Anaya-Ruiz. Officer Bailey testified at the transfer hearing that he conducted three buys in which Rios, alone and with Mr. Ruiz, sold cocaine and methamphetamine to the confidential informant. A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2009). In this case, the prosecutor charged Rios as an adult, and Rios filed a motion to transfer his case to the juvenile division. The circuit court denied his motion.
In deciding whether to grant or deny a transfer request, the circuit court must consider and make written findings on each of ten statutory factors. Ark. Code Ann. § 9-27-318(g)-(h) (Repl. 2009). But proof need not be introduced against the juvenile on each factor, and the circuit court is not required to give equal weight to each of the statutory factors in arriving at its decision. Magana-Galdamez v. State, 104 Ark. App. 280, 287, 291 S.W.3d 203, 208 (2009). Upon a finding by clear and convincing evidence that a case should be transferred to another division of the circuit court, the circuit court may do so. Ark. Code Ann. § 9-27-318(h)(2). We review transfer cases for clear error and will not reverse a circuit court's order denying transfer unless it was clearly erroneous. Lofton v. State, 2009 Ark. 341, at 4, ___ S.W.3d ___, ___.
Rios contends on appeal that the circuit court's decision denying his motion to transfer was clearly erroneous. The circuit court in this case discussed and made written findings on each of the ten statutory factors. See Ark. Code Ann. § 9-27-318(g). The court was not required to give equal weight to each factor but was entitled to use its discretion in deciding the weight to be afforded to each factor. Lofton, 2009 Ark. 341, at 4.
The court found that the seriousness of the offenses carried great weight in this case. Rios was charged with five Class Y felonies. The court noted that, with the exception of capital murder, there were no more serious charges under the laws of this State. The court also found that the testimony established that the alleged offenses were premeditated or willful. Further, in one instance, Rios acted alone. In other words, the court stated, this was not a case where Rios simply acted on impulse or in one isolated occasion. Third, the court accepted the State's argument that crimes involving controlled substances were "offenses against persons," given the great concern of the county about the health, safety, and welfare of its citizens. Regarding the culpability of Rios, including his level of planning and participation, the court noted that he acted alone in one buy and with Mr. Ruiz in others. The court found that the method and manner of the sales suggested that Rios planned and executed the sales of drugs.
While Rios had no previous criminal history, the court noted that the assistant principal at Rios's high school testified that Rios had been disciplined on several occasions for being rude and disrespectful to a teacher and grossly insubordinate. The court also noted the principal's testimony that Rios was a "wanna-be gang banger." Next, the court found that there was no evidence Rios was not mature for his age or that he suffered from an unstable home life. The court believed that he had not been "propelled toward illegal activities" as a result of his home environment, but that he had made his own choices regarding his activities and behaviors.
The court found that there were no programs or facilities that would benefit Rios before the expiration of the juvenile court's jurisdiction. The court noted that Rios had been charged with serious offenses and that he did not do it once but numerous times. Rios's assistant principal also testified that Rios had a poor attitude toward authority and did not respond well to discipline. The court noted that Rios acted both alone and with at least one other person. The court gave no great weight to written reports of other materials relating to Rios's mental, physical, educational, and social history but found that the testimony and reports suggested that Rios's maturity level appeared to be age appropriate and that he maintained above average grades. Finally, the court stated that there was a real problem with methamphetamine in its jurisdiction. Taking all of this evidence as a whole, the court found that transfer to the juvenile division was not supported by clear and convincing evidence. We hold that the court's decision is not clearly erroneous.
Affirmed.
HART and ROBBINS, JJ., agree.
al reprimands did not constitute adverse employment action.
Job performance memoranda do not constitute adverse employment action unless they result in formal discipline or have some other tangible effect on the recipient's employment. See Shesko v. City of Coatesville, 292 F. Supp. 2d 719, 727 (E.D. Pa. 2003) ("[T]he written reprimand issue to Plaintiff . . . was actually termed a Performance Counseling, [and] resulted in no formal discipline. . . . The written reprimand, therefore, cannot be deemed to be an adverse employment action.") (quotation marks omitted); Hay v. GMAC Mortg. Corp., No. 01-1030, 2003 WL 22133801, at *6 (E.D. Pa. Sept. 15, 2003) ("Even a poor performance rating does not give rise to an adverse employment action unless it has a tangible effect on recipient's employment."); see also Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241 (11th Cir. 2001) (noting that "courts are wisely reluctant to treat job performance memoranda as actionable under Title VII when they do not trigger any more tangible form of adverse action such as a loss in benefits, ineligibility for promotional opportunities, or more formal discipline"). Here, Plaintiff admits that the May 16 memorandum was not "a write-up." (Pl.'s Dep. at 29, 70.) McAfee confirms that "[t]he memorandum was not a form of discipline, and Ms. Warenecki was not disciplined for her behavior on May 13, 2008." (McAfee Decl. ¶ 13.) Indeed, Warenecki was never disciplined while she was an employee of the Health Department. (Pl.'s Dep. at 13.) Accordingly, we conclude that the May 16 memorandum was not an adverse employment action.
Since we have determined that Plaintiff has not satisfied the second element of a prima facie case of discrimination with respect to the reprimands, we need not examine whether there is evidence that would create an inference that Plaintiff was reprimanded on account of her race. We conclude that Plaintiff has failed to establish a prima facie case of discrimination with respect to the reprimands for the May 13 incident.
2. The Termination
As we noted above, Defendants do not dispute Plaintiff's qualifications for her job. In addition, there is no question that termination is an adverse employment action. See Griesbaum v. Aventis Pharm., 259 F. App'x. 459, 470 (3d Cir. 2007) (noting that "it is hard to understand how any employment action could be more adverse than a termination of employment"). Consequently, in order to establish a prima facie case of discrimination with respect to her termination, Plaintiff must show either that similarly situated individuals were not terminated or that the circumstances of Plaintiff's termination support an inference of discrimination. Cubbage v. Bloomberg, L.P., No. 05-2989, 2010 WL 3488619, at *18 (E.D. Pa. Aug. 31, 2010); see also Sarullo, 352 F.3d at 797; Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997).
There is some support for the proposition that a plaintiff must present evidence of similarly situated persons who were treated less favorably than she in order to establish a § 1983 claim for a denial of equal protection. See Renchenski v. Williams, ___ F.3d ___, No. 07-3530, 2010 WL 3835217, at *17 (3d Cir. Oct. 4, 2010) (citing Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003); Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd of Educ., 587 F.3d 176, 196 (3d Cir. 2009); Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002) (citations omitted);Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005) (citation omitted). The Third Circuit has relaxed this requirement in the Title VII context. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 355-56 ("While some of our prior cases may have given the impression that `replacement by someone outside the plaintiff's class' is a requirement for the prima facie case, they have not so held, and Supreme Court precedent such as McDonnell Douglas, Teamsters, and O'Connor clearly require only `evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion.'" (quoting O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996))); see also Matczak, 136 F.3d at 939 (Under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq., "favorable treatment outside the protected class is an `alternative' element to a prima facie case . . . [which] can be present but by no means must be present.").
In this case, we need not decide whether a plaintiff must produce evidence of similarly situated persons who were treated more favorably than she in order to withstand summary judgment on a § 1983 claim alleging a violation of equal protection. Even if such evidence is not required, we conclude that Plaintiff has failed to satisfy the alternative requirement, that is, she has failed to produce "evidence adequate to create an inference that [her] employment decision[s] w[ere] based on an illegal discriminatory criterion." Pivirotto, 191 F.3d at 356 (quotation omitted).
To be deemed similarly situated, "the `comparators' that an employment Plaintiff relies upon must be individuals [who] engaged in the same conduct as Plaintiff, and [who] shared in common all relevant aspects of [Plaintiff's] employment."Fayewicz v. Redner's Markets, Inc., No. 09-2596, 2010 WL 1644626, at *9 (E.D. Pa. Apr. 23, 2010) (citing inter alia Red v. Potter, 211 F. App'x 82, 84 (3d Cir. 2006)). Defendants argue that Plaintiff has failed to identify similarly situated individuals who were treated differently because she "has not produced any evidence of any other City employee who revealed a patient's lab results and led her supervisors to believe that she had further confidential information and who was not dismissed." (Defs. Mem. at 7.)
Warenecki testified that she did not reveal a co-worker's confidential medical records at the June 17 meeting. (Pl.'s Dep. at 62-64, 79.) Evon Sutton, one of Warenecki's union representatives testified that Warenecki "absolutely did not do that." (Sutton Dep. at 16.) On the other hand, Adele Roberts, another of Warenecki's union representatives, as well as McAfee and Wilkerson, testified that she did pass around a confidential lab slip, and that her co-worker's name and type of test were clearly identifiable on the document. (Roberts Decl. ¶ 8; McAfee Decl. ¶ 19; Wilkerson Decl. ¶ 14). Since we may not "resolve factual disputes or make credibility determinations, and [as we] must view facts and inferences in the light most favorable to the party opposing the motion," we must assume that Warenecki did not pass around confidential health records at the June 17 meeting.Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995) (citation omitted). However, it is undisputed that Plaintiff led her supervisors to believe that she was in possession of confidential health records belonging to her co-workers. (Defs. Statement of Material Facts ¶ 21; Pl.'s Dep. at 62, 67.) Therefore, for purposes of our equal protection analysis, a person similarly situated would be a person who led her supervisors to believe that she had committed a violation of the employer's policies and of federal law. Plaintiff has produced no evidence relating to the employment status of such employees. Accordingly, we conclude that Plaintiff has failed to establish that similarly situated individuals were not terminated.
In the alternative, Plaintiff may establish the fourth element of her prima facie case by producing other evidence adequate to support an inference of discrimination. Matczak, 136 F.3d at 939. However, "the plaintiff cannot rely on unsupported assertions [or] speculation" to create an inference of discrimination.Turgeon v. Marriott Hotel Servs., Inc., No. 99-4401, 2000 WL 1887532, at *6 (E.D. Pa. Dec. 27, 2000) (citing Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999)).
Plaintiff relies primarily on her own testimony concerning experiences in which she believes McAfee treated her less favorably than nonwhite employees. She testified that, in 2007-08, McAfee criticized white nurses for their hair and attire (Pl.'s Dep. at 46-47), but has presented no evidence that McAfee did not similarly criticize nonwhite nurses. Warenecki also testified that no white nurses passed the probation period after McAfee took over as supervisor in 2007 (id. at 46), but has supplied no evidence as to the pass rates of nonwhite nurses. Warenecki also testified that McAfee spoke to her about arriving late while two African American employees, who also had arrived late, were sitting at their desks eating cereal (id. at 49-50), but failed to submit evidence that McAfee did not also speak to the employees eating cereal at their desks. Moreover, Plaintiff admitted that McAfee did not write her up, or criticize her in any other way, for arriving late. (Id. at 49.) Warenecki testified that McAfee once mentioned to her that she should not carry her cell phone in her pocket, when it was turned on and set to vibrate, and that an African American employee wore a blue tooth (id. at 50-51), but she supplied no evidence that McAfee did not mention the policy against cell phones to the employee who wore the blue tooth.
The record establishes that only two white nurses failed to pass probationary periods between 2007 and 2010. (Cameron Aff. ¶ 10.) The Health Department explained that both nurses had trouble taking blood pressure readings. (Id.) Moreover, there is no evidence that McAfee, or anyone else involved in Plaintiff's termination, had anything to do with these decisions.
Plaintiff also testified that shortly after the June 17 meeting, Wilkerson told her that she "had a nerve to complain, because, you know, it's a well-known fact that, you know, that black people have been discriminated for hundreds of years. . . ." (Pl.'s Dep. at 56). This statement may reflect a lack of concern for discrimination against nonwhites and a discomfort with discrimination allegations by white employees, but Plaintiff has failed to explain how it supports the further inference that Wilkerson recommended Plaintiff's termination because he harbored racial animus against whites.
See supra at 22.
Plaintiff also relies on evidence supplied by Cameron, who has related instances in which she believes white employees at the Health Center were treated less favorably than nonwhite employees. Cameron had a fixed lunch time, while nonwhites on staff could vary their lunch time. (Cameron Aff. ¶ 11.) In addition, Dr. Khan, who is of Indian descent, brought his son to work to shadow Wilkerson, and Cameron's request that her daughter be allowed to do the same subsequently was denied. (Id. ¶ 12.) McAfee and an African American employee received tuition assistance from the Health Department, and Cameron's request for the same benefit was denied. (Id. ¶ 13.) This evidence has little if anything to do with Plaintiff's termination. Our inquiry is whether Plaintiff's "termination occurred under circumstances giving rise to an inference of discrimination." Wallace v. Federated Dept. Stores, No. 05-4204, 2009 WL 440346, at *3 (E.D. Pa. Feb. 19, 2009). Because we focus on the circumstances of termination,"[s]tray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight. . . ." Martinez v. Fox Broadcasting Co., No. 06-4537, 2008 WL 4425099, at *5 (E.D. Pa. Sept. 30, 2008) (quoting Pivirotto, 191 F.3d at 359); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (stating that Title VII is not a "general civility code" for the workplace and that complaints attacking "the ordinary tribulations of the workplace" do not state a claim under Title VII (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) and B. Lindemann D. Kadue, Sexual Harassment in Employment Law 175 (1992))). There is no evidence on the record that McAfee, or anyone else involved in Plaintiff's termination, had any control over decisions about whether employees could vary their lunch times, whose children could shadow AHS employees, and which employees were awarded tuition assistance.
It is also significant that the decision to terminate Plaintiff was made by two members of her racial group. Commissioner Schwarz made the final decision to terminate Plaintiff, based on the recommendation of Dr. Storey. (Defs. Statement of Material Facts ¶ 37.) Both Commissioner Schwarz and Dr. Storey, like Plaintiff, are white. (Id. ¶ 10.) "[T]he race of the individuals responsible for an adverse employment decision `is certainly relevant . . .'" Coulton v. Univ. of Pa., No. 05-1446, 2006 WL 759701, at *6 (E.D. Pa. Mar. 21, 2006) (quoting Iadimarco, 190 F.3d at 156). Where the person responsible for Plaintiff's termination was a member of Plaintiff's racial group, that fact weighs against an inference of discrimination. See, e.g.,Coulton, 2006 WL 759701, at *6 (concluding that a Caucasian Plaintiff had failed to establish a prima facie case of reverse discrimination in part because "several of the administrators who supported Plaintiff's termination . . . were Caucasian");Turgeon, 2000 WL 1887532, at *8 ("Lastly, Hines, who was white, made the final decision to terminate Plaintiff [who also was white]. Therefore, Plaintiff has failed to establish a prima facie case of discrimination.").
Defendants represented in their Memorandum of Law that Dr. Storey is white. (Defs. Mem. at 15.) Plaintiff does not dispute this representation in her Response. The record itself is devoid of any indication of his race.
Accordingly, we conclude that there is no genuine issue of material fact as to whether the circumstances of Plaintiff's termination give rise to an inference of discrimination. They do not. Plaintiff relies on unsupported allegations and speculation, fails to provide evidence relating to her termination, and concedes that the individual responsible for her termination was a member of her racial group. Moreover, Plaintiff has not produced evidence of similarly situated persons who received better treatment. We conclude that Plaintiff has not established a prima facie case of discrimination with respect to her termination.
As Plaintiff has not established a prima facie case of discrimination with respect to the reprimands or her termination, we conclude that Defendants are entitled to judgment as a matter of law on Plaintiff's discrimination claims under Title VII and § 1983. Therefore, we grant Defendants' Motion for Summary Judgment as to Counts II, III, and V.
B. The Monell Claim
In Count I, Plaintiff asserts a claim against the City of Philadelphia pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Plaintiff claims that the City of Philadelphia failed adequately to train and supervise her superiors at Health Center #6, and argues that the City's failures to train and supervise caused the reprimands and the termination she alleges to be unconstitutional. Defendants argue that Plaintiff lacks sufficient evidence to support this claim. "[P]roper analysis requires [the Court] to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and if so, (2) whether the city is responsible for that violation."Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citations omitted); see also Searles v. Southeastern Pa. Transp. Auth., 990 F.2d 789, 791 (3d Cir. 1993). Because we conclude that Warenecki's reprimands and termination did not violate the Equal Protection Clause, we need not reach the question of the City's liability. Plaintiff's failure to supply evidence that she was deprived of a constitutional right with respect to her reprimands and termination "forecloses [her] ability to establish municipal liability against [the City] for the same conduct." Thomas v. Bd. of Educ., 467 F. Supp. 2d 483, 492 (W.D. Pa. 2006) (citations omitted).
Accordingly, we conclude that Defendants are entitled to judgment as a matter of law on Plaintiff's Monell claim. Therefore, we grant Defendants' Motion for Summary Judgment as to Count I.
C. The Retaliation Claim
In Count VI, Plaintiff asserts a claim against the City of Philadelphia pursuant to Title VII. She claims that the City terminated her in retaliation for her accusing her supervisors of racial discrimination at the June 17 meeting. Defendants argue that they are entitled to summary judgment with respect to this claim because Plaintiff cannot establish a prima facie case of retaliation and because the City had a legitimate, non-retaliatory reason for her termination.
In the absence of direct evidence, we analyze a Title VII retaliation claim under the McDonnell Douglas framework. Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006). "To establish a prima facie case of retaliation under Title VII, a plaintiff must tender evidence that: `(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action.'" Id. (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). To satisfy the first element the employee must either "participate in certain Title VII proceedings (the participation clause) [or] oppose discrimination made unlawful under Title VII (the opposition clause)." Moore, 461 F.3d at 341. "Whether the employee opposes, or participates in a proceeding against, the employer's activity, the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII." Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) and Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996)). To satisfy the second element, a plaintiff "must show that a reasonable employee would have found the alleged retaliatory actions `materially adverse' in that they `well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. (citing Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). To satisfy the third element, "a plaintiff must show a causal connection between the plaintiff's opposition to, or participation in proceedings against, unlawful discrimination and an action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 341-42. We examine "the record as a whole" to determine if there is a causal connection between the protected activity and the adverse employment action. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). There are "two primary ways to substantiate a causal connection between the protected activity and an adverse employment action: showing that the temporal proximity between the two is `unusually suggestive,' or pointing to an `ongoing antagonism' between the plaintiff and defendant." Gladysiewski v. Allegheny Energy, No. 09-4680, 2010 WL 3622446, at *2 (3d Cir. Sept. 20, 2010) (quotingFarrell, 206 F.3d at 280-81).
If the plaintiff establishes a prima facie case of retaliation, "the familiar McDonnell Douglas approach applies in which `the burden shifts to the employer to advance a legitimate, non-retaliatory reason' for its conduct. . . ." Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). If the employer proffers such an explanation, the burden shifts back to the plaintiff, who "`must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.'" Id. (quoting Krouse, 126 F.3d at 500-01).
1. Prima Facie Case
Defendants do not challenge Plaintiff's ability to satisfy the first and second elements of her prima facie case. It is undisputed that Warenecki accused her supervisors of racial discrimination at the June 17 meeting (Defs. Statement of Material Facts ¶ 18), and that Warenecki subsequently was terminated. Defendants argue that Warenecki has failed to satisfy the third element because she cannot establish a causal link between her opposition to the alleged discrimination and her termination. We disagree.
While we have concluded that the verbal reprimands and the May 16 memorandum did not constitute adverse employment action under Title VII, "`a plaintiff need not prove the merits of the underlying discrimination complaint, but only that [s]he was acting under a good faith, reasonable belief that a violation existed.'" Aman, 85 F.3d at 1085 (quoting Griffiths v. Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993)); see also Aman, 85 F.3d at 1085 ("[P]rotesting what an employee believes in good faith to be a discriminatory practice is clearly protected conduct."). "It is therefore of no moment that the incidents she complained of, individually or collectively, did not rise to the level of . . . discrimination." Brown-Baumbach v. B B Auto., Inc., No. 09-3962, 2010 WL 2710543, at *14 (E.D. Pa. July 7, 2010).
"[T]ermination clearly fulfills the second prong of the prima facie case for a retaliation claim." Abramson v. William Paterson Coll., 260 F.3d 265, 288 (3d Cir. 2001).
"A showing of `unusually suggestive' temporal proximity between the protected activity and the adverse action can be sufficient" to show a causal link.Schlegel v. Koteski, 307 F. App'x 657, 661 (3d Cir. 2009) (quoting Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008)). Warenecki voiced her opposition to allegedly discriminatory practices at the meeting on June 17, 2008. (Defs. Statement of Material Facts ¶¶ 17-18.) On July 21, she received a memorandum from McAfee, sent through Wilkerson, stating that they were recommending suspension pending dismissal. (Def. Ex. 6.) Accordingly, approximately five weeks passed between Warenecki's protected activity and the first instance of adverse employment action.
In a retaliation claim, Plaintiff need only show that "a reasonable employee would have found the alleged retaliatory actions `materially adverse' in that they `well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Moore, 461 F.3d at 341 (citation omitted). We conclude that a memorandum from one's immediate supervisors recommending suspension pending dismissal constitutes adverse employment action for purposes of a Title VII retaliation claim. The fact that Warenecki subsequently was terminated only strengthens this conclusion. See Seybert v. International Group, Inc., No. 07-3333, 2009 WL 722291, at *22 (E.D. Pa. Mar. 18, 2009) ("Whether an action is materially adverse will often depend `on a constellation of surrounding circumstances, expectations, and relationships. . . .'" (quoting Burlington Northern, 548 U.S. at 69)).
The Third Circuit has "set no parameters" and encourages district courts to "decide[] in the context of the particular circumstances" whether the "temporal proximity . . . provides an evidentiary basis from which an inference can be drawn." Kachmar v. SunGuard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997). Generally, a period of several months between the protected activity and the adverse employment action is insufficient to create a causal inference. See, e.g., Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (five months insufficient); Bailey v. Commerce Nat'l Ins. Servs., Inc., 267 F. App'x. 167, 170 (3d Cir. 2008) (four months insufficient); Scheer v. Motorola, Inc., No. 09-209, 2010 WL 1878265, at *17 (E.D. Pa. May 10, 2010) (ten months insufficient). A period of only six weeks, on the other hand, may be sufficient to show causation. See, e.g., Marra v. Phila. Housing Auth., 497 F.3d 286, 306 (3d Cir. 2007) (six weeks sufficient).
Here, approximately five weeks passed between Warenecki's protected activity and the July 21st memorandum. Bearing in mind that, on summary judgment, we "must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor," Abramson v. William Paterson Coll., 260 F.3d 265, 276 (3d Cir. 2001) (quotation omitted), we conclude that the temporal proximity of Warenecki's protected activity and the first instance of adverse employment action is sufficient to establish a causal link.
In addition to considering temporal proximity, we also must "make the more generalized inquiry into whether [the plaintiff's] protected activity was the likely reason for her termination."Kachmar, 109 F.3d at 179. Warenecki relies on her testimony that, shortly after the June 17 meeting, Wilkerson told Plaintiff that she "had a nerve to complain, because, you know, it's a well-known fact that, you know, that black people have been discriminated for hundreds of years." (Pl.'s Dep. at 56.) Viewing this evidence in the light most favorable to Plaintiff, we conclude that it may reflect a lack of concern for discrimination against nonwhites and a discomfort with discrimination allegations by white employees. As it is undisputed that Wilkerson provided the account of the June 17 meeting on which Dr. Storey and Dr. Schwarz relied in making the decision to terminate Warenecki (Defs. Statement of Material Facts ¶¶ 30, 37), this evidence, together with the temporal proximity of Plaintiff's protected conduct and her termination, could allow a factfinder to conclude that the Health Department terminated Ms. Warenecki because she accused her supervisors of racial discrimination. Accordingly, we conclude that Plaintiff has established a prima facie case of retaliation.
2. Defendants' Non-Retaliatory Explanation
Defendants argue that, even if Plaintiff has established a prima facie case of retaliation, they are entitled to summary judgment because they have proffered a legitimate, non-retaliatory explanation for Plaintiff's termination and Plaintiff cannot establish that the reason was a mere pretext for retaliation. Defendants claim that Warenecki was terminated because "she revealed confidential information about another employee/patient and lied to her supervisors about possessing additional confidential records regarding other employees/patients." (Defs. Mem. at 22.) Defendants' claim is supported by the July 21st memorandum (Def. Ex. 6), the Memorandum regarding Appeal of Recommended Disciplinary Action (Def. Ex. 12), the Notice of Suspension (Def. Ex. 13), the Notice of Intent to Dismiss (Def. Ex. 14), and the Notice of Dismissal (Def. Ex. 15). Defendants have satisfied their burden of "advanc[ing] a legitimate, non-retaliatory reason for [their] conduct." Moore, 461 F.3d at 342 (internal quotation omitted).
3. Plaintiff's Evidence of Pretext
Since Defendants have articulated a legitimate, non-retaliatory reason for Plaintiff's termination, she must offer evidence that could "convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.'" Id. (quotation omitted).
Warenecki has testified that she did not reveal a co-worker's confidential medical records at the June 17 meeting. (Pl.'s Dep. at 62-64, 79.) Sutton similarly testified that Warenecki "absolutely did not do that." (Sutton Dep. at 16.) While Defendants attack the credibility of both witnesses, we do not "resolve factual disputes or make credibility determinations" at summary judgment. Seigel Transfer, 54 F.3d at 1127 (citation omitted). The credibility of Warenecki's and Sutton's testimony must be determined by a trier of fact. If the trier of fact determines that Warenecki did not, in fact, pass around a co-worker's medical slip at the June 17 meeting, then "the trier of fact [could] reasonably infer from the falsity of the [Defendants'] explanation that the employer is dissembling to cover up a [retaliatory] purpose." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (citation omitted).
Accordingly, we conclude that there exists a genuine issue of material fact as to whether Defendants' articulated justification for Plaintiff's termination is pretextual. Therefore, we deny Defendants' Motion for Summary Judgment as to Count VI.
IV. CONCLUSION
For the foregoing reasons, Defendants are entitled to judgment as a matter of law on Plaintiff's § 1983 claims, and on Plaintiff's discrimination claim under Title VII. Consequently, we grant Defendants' Motion for Summary Judgment as to Counts I, II, III, and V. As there is a genuine issue of fact material to the resolution Plaintiff's retaliation claim under Title VII, we deny Defendants' Motion for Summary Judgment as to Count VI.
An appropriate order follows.