NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 20-2906 _______________________

SERGEANT DANIELLE ALSTON, Appellant

v.

CITY OF PHILADELPHIA, d/b/a Philadelphia Police Department; LIEUTENANT BRIAN DOUGHERTY, individually and in his official capacity as lieutenant for the Philadelphia Police Department ______________________

On Appeal from the United States District Court For the Eastern District of Pennsylvania District Court No. 2-18-cv-02362 District Judge: Honorable Joshua D. Wolson __________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 21, 2021

Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges

(Filed: September 22, 2021) ____________________

OPINION* _____________________

SMITH, Chief Judge.

Danielle Alston, a former Sergeant with the Philadelphia Police Department,

filed suit against her immediate superior, Lieutenant Brian Dougherty, and the City

of Philadelphia, alleging, inter alia, a gender-based hostile-environment claim

under

and the Equal Protection Clause of the Fourteenth

Amendment. See Starnes v. Butler Cnty. Ct. Com. Pl.,

(3d Cir.

2020) (“The Equal Protection Clause proscribes sex-based discrimination.”).

Sergeant Alston’s claims against the City were dismissed. 22A. In response to

Lieutenant Dougherty’s motion for summary judgment, Sergeant Alston

abandoned one claim, opposing only the motion seeking summary judgment on her

gender-based hostile-environment claim. 205-06A. After the District Court

granted Lieutenant Dougherty’s motion for summary judgment, this timely appeal

followed.1

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The District Court exercised jurisdiction under

. We have jurisdiction under

. Our review of the District Court’s order granting summary judgment is plenary. Starnes,

. 2 Section 1983 hostile-environment claims “require the same elements of proof

as a Title VII action.” Lewis v. Univ. of Pittsburgh,

, 915 n.5 (3d Cir.

1983); see also Starnes,

. In Andrews v. City of Philadelphia, this

Court instructed that:

five constituents must converge to bring a successful claim for a sexually hostile work environment under Title VII (1) the employees suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular;2 (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.

, 1482 (3d Cir. 1990); see also Cardenas v. Massey,

(3d Cir. 2001) (reiterating same elements to prove hostile work environment

claim).

In analyzing Sergeant Alston’s claim, the District Court considered the first

and fifth elements. It concluded that Sergeant Alston could not support her claim

with evidence of an errant text message that Lieutenant Dougherty sent to her

because there was “[n]o evidence” suggesting that the text was sent

“intentionally.” 6A. It noted that the record did not contradict Lieutenant

Dougherty’s assertion that the text was sent by accident and that the lieutenant

apologized in both a follow-up text and in person.

2 We have clarified since Andrews that the second element is whether the discrimination was “severe or pervasive.” Castleberry v. STI Grp.,

(3d Cir. 2017). 3 Sergeant Alston contends this was error as the incident was “sufficiently

severe to create a hostile work environment,” Alston Br. 13, and she points to her

own testimony that she was “shocked,” id. at 15. We are not persuaded. Alston’s

subjective view of the errant text does not create an issue of fact about Lieutenant

Dougherty’s state of mind when the text was transmitted. Although she is correct

that a single incident may be severe enough to create a hostile environment,

Castleberry,

, the severity of the sole, misfired text at issue here

does not shed light on whether Dougherty acted intentionally.

Thus, we turn to Sergeant Alston’s other contention that the District Court

erred when it concluded that Alston failed to establish the existence of respondeat

superior liability for the hostile environment created by some of the other sergeants

and officers in the 35th District to which she was assigned. We have carefully

reviewed the record before us, and conclude that the evidence establishes that some

other officers were aware of some gender-based harassment of which Sergeant

Alston complains. But the record does not show that Lieutenant Dougherty had

actual or constructive notice of the gender-based harassment directed at Sergeant

Alston. While Alston testified that she had ongoing conversations with Dougherty,

she did not spell out the substance of those conversations and she admitted that she

did not inform him of the other officers’ harassing comments related to her

clothing. Accordingly, we conclude that the District Court did not err when it

4 determined that Sergeant Alston failed to show a basis for holding Lieutenant

Dougherty liable.

Accordingly, we will affirm the judgment of the District Court.

5