                                                    NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-4562
                                      _____________

                                 ROBERT A. GARDNER,
                                          Appellant

                                             v.

                       SCHOOL DISTRICT OF PHILADELPHIA
                               _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (District Court No. 2-13-cv-02756)
                         District Judge: Hon. Robert F. Kelly
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 2, 2015

      Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.

                           (Opinion Filed: December 17, 2015)
                                   _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

          Robert A. Garner appeals an order of the United States District Court for the

Eastern District of Pennsylvania granting summary judgment against him and in favor of

the School District of Philadelphia (the “School District” or “District”) on his claims that

the School District discriminated and retaliated against him in violation of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human

Relations Act (“PHRA”), 43 P.S. § 951 et seq. For the reasons that follow, we will

affirm.

I.        Background1

          While the factual background of this case is extensive, the following abbreviated

version suffices to give context for our decision.

          Starting in May 2011, Garner and the School District engaged in an ongoing series

of communications in which Garner submitted reports from his physicians and requested

leave to recover from his physical ailments, and the District responded to those requests

based on the information Garner provided and its own inquiries and evaluations of

Garner’s condition. Over the course of approximately two years, from May 2011 until

Garner filed his complaint against the School District in May 2013, the District

authorized all of Garner’s leave requests except for five weeks from November 7 to

December 12, 2011, and twelve weeks from March 13 to June 5, 2012. Those interludes

are at the heart of this dispute.


          1
         Consistent with Federal Rule of Civil Procedure 56(a), we set forth the facts in
the light most favorable to Garner. See infra n.5.
                                               2
       Garner became a school police officer sometime in 2000 or 2001 and is a member

of a collective bargaining unit represented by Teamsters Local Union 502. After a work-

related injury on November 19, 2010, the District cleared Garner to return from a leave of

absence by no later than May 3, 2011. On that date, instead of returning to work, Garner

notified the School District that he needed to take leave “due to a serious medical

condition” that left him “unable to perform the essential functions of [his] job.” (App.

366.) Thereafter, Garner had appointments with the District’s office of Employee Health

Services (“EHS”) at which he presented information from his physicians documenting his

health problems.

       For several months, the School District approved Garner’s requests for leave,

allowing him to use his accumulated paid sick leave days. At his appointment on

October 3, 2011, however, EHS indicated that Garner should return to work on

November 7, 2011. Although Garner had submitted a physician’s report at the October 3,

2011 appointment, the report did not address Garner’s ability to work, a problem which

he later acknowledged. Garner was notified of his scheduled return date and signed a

form stating that he understood that “failure to return to work on the above date will

result in my being coded unauthorized leave without pay.” (App. 183.)

       Garner’s union representative, Robert McGrogan, requested a third-party

evaluation to determine whether he was able to work, but EHS denied that request

because the physician’s report Garner submitted did not contradict EHS’s own




                                             3
determination.2 EHS also reiterated to Garner that he was scheduled to return to work on

November 7, 2011, and that “[f]ailure to return to work on [that date] will result in being

placed in no pay status and a disciplinary hearing will be scheduled for you.” (App. 421.)

McGrogan also submitted a physician’s letter asking that Garner be excused from work

until October 31, 2011, but the letter did not purport to excuse Garner beyond that date.

       Garner did not return to work on November 7, 2011. In mid-November, the union

faxed to EHS two notes from a gastrointestinal medical practice asking that Garner’s

absences be excused from November 15, 2011 until December 5, 2011, but an EHS

physician concluded that the notes demonstrated no medical severity. Consequently, the

School District notified Garner that it would hold a hearing on December 5, 2011 to

address his unauthorized absences and determine whether he had violated the District’s

sick leave policies.

       At the December 5 hearing, Garner and McGrogan submitted a physician’s report

that documented Garner’s gastrointestinal symptoms but did not specify whether Garner

was unable to work. The School District directed Garner to bring an updated report from

his medical specialist to an appointment with EHS on December 12, 2011. At the time of

that appointment, however, Garner brought only a note from a physician’s assistant

affirming that Garner had received medical care on December 5, 2011 and was able to

return to work. Accordingly, EHS cleared Garner to return to work on December 13,

       2
        Under the agreement between Garner’s union and the School District, an
employee who disagreed with the District’s decision that the employee should return to
work was entitled to ask for a third party evaluation, provided that the employee’s doctor
disagreed with the recommendation of EHS.

                                             4
2011. The District also notified Garner that his absences from November 7 through

December 12, 2011 would be treated as unauthorized absences without pay, and that he

would be placed on strict probation for one year.

       On January 19, 2012, after Garner called out sick four separate times within a two-

week period, a supervisor issued him a warning letter. On January 23, 2012, Garner filed

an application under the Family Medical Leave Act, requesting continuous, indefinite

leave effective January 19, 2012. The application affirmed that Garner was “unable to

function [at] work” and “unable to perform any of his[] job functions due to [his medical]

condition.” (App. 203.) EHS determined that Garner did not qualify for leave under the

FMLA because he had not worked 1,250 hours in the 12 months prior to the date of his

request. However, EHS approved Garner to take sick leave until February 13, 2012, the

date of his next follow-up appointment, and again instructed him to bring “[m]edical

documentation from your physician.” (App. 117.)

       At the next appointment, Garner submitted a brief doctor’s note that did not

address Garner’s ability to work, so EHS determined that Garner should return to work

on March 12, 2012. The School District allowed him to use his sick days until that time.

In directing Garner to return to work, the District also reminded him that, if he disagreed

with the return-to-work date, his union could request a third-party evaluation, provided

that EHS received such request “within ten (10) working days of your scheduled

appointment in EHS.” (App. 119.) Garner again signed an acknowledgment that he had

been notified of his scheduled return date and that he understood that “failure to return to



                                             5
work on the above date will result in my being coded unauthorized leave without pay.”

(Id.)

        Garner did not return to work on March 12, 2012; instead, that same day,

McGrogan forwarded to EHS a letter documenting that Garner had had a cardiology

appointment on February 29, 2012. EHS decided not to adjust Garner’s return date based

on the information supplied and determined that his absences following that date were

unauthorized. McGrogan then sent EHS another physician’s report stating that Garner

was unable to work; he also asked that the District reconsider its decision. But a

reviewing physician at EHS again concluded that Garner’s documentation failed to

demonstrate medical severity. By letter dated March 29, 2012, the School District

notified Garner that it would hold another hearing on April 12, 2012 to address charges

that he had violated the school’s leave policy, failed to submit medical reports or absence

cards, and had abandoned his job.

        The next day, March 30, 2012, McGrogan submitted an untimely request for a

third-party evaluation based on the discrepancies between the evaluations by EHS and

Garner’s primary care physician. At the April 12 hearing, McGrogan, as Garner’s

representative, relied on two physician’s letters that EHS had previously determined did

not demonstrate any medical severity.

        The School District advised Garner on June 6, 2012 that, due to his “violations of

sick leave policy and [his] failure to return to work when cleared to do so,” the District’s

Office of Human Resources was recommending his termination, but that Garner, through

his union, could appeal the decision before the recommendation became final. (App.

                                              6
214.) Accordingly, McGrogan filed a grievance to appeal the decision and submitted two

doctors’ letters affirming that Garner’s health problems rendered him unable to work.

While the School District was considering those new documents, McGrogan and Garner

discussed the possibility of Garner taking a “restoration to health sabbatical” – an

extended form of sick leave under which Garner’s pay would be reduced but he would

continue to receive health benefits and full credit towards his pension. (App. 360.)

Garner decided to request the sabbatical and, on June 17, 2012, the District granted the

request. The sabbatical leave was originally set to last for half the school year. On

January 28, 2013, however, Garner obtained another doctor’s note which stated that he

was “currently unable to work” due to his “chronic gastrointestinal condition” (App.

143), and the District extended his sabbatical leave until June 30, 2013.

       On June 3, 2013, near the conclusion of his sabbatical leave, Garner asserted that

he needed “more treatments before I can return to duty,” and he sought “accommodations

for [his] disabilities” under the ADA and PHRA “to use [his] sick leave and continuation

of salary benefits to address [his] disability.”3 (App. 393.) A few weeks after that

request, he also suffered a subdural hematoma for which he underwent brain surgery.

EHS approved Garner’s request for sick leave, and Garner resumed using his sick days

when school reopened in September 2013.


       3
        This was the first time Garner specifically requested accommodation under the
ADA and PHRA. Cf. Taylor v. Phoenixville School Dist., 184 F.3d 296, 317 (3d Cir.
1999) (noting that, while a specific request for accommodation may not always be
necessary to initiate an interactive process between employee and employer to determine
an appropriate accommodation, “it certainly helps bolster the employee’s claim that the
employer knew that the employee wanted accommodations”).

                                             7
       Despite subsequent appointments with EHS, Garner has never returned to work.

Instead, as a continuing employee of the School District, Garner has now used his entire

bank of paid sick days and, at the time of the District Court’s order, was on track to

exhaust his allotted year of wage continuation benefits as well.

       Garner filed his complaint on May 20, 2013, asserting claims of discrimination

and retaliation under each of the ADA and the PHRA, for a total of four claims.

Analyzing the two PHRA claims under the same standard as the two ADA claims,4 the

District Court granted summary judgment in favor of the School District on all four

claims. Garner timely appealed.




       4
         We apply the same analysis to claims under both the ADA and the PHRA,
treating such claims as coterminous. See Williams v. Phila. Hous. Auth. Police Dept.,
380 F.3d 751, 761 n.6 (3d Cir. 2004) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d
296, 306 (3d Cir. 1999)).

                                             8
II.    Discussion5

       A.     The Discrimination Claim

       Garner argues that the School District discriminated against him by failing to

accommodate his disabilities, specifically by denying him “the ability to use his earned

sick leave and wage continuation benefits.” (Appellant’s Br. 5.) The ADA prohibits any

covered entity from discriminating “against a qualified individual on the basis of

disability … .” 42 U.S.C. § 12112(a). The ADA further defines a “qualified individual”

as a person “who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires.” 42 U.S.C.

§ 12111(8).

       Under our precedent, the plaintiff bears the initial burden of proving that he is

qualified and, “if an accommodation is needed, the plaintiff must show, as part of [his]

burden of persuasion, that an effective accommodation exists that would render [him]

otherwise qualified.” Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 670 (3d

       5
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s
summary judgment rulings. Lupyan v. Corinthian Colls. Inc., 761 F.3d 314, 317 (3d Cir.
2014). “Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the nonmoving party, the moving party is
entitled to judgment as a matter of law.” Carter v. McGrady, 292 F.3d 152, 157 n.2 (3d
Cir. 2002). For a dispute over a material fact to be “genuine,” the evidence must be such
that “a reasonable jury could return a verdict for the nonmoving party.” Williams v. Bor.
of West Chester, Pa., 891 F.2d 458, 459 (3d Cir. 1989) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). See also F.R.C.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (explaining that a court must grant summary judgment
“against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial”).

                                             9
Cir. 1999) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2d Cir.

1995)). A disabled employee thus establishes a prima facie case for relief under the

ADA “if [he] shows that [he] can perform the essential functions of the job with

reasonable accommodation and that the employer refused to make such an

accommodation.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001).

      A defendant employer is under no obligation to maintain the employment of a

plaintiff whose proposed accommodation for a disability is “clearly ineffective.” Walton,

168 F.3d at 670 (quoting Borkowski 63 F.3d at 139). But an employee does not act

unilaterally in suggesting a reasonable accommodation. On the contrary, “[a]n

employee’s request for a reasonable accommodation requires a great deal of

communication between the employee and employer,” and “[b]oth parties bear

responsibility for determining what accommodation is necessary.” Taylor v. Phoenixville

Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999) (quoting Bultemeyer v. Fort Wayne Cmty.

Sch., 100 F.3d 1281, 1285 (7th Cir. 1996)). Nevertheless, the interactive process between

employee and employer “does not dictate that any particular concession must be made by

the employer; nor does the process remove the employee’s burden of showing that a

particular accommodation rejected by the employer would have made the employee

qualified to perform the job’s essential functions.” Taylor, 184 F.3d at 317. We have

recognized that leave may be a reasonable accommodation when the plaintiff offers

evidence that the leave would be temporary and “would enable the employee to perform

his essential job functions in the near future.” Conoshenti v. Pub. Serv. Elec. & Gas Co.,

364 F.3d 135, 151 (3d Cir. 2004) (citing Criado v. IBM Corp., 145 F.3d 437, 444 (1st

                                            10
Cir. 1998)); cf. Fogleman v. Greater Hazleton Health All., 122 F. App’x 581, 586 (3d

Cir. 2004) (concluding that indefinite leave does not constitute a reasonable

accommodation).

       The School District argues that Garner was not a qualified individual with a

disability “because Garner cannot do his job at all, with or without an accommodation.”

(App. 58.) Garner does not address that dispositive issue except to baldly assert that he is

“qualified” within the meaning of the ADA. Instead, his argument focuses on the

District’s purported failures either to honor his contractual rights or to engage in a good-

faith interactive process. Whatever merit such contentions might have in a different

context, they do not support a claim under the ADA if, in the first instance, Garner has

failed to satisfy his burden of showing that his proposed accommodation would have

qualified him to perform the essential functions of his job.

       Garner stresses that his sick leave and wage continuation benefits are the only

accommodations he has requested from the School District. Even viewed in the light

most favorable to Garner, though, the record does not support the conclusion that those

accommodations would have qualified him to perform the essential functions of his

position, which included being physically present at a school. The record shows that,

since he began to take sick leave in May 2011, Garner has not worked at all except during

a short period between late December 2011 and early January 2012. Even on those few

days when Garner nominally returned to work, he began calling out sick and, after

multiple absences, filed an FMLA application affirming that he was “unable to function



                                             11
at work”6 and that his medical condition rendered him unable to perform “any of his[] job

functions.” (App. 203.) Since that time, not only have Garner and his physicians

repeatedly opined that he is unable to work, but the objective reality is that Garner has

not managed to return to work. The sick leave benefits which, in general, the School

District has authorized in abundance, have not facilitated Garner’s performance of his

essential job functions “in the near future,” Conoshenti, 364 F.3d at 151, and he makes

practically no effort to meet his burden of showing otherwise.

       Perhaps in tacit recognition that the District has generously approved extended

sick leave for his conditions, Garner urges us to focus exclusively on the time between

October 2011 and June 2012 as “the relevant period of Plaintiff’s claim against

Defendant.” (Appellant’s Br. 13.) To be sure, that span includes two periods of time

when the School District did not approve Garner’s absences. However, those facts also

cut against the conclusion that sick leave would have “qualified” Garner under the ADA

because, even without the District’s blessing, Garner absented himself all the same, and

those extended absences still did not put Garner in a position where he could perform the

essential functions of his job. All the time Garner has spent away from work, whether or

not approved, has not enabled him to actually function at work. We thus agree with the

District Court that, even viewing the record in Garner’s favor, no reasonable jury could


       6
          Garner and his healthcare provider were not alone in this estimation. A warning
letter from Garner’s work supervisor, written at roughly the same time as the FMLA
application, records that “[y]our continued absences greatly impede[] the safety and
security of your work location and is a strain on the limited resources available to the
school police department … .” (App. 200.)

                                             12
conclude that Garner’s requests to use sick leave and wage continuation benefits would

have rendered him a qualified individual. In short, his discrimination claims must fail.

       C.     The Retaliation Claim

       Garner also claims that the School District retaliated against him when it refused

to approve his requests for sick leave for the periods from November 7 to December 5,

2011 and from March 12 to June 5, 2012, and when it subsequently recommended that

his employment be terminated.7

       To establish a prima facie case of retaliation under the ADA and PHRA, “a

plaintiff must show: (1) 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 adverse

action.” Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 759 (3d Cir. 2004)

(citations and internal quotation marks omitted).

       Garner, of course, asserts that “he has met his prima facie case of retaliation under

the [ADA] and PHRA.” (Appellant’s Br. 31.) But, even assuming that were true, our

analysis cannot end there because the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), applies to ADA retaliation claims, Shaner v.

Synthes, 204 F.3d 494, 500 (3d Cir. 2000), and, under that framework, the prima facie

case serves as the first step, not the last. If an employee establishes a prima facie case of

retaliation, “the burden shifts to the employer to advance a legitimate, non-retaliatory

       7
        The record reflects that the District actually authorized Garner’s use of sick leave
on March 12, 2012, and that the period of unauthorized leave did not begin until March
13, 2012.
                                             13
reason for its adverse employment action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494,

500 (3d Cir. 1997). “The employer’s burden at this stage is relatively light: it is satisfied

if the defendant articulates any legitimate reason for the adverse employment action.” Id.

(internal quotation and editorial marks omitted). When the employer meets that burden,

the burden shifts back to the employee, who then must “prove by a preponderance of the

evidence that the legitimate reasons offered by the [employer] were not its true reasons,

but were a pretext for discrimination.” Shaner, 204 F.3d at 500 (quoting Jones v. Sch.

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999)). Although the burden of production

shifts under this three-part framework, the burden of persuasion remains, at all times, on

the employee. Id. at 500-01 (quoting Jones, 198 F.3d at 410).

       Upon reaching the third step in the McDonnell Douglas analysis, an employee

may defeat a motion for summary judgment “by pointing ‘to some evidence, direct or

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

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

reason was more likely than not a … determinative8 cause of the employer’s action.’”

Jones, 198 F.3d at 413 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

Because the ultimate question is whether discriminatory animus determined the

employer’s action, an employee cannot discredit the employer’s proffered reason simply




       8
          In Woodson v. Scott Paper Co., we clarified that, in a retaliation case, the
plaintiff must show that retaliatory animus had a “determinative effect” on the
employer’s decision, and not merely that such animus was a “motivating factor.” 109
F.3d 913, 931-35 (3d Cir. 1997).
                                             14
by showing that the employer’s decision was “wrong or mistaken.” Fuentes, 32 F.3d at

765.

       In answer to Garner’s allegations that the School District retaliated against him by

denying his requests for leave, the District has responded that it was merely “appl[ying]

its medical leave policies by their very letter; Garner had numerous follow-up visits with

EHS, and was required to present supporting medical information like any other

employee on a medical leave.” (Appellee’s Br. 56.) With respect to Garner’s claim that

the District retaliated against his accommodation requests by recommending his

termination, the District argues that there is no “evidence that [the School District’s]

disciplinary actions against Garner were motivated by some discriminatory animus rather

than by the indisputable fact that Garner was absent from work.” (Id. (original

emphasis).)

       Given the ample evidence supporting the School District’s articulated reasons –

well-documented and summarized in its June 6, 2012 letter to Garner – the burden

returned to Garner to point to some evidence from which a reasonable factfinder could

believe that the School District’s reasons were a pretext for discrimination. Having

ended his argument at the prima facie step, Garner fails to even address that burden. The

District Court was thus correct to grant summary judgment against Garner on his

retaliation claims.

III.   Conclusion

       We will affirm the District Court’s order granting the School District’s motion for

summary judgment with respect to all of Garner’s claims.

                                             15
