NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-1720 __________

SERENE DUDHI, Appellant

v.

TEMPLE HEALTH OAKS LUNG CENTER; TEMPLE UNIVERSITY HEALTH SYSTEM, INC.

__________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:18-cv-03514) District Judge: Honorable Gene E.K. Pratter __________

Submitted Under Third Circuit L.A.R. 34.1(a) on November 20, 2020

Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges

(Filed: December 1, 2020) __________

OPINION * __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RESTREPO, Circuit Judge.

Serene Dudhi sued her former employer alleging pregnancy-related discrimination

claims. The District Court granted her employer’s motion for summary judgment, finding

that Dudhi had failed to establish a prima facie case. We will affirm.

I. BACKGROUND

Dudhi previously worked as a permanent medical assistant at Temple Lung Center

(“TLC”). On June 26, 2017, she was assigned an afternoon shift in the clinic. At the time,

Dudhi had recently returned from parental leave after giving birth and was nursing. While

on duty that afternoon, she left her work area to express breastmilk. Dudhi did not get

permission to leave or ensure that her patients would be cared for while she was gone. The

only other medical assistant on duty that afternoon was Aaliyah Hosten, and she too was

absent from the clinic while Dudhi was expressing milk. Hosten did not have permission

to leave the work area either.

One of the doctors working in the clinic that afternoon notified Dudhi’s supervisor,

Beth Knowles, that he could not see patients because there were no medical assistants in

the clinic. While attempting to locate Dudhi and Hosten, Knowles noticed medication spin-

ning in an unattended centrifuge. She also encountered a patient looking for Dudhi. After

failing to locate either medical assistant, Knowles called Dudhi and asked her to return

immediately.

Three days after that incident, Dudhi’s employment with TLC was terminated for

violating Work Rule D.5, which states that employees are prohibited from “[l]eaving an

assigned work area without permission and without proper relief when responsible for

2 patient or client care, or the security of an area or person.” App. 6. Her employment termi-

nation was effective immediately. Hosten, who was a temporary medical assistant, was

also disciplined. She was disqualified from consideration for permanent employment but

permitted to complete the remainder of her temporary assignment. After Hosten completed

her temporary assignment, her employment with TLC ended.

In 2018, Dudhi initiated an employment discrimination lawsuit against TLC, alleg-

ing violations of Title VII of the Civil Rights Act and the Pennsylvania Human Relations

Act (“PHRA”). Specifically, Dudhi alleged that her employer “w[as] hostile to [her] preg-

nant/nursing condition, and [that she was] terminated . . . because of that animus.” App.

183. 1

TLC moved for summary judgment. First, the District Court found that Dudhi failed

to set forth a prima facie case under the framework laid out in McDonnell Douglas Corp.

v. Green,

(1973). Second, the Court also found, even if she had, TLC prof-

fered a legitimate nondiscriminatory reason for its actions and Dudhi failed to rebut that

reason. Accordingly, the District Court granted summary judgment. Dudhi now appeals.

II. DISCUSSION 2

Dudhi’s claims are analyzed under the McDonnell Douglas burden-shifting frame-

work. See In re Carnegie Ctr. Assoc.,

, 294–95 (3d Cir. 1997). Under that

1 Dudhi also alleged race-based discrimination claims, however, she appeals the District Court’s order only as it relates to her pregnancy-related discrimination claims. See Appellant Br. at 17–18. 2 The District Court had jurisdiction under

and 1367(a), and we have jurisdiction under

. We review the District Court’s grant of summary

3 framework, Dudhi bears the burden of presenting evidence sufficient to support a prima

facie case of discrimination. Doe v. C.A.R.S. Protection Plus, Inc.,

(3d

Cir. 2008). If she establishes a prima facie case, the burden of production shifts to TLC to

identify a legitimate, nondiscriminatory reason for its adverse employment decision. See

Texas Dep’t of Cmty. Affs. v. Burdine,

, 252–53 (1981). If TLC offers such

evidence, the burden shifts back to Dudhi, who must then show that TLC’s nondiscrimina-

tory reason was pretextual.

To establish a prima facie case of pregnancy-related discrimination under Title VII

and the PHRA, Dudhi must show that (1) “she is or was pregnant and that her employer

knew she was pregnant,” (2) “she was qualified for her job,” (3) “she suffered an adverse

employment decision,” and (4) “there is some nexus between her pregnancy and her em-

ployment termination that would permit a fact-finder to infer unlawful discrimination.”

C.A.R.S.,

.

Dudhi sought to support her claims by offering comparator evidence. Dudhi argued

that TLC treated Hosten, a similarly situated non-breastfeeding employee, more favorably

by allowing Hosten to finish her temporary assignment after she also violated Work Rule

D.5. The District Court, however, determined that Dudhi and Hosten were not similarly

situated, and because Dudhi offered no other evidence to support an inference of preg-

nancy-related discrimination, it found that Dudhi failed to set forth a prima facie case. We

agree.

judgment de novo and apply the same standard as the District Court. Bletz v. Corrie,

(3d Cir. 2020).

4 A plaintiff may not “selectively choose a comparator,” Simpson v. Kay Jewelers,

(3d Cir. 1998), but should identify “objective qualification[s] or factor[s]

that [she] can use as a yardstick to compare herself with similarly situated employees,”

Ezold v. Wolf, Block, Schorr & Solis-Cohen,

(3d Cir. 1992). 3 The context

of each case determines which factors are relevant, but where allegations of disparate treat-

ment arise in the disciplinary context, relevant factors often include “the standards that the

employees had to meet.” Johnson v. Kroger Co.,

(6th Cir. 2003). In this

instance, as the District Court correctly noted, Hosten and Dudhi were not subject to the

same discipline standards. As a permanent employee, the Work Rules mandated that

Dudhi’s employment be terminated immediately. That same mandate, however, did not

apply to temporary employees like Hosten. This difference distinguishes Dudhi from

Hosten. See

Thus, the District Court correctly concluded that they were not similarly

situated.

Because we conclude that the District Court rightly resolved this issue at step one

of the McDonnell Douglas framework, we need not reach the District Court’s pretext find-

ing.

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court.

3 While we have not explicitly stated what constitutes a similarly situated employee, other Courts have noted that a comparator must be similar in all relevant respects. E.g., Johnson v. Kroger Co.,

(6th Cir. 2003).

5