                                                    NOT PRECEDENTIAL



            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                         _____________

                          No. 14-3338
                         _____________

                      VINCENT MERCER,

                                              Appellant

                                 v.

          SEPTA; LEANDER BERRY; JASON GRIFFIN



                  On Appeal from the District Court
               for the Eastern District of Pennsylvania
                 (District Court No.: 2-12-cv-06929)
           District Judge: Honorable Eduardo C. Robreno



            Submitted under Third Circuit LAR 34.1(a)
                       on March 19, 2015


Before: McKEE, Chief Judge, RENDELL and FUENTES, Circuit Judges


                   (Opinion filed: April 1, 2015)
                                      O P I N I O N*


RENDELL, Circuit Judge,

       Plaintiff-Appellant Vincent Mercer appeals from the District Court’s grant of

summary judgment on his Americans with Disabilities Amendments Act (“ADA”),

Pennsylvania Human Rights Act (“PHRA”), and 42 U.S.C. § 1983 claims against the

Southeastern Pennsylvania Transportation Authority (“SEPTA”) and two former

supervisors, Leander Berry (“Berry”) and Jason Griffin (“Griffin”). For the reasons

stated below, we will affirm.

                                     I. Background

       Mercer worked as a maintenance custodial bus driver for SEPTA from September

2001 until January 14, 2011. Mercer has diabetes, high blood pressure, and high

cholesterol, and is indisputably “disabled” within the meaning of the ADA. On June 21,

2010, Mercer presented SEPTA with a note from his doctor stating that overheated

conditions could exacerbate Mercer’s hypertensive condition. Subsequently, SEPTA’s

medical director, Dr. Jeffrey Erinoff, recommended to Mercer’s supervisors that he be

permitted to clean buses with the air conditioning turned on when the outside temperature

exceeded ninety degrees. Mercer alleged that, despite this recommendation, he was

routinely assigned to work on buses without air conditioning during the remainder of the

summer of 2010. On June 28, 2010, for example, Mercer passed out while working on a


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
hot bus. He was taken to the emergency room, and his treating physician cleared him to

return to work on July 6, 2010 with the restriction that he avoid excessive heat. On July

20, 2010, Dr. Erinoff conducted a physical examination of Mercer, after which he again

recommended to Mercer’s supervisors that if the temperature exceeded 90 degrees,

Mercer should be permitted to clean buses with the air conditioning on. Mercer alleged

that even after this recommendation, he was made to work on excessively hot buses,

although he does not point to any specific incidents in his complaint.

       Mercer also claimed that defendant Berry frequently cursed at him, called him

“fat,” and made fun of his weight during his employment. On August 18, 2010, Mercer

had a confrontation with Berry in which Berry demanded that Mercer transport a bus to a

different facility. Mercer did not do so and instead left work early, stating he did not

comply because he was not feeling well and believed he had permission from Berry’s

supervisor, Griffin, to leave. The next day, Mercer was suspended until further notice

pending an investigation. Griffin concluded that Mercer had violated a direct order from

a supervisor, which subjected him to immediate termination. The Transport Workers

Union Local 234 (“Union”), of which Mercer was a member, appealed that

determination. As a result, Mercer agreed to return to work on “Last Chance” status,

under which he would be automatically discharged if he incurred any disciplinary action

during the next 730 days.




                                              3
       Once he was back at work, Mercer received several Vehicle Maintenance

Information System (“VMIS”) violations.1 He received his sixth violation notice on

December 27, 2010, and because of his “Last Chance” status, SEPTA terminated his

employment effective January 14, 2011. Mercer filed a claim against SEPTA with the

Equal Employment Opportunity Commission (“EEOC”) on July 8, 2011, and received a

right to sue letter on September 20, 2012. He timely filed his complaint against SEPTA,

who moved for summary judgment following completion of discovery. The District

Court granted SEPTA’s motion for summary judgment.

       Mercer now appeals the District Court’s grant of summary judgment, claiming the

District Court incorrectly 1) found his reasonable accommodation and hostile work

environment claims to be time-barred, 2) dismissed Mercer’s discriminatory discharge

claim for failure to demonstrate a pretext, 3) dismissed his retaliation and First

Amendment claims for lack of causation, and 4) dismissed his Equal Protection claim for

failure to point to similarly situated individuals who were treated differently.

                                       II. Discussion

       This Court has plenary review of the grant or denial of summary judgment. Mylan

Inc. v. SmithKlineBeecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). Summary judgment

is appropriate “if the pleadings, depositions, answers to the interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue



1
 VMIS is a computer program SEPTA uses to track employees’ time and assign work.
An employee who receives six such violations in one year is advanced one level on
SEPTA’s progressive disciplinary policy.
                                              4
as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A. Mercer’s reasonable accommodation claim is time-barred.

       The District Court correctly dismissed Mercer’s reasonable accommodation claim

as time-barred. Under the ADA, a plaintiff must file a claim with the EEOC within 300

days of the action complained of in order not to be time-barred on that claim. 42

U.S.C.A. § 2000e-5(e)(1).2 (This requirement is provided for in Title VII of the Civil

Rights Act of 1964.) Mercer filed his EEOC charge on July 8, 2011. As such, the

District Court considered only those events after September 11, 2010, 300 days prior, in

evaluating his reasonable accommodation claim. Mercer argues that while his formal

requests for accommodation, through his doctor’s notes, took place before September 11,

he continued to request accommodation throughout the summer of 2010, and SEPTA

continued to deny this request by making him work on overheated buses through October

2010. He argues that these incidents should restart the clock, under a continuing

violations theory. The District Court correctly rejected this argument for two reasons: (1)

Mercer’s requests for accommodation, assuming they were denied, were not continuing

violations because the denial of a reasonable accommodation is a discrete event, and (2)


2
  Although a plaintiff must normally bring suit within 180 days of an alleged
discriminatory act, where the plaintiff files a claim with a state or local agency authorized
to adjudicate the claim, the plaintiff is granted an extension of 300 days from the original
discriminatory act with which to file the claim with the EEOC. Since the matter
originated in Pennsylvania, which is a deferral state with a state agency that has authority
to investigate employment discrimination charges, the plaintiff is permitted to file
charges with the EEOC within 300 days of the alleged discriminatory act under the
provisions of 42 U.S.C. § 2000e–5(e)(1).
                                              5
Mercer had not demonstrated an independently recoverable denial of a requested

accommodation after September 11, 2010.

       A reasonable accommodation request is a one-time occurrence rather than a

continuing practice, and therefore, does not fit under the continuing violations theory.

Aubrey v. City of Bethlehem, 466 F. App’x 88 (3d Cir. 2012). In Aubrey, we held that

continuing violations theory does not apply to denial of reasonable accommodation under

ADA because the nature of such a claim does not involve repeated conduct. Id. at 92.

Assuming that Mercer’s visit to the emergency room on June 28, 2010 was caused by

SEPTA’s alleged denial of his accommodation request, Mercer’s EEOC claim was filed

well after the 300-day deadline, on July 8, 2011. Additionally, Mercer did not specify

incidents in which SEPTA’s failure to accommodate his disability that occurred after

September 11. Instead, he asserted only general complaints about being assigned to non-

air-conditioned buses. Therefore, the District Court correctly granted summary judgment

to SEPTA regarding Mercer’s reasonable accommodation claim.

B. Mercer’s hostile work environment claim is time-barred.

       The District Court correctly concluded that Mercer’s hostile work environment

claim was time-barred because the date of his last alleged incident of harassment was

more than 300 days before the day he filed his hostile work environment claim with the

EEOC. In Nat’l Railroad Passenger Corp. v. Morgan, the Supreme Court held that the

300-day EEOC deadline for filing employment discrimination claims does not apply to

hostile work environment claims if actions that contributed to the hostile work

environment span a period that both exceed and are included within the 300-day window.

                                             6
536 U.S. 101, 115-117 (2002). As the Nat’l Railroad Court explained, if “an act

contributing to the claim occurs within the filing period, the entire time period of the

hostile environment may be considered by a court for the purposes of determining

liability.” Id. at 117, 122.

       The District Court correctly noted that Mercer could not point to any incidents

contributing to his alleged hostile work environment after September 11, 2010, because

Berry, Mercer’s alleged harasser, was transferred to a different work location in early

October 2010 and Mercer did not return to work after his suspension until September 27,

2010. Therefore, Berry and Mercer did not work together for an extended period of time

within the 300 days of his EEOC complaint, and most, if not all, of the complained-of

comments from Berry were alleged to have occurred outside the timeliness window.3

Furthermore, Mercer points to no specific incidents that took place after September 27

that could have contributed to his hostile work environment claim. As such, the District

Court correctly granted summary judgment to SEPTA on this claim as well.



3
  To establish a hostile work environment claim under the ADA, a plaintiff must show
that: (1) he is a qualified individual with a disability, (2) he was subject to unwelcome
harassment, (3) the harassment was because of his disability or request for an
accommodation, (4) the harassment was sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working environment, and (5) the
employer knew or should have known of the harassment and failed to take prompt,
effective remedial action. Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667
(3d Cir. 1999). Because we note that Mercer’s claim is time-barred, we need not analyze
whether he met the elements of a hostile work environment claim. Even so, there is no
evidence that Mercer experienced harassment that was “severe or pervasive.” At most,
the relevant harassment lasted a few days, between September 27 and the beginning of
October 2010. Mercer points to only one incident, from August 18, 2010, which could
have fit the bill of a “severe” incident, but this took place before the timeliness window.
                                              7
C. Mercer provided no evidence of pretext for his discriminatory discipline and
discharge claims.

       The District Court correctly dismissed Mercer’s discriminatory discharge claim

because Mercer never offered any evidence that would demonstrate that SEPTA’s

proffered reasons for disciplining and terminating him were a pretext for intentional

discrimination based on his disability. To establish a prima facie case of disparate

treatment under the ADA, a plaintiff must show “(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.”

Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). If the plaintiff makes a prima facie

case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory

reason for the adverse employment action. Id. Once the defendant has provided such a

justification, the burden then shifts back to the plaintiff to demonstrate that this stated

reason is a mere pretext for discrimination. Id.

        Mercer disputes whether he should have been placed on “Last Chance” status, and

the basis for his six VMIS violations, which led to his termination in January 14, 2011.

In Fuentes v. Perskie, this Court held that “[t]o discredit an employer’s proffered reason,

the plaintiff cannot simply show that the employer’s decision was wrong or mistaken,

since the factual dispute at issue is whether discriminatory animus motivated the

employer, not whether the employer is wise, shrewd, prudent or competent.” 32 F.3d

759, 765 (3d Cir. 1994). “Rather, the non-moving plaintiff must demonstrate such


                                               8
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable fact finder could

rationally find them ‘unworthy of credence,’ and hence infer ‘that the employer did not

act for [the asserted] non-discriminatory reasons.’” Id.

       The District Court correctly granted summary judgment to defendant on this claim

because Mercer provided no evidence that the reasons given for his “Last Chance” status

and termination were pretextual. Mercer was placed on “Last Chance” status for

violating a direct order from a supervisor. Mercer has not demonstrated that this reason

was a pretext for intentional discrimination. Mercer also has not demonstrated that

SEPTA’s proffered reason for terminating him - his VMIS violations - were tainted with

discriminatory intent, nor has he shown that they were weak, implausible, inconsistent,

incoherent, or contradictory. While Mercer disagrees with the basis of his VMIS

violations, as the District Court correctly stated, his disagreement with the basis of those

violations does not demonstrate that SEPTA’s proffered reasons for terminating him were

pretextual.

D. Mercer provided no causal connection for his retaliation claim.

       The District Court correctly concluded that Mercer has no retaliation claim

because he was unable to demonstrate a causal connection between his actions and his

termination. In order to establish a prima facie claim of retaliation, a plaintiff must

prove: (1) that he engaged in 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

                                              9
adverse action. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002).

Mercer argued that SEPTA retaliated against him for his request for an accommodation

in June 2010 and for filing an EEOC charge, by suspending him in August 2010, and by

terminating him in January 2011.4

       In the absence of other evidence, “the timing of the alleged retaliatory action must

be ‘unusually suggestive’ of retaliatory motive before a causal link will be inferred.”

Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183, 189 n. 9 (3d Cir. 2003) (quoting

Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). The adverse action

must occur within days, not months, of the protected activity. In Williams v.

Philadelphia Hous. Auth. Police Dep’t, this Court found that a span of two months

between the protected activity and the adverse employment action was not enough to find

a causal link. 380 F.3d 751, 760 (3d Cir. 2004). In Jalil v. Avdel Corp., however, two

days was enough to find a causal link. 873 F.2d 701, 708 (3d Cir. 1989). The District

Court correctly found that Mercer provided no evidence of a causal connection between

his request for an accommodation in June 21, 2010 and either (1) his suspension in

August 19, 2010, two months later, nor (2) his ultimate termination in January 14, 2011,

over seven months later.

E. The District Court properly dismissed Mercer’s § 1983 claims.

       The District Court correctly dismissed Mercer’s § 1983 First Amendment

retaliation claim for the same reasons it dismissed his ADA retaliation claim: Mercer

4
 Mercer also argued that SEPTA’s February 9, 2012 reinstatement offer if he agreed to
waive his claims against SEPTA were “anticipatory retaliation.” As SEPTA correctly
pointed out, Mercer waived this argument by not raising it before the District Court.
                                            10
failed to demonstrate the necessary causal link between his allegedly protected activity

and an adverse employment action. The District Court also correctly found that Mercer

had no Equal Protection claim. To bring a successful § 1983 claim for a denial of Equal

Protection, a plaintiff must prove the existence of purposeful discrimination by

demonstrating that the plaintiff was treated differently from other, similarly situated

individuals because of his status. Blunt v. Lower Merion School District, 767 F.3d 247,

273 (3d Cir. 2014). Mercer failed to identify any similarly situated individuals who were

treated differently. The District Court therefore correctly dismissed Mercer’s § 1983

claims.

                                      III. Conclusion

       The District Court did not err in granting summary judgment to SEPTA. Mercer’s

reasonable accommodation and hostile work environment claims are time-barred. His

discriminatory discharge claims fail because he does not demonstrate that SEPTA’s

proffered reasons for its actions were a pretext for discrimination. His retaliation and

First Amendment claims show no causal connection between his allegedly protected

activity and any adverse employment action. Finally, his Equal Protection claim fails to

point to similarly situated individuals. As such, we will affirm.




                                             11
