                                                   NOT PRECEDENTIAL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

                                    No. 13-1914
                                   _____________

                               GERALD G. KAMAU,
                                           Appellant

                                          v.

                EAST PENN MANUFACTURING COMPANY, INC.
                            _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 5-11-cv-5317)
                      District Judge: Hon. Lawrence F. Stengel
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 4, 2014

       Before: McKEE, Chief Judge, AMBRO AND JORDAN, Circuit Judges.

                               (Filed: March 20, 2014 )
                                  _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.

      Gerald Kamau appeals an order of the United States District Court for the Eastern

District of Pennsylvania granting the motion for summary judgment filed by East Penn

Manufacturing Company (“East Penn”) in this employment discrimination case. He
contends that there are genuine issues of material fact concerning his retaliation claim.

There are not, and we will affirm.

I.     Background1

       East Penn is a battery manufacturer with facilities in Berks County, Pennsylvania.

Kamau began working there in 2004 and eventually became a machine operator. “On

September 22, 2009, Kamau met with Jason Huey, assistant plant manager, and Tony

DiBenedetto, personnel coordinator,” and told them that on June 25, July 22, August 20,

and September 14, 2009, someone had let the air out of one of his tires, deflating it but

not causing a flat tire. (App. at A4.) He suspected that certain coworkers were involved

because he had argued with one of them several months before. Huey and DiBenedetto

offered Kamau the option of moving to a different parking lot, but he declined. They also

spoke with Kamau’s coworkers and the plant security department.

       DiBenedetto notified personnel director Alison Snyder about Kamau’s allegations.

On September 30, Kamau met with Synder and with two other employees who worked

his shift. Kamau repeated his claim that his tires lost air while parked in the East Penn

parking lot and asserted that nothing was being done to stop it. Snyder told Kamau that

East Penn would take steps to keep his car under surveillance and asked if he would like

to transfer to a new location, and again he refused. At that meeting, Kamau also told

Snyder that “supervisors in his department … were out to get him.” (Appellant’s Br. at 5



       1
         In accordance with our standard of review, see infra note 4, we set forth the facts
in the light most favorable to Kamau, the non-moving party.

                                             2
(citing App. at A612).) Snyder gave Kamau her business card with her cell phone

number and told him to contact her if he had any further problems.

      On December 3, 2009, East Penn was served with a complaint that Kamau had

filed with the Pennsylvania Human Relations Commission (“PHRC”), alleging

harassment based on national origin.2 The PHRC complaint included allegations that a

coworker’s mother had questioned Kamau at a car dealership; that various coworkers had

“informed the police that [he] was doing something illegal[;]” and that the police were

following him. (App. at A164.) During a subsequent meeting, Kamau also told Snyder

that “hundreds of people were following him home from work in their vehicles” and that

people from work were parking by his home and spying on him. (App. at A610.)

      On December 10, 2009, perhaps during the same meeting at which Kamau told

Snyder he was being followed, Snyder recommended that Kamau receive professional

counseling from Concern Counseling Services (“Concern”), a provider of mental health

counseling and workplace fitness evaluations. Concern served as East Penn’s Employee

Assistance Program provider.3 Kamau declined to participate in counseling and

continued with his regular work. The timing is unclear, but at some point Snyder asked




      2
          Kamau is Kenyan.
      3
         Generally speaking, employee assistance programs “assist employees in
identifying and resolving personal issues, ranging from health, marital, and financial
concerns to substance abuse and emotional problems.” Oleszko v. State Comp. Ins. Fund,
243 F.3d 1154, 1155 (9th Cir. 2001).



                                            3
for an opportunity to investigate Kamau’s PHRC complaint and, according to Kamau,

requested that he drop the complaint to give her more time.

       On December 29, 2009, Kamau went to Mike Zentner, his immediate supervisor,

and told Zentner “that on two occasions someone had broken into his [Kamau’s] locker.”

(App. at A7.) Kamau said that he would not tell Zentner if it happened again; he would

just “let [him] know on his way out of here.” (Id. at A195.) Zenter took this as a threat,

although a personnel representative who knew of the comment disagreed. That same

day, personnel representatives met with Kamau to go over the locker allegations. Kamau

informed them that the only item missing the first time was a towel and that he believed

someone had obtained his locker combination by looking over his shoulder. They offered

to move Kamau, but he refused and said “[t]hat would not solve my problems. It’s like

Bin-Laden. He multiplies and trouble follows him.” (Id. at A197.)

       On January 7, 2010, Kamau reported to Zentner that someone had again broken

into his locker and this time had stolen a newspaper. However, during the subsequent

investigation, Kamau said that the newspaper might be in his car, which is in fact where it

was. Kamau then asserted that an employee may have taken the paper from his locker

and placed it in his car.

       On Friday, January 8, 2010, Snyder again met with Kamau and informed him that

a fitness-for-duty (“FFD”) evaluation at Concern was a condition of his continued

employment. Snyder also offered to transfer Kamau to a new department. Kamau

refused to go to Concern and indicated that he wanted to quit; however, he agreed to meet

with Snyder after the weekend. On Monday, January 11, Kamau met with Snyder and

                                             4
informed her that he would attend an FFD evaluation at Concern. Snyder explained that

the evaluation would be a condition of employment, and they reviewed the necessary

paperwork, including a waiver that Kamau would have to sign so that East Penn could

verify Kamau’s attendance and fitness for duty (the “East Penn waiver”). At the meeting,

Kamau signed a preliminary form, East Penn’s “Concern Employee Assistance Program

(EAP) Mandate,” which required him to meet with a counselor at Concern no later than

January 13, 2010. (Id. at A207.)

       By January 21, 2010, Snyder had not received confirmation from Kamau or from

Concern that Kamau had been evaluated. Although Kamau attended two sessions at

Concern and signed a waiver allowing Concern to obtain information from his primary

doctor, he did not sign the East Penn waiver to allow Concern to confirm his attendance

with East Penn. Kamau thought he had signed the East Penn waiver when he signed the

waiver for his primary doctor.

       Snyder met with Kamau on January 25, 2010, to have Kamau sign the East Penn

waiver. Snyder showed Kamau the East Penn waiver, explained that he had not signed it,

and asked him to sign it in her office. Snyder called Concern, and a manager explained

to Kamau what the waiver entailed. Kamau refused to sign and said he would rather go

to a local Concern office to sign the form. Kamau never did. After two attempts by

Snyder to contact Kamau by phone and after confirming with Concern that the waiver

had not been signed, East Penn terminated Kamau’s employment on February 1, 2010.

       Kamau then filed this employment discrimination action against East Penn

alleging racial and national-origin discrimination and retaliation in violation of 42 U.S.C.

                                             5
§ 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. On January 12,

2012, the District Court granted East Penn’s partial motion to dismiss Kamau’s race and

national-origin claims. East Penn subsequently moved for summary judgment on

Kamau’s retaliation claims, and the District Court granted that motion. Kamau

responded with this timely appeal. Only the District Court’s summary judgment order on

Kamau’s retaliation claims is at issue now.

II.    Discussion4

       Kamau asserts that the District Court’s grant of summary judgment was error

because “[t]here [are] genuine issues of material fact in dispute.” (Appellant’s Br. at 10.)

We disagree. To establish that there actually is a genuine issue of material fact, the non-

moving party facing a summary judgment motion must point to evidence “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Kamau is unable to point to sufficient evidence of a factual dispute over an

essential element of his case.




       4
          The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and “view inferences to be drawn from the underlying facts
in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d
243, 248 (3d Cir. 2010). Summary judgment is appropriate where we are satisfied “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. Rule Civ. Pro. 56(c).

                                              6
       He bears the initial burden of establishing a prima facie case of retaliation. See

McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973) (establishing burden-

shifting framework for Title VII claims). To establish a prima facie case, a plaintiff must

show that (1) he engaged in a protected activity, (2) his employer took an adverse

employment action “after or contemporaneous with the protected activity, and (3) a

‘causal link’ exists between the adverse action and the protected activity.” Andreoli v.

Gates, 482 F.3d 641, 649 (3d Cir. 2007). Once a prima facie case is established, the

burden of going forward shifts to the defendant to establish a “legitimate, non-retaliatory

reason for the adverse employment action.” Marra v. Phila. Hous. Auth., 497 F.3d 286,

300 (3d Cir. 2007). If the defendant is successful, the burden returns to the plaintiff to

establish that the proffered reason is pretextual.5 Id.

       The District Court granted summary judgment to East Penn on the ground that

Kamau had not established a prima facie case for retaliation or, alternatively, that he had

not shown that East Penn’s reasons were pretextual. Although the undisputed facts may

strongly suggest that there is no prima facie case, we are at least certain that they

establish that there is no pretext, and we will limit our holding accordingly.

       East Penn argues that its non-retaliatory reason for the FFD evaluation was that,

based on Kamau’s “bizarre comments,” there was cause to be concerned that he was

“extremely paranoid” (Appellee’s Br. at 48), and that he was terminated due to his failure


       5
        All of Kamau’s claims are subject to the same legal standard for retaliation. Cf.
Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (applying three-element
framework to PHRA); Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)
(recognizing the same framework for retaliation claims under Title VII and § 1981).
                                              7
to sign the East Penn waiver. Kamau contends that the real reason for East Penn’s

actions was the filing of his PHRC complaint. According to Kamau, the circumstances of

other employees who were terminated for failure to sign the waiver support his

contention that he was terminated solely because of the complaint. In Kamau’s view,

Snyder’s “request that he drop the PHRC complaint so that she could investigate any

further concerns” is further evidence of pretext. (Appellant’s Br. at 32.)

       To establish pretext, a plaintiff must show “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence.” Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005) (internal quotation

marks omitted) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). A plaintiff

must present evidence to rebut “core facts put forward by the employer as the legitimate

reason for its decision.” Id. Kamau is unable to do so.

       He argues that “East Penn failed to produce evidence that would support the

conclusion that Kamau was treated the same as other employees” (Appellant’s Br. at 28),

specifically because “none of their situations are remotely similar” (id. at 29). Kamau

further asserts that because East Penn “is in possession of the relevant evidence, Kamau

is entitled to an inference” that certain personnel files would support his claim. (Id. at

29.) Those arguments are unpersuasive.

       As for the requirement that he attend counseling, apart from his termination,

Kamau does not dispute the material facts establishing his odd behavior or the seemingly

paranoid comments he made to East Penn personnel. Regarding Kamau’s termination,

                                              8
the District Court correctly noted that he presented “no evidence that East Penn ever

permitted an employee who failed to comply with an EAP mandate to continue working.”

(App. at A20.) It is undisputed that Kamau did not sign the East Penn waiver and, thus,

did not comply with East Penn’s FFD evaluation requirement. In fact, the undisputed

facts show that Snyder made numerous attempts to have Kamau sign the waiver form,

including explaining to him that he had failed to sign it and providing the correct form for

him to sign in her office.

       As for Kamau’s allegation that Snyder asked him to drop his PHRC complaint,

taking the facts in the light most favorable to Kamau, the District Court was correct to

determine that, even if she had made the request, “no jury could reasonably conclude that

East Penn’s nondiscriminatory reason was a pretext where the undisputed evidence

indicates that Snyder exhaustingly attempted to obtain” Kamau’s compliance with the

steps necessary to maintain his employment. (App. at A21 (emphasis omitted).)

       Kamau cannot show that there is a genuine issue of material fact from which a

jury could conclude that East Penn’s actions were based on anything but his disturbing

behavior and his failure to comply with the FFD mandate. Therefore, the District Court

was correct to hold that Kamau could not establish pretext.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment.




                                             9
