                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ______

                                        No. 16-2764
                                       ____________

                                     LARRY WARD,
                                              Appellant

                                             v.

                            INGERSOLL-RAND COMPANY
                                 TRANE U.S. INC.

                                       ____________

                 On Appeal from the United States District Court for the
                                 District of New Jersey
                               (D.C. No. 3:15-cv-00327)
                     District Judge: Honorable Michael A. Shipp

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 23, 2017

             Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges.

                              (Opinion Filed: April 28, 2017)
                                     ____________

                                         OPINION
                                       ____________




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

       Plaintiff Larry Ward appeals the District Court’s order granting Trane Ingersoll-

Rand Company’s and Trane U.S. Inc.’s (collectively, “Trane”) motion for summary

judgment on his retaliatory termination claims. Because there is insufficient evidence to

raise a genuine issue of material fact as to Ward’s claims and because Trane is entitled to

judgment as a matter of law, we will affirm.

                                               I.

       Trane employed Ward as a machinist beginning in August 2008.1 In May 2013,

Ward injured his finger while at work. Ward reported the injury and filed a workers’

compensation claim. The injury required surgery, and Ward was placed on medical leave

for seven weeks. Trane accommodated Ward after his return to work in July 2013 by

assigning him certain light-duty tasks. Ward resumed regular work activity on

September 4, 2013.

       As an employee, Ward was subject to Trane’s discipline and discharge policy.

Pursuant to the policy, an employee will be discharged if he receives four “disciplinary

Warning Notices with not more than a twelve . . . month period between any consecutive

Warning Notice.” Appendix (“App.”) 148. A Warning Notice is a written “formal

record of the infraction and discipline administered,” App. 147, issued for misconduct

such as “[p]oor job performance/workmanship,” “[f]ailure to be at workstation and ready


       1
        Because we write solely for the parties, we recount only the facts relevant to our
decision.
                                               2
to work at the beginning of the shift and immediately after break periods,” and “[e]ating

or having uncovered food or drink in the plant,” App. 151-52. Supervisors may also

issue a verbal warning for minor policy infractions; these verbal warnings are

documented but do not count toward the notices that, when accumulated, lead to

discharge. Finally, an employee may be temporarily suspended for “more serious

violations” and for receiving multiple disciplinary notices. App. 147.

       Prior to his injury, Ward had received two Warning Notices: on April 13, 2012,

for colliding with a pole while operating a forklift; and on February 6, 2013, for operating

a forklift without wearing a seat belt. These Warning Notices followed five verbal

warnings Ward received between July 2010 and April 2012 for infractions including

“excessive absenteeism” and tardiness. See App. 62-63.

       Ward’s disciplinary issues continued after his return from medical leave.

Supervisors gave Ward two verbal warnings in August 2013 and on September 24, 2013,

issued him a Warning Notice for arriving late to his workstation from a midday break.

Ward had been at the nurse’s office receiving treatment for his injury. This discipline

followed a meeting held the prior day at which Trane managers reminded employees of

the importance of being at their workstations on time.

       On October 21, 2013, Ward received another Warning Notice for eating at his

workstation. This, too, followed several verbal warnings from Ward’s supervisors in

response to similar conduct, and at least one instance in which an administrator declined




                                             3
to discipline Ward to spare him from termination.2 Because the October 2013 Warning

Notice was Ward’s fourth, he was fired.

       After Ward’s discharge, his union grieved the September 2013 Warning Notice,

eventually arbitrating the dispute. On July 14, 2014, the arbitrator ruled for Ward, citing

“confusion” in the disciplinary process. App. 458-60. The arbitrator also concluded that

“[t]he record does not support or in any way indicate . . . that [Ward] was singled out for

disparate treatment in retaliation for his having filed a Workers[’] Compensation claim,

or that he was otherwise subjected to any disparate treatment.” App. 459. As a result of

the ruling, Trane reinstated Ward, who returned to work on July 18, 2014.3 At this time,

Ward had three active Warning Notices.

       Ward received verbal warnings for leaving his work area without permission on

July 24, September 3, September 4, and September 5, 2014.4 On one of these instances,

Ward defied the express order of his supervisor to remain at his workstation, resulting in

the temporary shutdown of the factory line on which Ward worked. The multiple

infractions resulted in Ward’s suspension and, ultimately, a fourth Warning Notice.

Ward was terminated on October 6, 2014.

       2
        In fact, Ward’s supervisor described Ward as one of the “worst offenders” in
terms of violating the prohibition against eating at his workstation, recalling that he had
warned Ward approximately five to seven times. App. 73.
       3
          Trane had also issued another Warning Notice to Ward for acting inappropriately
at his termination meeting, but the notice went unenforced after Ward’s reinstatement.
Trane explains that it sometimes documents infractions that occur even after an employee
is terminated in case the termination is later reversed, as it was for Ward.
       4
          Trane maintains it was also aware of Ward leaving his workstation on a number
of occasions for which a manager decided not to issue any warning. Ward’s supervisor
testified that no other subordinate left his or her workstation as often as Ward.
                                              4
       Following his termination, Ward filed a complaint against Trane alleging that he

was disciplined and fired (1) for seeking a medical accommodation and because of his

disability, in violation of the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1

(“NJLAD”), (2) in retaliation for making a workers’ compensation claim in violation of

common-law wrongful discharge doctrine, and (3) in retaliation for requesting medical

leave in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.

(“FMLA”). Trane moved for summary judgment, and on May 24, 2016, the District

Court granted the motion as to all claims. Ward timely appealed.

                                             II.5

       Ward argues, inter alia, that the District Court erred in (1) failing to apply the

direct-discrimination standard when analyzing his claims, and (2) concluding that, as a

matter of law, the evidence fails to establish that the defendants’ proffered reasons for

terminating Ward were pretextual.

                                              A.

       Ward argues that the District Court used an inappropriate standard to assess his

retaliation claims. He contends that the record contains direct evidence of Trane’s




       5
        The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction under 28 U.S.C. § 1291.
       Our review of the Court’s grant of summary judgment is plenary. Young v.
Martin, 801 F.3d 172, 177 (3d Cir. 2015). Summary judgment is appropriate “where no
genuine dispute exists as to any material fact, and the moving party is entitled to
judgment as a matter of law.” Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir.
2013). We must view the evidence in the light most favorable to the non-moving party.
Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).
                                              5
retaliatory motive; therefore, the Court erred by applying the burden-shifting framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).6 We disagree.

       We assess discrimination claims supported by circumstantial evidence under the

McDonnell Douglas standard, “while claims based on direct evidence have been assessed

under the mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S.

228, 276-77 (1989) (O’Connor, J., concurring).”7 Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). A plaintiff will have direct evidence of

discrimination “only rarely.” Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d

Cir. 1996). Evidence is direct if it “demonstrates that the decisionmakers placed

substantial negative reliance on [the protected activity] in reaching their decision” to fire

the plaintiff. Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998) (quotation

marks and citation omitted). It entails more than an inference of discriminatory motive

and instead “leads . . . to a rational presumption that the person expressing bias acted on

it.” Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2004) (citation omitted); see also

Glanzman v. Metro. Mgmt. Co., 391 F.3d 506, 512 (3d Cir. 2004) (describing evidence

as direct where it shows “discriminatory attitudes” about a protected activity that “were

causally related to the decision to fire [the plaintiff]”).




       6
           The parties do not dispute that federal law standards apply to Ward’s claims.
       7
         We have declined to decide whether mixed motive claims remain possible under
the FMLA in light of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), a case
pertaining to age discrimination. Ross v. Gilhuly, 755 F.3d 185, 193 & n.12 (3d Cir.
2014). We need not reach the question here because even assuming that such a claim
remains possible, Ward failed to produce direct evidence of Trane’s retaliatory motive.
                                                6
       The only allegedly direct evidence of Trane’s motive that Ward offers is testimony

from Toliver, Ward’s supervisor at the time of his final termination. When asked if he

had reason to believe that Trane retaliated against Ward because of Ward’s workers’

compensation claim, Toliver recounted a “conversation with Jason [Perelman, a Human

Resources employee]” in which Toliver was notified about Ward’s pending return from

medical leave and was instructed to “keep an eye on him.”8 App. 756-57. Taken as true,

the statements by Perelman support Ward’s contention that he was targeted for

disciplinary action. They do not establish, however, that Ward was targeted because of

his workers’ compensation claim and medical leave — indeed, Toliver admits that he

only inferred that the instruction to monitor Ward was related to Ward’s medical leave.

Because Ward did not offer direct evidence of discrimination, the District Court did not

err in applying the McDonnell Douglas standard.

                                              B.

       Ward next cites a litany of evidence which he contends makes summary judgment

inappropriate. Under the McDonnell Douglas standard, courts first determine whether

the plaintiff is able to establish a prima facie case of discrimination. “If the plaintiff

succeeds, the defendant must articulate a legitimate, nondiscriminatory reason for the

adverse employment action. The burden then shifts back to the plaintiff to prove, by a




       8
         Specifically, Toliver asserts that Perelman told him: “I have Larry Ward coming
back. He’s an employee that was injured. He’s a guy that we want to keep an eye on,
and if there’s anything this guy does outside of the work rules, I want to be made aware,
that kind of thing.” App. 757.
                                               7
preponderance of the evidence, that the articulated reason was a mere pretext for

discrimination.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017).

       To establish pretext, the employee must “point to some evidence . . . 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.” Fuentes v. Perskie, 32 F.3d

759, 764 (3d Cir. 1994); Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1144 (N.J. 2005).

It is not enough to show that the employer was “wrong or mistaken”; rather, the “plaintiff

must demonstrate such ‘weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reason for its action that a

reasonable factfinder could rationally find them unworthy of credence, and hence infer

that the employer did not act for [the asserted] nondiscriminatory reasons.’” Ross v.

Gilhuly, 755 F.3d 185, 194 n.13 (3d Cir. 2014) (quotation omitted) (alteration in

original). As we discuss below, the evidence Ward cites fails to undermine the

defendants’ proffered nondiscriminatory reasons9 for disciplining and firing Ward.

                                             1.

       Ward separately challenges the September 2013 Warning Notice he received for

returning late to his workstation from break. Ward was tardy because he had visited the

nurse to re-bandage his injured hand. According to Ward, Trane in fact disciplined him


       9
         Ward appears to contest that Trane proffered a legitimate, nondiscriminatory
reason for its decision to discipline him. This argument fails: Ward does not dispute that
returning late from break is sanctionable conduct pursuant to Trane’s workplace policies,
nor that he was in fact late.
                                             8
“in retaliation for seeking an accommodation” in the form of treatment for his injury and,

more generally, for his medical leave and workers’ compensation claim.10 Opening Br.

26, 27. This argument is unavailing. Even assuming Ward overcomes the burden of

establishing a prima facie case of discrimination, the evidence Ward propounds does not

create a material issue of fact as to whether Trane’s rationale for disciplining Ward —

that is, his tardiness — was pretextual.

       First, Ward maintains that his supervisors were aware that he was visiting the

nurse. This fact is inapposite. That supervisors knew where Ward was going on his

break does not obviate their concern that he was tardy returning from it.

       Second, Ward contends that colleagues were not similarly disciplined for leaving

their workstations. This argument is easily dispelled by the record. Several other

employees were disciplined for their tardiness, including a co-worker who was

disciplined on the same day as Ward for being even less tardy.11


       10
          Additionally, to the extent Ward argues that the defendants failed to
accommodate his injury, his claim fails because Ward does not demonstrate that he
requested accommodation for his medical needs. See Tynan v. Vicinage 13 of Super. Ct.,
798 A.2d 648, 656-57 (N.J. Super. Ct. App. Div. 2002). Ward admits that he did not
have a doctor’s note recommending extended breaks for treatment even though one was
required, and that changing his bandages only took “2 to 3 minutes,” easily encompassed
by the 15-minute break he was allotted, App. 70-71, App. 555. A reasonable factfinder
could not conclude that Ward’s tardiness was a medical need which Trane would be
obligated to accommodate, let alone that Trane was aware that Ward expected as much.
Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000) (holding that “[b]ecause
there is no evidence from which a request for accommodation could be inferred,” the
employer was under “no legal obligation” to accommodate the employee’s disability).
       11
         Ward faults the District Court for relying on evidence that Trane disciplined
employees for committing the same infractions as Ward without considering whether
those employees were similarly situated to Ward. But the District Court was entitled to
consider whether Trane gave “inconsistent reasons . . . for terminating the employee or
                                             9
       Third, Ward cites as suspect Human Resources’ decision to discipline Ward

without investigating the incident or giving Ward an opportunity to defend himself. But

Human Resources did consider Ward’s visit to the nurse when deciding whether to issue

the Warning Notice. The fact that an arbitrator overturned the discipline because of

problems with how the discipline was administered does not evince that Trane’s true

motives were invidious. In other words, Trane’s alleged haste to discipline Ward for his

tardiness does not, without more, belie that tardiness in fact motivated the discipline.

       Fourth, Ward claims he was disciplined “contrary to [his supervisor]’s own

management practices” of allowing employees to freely come and go from their

workstations. Opening Br. 10. His supervisor actually stated that Trane was “very

particular” about expecting its employees “to take their breaks . . . and return in a timely

manner,” and that he would only allow employees to leave workstations to use the

restroom or get a drink so long as it was not “excessive.” App. 594. The supervisor

further explained that Ward was disciplined because he “was late [returning from break]

numerous times.” App. 71. Moreover, regardless of typical practices, senior managers

instructed supervisors (including Ward’s) the day before Ward’s discipline to strictly

enforce timeliness rules. Ultimately, the evidence here would not support a factfinder

the employer’s treatment of other employees” when assessing whether Ward could
establish that Trane’s justifications were pretext. Marra v. Phila. Hous. Auth., 497 F.3d
286, 302 (3d Cir. 2007). In fact, evidence that other employees disciplined by Trane
were similar to Ward would bolster the District Court’s conclusion that Ward’s medical
leave and workers’ compensation claim were not the motivating factors behind Trane’s
decisions. Trane proffered evidence showing that it consistently disciplined and even
terminated numerous other employees for violating the same polices as Ward, on which
the District Court justifiably relied in reaching its conclusion that Ward’s claims failed as
a matter of law.
                                             10
disbelieving that Trane disciplined Ward because he was tardy, let alone concluding that

Trane acted because of Ward’s disability or medical leave.

                                             2.

       In addition to his specific challenges to the September 2013 Warning Notice,

Ward argues that evidence of Trane’s “animosity” toward him and the close temporal

proximity between Ward’s medical leave and Trane’s adverse employment actions

establish discriminatory pretext. To prevail, Ward must produce some evidence

“sufficient to create an inference that a causative link exists between [his medical] leave

and [his] termination.” Lichtenstein, 691 F.3d at 307. Indeed, “evidence of ongoing

antagonism” and unusually suggestive timing may support the inference that an employer

took an adverse action because of an employee’s protected activity. Capps, 847 F.3d at

152 n.6. Neither, however, is demonstrated by the evidence here.

       “Ongoing antagonism” may include evidence of unusually close supervision or

aggressive discipline. See, e.g., Robinson v. Se. Pa. Transp. Auth., Red Arrow Div., 982

F.2d 892, 895 & n.2 (3d Cir. 1993). The principal evidence supporting Ward’s

contention is his own testimony that he felt targeted following his medical leave and after

his reinstatement in 2014, a perception which his supervisor shared. But Trane’s actions

do not amount to a “constant barrage of written and verbal warnings . . . and disciplinary

action, all of which occurred soon after [Ward]’s [protected activity] and continued until

his discharge.” Id. at 895. Moreover, there is no indication that Trane’s treatment of

Ward changed after his medical leave. Cf. Abramson, 260 F.3d at 270, 288 (holding that

an inference of discrimination existed where a supervisor’s demeanor toward the plaintiff

                                             11
“changed dramatically” after the plaintiff’s complaint). Prior to his injury, Ward was

subject to several disciplinary actions by his supervisors, and “[a]n employee cannot

easily establish a causal connection between his protected activity and the alleged

retaliation when he has received significant negative evaluations before engaging in the

protected activity.” Ross, 755 F.3d at 194. Indeed, much of Ward’s misconduct went

unaddressed or only resulted in informal warnings, suggesting that rather than targeting

him for termination Trane supervisors afforded Ward multiple opportunities to avoid

discipline. The record does not support an inference that Ward’s medical leave motivated

Trane’s ensuing decisions about him.

       Nor does the timing of Trane’s actions sustain Ward’s claims. A close temporal

proximity between a protected activity and an adverse act may support an inference of

causal relationship where the timing is “unusually suggestive.” Cardenas v. Massey, 269

F.3d 251, 264 (3d Cir. 2001) (citation omitted).12 Ward returned from medical leave in

July 2013 and was first disciplined on September 24, 2013, over two months later13 — a


       12
          We have explained that the timing of an adverse employment action may
support establishing the causation prong of a plaintiff’s prima facie case, Shaner v.
Synthes, 204 F.3d 494, 505 (3d Cir. 2000), or raising an inference that the defendant’s
proffered motive was pretext for discrimination, Josey v. John R. Hollingsworth Corp.,
996 F.2d 632, 639 (3d Cir. 1993). For purposes of our discussion here, the stage of the
burden-shifting framework is immaterial. At base, Ward must point to evidence that
creates a material issue of fact as to whether Trane disciplined or fired him for his taking
medical leave or seeking workers’ compensation. The temporal proximity of Trane’s
adverse act is insufficient to meet this burden and fails to sustain either a prima facie case
or an inference of pretext.
       13
          Ward insists that the relevant date from which to measure the proximity of the
disciplinary action is September 4, 2013, the date on which he resumed regular duty. But
he provides no support for why we should discount the several weeks prior to that, when
Ward had started working light duty. Ward similarly does not explain why we should
                                              12
timespan which by itself does not support a casual inference. Cf. Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989) (inferring causation where the employer fired the

plaintiff two days after the plaintiff filed a complaint); LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (concluding that three months is not

unusually suggestive); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760

(3d Cir. 2004) (concluding that two months is not unusually suggestive). To find for

Ward, a juror would need additional evidence of animus. LeBoon, 503 F.3d at 232

(citation omitted) (“Where the temporal proximity is not ‘unusually suggestive,’ we ask

whether ‘the proffered evidence, looked at as a whole, may suffice to raise the inference’

[of discrimination].”); Fasold v. Justice, 409 F.3d 178, 189-90 (3d Cir. 2005) (inferring

causation where two-and-a-half months separated the protected activity and adverse

action and where there was additional evidence of retaliatory animus). There is no such

evidence in the record. Accordingly, we find no material issue of fact precluding

summary judgment on Ward’s claims.14

                                             III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




separately consider the time between his July 2014 reinstatement and his final
termination in October of that year, given that he claims retaliation for his earlier medical
leave and workers’ compensation claim. Even if we were to measure his firing from his
2014 reinstatement, our conclusion that the timing is not by itself sufficient to support an
inference of discriminatory intent remains the same.
       14
          Ward’s other arguments have been considered and do not change our
disposition.
                                             13
