                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 14-4703
                                     ______________

                             CHRISTOPHER PROUDFOOT,
                                          Appellant

                                             v.

                              ARNOLD LOGISTICS, LLC.
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                              (D.C. No. 1:13-cv-01650)
                    District Judge: Hon. Christopher C. Conner
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 8, 2015
                                   ______________

              Before: SHWARTZ, KRAUSE, and COWEN, Circuit Judges.

                                 (Filed: October 8, 2015)

                                     ______________

                                        OPINION *
                                     ______________

SHWARTZ, 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.
       Christopher Proudfoot appeals from the District Court’s order granting summary

judgment in favor of Arnold Logistics, LLC (“Arnold”) on his discrimination and

retaliation claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

(“ADA”). For the following reasons, we will affirm.

                                              I

       Proudfoot has a learning disability that impedes his comprehension and

interpretation of body language, and he suffers from adult separation anxiety disorder.

Beginning in June 2011, Proudfoot worked for Arnold as a sanitation laborer at an

industrial complex in Mechanicsville, Pennsylvania. Proudfoot reported to Roger

Danner, warehouse manager for several buildings in the complex. Danner reported to

Michael Dobbs, the complex’s general manager.

       Though he did not supervise Proudfoot, Dobbs constantly criticized Proudfoot’s

work performance. Proudfoot testified that Dobbs called him “dumbass” and “retard.”

App. 151a. Proudfoot told other employees, including Danner, about these comments,

and they told him to stay away from Dobbs.

       On February 28, 2012, Lindsey Haskins, a female employee, reported that

Proudfoot approached her in a way that made her uncomfortable. Danner asked Haskins

and Proudfoot to provide written statements about the incident. In his account, Proudfoot

stated: “I have a learning disorder but I still do my best to learn.” App. 97a, 142a.

Arnold did not discipline Proudfoot.

       On March 14, 2012, Jeff Cooper, Proudfoot’s coworker, reported to Danner that
                                             2
Proudfoot had threatened to harm Dobbs. Danner immediately relayed Cooper’s report

to Sharon Kay, the regional human resources manager. Kay instructed Danner to obtain

written statements from Cooper and Proudfoot. Cooper wrote that Proudfoot said he was

tired of Dobbs and threatened to harm Dobbs or have someone else do so. In his written

statement, Proudfoot explained that he told Cooper that Dobbs acted unprofessionally

toward him, that Dobbs was “getting on [his] nerves and . . . is not easy to talk to,” and

that Proudfoot was “tired of the teasing and harassment and . . . request[ed] for it to

STOP!!” App. 193a. Proudfoot testified that he merely suggested to Cooper that one day

someone might take Dobbs’ verbal abuse the wrong way and something bad might

happen to Dobbs as a result.

       Kay and Danner met with Proudfoot. Kay testified that she asked Proudfoot what

he meant by “the teasing and harassment.” App. 278a. He said that he “gets busted” by

other Arnold employees, but did not provide specifics. App. 278a. Danner testified that

Proudfoot also said he “gets tired of [Dobbs] always asking [Proudfoot] about his job,”

App. 165a, but Proudfoot did not elaborate. Danner also testified that he “asked

[Proudfoot] why he thought Mike [Dobbs] was so bad towards him. [Proudfoot] didn’t

know.” App. 165a. Proudfoot did not contradict these accounts about the meeting and

testified only that, when he met with Danner and Kay, he “wasn’t able to stand up for

[him]self and express anything to the extent that needed to be expressed.” App. 145a.

       After investigating the threats, Danner and Kay decided to terminate Proudfoot

pursuant to Arnold’s employee conduct policy prohibiting threats in the workplace. Both
                                              3
Danner and Kay testified that the alleged threats formed the sole basis for Proudfoot’s

termination and that the Haskins incident did not factor into the decision. While Danner

testified that he and Kay had equal input into the decision, Kay testified that she made the

final decision after a “collaborative” process in which Kay recommended termination

“[t]o Mr. Danner as well as Mr. Dobbs,” and “solicit[ed] some input” from them. App.

276a.1

         Following his termination, Proudfoot filed a complaint with the Pennsylvania

Human Rights Commission (“PHRC”). Arnold told the PHRC that the threats, along

with the Haskins incident, formed the basis of the termination decision. It also stated that

Kay reviewed her termination decision with Danner and Dobbs, who both concurred.

         Proudfoot sued Arnold, alleging that he was fired because of his disability and in

retaliation for his complaint of harassment, in violation of the ADA. After discovery,

Arnold moved for summary judgment. The District Court granted the motion,

concluding that Proudfoot did not show that Arnold’s facially neutral reason for

terminating him was pretext. Proudfoot appeals.

                                              II2


         1
          There is nothing in the record setting forth Dobbs’ account of his role in the
termination decision.
        2
          The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. Our review of the grant of summary judgment is plenary.
Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply
the same standard as the District Court, viewing facts and making reasonable inferences
in the non-movant’s favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 266-67

                                              4
       We examine Proudfoot’s ADA claims of discrimination and retaliation under the

analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973).3 See Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d Cir.

2004) (retaliation); Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667-68 (3d

Cir. 1999) (discrimination). Under McDonnell Douglas, a plaintiff claiming

discrimination must first establish a prima facie case. Walton, 168 F.3d at 668. Second,

“[o]nce the plaintiff establishes a prima facie case [of discrimination], ‘the burden then

. . . shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for

the employee’s [termination].’” Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999)

(quoting McDonnell Douglas, 411 U.S. at 802). Third, if the employer meets its burden,

“[t]he plaintiff then must establish by a preponderance of the evidence that the

employer’s proffered reasons were merely a pretext for discrimination, and not the real

motivation for the unfavorable job action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789,

797 (3d Cir. 2003) (per curiam). “[T]hroughout this burden-shifting paradigm[,] the



(3d Cir. 2005). Summary judgment is appropriate where “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). “An issue is genuine only if there is a sufficient evidentiary basis on which
a reasonable jury could find for the non-moving party, and a factual dispute is material
only if it might affect the outcome of the suit under governing law.” Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
        3
          “Because the anti-retaliation provisions of the [ADA, ADEA, and Title VII] are
nearly identical . . .[,] precedent interpreting any one of these statutes is equally relevant
to interpretation of the others.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d
Cir. 2002).

                                              5
ultimate burden of proving intentional discrimination always rests with the plaintiff.”

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

                                               A

       The parties do not dispute that Proudfoot established a prima facie case of

disability discrimination and that Arnold offered a legitimate, nondiscriminatory

justification for Proudfoot’s termination. Thus, “[t]he sole issue of contention . . . is

whether [Proudfoot] has succeeded in creating an issue of fact as to whether [Arnold’s]

proffered non-discriminatory reasons for [firing him] are a pretext.” Kautz v. Met-Pro

Corp., 412 F.3d 463, 466-67 (3d Cir. 2005).

       To show pretext, “the plaintiff must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action.” 4 Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (internal quotation

marks omitted). When a plaintiff challenges the “credibility of the employer’s proffered

justification,” he must produce evidence “demonstrat[ing] such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could rationally

       4
         The first prong involves an indirect showing of pretext, while the second prong
involves a direct showing. See Josey v. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir.
1993). On appeal, Proudfoot only attempts to show pretext under the first prong, and
asserts that the District Court erred in failing to discredit Arnold’s proffered justification.

                                               6
find them unworthy of credence.” Id. (internal quotation marks omitted). The plaintiff

“must show[] not merely that the employer’s proffered reason was wrong, but that it was

so plainly wrong that it cannot have been the employer’s real reason.” Keller v. Orix

Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc).

       Here, Proudfoot argues that Arnold’s proffered reason for firing him is pretextual

because Arnold has inconsistently (1) identified the individuals who decided to terminate

him; and (2) justified his termination. Opening Br. 22. These arguments are unavailing.

First, slight inconsistencies as to who made the ultimate decision to terminate Proudfoot

do not demonstrate that the reason provided for his termination was pretextual. Although

Kay testified that she solicited some input from Dobbs and Danner before making a

decision about how to proceed, it was Kay who recommended termination to Dobbs and

Danner. Kay did so only after she and Danner investigated the threats. That

investigation produced confirmation from Cooper that Proudfoot had threatened to harm

Dobbs or have someone else do so, and Proudfoot also acknowledged in his own

testimony that he suggested to Cooper that something bad might happen to Dobbs as a

result of Dobbs’ verbal abuse. While we are troubled by the immaturity and

discriminatory nature of the derogatory statements allegedly made by Dobbs to Proudfoot

over the course of Proudfoot’s employment, particularly given Dobbs’ status as a

supervisor, there is no evidence that Dobbs played any role in the investigation of the

threats or that the recommendation or decision to terminate Proudfoot was based on

anything other than the fruits of that investigation. Thus, the record demonstrates that
                                             7
there is no genuine dispute in this case as to a factual basis for Arnold’s alleged non-

discriminatory reason for the termination.

       Second, Arnold’s reason for firing Proudfoot has not changed. Although Arnold

also relied on the Haskins incident before the PHRC, it has consistently maintained that

Proudfoot’s threats against Dobbs were the reason for the termination. That Arnold

offered the Haskins incident as an additional justification for its decision in an

administrative proceeding does not undermine Arnold’s proffered reliance on the threats

as the main reason for his termination. See Simpson v. Kay Jewelers, 142 F.3d 639, 649

n.15 (3d Cir. 1998) (citing McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 374 (7th

Cir. 1992) (declining to bind defendants to “positions they initially assert in state

administrative proceedings by rendering any different position a per se pretext”)).

       Proudfoot has thus failed to show that a reasonable juror would find Arnold’s

reason for firing him to be “so plainly wrong,” Keller, 130 F.3d at 1109, that it is

“unworthy of credence,” Fuentes, 32 F.3d at 765 (internal quotation marks omitted).

Therefore, we will affirm the order granting Arnold summary judgment on Proudfoot’s

discrimination claim.

                                               B

       Proudfoot’s ADA retaliation claim also fails. Under McDonnell Douglas, the

plaintiff must first establish a prima facie case of retaliation. If the plaintiff makes out a

prima facie case, the burden shifts to the defendant to proffer a legitimate, non-retaliatory

justification for the adverse employment action. See Shellenberger v. Summit Bancorp,
                                               8
Inc., 318 F.3d 183, 187 (3d Cir. 2003). “If the employer satisfies that burden, the

plaintiff must then prove that ‘retaliatory animus played a role in the employer’s

decisionmaking process and that it had a determinative effect on the outcome of that

process.’” Id. (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997)).

       The parties do not dispute that Proudfoot made out a prima facie case of retaliation

and that Arnold raised a legitimate, non-retaliatory reason for the termination. Thus, the

sole issue is whether Arnold’s justification for terminating Proudfoot was pretext for

retaliation.5

       Proudfoot contends that the one-day lapse of time between his complaint of

harassment and his termination shows pretext. Temporal proximity is a factor that can be

used to establish the third element of a plaintiff’s prima facie case of retaliation as well as

to discredit an employer’s justification at the third step of the McDonnell Douglas

analysis. See Jalil v. Avdel Corp., 873 F.2d 701, 709 & n.6 (3d Cir. 1989). However,

“the timing of the alleged retaliatory action must be unusually suggestive of retaliatory

motive before a causal link will be inferred.” Jones v. Se. Pa. Transp. Auth., –––– F.3d –

–––, 2015 WL 4746391, at *8 (3d Cir. Aug. 12, 2015) (internal quotation marks omitted).


       5
         Arnold contends that Proudfoot fails to show pretext under both the traditional
McDonnell Douglas analysis for retaliation claims and the “but for” causation standard
applied to Title VII retaliation claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S.
––––, 133 S. Ct. 2517, 2534 (2013). Appellee Br. 18-20. We have not yet decided
whether Nassar’s “but for” causation standard also applies to retaliation claims under the
ADA, and need not do so here because Proudfoot fails to make the requisite showing
under the traditional and less onerous causation requirement of McDonnell Douglas.

                                               9
Thus, temporal proximity may be sufficient to show pretext “[i]n certain narrow

circumstances” based on the particular facts and stage of a case. Marra v. Phila. Hous.

Auth., 497 F.3d 286, 302 (3d Cir. 2007); Farrell v. Planters Lifesavers Co., 206 F.3d 271,

279-80 & n.5 (3d Cir. 2000).

       The one-day lapse between Proudfoot’s complaint and termination here does not

discredit Arnold’s proffered justification for terminating him. After Cooper reported

Proudfoot’s threats to Danner, Danner asked Cooper and Proudfoot to submit written

statements. Only after Arnold informed Proudfoot that it was investigating the threats did

Proudfoot complain of harassment. “[A]n employee may not insulate [himself] from

termination by covering [himself] with the cloak of Title VII’s opposition protections

after committing non-protected conduct that was the basis for the decision to terminate.”

Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 137 (3d Cir.

2006). Moreover, Arnold had a written policy notifying employees that threats in the

workplace could result in termination. Threats of workplace violence are serious, and no

reasonable juror would conclude that Arnold acted inappropriately in quickly considering

termination following its investigation. Indeed, the sequence here “is no evidence

whatever of causality.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)

(analyzing third element of prima facie case). On this record, therefore, the temporal

proximity between Proudfoot’s complaint about harassment and his termination would

not provide a reasonable juror a basis to conclude that the timing is unusually suggestive

of retaliatory animus, and we will affirm the order granting summary judgment to Arnold
                                            10
on Proudfoot’s retaliation claim.

                                            III

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

summary judgment for Arnold.




                                            11
