                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 16-3642
                                     ______________

                                   ARTHUR L. STONE,

                                                         Appellant

                                             v.

                   SECRETARY UNITED STATES DEPARTMENT
                          OF HOMELAND SECURITY
                               ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-13-cv-03765)
                       Honorable Stewart Dalzell, District Judge
                                   ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                    May 12, 2017

             BEFORE: AMBRO, RESTREPO, and COWEN, Circuit Judges

                                   (Filed: July 27, 2017)
                                     ______________

                                       OPINION*
                                     ______________


COWEN, Circuit Judge.

____________________

*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
          Plaintiff Arthur L. Stone appeals from the order of the United States District Court

for the Eastern District of Pennsylvania granting Defendant Secretary of Homeland

Security’s motion for summary judgment as well as the judgment entered by the District

Court in accordance with this order in favor of Defendant and against Stone. We will

affirm.

                                               I.

          Stone was a Federal Air Marshal employed by the Transportation Security

Administration (“TSA”). He has a hearing disorder called eustachian tube dysfunction

(which limits his ability to tolerate rapid changes in barometric pressure during, for

instance, the descent of an airplane). While serving as a Federal Air Marshal on board a

flight, he suffered an episode of barotrauma (a severe traumatic injury causing physical

damage to the inner ear). Concluding that he was unable to perform the essential

functions of his position due to his medical conditions, the TSA removed Stone from his

position as of August 3, 2007. Stone appealed his removal to the Merit Systems

Protection Board (“MSPB”), but his appeal was denied. Furthermore, Stone had applied

for, and received beginning in 2007, benefits from the Department of Labor’s Office of

Workers’ Compensation Programs (“OWCP”).

          On May 23, 2008, Stone asked the TSA to restore him to his position as a Federal

Air Marshal, claiming that he had fully recovered. In a letter dated July 11, 2008, the

TSA denied his request on the grounds that “you are not fully recovered within the

meaning of the regulations.” (A113.) In particular, the OWCP continued to pay

worker’s compensation benefits, and the Labor Department had advised the Office of

                                                2
Law Enforcement/Federal Air Marshal Service (“OLE/FAMS”) that Stone had not fully

recovered from his compensable injury. “Finally, the OLE/FAMS Medical Programs

Division concluded that the medical documentation you submitted in support of your

request for reinstatement does not demonstrate that you are fully recovered from your

compensable injury.” (Id.) Stone appealed to the MSPB, but his appeal was dismissed.1

He filed an administrative complaint “alleging discrimination in violation of Section 501

of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., as reprisal for ‘engaging in

prior EEO activity challenging his termination.’” Stone v. Johnson, 608 F. App’x 126,

127 (3d Cir. 2015). However, the Equal Employment Opportunity Commission ruled in

favor of the TSA.

       “In a separate proceeding in 2011, not before us, the OWCP revisited Stone’s

benefits and it proposed terminating them because it found that Stone had recovered from

his barotrauma, even though he was still unable to fly due to the underlying Eustachian

tube dysfunction.” Stone v. Johnson, 196 F. Supp. 3d 562, 565 (E.D. Pa. 2016). Stone

contested this proposed termination. However, the OWCP ultimately ruled against him

and discontinued his worker’s compensation benefits.

       Alleging reprisal under the Rehabilitation Act, Stone commenced the present

action. The District Court initially granted Defendant’s motion to dismiss on collateral

estoppel grounds. See Stone v. Beers, 2014 WL 11395645 (E.D. Pa. Jan. 16, 2014).

       1
         Stone brought a District Court action challenging the MSPB’s decision, but the
District Court dismissed his complaint without prejudice to refiling with the Federal
Circuit. See Stone v. Napolitano, 2009 WL 2169216 (E.D. Pa. July 17, 2009). The
Federal Circuit dismissed Stone’s petition for review for failure to prosecute. See Stone
v. Merit Sys. Prot. Bd., 449 F. App’x 2 (Fed. Cir. 2010).
                                             3
Because Stone was “entitled to de novo review of [the EEOC decision] in federal court,”

we reversed and remanded for further proceedings. Stone, 608 F. App’x at 127.

       After discovery, Defendant moved for summary judgment. The District Court

granted this motion. It did so on the ground that Stone failed to establish a prima facie

claim for retaliation, i.e., a causal connection between the employee’s protected activity

and the employer’s adverse action. Furthermore, “[e]ven assuming that Stone had made

such a prima facie claim, the Government has articulated a legitimate, non-retaliatory

reason for its refusal to restore Stone to his position as a federal air marshal,” and “the

burden shifts back to Stone to prove that this reason was pretext.” Stone, 196 F. Supp. 3d

at 568. According to the District Court, Stone did not satisfy this burden.

                                              II.

       According to Stone, the District Court erred “by failing to accept plaintiff’s well-

founded material factual allegations and factual evidence supporting those material

factual allegations, by failing to draw reasonable inferences favorable to plaintiff from

those well-founded factual allegations and by impermissibly weighing conflicting

evidence and making credibility determinations.” 2 (Appellant’s Brief at 8.) He insists




       2
        The District Court had subject matter jurisdiction pursuant to 29 U.S.C. §
794a(1) and 42 U.S.C. § 2000e-16(c). We have appellate jurisdiction under 28 U.S.C. §
1291. We review an order granting summary judgment de novo. Goosby v. Johnson &
Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir. 2000). “[T]he ‘court shall 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.’” Stone, 196 F. Supp. 3d at 564
(quoting Fed. R. Civ. P. 56(a)).

                                              4
that the material (and purportedly undisputed) factual allegations set forth in his third

amended complaint “presented trial issues of fact which could only be resolved by the

fact-finder.” (Id. at 9.) However, the whole point of the summary judgment procedure is

to go beyond the pleadings and to assess the proof in order to determine whether there is

a genuine need for a trial. Fed. R. Civ. P. 56(e) advisory committee notes to 1963

amendment. As the District Court recognized, the non-moving party “may not rest upon

the mere allegations or denials of his pleadings,” and, on the contrary, his or her response

must set forth specific facts indicating the existence of a genuine issue for trial. D.E. v.

Cent. Dauphin Sch. Dist., 765 F.3d 260, 268-69 (3d Cir. 2014) (quoting Gans v. Mundy,

762 F.2d 338, 341 (3d Cir. 1985)).

       Even assuming arguendo that Stone made out a prima facie retaliation claim,

Defendant articulated a legitimate, non-retaliatory reason for the refusal to restore Stone

to his position, and, in turn, Stone fails to point to evidence in the record that could lead a

reasonable factfinder to disbelieve the employer’s articulated reason or to find that a

retaliatory reason more likely than not constituted a motivating or determinative cause of

Defendant’s action. See, e.g., Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 198-99

(3d Cir. 2015); Antol v. Perry, 82 F.3d 1291, 1300 (3d Cir. 1995). In its response to his

request for restoration, the TSA concluded that he was not fully recovered within the

meaning of the regulations. For his part, Stone continues to rely on the September 11,

      Both the District Court and Defendant have characterized Stone’s claim as arising
under Title VII. However, his action implicates the Rehabilitation Act. See Stone, 808
F. App’x at 127 & n.3.

       Defendant also filed a motion for summary affirmance, which we deny.
                                               5
2007 letter of Thomas O. Willcox, M.D., Stone’s treating physician, as evidence of a full

recovery. Yet Dr. Willcox actually stated that Stone “is allowed to fly on commercial

aircraft as long as either he follows my Fly & Dive instructions or he has tubes placed in

his ears.” (A107.) “The Fly & Dive instructions include” the use of “EarPlanes

earplugs.” (Id.). Stone testified at his deposition that he rejected Dr. Willcox’s

recommendation to undergo surgery because he did not believe he needed the tubes and

because of the negative side effects. Stone also acknowledged that he could not really

discharge his responsibilities as a Federal Air Marshal using the earplugs because he

would not be able to hear what was happening on the plane.3 The submission from

Stone’s treating physician—together with Stone’s own deposition testimony—thereby

       3
          In his reply brief, Stone refers to two additional documents: (1) an April 15,
2008 letter from David Wichterman Sr. (FAMS Workers’ Compensation Program
Manager) to the OWCP Claims Examiner claiming that “[i]n a report dated September
11, 2007, [Dr. Willcox] released Mr. Stone back to full time, full duty” and stating that
the “Agency respectfully [sic] Mr. Stone’s compensation benefits be terminated effective
September 11, 2007, based on the treating physician’s release to full time, full duty”
(SA1); and (2) a December 7, 2010 report from Dr. William M. Sheppard opining that,
inter alia, Stone “is okay to fly,” “[t]here are no limitations upon any work whatsoever,”
and “I do not believe that Mr. Stone suffers from any current work related injury
residual” (SA4). While the Court granted Stone’s motion for leave to file his
Supplemental Appendix and denied Stone’s motion to strike, it is uncontested that these
two documents “were never before the district court” (Appellee’s Motion to Strike at 2).
In any event, Dr. Willcox made it clear that Stone may fly only “as long as either he
follows my Fly & Dive instructions [which includes the use of earplugs] or he has tubes
placed in his ears.” (A107.) We further note that Stone contested the termination of his
worker’s compensation benefits (although he ultimately was unsuccessful). In a March
22, 2011 letter to Stone’s worker’s compensation attorney, Dr. Willcox specifically stated
that Stone was not fit to work as a Federal Air Marshal. Indeed, Stone stated under oath
at the December 6, 2011 worker’s compensation hearing that he did not feel like he could
return because his former colleagues are “doing an exuberant amount of flying at this
point in time.” (A104.) This would not appear to be consistent with Dr. Sheppard’s
assertion (purportedly based on what Stone had told him) that “the number of flights that
the Air Marshall’s fly per day is significantly decreased.” (SA4.)
                                             6
support the agency’s refusal to restore Stone to his position as a Federal Air Marshal.

                                            III.

       We will affirm the District Court’s order and judgment.




                                             7
