Sharon James v. AC Moore Arts and Crafts Inc ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-1733
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SHARON M. JAMES,
Appellant
v.
A.C. MOORE ARTS AND CRAFTS INC./SBAR’S INC.; LAURA DORON;
STARMANE HAYMAN; A.C. MOORE ARTS & CRAFTS, INC.,
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:18-cv-00063)
District Judge: Hon. Colm F. Connolly, U.S.D.J.
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Submitted Under Third Circuit LAR 34.1(a)
January 28, 2022
Before: CHAGARES, Chief Judge, McKEE and MATEY, Circuit Judges.
(Filed: February 3, 2022)
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OPINION
_______________

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
MATEY, Circuit Judge.
Before it closed its doors for good, Sharon James worked for A.C. Moore Arts &
Crafts, Inc. (“A.C. Moore”) for almost a decade. Despite first “loving” her job, (App. at
811), things turned sour when A.C. Moore instituted changes that impacted James’s
hours and responsibilities. James filed four charges of discrimination against A.C. Moore
and, when the Delaware Department of Labor (“DDOL”) dismissed them, she sued in
federal court. The District Court granted A.C. Moore’s motion for summary judgement
and, finding no error, we will affirm.
I. BACKGROUND
A. The Allegations
A.C. Moore hired James in 2009 as a part-time Activities Specialist, a position that
emphasized “flexibility” in duties, including stocking and checkout. (App. at 862.) In 2011,
A.C. Moore revised James’s job description to add product promotion and class instruction.
In 2013, A.C. Moore implemented a “Static Schedule,” assigning all employees regular
shifts that reduced the number of scheduled hours per week for most positions, including
the Activities Specialist. In response, James filed an age discrimination charge with the
DDOL. A second charge followed, alleging retaliation for the first charge because of
reduced hours, changed responsibilities, and negative performance reviews. A third charge
again alleged retaliation based on adverse work assignments. And a fourth charge related
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to workplace lockers.1 Complaining of cold conditions in the store, James voluntarily
resigned in March 2018.
B. The Lawsuit
James sued, alleging violation of the Age Discrimination in Employment Act of
1967 (“ADEA”). She also alleged that A.C. Moore retaliated against her and created a
hostile work environment.2 The District Court dismissed part of the complaint, and then
granted A.C. Moore summary judgement on the remaining claims. This timely appeal of
the decision granting summary judgment followed.3
II. DISCUSSION
We review a grant of summary judgement4 de novo. Moyer v. Patenaude & Felix,
A.P.C., 991 F.3d 466, 469 (3d Cir. 2021). Summary judgement is appropriate only if
“‘there is no genuine dispute as to any material fact’ and, viewing the facts in the light most
favorable to [James], [A.C. Moore] ‘is entitled to judgment as a matter of law.’” Shuker v.
Smith & Nephew, PLC, 885 F.3d 760, 770 (3d Cir. 2018) (quoting FED. R. CIV. P. 56(a)).
1
The incident stemmed from a policy change requiring employees to request a
locker, rather than choosing their own. When several lockers were secured with zip-ties,
James cut the tie off the locker she historically used. She alleges her personal items were
then removed from the locker and discarded.
2
James also filed suit against two individual defendants. The District Court
dismissed both claims because the ADEA does not provide for individual liability. James
does not appeal that decision.
3
The District Court had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291.
4
James references allegations that the District Court dismissed at an earlier stage
in the litigation. Because James did not appeal those rulings, and does not appeal them
now, we do not address those facts. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016)
(holding that an argument not developed in an opening brief is forfeited).
3
“Unsupported assertions, conclusory allegations, or mere suspicions are insufficient to
overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d
249, 252 (3d Cir. 2010). James appeals only the District Court’s award of summary
judgement on her retaliation claim, so we do not address her other claims. See Barna v. Bd.
of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145–46 (3d Cir. 2017).
Without direct evidence of retaliation, we use the three-part McDonnell Douglas
framework requiring James to establish that 1) she engaged in protected activity, 2) she
was subject to an adverse action, and 3) there is a causal connection between the protected
activity and adverse action. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Then, the burden of production
shifts to A.C. Moore to present a “legitimate, non-retaliatory reason” for the adverse action.
Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). And if A.C. Moore
advances such a reason, the burden shifts back to James to show that A.C. Moore’s
proffered explanation was false, and that retaliation was the “real reason” for the adverse
action. Id. (citation omitted). We address each allegation in turn.5
A. Demotion, Change in Duties, and Adverse Assignments
James alleges that A.C. Moore retaliated against her when it reassigned her job
duties and demoted her. James satisfies the first element of her prima facie case because
she filed four charges of discrimination. See Daniels, 776 F.3d at 193 (“For purposes of
5
On our read, only the first two allegations are included within James’s third and
fourth DDOL charges. But the District Court addressed the final two allegations, and A.C.
Moore follows suit in its Response Brief. So we address them here as well.
4
the first prong of a prima facie case of retaliation, protected ‘opposition’ activity includes
. . . an employee’s filing of formal charges of discrimination.”). But she does not establish
that these allegations constitute adverse actions. An adverse action is one that “would have
‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 220 (3d Cir. 2017) (quoting Daniels, 776
F.3d at 195). James’s job title never changed and she testified that “[n]obody told [her] that
[she] lost the activities specialist job”—in person, on paper, or otherwise. (App. at 711.)
Nor was her hourly rate of pay ever reduced.
And James’s duties did not change, either. Working at the cash register was always
a part of her job description, while light janitorial duties were added to all non-exempt
positions in 2016. In all, her belief that she was “demoted,” (App. at 711), amounts to an
“[u]nsupported assertion[],” which cannot overcome a motion for summary judgement.
Betts, 621 F.3d at 252.
B. Locker Assignment
Next, James argues that A.C. Moore retaliated against her by taking her locker away.
That is enough to show a protected activity (as it followed her administrative charges and
internal complaints), but it does not show an “adverse action.” Assuming the locker was
once assigned to James, A.C. Moore changed its policy to require all employees—not just
James—to submit a locker request. And even if this were an adverse action, the locker
change occurred eighteen months after the third charge and seven months after James filed
an internal complaint. These time frames are not “unusually suggestive.” See LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232–33 (3d Cir. 2007) (three months
5
“cannot create an inference of causation and defeat summary judgment”); Andreoli v.
Gates, 482 F.3d 641, 650 (3d Cir. 2007) (five months “insufficient to raise an inference of
causation”). Considering the circumstances, no “reasonable factfinder could determine that
[James’s] engagement in a protected activity was the likely reason for” the locker
reassignment, Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 261 (3d Cir. 2017)
(emphasis omitted).
C. Lower Performance Evaluation
Next, James alleges that her performance evaluations dropped after she filed her
charges. Recall that James filed her first charge in February 2013, and the second in June
2013. James received her 2012 “Meets Expectations” after her first filing, the same rating
she received in 2009 and 2010. It was not until the 2013 performance review that James’s
score declined.6
But this still does not make a prima facie case. First, James testified that her score
rebounded over the next years. One negative evaluation, standing alone, is not enough to
constitute an adverse action. See Walker v. Centocor Ortho Biotech, Inc., 558 F. App’x
216, 220 (3d Cir. 2014). Second, even if one negative score were enough, James was not
disciplined, nor was her compensation impacted. And “[t]he antiretaliation provision
protects an individual not from all retaliation, but from retaliation that produces an injury
or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
6
Though the record is unclear as to when James received her 2013 review results,
we construe the facts in the light most favorable to James, Shuker, 885 F.3d at 770, and
assume that James received this lower-than-usual score after filing the second charge.
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D. False Reports
Finally, James contends that A.C. Moore retaliated against her by making a false
submission to the DDOL. This unsubstantiated allegation cannot overcome a motion for
summary judgement. See Betts, 621 F.3d at 252.
III. CONCLUSION
James fails to establish a dispute as to any material fact and we will affirm the
District Court’s award of summary judgement.
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