Michael Gera v. County of Schuylkill , 617 F. App'x 144 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4789
___________
MICHAEL GERA,
Appellant
v.
COUNTY OF SCHUYLKILL
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-12-cv-01227)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2015
Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: July 15, 2015)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Michael Gera appeals pro se from the District Court’s grant of summary judgment
to the defendant on his disability discrimination action. For the reasons set forth below,
we will affirm.
I.
Gera began his career as a correctional officer for the Schuylkill County Prison in
1986. Approximately 20 years later, he was diagnosed with a degenerative joint disease,
which limited his mobility. Gera requested light-duty work and was assigned to the
prison’s control room. In January 2008, a new collective bargaining agreement went into
effect, and under its terms Gera was no longer eligible for the control room assignment,
as that was reserved for employees with temporary, work-related injuries. Because
Gera’s disability precluded him from returning to the regular duty correctional officer
position, he was placed on medical leave on February 26, 2008. In accordance with the
collective bargaining agreement, the County laid Gera off on January 19, 2011, due to a
staff shortage. In the interim, Gera applied for and was awarded Social Security
disability benefits retroactive to February 26, 2008.
In 2012, after obtaining a right to sue letter from the EEOC, Gera filed this action,
alleging that Schuylkill County violated the ADA and the Pennsylvania Human Relations
Act and wrongfully retaliated against him. Ultimately, the District Court granted the
defendant’s motion for summary judgment, primarily because Gera failed to show that he
was a qualified individual within the meaning of the ADA, his disability benefits claim
precluded his ADA claim, and he failed to show retaliation. Gera timely appealed.
II.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise plenary
review over a District Court’s decision to grant summary judgment. Giles v. Kearney,
571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate when the record
establishes that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making this
determination, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).1
The ADA prohibits employers from discriminating “against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified
individual” with a disability is a person who, “with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). To make a prima facie disability
discrimination case, Gera must demonstrate that: “(1) he is a disabled person within the
meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of
the job, with or without reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of discrimination.” Gaul
1
Although the EEOC made preliminary findings in favor of Gera, we review his claims
de novo and are not bound by these findings. See Morris v. Rumsfeld, 420 F.3d 287, 294
(3d Cir. 2005).
3
v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). It is Gera’s burden to
demonstrate that he is a qualified individual. Id.The District Court rejected Gera’s ADA claim because it found he was not a
qualified individual. We agree. It is undisputed that Gera could not perform the essential
functions of a regular duty correctional officer. In particular, Gera conceded that he
could not engage in the custody or control of inmates due to his physical disabilities. No
reasonable accommodation existed that would have enabled Gera to perform this
function. Accordingly, Gera was not a qualified individual, and his disability
discrimination claim fails.
Gera argues that the defendant should have accommodated him by allowing him to
remain in the control room. But it is well-established that “[t]he ADA does not require
an employer to create a new position . . . . [or] transform a temporary light duty position
into a permanent position.” Buskirk v. Apollo Metals, 307 F.3d 160, 169 (3d Cir. 2002).
As to Gera’s argument that he should have been transferred to a different position in the
County, it was his burden to ‘“demonstrate that there were vacant, funded positions
whose essential duties he was capable of performing,’” and he has failed to offer even
one such position. Gaul, 134 F.3d at 580 (quoting Shiring v. Runyon, 90 F.3d 827, 832
(3d Cir. 1996). Because Gera failed to demonstrate that he is a qualified individual, his
argument that the defendant violated the ADA by not engaging in an interactive process
also fails. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 193-94 & n.20 (3d Cir.
2009) (collecting cases holding that failure to engage in interactive process is
unimportant if employee is not a qualified individual). Gera raises no other meritorious
4
arguments in his appeal, and the record reveals none. We will therefore affirm the
District Court’s grant of summary judgment to the defendant on Gera’s ADA disability
discrimination claim.2
We will also affirm the District Court’s judgment on Gera’s retaliation claim. “To
establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1)
protected employee activity; (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity; and (3) a causal connection
between the employee’s protected activity and the employer’s adverse action.” Krouse v.
Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). The District Court found that
Gera’s request for accommodation in 2008 was protected conduct and his discharge was
an adverse an action, but it rejected his claim because he failed to show a causal
connection between the two events. Ordinarily, a causal connection may be shown by
“(1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007). As the District Court concluded, Gera offers no evidence of antagonism, and
the nearly three year gap between his requested accommodation and discharge is not
unusually suggestive of retaliation. Cf. Williams v. Phila. Hous. Auth. Police Dep’t, 380
F.3d 751, 760 (3d Cir. 2004). Nor has Gera shown that “evidence gleaned from the
record as a whole” suggests causation. Lauren W., 480 F.3d at 267 (quotation marks
2
Accordingly, we need not address the argument that Gera’s disability benefits claim
precludes his disability discrimination claim.
5
omitted). Indeed, in his response to the defendant’s statement of undisputed facts, Gera
did not dispute the defendant’s contention that it ultimately laid him off due to a staff
shortage, in accordance with the collective bargaining agreement. Gera’s retaliation
claim therefore fails, and the District Court properly granted summary judgment to the
defendant on this claim.3
III.
For the foregoing reasons, we will affirm the judgment
3
Because Gera’s ADA discrimination and retaliation claims fail, his PHRA claim also
fails. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002).
6