NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

Nos. 23-1091 & 23-1140 __________

CARLA SLATER, Appellant

v.

JANET LOUISE YELLEN, SECRETARY DEPARTMENT OF THE TREASURY; STEPHANIE SPROSS, FRONTLINE MANAGER TEAM 426, EXAM OPERATIONS, IRS; LISA CHAN, OPERATION MANAGER, EXAM OPERATIONS, IRS; CHARLOTTE A. BURROWS, CHAIR EEOC ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:21-cv-02763) District Judge: Honorable Paul S. Diamond ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 26, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed: October 4, 2023) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Pro se appellant Carla Slater appeals from a judgment of the United States District

Court for the Eastern District of Pennsylvania. For the following reasons, we will affirm

the District Court’s judgment.

I.

In 2021, Appellant Carla Slater, a former seasonal employee of the Internal

Revenue Service (“IRS”), initiated this pro se employment discrimination action against

Treasury Secretary Janet Yellen. She later amended the complaint to include IRS

employees Stephanie Spross and Lisa Chan, and EEOC Chair Charlotte Burrows as

defendants. In the operative second amended complaint, Slater alleged that in January of

2015, she was appointed as a delegate to a religious conference occurring in Thailand the

following November. On February 23, 2015, Slater signed a seasonal contract with the

IRS, agreeing to work for a term of nine to eleven months. She further alleged that, in

March of 2015, she submitted a request for leave without pay to attend the conference,

which Spross denied on March 23, 2015. On October 29, 2015, Slater allegedly informed

her “Lead” that she was leaving to attend the conference in Thailand. ECF No. 9-1 at 8.

Slater alleges that, upon returning from the conference, she assumed that she was

furloughed, applied for (and was granted) unemployment benefits, and waited to receive

a new seasonal offer. On January 22, 2017, Slater’s position was terminated, which she

alleges was the result of Spross purposely keeping her on “AWOL status” so she would

2 be fired. On March 24, 2017, Slater had an unemployment compensation hearing, where

she alleges that Spross falsely testified that Slater abandoned her job. The

Unemployment Compensation Board determined that Slater voluntarily quit and was

ineligible for unemployment compensation. On May 5, 2017, Slater alleges that she

contacted the Equal Employment Opportunity Commission (“EEOC”) to schedule a

meeting and received Notice of Right to File but did not file a formal EEOC complaint at

that time. Slater ultimately filed an EEOC complaint on August 17, 2020.1 She initiated

this action in June of 2021, alleging violations of Title VII of the Civil Rights Act, 42

U.S.C. § 2000e, et seq., and the Due Process Clause.

The District Court screened the complaint and dismissed the due process claims

and all claims against Spross, Chan, and Burrows, as well as the claims related to Slater’s

unemployment benefits proceedings and federal criminal charges. Yellen subsequently

filed a motion to dismiss the remaining Title VII claims, which the District Court granted

in a lengthy memorandum order. Slater appealed from those orders (C.A. No. 23-1091).

She later filed an unnecessary motion to reopen the time to appeal pursuant to Federal

1 In the interim, Slater was criminally charged with one count of theft of government money and one count of making false statements concerning unemployment compensation to the Pennsylvania Department of Labor. Because the Government subsequently obtained information that counseled against proceeding with the case in the interest of justice, the Government filed a motion to dismiss the case with prejudice, which the court granted in June 2022. See United States v. Slater, E.D. Pa. Crim. No. 2:18-cr-00467, Dkt. #64 (dismissing the charges).

3 Rule of Appellate Procedure 4(a)(6).2 The District Court denied the motion to reopen,

and Slater filed a timely notice of appeal (C.A. No. 23-1140). The appeals have been

consolidated for all purposes.

II.

We have jurisdiction under

. We exercise plenary review over

the dismissal of the claims. See Chavarriaga v. N.J. Dep’t of Corr.,

(3d Cir. 2015); Allah v. Seiverling,

(3d Cir. 2000).

III.

On appeal, Slater challenges the dismissal of her religious discrimination and

retaliation claims under Title VII against Spross, Chan, and Yellen.3 As for the claims

against Spross and Chan, we agree with the District Court’s dismissal of the complaint as

against them because “individual employees are not liable under Title VII.” Emerson v.

Thiel College,

(3d Cir. 2002) (per curiam).

2 Because the order granting Yellen’s motion to dismiss contained procedural history, factual background, and the District Court’s reasoning for the disposition, it did not comply with the separate judgment rule set forth in Rule 58(a) of the Federal Rules of Civil Procedure. See Witasick v. Minn. Mut. Life Ins. Co.,

(3d Cir. 2015). Thus, the District Court’s judgment was not entered until 150 days after the order was entered on the docket, see Fed R. Civ. P. 58(c)(2)(B), and Slater timely appealed. 3 In her brief, Slater does not address the District Court’s rulings on any other claims or on any other motions that she filed, including her Rule 4(a)(6) motion to reopen the time to appeal, so we will not reach those issues. See M.S. by & through Hall v. Susquehanna Twp. Sch. Dist.,

, 124 n.2 (3d Cir. 2020) (holding that the appellant forfeited claims by failing to raise them in the opening brief). 4 As for the claims against Yellen, Slater challenges the District Court’s ruling that

the claims were time-barred and unexhausted. She contends that she exhausted her

claims about her placement on AWOL status, her termination, and Spross’s testimony

during the unemployment compensation hearing through a complaint filed with the Merit

System Protection Board filed on June 25, 2017. However, even assuming arguendo that

she could and did exhaust those claims that way, the District Court properly dismissed

those claims because they failed to state a claim upon which relief can be granted under

Rule 12(b)(6).

To allege plausibly a disparate-treatment claim under Title VII, a plaintiff must

allege that (1) she is a member of a protected class; (2) she is qualified for the position

she sought to retain or attain; (3) she suffered an adverse employment action; and (4) the

adverse action occurred under circumstances that may give rise to an inference of

intentional discrimination. See Makky v. Chertoff,

(3d Cir. 2008).

The allegations in Slater’s second amended complaint do not “raise a reasonable

expectation that discovery will reveal evidence” of these elements. Connelly v. Lane

Const. Corp.,

(3d Cir. 2016). Although her termination constitutes

adverse action, see Abramson v. William Paterson Coll. of N.J.,

(3d

Cir. 2001), she has not pleaded facts supporting the requisite discriminatory intent behind

her termination, or behind the other actions that she alleges were adverse. Particularly,

she has failed to allege that similarly situated employees were treated more favorably.

5 See Jones v. Sch. Dist. of Phila.,

(3d Cir. 1999). That is, she has not

claimed that other seasonal employees had previously taken unapproved leave and not

returned to work without being placed on AWOL status and eventually terminated. We

accordingly agree with the District Court’s dismissal of Slater’s discrimination claims

based on her termination, AWOL status, and Spross’s testimony.

Related to her denial of leave request (which she admittedly did not include in any

MSPB complaint), she argues that she timely contacted the Equal Employment

Opportunity Commission (“EEOC”) and received Notice of Right to File on May 5,

2017, which was within 45 days of when she discovered the alleged discrimination,

which she claims was March 24, 2017. Putting aside any other issues with the timeliness

of suit based on this claim, Slater’s own allegations in the complaint indicate that she was

aware of Spross’s denial of her request for leave when it was issued in 2015. And,

despite her argument to the contrary, those claims are not rendered timely by the

continuing violations doctrine, which allows a “court [to] grant relief for . . . earlier

related acts that would otherwise be time barred” if the “defendant’s conduct is part of a

continuing practice” of discrimination and “the last act evidencing the continuing practice

falls within the limitations period.” Tearpock-Martini v. Borough of Shickshinny,

(3d Cir. 2014) (quoting Brenner v. Local 514, United Bhd. of Carpenters &

Joiners of Am.,

, 1295 (3d Cir. 1991)). Importantly, that doctrine does not

apply to “isolated, sporadic, or discrete” acts, such as the denial of leave. Nat’l R.R.

6 Passenger Corp. v. Morgan,

(2002); see O’Connor v. City of

Newark,

(3d Cir. 2006). Accordingly, the District Court properly

dismissed this claim as well.

Furthermore, to the extent that the second amended complaint raised retaliation

claims, Slater was required to raise a reasonable expectation that discovery will reveal

evidence that (1) she engaged in a protected activity; (2) she suffered an adverse

employment action; and (3) there was a causal connection between the protected activity

and the adverse employment action. See Moore v. City of Philadelphia,

(3d Cir. 2006). “Protected activities” within the meaning of that provision

include participating in certain Title VII proceedings and opposing discrimination made

unlawful by Title VII. See

.

Here, Spross alleged that she participated in protected activities by initiating

EEOC proceedings and filing an MSPB complaint. However, she has failed to

demonstrate any causal link between those activities and the adverse employment action;

she initiated the EEOC and MSPB proceedings only after she was terminated and Spross

had testified at her unemployment compensation hearing. The same is true with regard to

Slater’s second EEOC proceeding, which she initiated after the actions related to her

criminal prosecution had already occurred. The District Court’s dismissal of her

retaliation claims was accordingly proper. Relatedly, we agree with the District Court

that the actions related to her criminal prosecution—the grand jury investigation, her

7 arrest, and the prosecution’s proposed plea deal—do not constitute adverse action within

the meaning of Title VII under the facts of this case, especially as those actions were not

conducted by the IRS. Thus, the District Court properly dismissed Slater’s

discrimination and retaliation claims relating to the criminal prosecution.4 Slater’s

remaining arguments are without merit.

For the above reasons, we will affirm the District Court’s judgment. Slater’s

motion to supplement the appendix is granted.

4 We further agree with the District Court’s decision to dismiss these claims with prejudice, as Slater had already amended her complaint twice. See USX Corp. v. Barnhart,

(3d Cir. 2006) (explaining that a District Court has the discretion to dismiss a complaint with prejudice where there have been “repeated failures to cure the deficiency by amendments previously allowed”). 8