Shirley SLOAN, Appellant, v. CITY OF PITTSBURGH; Kathleen Kraus, individually and as Acting Director of Public Safety Department; Robert McNeilly, individually and in his capacity as Chief of Police of the City of Pittsburgh; Cathleen McNeilly, individually and in her capacity as Commander of the City of Pittsburgh Police Department.
No. 03-4121.
United States Court of Appeals, Third Circuit.
Decided Aug. 31, 2004.
Argued July 13, 2004.
207
Susan E. Malie, City of Pittsburgh, Department of Law, Pittsburgh, PA, Brian P. Gabriel (Argued), Pittsburgh, PA, for Appellees.
Before RENDELL, BARRY and FISHER, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
Shirley Sloan, a Police Department Lieutenant and a black female, filed suit against the City of Pittsburgh and her superiors on September 3, 1998, asserting, inter alia, a racially hostile work environment, disability discrimination, First Amendment retaliation and Equal Protection claims. Sloan appeals the denial of her request for partial summary judgment and the grant of summary judgment in favor of the City, over which we exercise plenary review.
The district court granted summary judgment to the defendants on all claims, only four of which Sloan has challenged. The district court found that Sloan failed to meet her burden of proving the applicability of issue preclusion with respect to the factual findings supporting her receipt of Heart and Lung Act benefits, that other claims were untimely, and that she failed to produce evidence sufficient to establish that she experienced a racially-hostile work environment or suffered from a disability under the Rehabilitation Act. The district court also determined that Sloan failed to produce evidence from which a jury could reasonably infer that she was subjected to adverse employment actions because of her race or that Sloan was subjected to retaliatory employment actions. We affirm, even accepting all of Sloan‘s evidence as true and construing all the evidence in the light most favorable to her, as we must, in reviewing a motion for summary judgment.
Because the parties are familiar with the factual and procedural background of this
I. Issue Preclusion
In the district court Sloan moved for partial summary judgment pursuant to
Issue preclusion is appropriately invoked if: (1) the issue decided in the prior adjudication was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.
Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 548 (3d Cir.1996).
Although there was a final judgment on the merits, at least two of the four factors necessary for issue preclusion are not present in this case.
First, the issues decided in the Heart and Lung Act litigation are not identical to the issues here. We previously determined that the legal issues presented in a Pennsylvania Workers’ Compensation hearing were not identical to issues in a Title VII case, for purposes of determining whether issue preclusion applied. Dici, 91 F.3d at 549.1 Likewise, the standards, governing law, and policies for Sloan‘s Heart and Lung Act benefit claims under Pennsylvania law are different from the federal constitutional and discrimination claims at issue here. Consequently, issue preclusion is inappropriate in this case.
Second, this litigation involves four defendants, only one of whom was a party to the prior adjudication. Issue preclusion is only appropriate if the party against whom it is invoked was also a party, or was in privity with a party, in the previous adjudication. Privity, for purposes of issue preclusion, is not established by the mere fact that persons may be interested in the same question or in proving the same facts. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313, 1316 (1983). Sloan failed to meet her burden of showing that the defendants are in privity with a party in the previous adjudication. Therefore, it is inappropriate to invoke issue preclusion.
II. Hostile Work Environment2
From the beginning of 1996 there were several incidents which Sloan alleges are evidence of intentional discrimination be
First, in four or five instances, Sloan‘s car was parked illegally and it was ticketed while other cars were not ticketed. Second, officers requested permission from Sloan to search her home to determine if her son‘s minor girlfriend and her grandchild were at the home. The girlfriend‘s mother had contacted the police, complaining that the girl was truant and staying in Sloan‘s house, and Sloan was interfering with parental authority. The mother accused Sloan of harboring a runaway. Third, shells from Sloan‘s service revolver were checked for comparison to all open shootings in the North Side. There were a number of shootings, and one of Sloan‘s sons was a suspect in two of the shootings. In fact, a test to determine if Sloan‘s son had discharged a firearm initially came back positive, but the crime lab report disappeared. Fourth, Sloan was forced to remove a basketball hoop from in front of her house after a neighbor complained.
Fifth, Sloan was transferred from the police chief‘s office and assigned to a newly created court liaison position in the municipal courts when her previous position was eliminated. There was no change in rank, pay, or schedule. Sloan wanted to continue to work a light duty, inside job, and this is what she received. She did not have a desk, a telephone, or an office. She produced no work product, and was not reprimanded. She was not assigned any duties, nor given a job description. After Sloan refused this position and stopped working, another officer was assigned this position under the same starting conditions and thrived.
Finally, within the statute of limitations, Sloan was denied Heart and Lung benefits, her request to return to work in a light-duty capacity was refused,4 and Sloan was ordered to turn in her weapon after she complained of stress.
There is no indication that any of these incidents of which Sloan complained were motivated by intentional race discrimination. There is no evidence of adverse comments or conduct by her co-workers in any position she held. She never received any official demotion, suspension, or criticism at work. There is no evidence of animosity in the workplace. There is no allegation of misconduct or maltreatment from those that Sloan worked with. In fact, Sloan received one promotion, and admit
Even if this court considers the time-barred actions of the defendants involving Sloan‘s sons, these actions do not amount to actionable intentional discrimination against Sloan on account of her race. Sloan failed to allege events that fulfilled the first element of a hostile work environment claim; therefore, her claim fails without need to address any other elements.
III. First Amendment Retaliation
Under
The only actions that are not time-barred are the denial of Heart and Lung Act benefits, the denial of Sloan‘s request to return to work, and the order to turn in her weapon after she complained of stress.5
Sloan alleges that she participated in the protected activities of filing numerous complaints with the Office of Municipal Investigations between October 1994 and December 1996, joining a civil rights law-suit against the police department in March 1996, and filing a complaint with the Pittsburgh Human Relations Commission in October 1996. Sloan claims that these activities resulted in adverse employment actions consisting of the refusal to allow Sloan to return to work and Sloan‘s transfer to court duty.6
There is no evidence to support a causal link between the protected activity and any adverse employment action. First, Sloan had previously made accusations of harassment, and was allowed to return to work in January of 1996. Second, no protected activity occurred in a time that was close to the decision not to allow Sloan to return to work. Third, there is no indication that the Gates Company, the independent entity who made the determination of Sloan‘s ability to return to work, was aware that Sloan engaged in any protected activity.
Finally, there is no evidence that the reasons given by the City of Pittsburgh for delaying and denying Sloan‘s request to return to work are pretextual. The reason the City of Pittsburgh gave for denying Sloan‘s request to return to work is that the ability to use a gun is an essential duty of a police officer, and Sloan stated that she could not carry a gun. The decision was delayed because Sloan repeatedly failed to provide requested additional medical information to process her request. Consequently, because there is no causal link between Sloan‘s protected activities
IV. Rehabilitation Act
To show discrimination under the federal Rehabilitation Act, the employee must show (1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996).
To have a disability, a plaintiff must prove a physical or mental impairment that limits a major life activity. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). Sloan alleges that she suffers from the disabilities of depression, anxiety, panic attacks and sleeplessness, and that these disabilities substantially limit the major life activities of driving, sleeping, and working.
Sloan has not alleged any substantial limitation in any of her major life activities. Driving is not considered a major life activity. Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329-30 (11th Cir.2001).
Difficulty sleeping is a common problem, and not a limitation of a major life activity unless the plaintiff shows a uniquely severe affliction, which Sloan did not do. Colwell v. Suffolk County Police Dep‘t, 158 F.3d 635, 644 (2d Cir.1998). Sloan did not describe an inability to sleep, but an exhaustion that caused her to go to sleep at 9:00 p.m. and awake at 5:00 or 6:00 a.m. (resulting in eight or nine hours of sleep).
Sloan is not substantially limited in the major life activity of working. “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (citation and quotation omitted). Plaintiffs must allege they are unable to perform in a broad class of jobs. Id. Sloan alleges that her physician has cleared her to perform all light duty work that does not involve carrying a firearm. This is not a substantial limitation.
Since Sloan has not alleged that she is substantially limited in any major life activity, she has not shown that she suffers from any legally recognized disability.
V. Equal Protection
Sloan‘s equal protection claims are minimally stated in a single paragraph in her brief and provide a single citation. Sloan merely asserted that it is obvious that she has prima facie case because “[s]he is African-American, the city rejected her application to return, she was qualified for the light duty position which she sought, and the city had available positions.”
Because Sloan failed to allege any evidence of a similarly situated employee treated differently, this claim must fail. Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir.1998).
Based on the foregoing, we find that summary judgment was properly granted to the City of Pittsburgh and partial summary judgment was properly denied to Sloan in this case. Consequently, we will affirm the August 17, 2003 Memorandum Opinion and Order of the District Court.