Andrew Burger v. Secretary of Revenue , 575 F. App'x 65 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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13-1595
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ANDREW BURGER,
Appellant
v.
SECRETARY OF REVENUE FOR THE COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF REVENUE; COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF REVENUE
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1-09-cv-02571)
District Judge: Hon. John E. Jones, III
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 23, 2013
Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.
(Filed: July 31, 2014)
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OPINION
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CHAGARES, Circuit Judge.
Andrew Burger appeals the order of the District Court for the Middle District of
Pennsylvania granting summary judgment to the Secretary of Revenue for the
Commonwealth of Pennsylvania Department of Revenue and the Commonwealth of
Pennsylvania Department of Revenue (together, the “Department”) on his claims under
the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the
Rehabilitation Act of 1973. For the reasons that follow, we will affirm.
I.
Burger began his employment with the Pennsylvania Department of Revenue in
August 1999, where he was promoted to the position of Corporation Tax Officer 2 in
2003. Burger has Attention Deficit Disorder, a condition that, over the course of his
employment, necessitated two requests for accommodation from the Department of
Revenue, which were granted. His last request for accommodation was in November
2001.
In January 2006, Burger received a negative performance evaluation from his
supervisor, John Naccarato. In response, Burger submitted a complaint to the
Pennsylvania Human Relations Commission (“PHRC”), which claimed that younger
coworkers who do not suffer from Attention Deficit Disorder, and who allegedly received
similar “Performance and Production rates,” were not given negative performance
evaluations. Appendix (“App.”) 194-95. A PHRC representative, Lynette Taylor, was
assigned to Burger’s case. After investigating the matter, Taylor related to Burger via e-
mail that “[t]he people that I spoke to have no personal vendetta against you and spoke
highly of you.” App. 465. While underscoring that withdrawing the complaint “is your
choice and yours alone,” Taylor advised Burger that he “may want to stop holding on to
the past and look toward the future and according to my investigation it looks good with
Dept. of Revenue.” App. 465.
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Taylor also pointed out that the form for withdrawing PHRC complaints “has
room for [Burger’s] comments,” so that he could memorialize his concerns “on record”
with the PHRC. Id. Burger indicated that he would like to do so, and Taylor spoke with
counsel for the Department. Though the request was approved, Taylor later testified that
she was “not sure if [Department’s counsel] was happy about it.” App. 460. Burger
prepared the “rebuttal” for the PHRC file, but the envelope was received by the
Department’s Bureau of Human Resources rather than by the PHRC. Burger contends
that the letter was purposefully intercepted by the Department. The Department argues,
by contrast, that the envelope was mistakenly delivered to the Department’s Human
Resources group instead of being sent to the PHRC. The staff member at Human
Resources who opened the envelope allegedly referred it to others because she was
unsure of what to do with its contents. On review, a labor relations analyst noted that the
file contained confidential taxpayer information, such as corporate taxpayer documents,
so the analyst referred the matter to counsel for the Department.
The Department has a strict policy against revealing confidential information.
This policy is included in the Department’s Standards of Conduct Manual that Burger
received when his employment with the Department began. App. 154-55 (“All
information on tax returns and accompanying documents is confidential. . . . Employees
may not publish, divulge, disclose or make known in any manner any information which
discusses or could identify a taxpayer.”). Furthermore, in 2002, Burger signed a
Confidentiality Agreement with the Department. That agreement indicates that an
employee should “consider everything on tax returns, schedules, worksheets, audit
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reports, investigative reports, computer files, printouts, listings and books to be
CONFIDENTIAL.” App. 158. Accordingly, an employee “may only access, use,
discuss or reveal any of the information with the taxpayers or their specific representative
and as appropriate and as an integral part of a work assignment.” Id. The Agreement,
which is signed by the employee, goes on to state, “I understand that if I violate any of
the provisions of this Confidentiality Agreement I will subject myself to the applicable
[statutory] penalties specified above, and my employment with the Department of
Revenue WILL BE TERMINATED.” App. 159.
A predisciplinary conference concerning Burger’s mailing of the documents was
held on December 5, 2007. Burger admitted that the documents he had sent were
confidential, but argued that he did not believe that disclosure to the PHRC was in
violation of the agreement. On January 4, 2008, Burger was dismissed for violating the
confidentiality policy. He argues that the two-week lapse of time between the
Department’s interception of Burger’s letter and the predisciplinary conference suggests
that the Department was not sincerely concerned with the protection of taxpayer
confidentiality, since the Department did not affirmatively act to ensure that Burger
would not attempt to send the documents to Taylor again: “If the Department’s sincere
purpose had been to avoid disclosure of confidential information, it would have done
something in those twenty days to assure that this information would not be re-
submitted.” Burger Reply Br. 11.
On December 30, 2009, Burger filed a complaint against the Department, alleging
he was terminated in retaliation for the events surrounding his PHRC complaint, in
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violation of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794,
the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq., and the
Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 623(d).1 He also
sought declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
II.
The District Court had jurisdiction over this matter under 28 U.S.C. § 1331, and
this Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court’s grant of summary judgment, applying the same standard employed
by the district court. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). That is, we
“grant summary judgment if the movant shows 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 doing so, “we view all evidence in the light most favorable to the non-moving
party.” Kurns v. A.W. Chesterton Inc., 620 F.3d 392, 395 (3d Cir. 2010).
III.
Where, as here, the plaintiff is without direct evidence of either discrimination or
retaliation, we analyze such claims using the familiar burden-shifting framework set forth
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Smith v. City of
Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (applying McDonnell Douglas framework
to ADEA claim); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (applying
McDonnell Douglas to Rehabilitation Act claim); Moore v. City of Phila., 461 F.3d 331,
1
Burger also brought a claim under the Pennsylvania Humans Relations Act, 43 Pa. Stat.
§ 955(d), but later agreed to drop this state-law claim.
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342 (3d Cir. 2006) (applying McDonnell Douglas framework to retaliation claim). Under
McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie
case of unlawful discrimination or retaliation. 411 U.S. at 802; see also Moore, 461 F.3d
at 342. If the plaintiff succeeds, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory and nonretaliatory reason for its decision to
terminate the plaintiff. McDonnell Douglas, 411 U.S. at 802; see also Moore, 461 F.3d at
342. Once the employer meets its “relatively light burden,” the burden of production
returns to the plaintiff, who must show by a preponderance of the evidence that the
employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994).
In order to satisfy its initial burden — that is, in order to establish a prima facie
case of retaliation in the employment context — a plaintiff must show the following
elements: “(1) that s/he engaged in a protected employee activity; (2) that s/he was
subject to adverse action by the employer either subsequent to or contemporaneous with
the protected activity; and (3) that there is a causal connection between the protected
activity and the adverse action.” Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). In
the instant case, the District Court held that Burger failed to produce evidence that
created a genuine issue of material fact as to the last element, and therefore granted
summary judgment to the Department.
We agree. This Court has held that, “[t]o establish the requisite causal connection
a plaintiff usually must prove either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a pattern of
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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).2 The District Court found that the time
between the protected activity and the allegedly retaliatory action was not sufficiently
suggestive because Burger filed his complaint with the PHRC in January 2006, remained
employed at the Department until January 2008, and received at least one positive
evaluation after lodging the January 2006 complaint. App. 14. Given our case law
explaining that “the passage of weeks, months, and years removes any suggestion of
retaliatory motive,” the District Court held that it “simply [could not] conclude that a
twenty-four month span between events is enough to trigger a reasonable inference of
retaliatory motive.” App. 14-15.
Burger, however, identifies the relevant protected activity as his sending the
“detailed rebuttal to his negative evaluation” to the PHRC in November 2007 — not his
filing the complaint in January 2006. Like the District Court, we hold that the rebuttal —
which accompanied Burger’s withdrawal of his complaint against the Department — is
insufficient to create a genuine factual dispute about whether or not the “causal
2
In Farrell v. Planters Lifesavers Company, 206 F.3d 271 (3d Cir. 2000), and Williams v.
Philadelphia Housing Authority Police Department, 380 F.3d 751 (3d Cir. 2004), we also
noted that the causal connection can be established through “timing plus other evidence.”
Williams, 380 F.3d at 760; see also Farrell, 206 F.3d at 280-81 (“[O]ur case law clearly
has allowed a plaintiff to substantiate a causal connection for purposes of the prima facie
case through other types of circumstantial evidence that support the inference.”). We
have considered the “other evidence,” including Burger’s assertion that the PHRC
threatened the entry of default, that no one informed him that he could not share
confidential information in his “rebuttal,” and that he had previously disclosed
confidential information in a union grievance but was not reprimanded, and hold that
none of these supports an inference that his termination was in retaliation for engaging in
protected activity.
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connection” element is met here. To begin with, the rebuttal accompanied Burger’s
withdrawal of his PHRC complaint against the Department. Furthermore, at least two
months passed between the interception of the rebuttal and the adverse employment
action (Burger’s termination). Even drawing all inferences in Burger’s favor, we cannot
imagine that a reasonable trier of fact could find it “unusually suggestive” timing that,
after continuing Burger’s employment for two years and giving Burger a favorable
evaluation some months after he filed a complaint against the Department, the
Department would retaliate once Burger agreed to withdraw the complaint. See Lauren
W., 480 F.3d at 267.
We further hold that there is no genuine issue of material fact as to the alternate
ground for establishing a causal connection — a “pattern of antagonism coupled with
timing.” Id. Burger argues that the alleged contemporaneousness of his termination and
the mailing of the rebuttal to PHRC, coupled with the fact that he was assigned
responsibility for incoming telephone calls for a few months in early 2007, establish the
requisite pattern of antagonism. This Court has held that “[o]nly evidence sufficient to
convince a reasonable factfinder to find all of the elements of [the] prima facie case
merits consideration beyond the Rule 56 stage.” In re Ikon Office Solutions, Inc., 277
F.3d 658, 666 (3d Cir. 2002) (quotation marks omitted). We hold that the assignment to
answering telephone calls does not under these circumstances constitute a “pattern of
antagonism,” particularly in light of the positive evaluation Burger received from the
Department after he filed his complaint and before he withdrew his complaint.
IV.
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For the foregoing reasons, we will affirm the judgment of the District Court.
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