                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-1402
                                  _____________

                                    JON TIRK,

                                     Appellant

                                         v.

                                 DUBROOK, INC.
                                  _____________


                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                         District Court No. 2-14-cv-00889
              Chief District Judge: The Honorable Joy Flowers Conti

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               November 9, 2016

     Before: SMITH, Chief Judge, MCKEE, and RESTREPO, Circuit Judges

                            (Filed: December 27, 2016)
                             _____________________

                                   OPINION*
                             _____________________

SMITH, Chief Judge




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      Jon Tirk appeals from the District Court’s order granting summary judgment

in favor of Dubrook, Inc., (“Dubrook”) on his discrimination claim under the

Americans with Disabilities Act (ADA), as amended by the ADA Amendments

Act of 2008, 42 U.S.C. § 12101 et seq., and his retaliatory discharge claim under

Pennsylvania law. For the following reasons, we will affirm.

                                        I.

      Jon Tirk was a maintenance worker with Dubrook from 2003 to 2013.

While with Dubrook, Tirk injured his left knee several times. In January 2010, he

slipped on ice near his home and tore his meniscus. Tirk had surgery to repair his

knee in May 2010 and returned to work in July 2010. In December 2010, Tirk

dislocated his left kneecap after slipping at work. Following the December 2010

incident, Tirk missed six weeks of work. He also filed a workers’ compensation

claim after the December 2010 incident and received workers’ compensation

benefits. Dubrook did not contest Tirk’s claim for benefits. Tirk missed four

weeks of work in February 2012, following another surgery to repair his left knee.

Upon his return to work following that second surgery, Tirk spent several months

with medical restrictions on his ability to kneel, squat, and climb. Dubrook fully

observed those restrictions.



                                        2
      On July 29, 2013, Tirk fell from a ladder while at work and reinjured his left

knee. He filed an accident report the following day.2 Tirk did not miss any work

time because of this injury but faced temporary medical restrictions on his ability

to kneel, squat, and climb. On August 22, 2013, Tirk’s doctor modified those

restrictions to allow for “light work.” Dubrook again honored those restrictions.

      On August 30, 2013—slightly over a month after Tirk fell from the ladder—

Dubrook terminated Tirk, as well as two other employees: Barry Hinderliter and

Larry Scott. Dubrook made those termination decisions on August 27. According

to Dubrook, it terminated Tirk for economic reasons as part of a reduction in force.

At the time of Tirk’s termination, Dubrook had experienced a net financial loss of

over $100,000 in 2013 and, in the summer of 2013, had eliminated overtime work

for the entire company. Following the August 30, 2013 terminations, Dubrook did

not   replace   Tirk,   and   existing   Dubrook   employees    performed    Tirk’s

responsibilities.




2
 Over a year later, on December 4, 2014, Tirk submitted a formal claim for
workers’ compensation benefits related to this incident.

                                          3
                                          II.

        We have jurisdiction under 28 U.S.C. § 1291 because this is an appeal from

a final judgment in favor of Dubrook.3 We review the District Court’s grant of

summary judgment de novo. See DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 (3d

Cir. 2007) (citing CAT Internet Servs. Inc. v. Providence Wash. Ins. Co., 333 F.3d

138, 141 (3d Cir. 2003)). We apply the same standard as the District Court in

determining whether summary judgment is appropriate. See Congregation Kol

Ami v. Abington Twp., 309 F.3d 120, 130 (3d Cir. 2002). Therefore, summary

judgment is proper if, viewing the record in the light most favorable to Tirk and

drawing all inferences in Tirk’s favor, there is no genuine issue of material fact,

and Dubrook is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56;

Abramson v. William Paterson Coll., 260 F.3d 265, 276 (3d Cir. 2001).

                                          A.

        Tirk first contends that the District Court improperly granted summary

judgment for Dubrook on his ADA claim, which alleged that Dubrook

discriminated against him because of a perceived disability. This argument fails.




3
    The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
                                           4
      In making his contention, Tirk proceeds under a pretext theory through the

McDonnell Douglas burden-shifting analysis.4 See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d

751, 759 & n.3 (3d Cir. 2004) (applying the McDonnell Douglas framework to an

ADA discrimination claim). Under this framework, Tirk must first establish a

prima facie case of discrimination by a preponderance of evidence. See Williams,

380 F.3d at 759 n.3; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53

(1981). Should he do so, the burden of production then shifts to Dubrook “to

articulate some legitimate, nondiscriminatory reason” for Tirk’s termination. Id.

(quoting McDonnell Douglas, 411 U.S. at 802). If Dubrook carries that burden,

the burden of production shifts back to Tirk to prove, by a preponderance of

evidence, that Dubrook’s articulated reasons “were not its true reasons, but were a

pretext for discrimination.” Id. (citing Burdine, 450 U.S. at 252–53).

      The ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to . . . [the] discharge of

employees . . . .” 42 U.S.C. § 12112(a). To establish a prima facie case of

disability discrimination under the ADA, Tirk must show “(1) that he is disabled

within the meaning of the ADA, (2) that he is otherwise qualified for the job, with

4
 Because Tirk’s brief asserts arguments solely under a pretext theory, we will not
address any issues relating to a mixed motive theory.
                                            5
or without reasonable accommodations, and (3) that he was subjected to an

adverse employment decision as a result of discrimination.” Sulima v. Tobyhanna

Army Depot, 602 F.3d 177, 185 (3d Cir. 2010). The third element requires a

plaintiff to show causation. See, e.g., New Directions Treatment Servs. v. City of

Reading, 490 F.3d 293, 301 (3d Cir. 2007) (“[T]o make out a claim under the

ADA, the plaintiff need only show that intentional discrimination was the but for

cause of the allegedly discriminatory action.”).

      We agree with the District Court that Tirk fails to make a prima face

showing of causation. Tirk contends that Dubrook perceived him as disabled and

that Dubrook’s perception caused his termination.5 Tirk argues that the temporal

proximity of approximately one month between the filing of his accident report

and his termination sufficiently demonstrates a causal connection. It does not. For

one, while this Court has held that “unduly suggestive” temporal proximity may

give rise to an inference of causation, we have never held that a temporal gap of

one month alone sufficiently demonstrates a causal connection. See Farrell v.

5
   Under 42 U.S.C. § 12102(3), Tirk meets the ADA’s requirement of being
“regarded as” disabled if he demonstrates that he “has been subjected to an action
prohibited under [the ADA] because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major
life activity.” Dubrook challenges whether Tirk was disabled “within the meaning
of the ADA” as required to establish a prima facie case. Sulima, 602 F.3d at 185.
We need not address that issue because Tirk fails to establish the causation
element of the prima facie case and to show pretext.
                                          6
Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). Compare Lichtenstein

v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (concluding that

a temporal gap of seven days between a termination and employee’s invocation of

FMLA rights was sufficient to establish prima facie causation for a retaliation

claim), with Williams, 380 F.3d at 760 (holding that a two-month gap between an

employee’s protected activity and the employee’s termination alone did not

establish sufficient prima facie causation). In fact, this Court’s decision in Thomas

v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003), confirms that a one-month

gap can be too long, standing alone, to establish a prima facie showing of

causation. Id. at 114 (concluding that a three-week gap between the filing of a

complaint and employee’s termination was insufficient, on its own, to establish

prima facie causation).

      We need not rely solely on that ground to affirm the District Court though

because Tirk fails to show that Dubrook perceived him as disabled with the filing

of his accident report on July 30, 2013. Stated differently, the undisputed record

provides no basis to believe that the temporal gap Tirk identifies is “unduly

suggestive” of discrimination, given Tirk’s history of knee injuries, time off from

work related to those injuries, and medical work restrictions. Tirk injured his left

knee twice before July 2013. Both prior injuries necessitated extended time away

                                          7
from work, required surgeries, and resulted in a claim for workers’ compensation

benefits. Tirk, however, faced no repercussions from Dubrook because of those

injuries or that claim. He provides no explanation for, and points to no evidence

showing, why the most recent July 2013 injury, which required no time off from

work and minimal temporary work restrictions, created a perception of disability

resulting in his termination. In sum, Tirk offers no evidence to conclude that

Dubrook perceived him as disabled only as of July 30, 2013, undermining Tirk’s

temporal proximity argument.

      Even assuming arguendo that Tirk could demonstrate a prima facie case of

disability discrimination, his ADA claim would still fail because he is unable to

show that Dubrook’s proffered reasons for his termination were pretextual.

Dubrook’s stated reasons for terminating Tirk were that the company was

experiencing financial difficulty and other remaining employees could perform

Tirk’s job responsibilities. As the District Court correctly observed, Tirk does not

dispute that Dubrook faced economic problems and sought to improve its financial

position. Tirk also admits that (1) Dubrook’s employees could absorb the

responsibilities of his maintenance position, (2) this performance of his position by

remaining employees actually occurred following his termination, and (3) as a

result, Dubrook never replaced him. In short, Dubrook undisputedly terminated

                                          8
Tirk because of its troublesome economic position and the superfluous nature of

Tirk’s job.

      Tirk nevertheless contends that Dubrook’s stated reasons for terminating

him were pretextual because Dubrook partially replaced another employee

terminated as part of the same reduction in force that caused Tirk’s termination.

Dubrook terminated two other employees when it terminated Tirk—Larry Scott

and Barry Hinderliter. Dubrook terminated Scott through a voluntary retirement

and did not replace Scott. Dubrook terminated Hinderliter for several reasons,

including the company’s economic downturn and Hinderliter’s poor job

performance. Three months after Hinderliter’s termination, Dubrook hired an

individual who partially performed Hinderliter’s previous job responsibilities.

Dubrook’s partial replacement of Hinderliter’s position provides no basis to

disbelieve Dubrook’s stated reasons for terminating Tirk, which Tirk again does

not dispute.

                                         B.

      Tirk also argues that the District Court incorrectly granted summary

judgment in favor of Dubrook on his retaliatory discharge claim under

Pennsylvania law. Under Pennsylvania law, an employer may not terminate an

employee for filing a workers’ compensation claim. See Shick v. Shirey, 716 A.2d

                                         9
1231, 1237 (Pa. 1998). Tirk’s arguments under Pennsylvania law, however,

mirror those made regarding his ADA claim. Therefore, for reasons similar to

those with his ADA claim, Tirk’s arguments are unpersuasive.

      In support of his retaliatory discharge claim, Tirk relies on the same

arguments he uses to buttress his ADA claim. He also notes that he was one of

only two Dubrook employees to file an accident report in 2013. Given that fact,

Tirk argues that his subsequent firing in 2013 creates an inference that Dubrook

actually fired him because of his report. This argument is unpersuasive in light of

the undisputed record because no facts support this inference. Rather, the record

demonstrates that Dubrook did not discriminate because of Tirk’s accident report

filing. For one, Dubrook did not fire the other employee with a pending work

injury claim from 2013. Moreover, Dubrook never challenged Tirk’s previous

workers’ compensation claim or his right to benefits. They made no statements

suggesting that they disapproved of Tirk’s filing his report or that Tirk could not

perform his work following the filing of the report. Dubrook and its employees

also never punished or otherwise retaliated against Tirk for taking time off from

work for his multiple previous injuries to his left knee. Finally, while Tirk was

one of two employees to file an accident report in 2013, Dubrook also had thirty-

seven other workplace injury claims pending from its employees at the time it

                                         10
terminated Tirk. Given these undisputed facts, no reasonable jury could infer that

Dubrook actually fired Tirk for any reason other than the company’s economic

circumstances and the fact that other employees could perform the responsibilities

of Tirk’s former position along with their own job responsibilities.

                                        III.

      For the foregoing reasons, we will affirm the order of the District Court

granting summary judgment for Dubrook.




                                         11
