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Uber v. Slippery Rock University of Pennsylvania of the State System of Higher Education11/23/2005
conclude that equitable tolling is not appropriate.
Next, Uber argues that the trial court erred in granting the University's Motion for Non-suit after he rested in the January 2005 non-jury trial. In order to prove a prima facie case of retaliation, a complainant must show that: 1) he was engaged in a protected activity; 2) his employer was aware of the protected activity; 3) subsequent to participation in the protected activity, he was subjected to an adverse employment action; and, 4) there is a causal connection between his participation in the protected activity and the adverse employment action. Spanish Council of York v. Pa. Human Relations Comm'n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005). Upon showing a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Finally, the burden shifts back to the complainant to show that the employer's proffered reasons are pretextual. Id. Here, we note that the trial court dismissed this case upon finding that Uber failed to show an adverse employment action. (1/10/05 Trial Ct. Order.)
An adverse employment action is an action taken by an employer that is "serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Circ. 1997). In other words, a plaintiff cannot prevail on a retaliation claim unless there is evidence that the challenged action has negatively impacted a present or future employment relationship. Harley v. McCoach, 928 F.Supp. 533, 541-42 (E.D. Pa. 1996). Upon proving an adverse employment action, causation may be inferred where there is a close temporal relationship between the participation in a protected activity and the occurrence of an adverse employment action. Robert Wholey Corp., Inc. v. Pa. Human Relations Comm'n, 606 A.2d 982, 983 (Pa. Cmwlth. 1992), pet. for allowance of appeal denied, 532 Pa. 659, 615 A.2d 1314 (1992). In the absence of a temporal relationship, causation may be inferred where circumstantial evidence suggests a "pattern of antagonism" following the protected conduct. Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3rd Circ. 1997). However, these factors are not dispositive of causation but, rather, represent relevant inquiries in light of the totality of the circumstances. Id.
Uber argues that he has established the existence of an adverse employment action on the part of the University when considering the totality of the circumstances. He contends that the record shows that, during the time period of May 1999 through the latter part of 2000, he was isolated and shunned by his supervisors; important information regarding the performance of his duties was kept from him; on multiple occasions, he was subjected to obstacles in requesting sick leave, vacation time, light-duty work and personal days; and, he was given an unjust performance evaluation for the year 1999. Uber claims that this evaluation gave him three "fair" ratings instead of "good" ratings in the categories of "dependability," "initiative" and "relationship with people." (R. Item 37, Uber Ex. 14d, attached at 50.) After he complained about his dissatisfaction with the evaluation, the University changed one "fair" rating to "good" in the category of "dependability." (R. Item 37, Uber Ex. 14e, attached at 50.) According to Uber, this left two unjust "fair" ratings in the categories of "initiative" and "relationship with people." Id. Additionally, he argues that his union representative, Stanley Furman, testified that receiving a rating of "fair" was a matter of concern.
We f
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