Donna Theriault v. DOLLAR GENERAL Appeal from the United States District Court for the Western District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2653
DONNA THERIAULT,
Appellant
v.
DOLLAR GENERAL
Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 2-07-cv-00227)
District Judge: Hon. Terrence F. McVerry
Submitted under Third Circuit LAR 34.1(a)
on March 2, 2009
Before: BARRY, WEIS and ROTH, Circuit Judges
(Opinion filed July 6, 2009)
O P I N I O N
ROTH, Circuit Judge:
Donna Theriault appeals the final order of the United States District Court for the
Western District of Pennsylvania granting summary judgment for Dollar General. We

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exercise plenary review over a grant of summary judgment. E.g., Dee v. Borough of
Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). We view the facts in a light most favorable
to Theriault and apply the same standard that guided the District Court. See id. Because
the parties are familiar with the facts, we will describe them only as necessary to explain
our decision. For the reasons discussed below, we will affirm.
Theriault asserts that the District Court erred in granting summary judgment for
Dollar General on all three of her claims. Her three claims are as follows: (1) sexual
harassment arising from a hostile work environment in violation of Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000e, et seq., (2) retaliation in violation of Title VII, and
(3) retaliation for attempting to obtain workers’ compensation benefits in violation of
Pennsylvania law. The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and
1367. We have jurisdiction under 28 U.S.C. § 1291. Theriault first argues that the
District Court erred in granting summary judgment on her hostile-work-environment
claim because she created a genuine issue of material fact that her supervisor’s comments
were severe or pervasive. To establish a prima facie hostile-work-environment claim, a
plaintiff must establish five elements: (1) that she suffered intentional discrimination
because of her sex, (2) that the discrimination was severe or pervasive, (3) that the
discrimination detrimentally affected her; (4) that the discrimination would detrimentally
affect a reasonable person in like circumstances, and (5) that a basis for employer liability
is present. See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on

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Theriault alleges that the termination violated both Title VII and the Pennsylvania1
Human Relations Act (PHRA). The PHRA “is construed consistently with interpretations
of Title VII.” Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1084 (1995). Our
analysis and conclusion for Theriault’s Title VII retaliation claim are thus equally
applicable to her PHRA retaliation claim.
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other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
To determine whether the comments were severe or pervasive, this Court evaluates
“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 the employee’s work performance.” Faragher v. City of Boca Raton, 524
U.S. 775, 787–88 (1998) (internal quotation marks omitted). Here, the comments were
neither physically threatening nor humiliating, and Theriault has not shown how the
comments affected her work performance.
Theriault next argues that the District Court erred in granting summary judgment
on her Title VII and state-law retaliation claims because she created a genuine issue of
material fact that she engaged in protected activity. To establish a prima facie retaliation1
claim, a plaintiff must establish three elements: (1) that she engaged in a protected
activity; (2) that the employer took an adverse employment action against her, and (3) that
a casual link existed between the protected activity and the adverse employment action.
E.g., Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006). To engage in
protected activity, the employee must either participate in certain Title VII proceedings
(the participation clause) or oppose discrimination made unlawful under Title VII (the

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opposition clause). Id. at 341. For either clause, “the employee must hold an objectively
reasonable belief, in good faith, that the activity [she] oppose[s] is unlawful under Title
VII.” Id. Or, “[t]o put it differently, if no reasonable person could have believed that the
underlying incident complained about constituted unlawful discrimination, then the
complaint is not protected.” Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d
315, 322 (3d Cir. 2008).
Here, Theriault did not engage in protected activity because she complained only
of a single incident that no reasonable person could have believed violated Title VII. See
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269–70 (2001) (per curium) (holding
that a plaintiff did not engage in protected activity because “[n]o reasonable person could
have believed that” a single, non-serious incident “violated Title VII’s standard”).
Finally, Theriault argues the District Court erred in granting summary judgment on
her Pennsylvania law workers’ compensation retaliation claim because she created a
genuine issue of material fact that a causal link existed between the protected activity and
the adverse employment action. The Pennsylvania Supreme Court has not yet established
the elements of retaliation claims. We predict that it, when presented with the
opportunity, will apply the Title VII framework to Pennsylvania retaliation claims
because of the similarities between the two. Accordingly, we will apply the federal
elements. A plaintiff may show causation in any of the following three ways: (1) “[i]n
certain narrow circumstances,” by the timing of the adverse reaction vis-a-vis the

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protected activity; (2) by a pattern of animus during the interval between the protected
activity and the adverse action; or (3) by other circumstantial evidence concerning the
employer’s motivation, including inconsistent reasons given by the employer for
terminating the employee or the employer’s treatment of other employees. See Marra v.
Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007).
Here, Theriault did not establish causation because she was terminated several
months after her alleged protected activity. See Jalil v. Avdel Corp., 873 F.2d 701, 708
(3d Cir. 1989). Nor does Theriault rely on any evidence of a pattern of intervening
animus between the protected activity and the adverse action or on any circumstantial
evidence concerning Dollar General’s motivation.
For the reasons set forth above, we will affirm the judgment of the District Court.

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