                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                        __________

                            No. 10-4173
                            __________


                      SHERMAN ABRAMS,

                                              Appellant

                                 v.

PORT AUTHORITY TRANS-HUDSON CORPORATION, CYNTHIA BACON,
         STEVEN ABRAMOPOLOUS, AND ROBERT REICH



           On Appeal from the United States District Court
                     for the District of New Jersey
                       (D.C. No. 2-07-cv-04975)
            District Judge: Honorable Stanley R. Chesler



             Submitted under Third Circuit LAR 34.1(a)
                         on July 15, 2011


        Before: RENDELL, SMITH, and ROTH, Circuit Judges

                (Opinion filed: September 20, 2011)
                                       OPINION


ROTH, Circuit Judge:

I. Introduction

       Sherman Abrams appeals summary judgment on his racial discrimination and First

Amendment retaliation claims against the Port Authority Trans-Hudson Corporation

(PATH) and several of its employees. He contends that the District Court overlooked

evidence that PATH‘s basis for terminating him was pretextual and retaliatory. Because

Abrams did not offer sufficient evidence to present a triable issue of fact on his claims,

we will affirm the judgment of the District Court.

II. Background1

       PATH is a governmental entity created by an interstate compact between the

States of New York and New Jersey, with the approval of Congress. See 42 Stat. 174

(1921); N.J. Stat. Ann. § 32:1-1 et seq.; N.Y. Unconsol. Laws § 6401 et seq.. PATH

operates a transit rail system connecting New York and New Jersey across the Hudson

River. Abrams, an African American, was employed by PATH for thirteen years—from

February 1992 to August 2005—in a position designated by PATH as ―Trackman I.‖ As

a Trackman I, Abrams worked on PATH‘s railroad tracks, and his tasks included lifting,

moving, and placing railroad spikes, ties, and rails. As a result, PATH required that


       1
         Because we write only for the parties, we briefly summarize the undisputed facts,
drawing all inferences in favor of Abrams, the non-moving party. See Barefoot Architect,
Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).

                                              2
Abrams be able to walk in track areas, climb wall ladders, stand for long periods of time

(two to three hours), crouch for up to 30 minutes, lift material weighing up to 100

pounds, and handle heavy equipment weighing 45-90 pounds.

       Throughout Abrams‘s employment he was obese, and from at least 1998 he also

suffered from chronic cellulitis and phlebitis. Due to these medical conditions, Abrams

was absent from work for protracted periods of time: PATH attendance records indicate

that he was absent on paid leave for 282 weeks, or almost 5½ of the 13 years he worked

at PATH. Over the course of his employment, Abrams also repeatedly complained about

his treatment at PATH, raising union grievances, filing complaints with the EEOC, and

bringing unrelated lawsuits against PATH.

       Abrams‘s orthopedist, Dr. Lee, was deposed in one of these lawsuits in January

2005 and testified that Abrams should not be in a job that required a lot of walking and

standing or that required walking on uneven surfaces. After learning of this testimony,

Paul Moreno, a superintendent at PATH, requested an evaluation of whether Abrams was

able to perform the duties of a trackman. Moreno also noted that, since January 1, 2004,

Abrams had been out sick for 140 days, and that Abrams had given notice that he would

continue on sick leave until June 2005.

       On March 8, 2005, Dr. Jaffe, an orthopedic surgeon, examined Abrams for PATH.

Dr. Jaffe diagnosed Abrams with a torn meniscus and concluded that he was able to hold

―a very sedentary position,‖ but could not perform tasks such as ―walking, climbing

stairs, and getting up and down from a seated position.‖ Abrams was then evaluated by

PATH‘s Office of Medical Services (OMS) and Dr. Duke, PATH‘s Chief Medical

                                             3
Officer, reported that Abrams was ―fit for duty as a Trackman with a permanent

restriction of ‗no lifting over 50 pounds, no squatting, bending or climbing; no prolonged

standing or walking – not utilized.‘‖ In April 2005, Dr. Lee responded to Dr. Jaffe‘s

opinion and agreed with him that Abrams should ―avoid excessive stair climbing,‖ and

―should not walk on uneven surfaces that he does when working as a trackman.‖ But Dr.

Lee also opined that Abrams ―is fit for duty. He may return to duty with the restrictions

of not going back as a trackman. He can work regular duty on floors that have even

surfaces if this is available.‖ A week after Dr. Lee‘s report, Dr. Jaffe reported to Dr.

Duke that he had reviewed the job requirements for a trackman and had concluded ―with

a high degree of medical certainty‖ that Abrams ―will not be able to perform the full

duties of a Trackman I.‖ Abrams was then re-evaluated by OMS and Dr. Duke

concluded that ―he is never fit to perform the duties of Trackman I.‖

       In June 2005, at the request of Abrams‘s union, the Transport Workers Union of

America (TWU), PATH convened an Employee Review Committee to meet with Abrams

concerning other job opportunities at PATH. Abrams expressed interest in each of the

six alternative positions identified by the Committee but, based on his medical condition,

Abrams was ―not capable of performing the full duties‖ for any of the positions. TWU

and PATH then agreed to convene a Board of Doctors to determine whether Abrams was

medically disqualified from holding the position of Trackman I. PATH designated Dr.

Duke to represent it on the Board and TWU designated Dr. Lee as its representative. Dr.

Duke and Dr. Lee were then required to agree on a third doctor to serve on the Board, and

after exchanging several names, ultimately agreed on Dr. Schob. Dr. Dukes had

                                              4
proposed Dr. Schob and had certified that he ―is not associated with PATH or me in any

matter.‖ In September 2005, Dr. Schob examined Abrams, consulted his medical

records, and provided a detailed medical report, concluding that Abrams was not

medically fit for the position of Trackman I. The Board concluded by a 2-1 vote that

Abrams was not medically fit for the position of Trackman I.

       Two months later, after a number of telephone and in-person contacts from

Abrams, Dr. Schob admitted that, unbeknownst to Dr. Dukes and Dr. Lee, he had

performed permanency evaluations on PATH employees through a company called

Procura. Dr. Schob then wrote a letter to Dr. Duke in which he explained that he felt ―it

was necessary to alter my final conclusions with regards to [Abrams‘s] work status‖ and

that he felt that Abrams ―should be allowed to return to work at his usual and customary

activities as a Trackman 1.‖ On the basis of this letter, TWU requested that Abrams be

reinstated. PATH refused and a Special Board of Adjustment was convened to arbitrate

their dispute. The Adjustment Board considered Dr. Schob‘s original and subsequent

reports and in a thorough, detailed opinion concluded that Abrams‘s claim for

reinstatement based on Dr. Schob‘s revised opinion was ―without merit.‖

       Abrams then sued PATH and several of its employees in New Jersey state court,

asserting numerous claims for relief under both federal and New Jersey law. These

included two claims brought under 42 U.S.C. § 1983, alleging that PATH had

discriminated against Abrams on the basis of his race, in violation of the Fourteenth

Amendment, and retaliated against him for exercising his free speech rights, in violation

of the First Amendment. The case was removed to the United States District Court for

                                             5
the District of New Jersey. The District Court dismissed a number of Abrams‘s claims

and the parties proceeded with discovery on the remaining claims.

       At the close of discovery, PATH moved for summary judgment, first on Abrams‘s

Fourteenth Amendment claim and then later on his First Amendment claim. In separate

orders, the District Court granted both motions. With respect to the Fourteenth

Amendment claim, the court assumed arguendo that Abrams had established a prima

facie case of discrimination but found that Abrams had not presented sufficient evidence

that PATH‘s stated reason for terminating him was pretextual. With respect to Abrams‘s

First Amendment retaliation claim, the District Court found that Abrams had failed to

present any evidence that his termination was the result of his protected speech. The

court further noted that both of Abrams‘s claims were deficient as to PATH because he

had not presented any evidence of an unconstitutional policy or custom that would

support a finding of liability under Monell v. Department of Social Services, 436 U.S. 658

(1978).2

III. Discussion

       We review de novo the District Court‘s grant of summary judgment. Barefoot

Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). ―While ‗[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in his favor‘

in determining whether a genuine factual question exists, summary judgment should not




       2
        The District Court also granted summary judgment on Abrams‘s Equal
Protection claim based on disability discrimination. Abrams does not appeal this ruling.

                                             6
be denied unless there is sufficient evidence for a jury to reasonably find for the

nonmovant.‖ Id. (citations omitted).

       The District Court properly granted summary judgment on Abrams‘s First

Amendment retaliation claim against the remaining individual defendants.3 Like the

District Court, we assume arguendo that Abrams‘s complaints about discriminatory

practices at PATH were protected speech under the First Amendment and consider

whether he presented evidence that his speech was a ―substantial factor‖ in his

termination. See Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). Abrams argues

that the District Court overlooked evidence of temporal proximity and a ―pattern of

antagonism‖ that supported such an inference. But he has not provided—either before

the District Court or this Court—any indication of the timing of his protected speech or

how this speech related to retaliatory action against him, both of which are essential to a

showing of temporal proximity or pattern of antagonism. See Abramson v. William

Paterson College of N.J., 260 F.3d 265, 288 (3d Cir. 2001); Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 281 (3d Cir. 2000).

       Summary judgment was also proper on Abrams‘s Equal Protection claim based on

alleged racial discrimination. Abrams first contends that the District Court erred in
       3
          Summary judgment was also proper on Abrams‘s Monell claims against PATH.
As a state agency, PATH can only be held liable under § 1983 for Abrams‘s termination
if the termination arose from an unconstitutional policy or custom of PATH. Brown v.
City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) (citing Monell, 436 U.S. at 694).
Abrams contends that Dr. Duke‘s improper selection of Dr. Schob as a ―neutral‖ doctor
despite Dr. Shob‘s connection to PATH supports an inference that PATH had a policy of
deliberate indifference to constitutional rights. This inference is dubious at best, and falls
well short of the exacting standard applied to a Monell claim based on a single incident.
See Brown, 386 F.3d at 292-93.

                                              7
finding insufficient evidence of pretext and points to countervailing medical evidence and

a number of procedural irregularities that in his view show that the PATH employees‘

stated basis for terminating him was pretextual. This evidence, viewed in the light most

favorable to Abrams, shows at most that the Board of Doctors and the Special Board of

Adjustment mistakenly determined that he was medically unfit for the position of

Trackman I. The evidence does not show that PATH‘s reliance on their determinations

was so implausible as to be a pretext for racial discrimination.4 See Kautz v. Met-Pro

Corp., 412 F.3d 463, 467 (3d Cir. 2005); Abramson v. William Paterson College of N.J.,

260 F.3d 265, 283 (3d Cir. 2001).

IV. Conclusion

       For the foregoing reasons, we will affirm the grant of summary judgment.




       4
         In addition to this evidence, Abrams also points to the letter he wrote to the
EEOC and testimony from his deposition, both of which identify several white trackmen
who were not terminated despite medical conditions that he claims are comparable to his.
However, Abrams acknowledged that he had not seen these employees‘ medical records
and presented no evidence that these employees‘ had been diagnosed with such
conditions or that their doctors had stated in written reports and under oath—as his doctor
had done—that they could not meet certain requirements of the Trackman I position.
Although ―comparative evidence is often highly probative of discrimination,‖ Anderson
v. Wachovia Mortg. Corp., 621 F.3d 261, 268-69 (3d Cir. 2010), this evidence is
insufficient because it does not show that the white employees are similarly situated to
him, i.e., ―alike in all relevant aspects,‖ Startzell v. City of Philadelphia, 533 F.3d 183,
203 (3d Cir. 2008).

                                             8
