                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-4730
                                _____________

                              DONALD KOVAC,
                                    Appellant

                                       v.

               PENNSYLVANIA TURNPIKE COMMISSION;
               MITCHELL RUBIN; GEORGE HATALOWICH;
                  MELVIN M. SHELTON; MARK ROWE
                           _____________

                  Appeal from the United States District Court
                    for the Western District of Pennsylvania
                          (D.C. Civil No. 2-09-cv-00400)
                 District Judge: Honorable Terrence F. McVerry
                                 _____________

                  Submitted Under Third Circuit LAR 34.1(a)
                             September 12, 2011

          Before: RENDELL, JORDAN and BARRY, Circuit Judges.

                      (Opinion Filed: September 13, 2011)
                                _____________

                          OPINION OF THE COURT
                              _____________

RENDELL, Circuit Judge.

      Donald Kovac urges on appeal that the District Court erred in granting

summary judgment to the Defendants on Kovac’s claims that he was terminated

from his job at the Pennsylvania Turnpike Commission because of his political
affiliation, or because he exercised his right to free speech, in violation of 42

U.S.C § 1983.1 We will affirm.2

                                               I.

       Kovac was employed as a Labor Relations Manager by the Pennsylvania

Turnpike Commission (“PTC”) between April 2005 and November 2008, when he

was terminated from his position. He alleges that a confluence of events and

conspiracies caused him to be fired in retaliation for either negative comments he

made about U.S. Congressman Robert Brady to PTC Chief Executive Officer

Joseph Brimmeier, or for his refusal to show loyalty to Teamsters Union Local 77

(“Local 77”) when adjudicating union grievances. In his complaint, Kovac named

PTC and its Chairman Mitchell Rubin, Chief Operating Officer George

Hatalowich, employee Melvin Shelton, as well as Local 77 Business Agent Mark

Rowe (“Defendants”). Kovac alleges that because of his comments about

Congressman Brady, or his disloyalty to Local 77 in resolving grievances, Rowe



1
 The original complaint also included a whistleblower claim filed under
Pennsylvania state law, but that issue was dismissed by stipulation and agreement
of all parties pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).
2
  Our jurisdiction over this matter is proper pursuant to 28 U.S.C. § 1291. We
exercise plenary review over a District Court’s decision to grant summary
judgment. Hugh v. Butler Cnty Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005).
We apply the same test as the District Court: whether there is a genuine issue of
material fact, and, if not, whether the moving party is entitled to judgment as a
matter of law. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994),
abrogated on other grounds by Showalter v. Univ. of Pittsburgh Med. Ctr., 190
F.3d 231 (3d Cir. 1999).

                                           2
and Shelton requested that PTC Chairman Rubin fire Kovac. Kovac further

alleges that Rubin subsequently brought Defendant Hatalowich in on the scheme.

       At the close of discovery, Defendants each moved for summary judgment.3

After reviewing the evidence, the District Court held that a reasonable jury could

not find that Kovac had satisfied the necessary elements of his claims. In

particular, the District Court found Kovac had insufficient evidence of a link

between his protected activities and the termination of his employment. As a

result, the District Court granted summary judgment in favor of the Defendants.

Kovac filed a timely appeal.

                                          II.

       To establish a claim for retaliation under 42 U.S.C. § 1983 based on

political activity a plaintiff must demonstrate:

     (1) that the employee works for a public agency in a position that
     does not require a political affiliation, (2) that the employee
     maintained an affiliation with a political party, and (3) that the
     employee’s political affiliation was a substantial or motivating factor
     in the adverse employment decision.
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 663-64 (3d. Cir 2002) (quoting

Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995) (internal quotation marks

omitted)). Similarly, to establish a retaliation claim based on protected First

Amendment activity under 42 U.S.C § 1983, “a plaintiff must allege two things:

(1) that the activity in question is protected by the First Amendment and (2) that


3
 The three PTC employees shared the same legal counsel while Rowe was
separately represented.
                                          3
the protected activity was a substantial factor in the alleged retaliatory action.”

Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).

       The District Court granted summary judgment because Kovac failed to

produce evidence upon which a reasonable jury could find that his protected

activity was a substantial or motivating factor for his termination. As the District

Court wrote:

       In summary, a reasonable jury could not conclude from this record
       that a “substantial or motivating reason” for Kovac’s termination
       was due to retaliation by Defendants for Kovac’s alleged protected
       activities. Evidence of the requisite causal link does not exist in this
       record.

(App’x 13.) Consequently, the sole issue before our Court is whether there was

sufficient evidence upon which a reasonable jury could decide that there was a

causal link between Kovac’s alleged protected activity and the termination of his

employment. To establish this casual link:

        [A] plaintiff usually must prove either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In the

absence of these elements, we have held that evidence of causation may be

“gleaned from the record as a whole.” Farrell v. Planters Lifesavers Co., 206

F.3d 271, 281 (3d Cir. 2000). In addition, summary judgment may be defeated

when “a reasonable inference can be drawn that an employee’s speech was at least

one factor considered by an employer in deciding whether to take action against

                                           4
the employee.” Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 795 (3d Cir.

2000). However, even if the protected activity is a factor, “the employer may

defeat the employee’s claim by demonstrating that the same adverse action would

have taken place in the absence of the protected conduct.” Hill v. City of

Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (citing Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

       Kovac’s evidence consisted mainly of his own testimony. According to

Kovac, Shelton and Rowe repeatedly threatened to have him fired, and increased

their hostility towards him in the final year of his employment. In addition, Kovac

asserts he made negative comments to Brimmier about Shelton and Congressman

Brady, which somehow reached Shelton, Rowe, Hatalowich, and Brady’s son,

who also worked at PTC, and thereby caused Kovac to be fired. However,

Kovac’s testimony as to whether Rubin had any knowledge of Kovac’s comments,

or that he interacted with Shelton, or Rowe, or that Shelton and Rowe conspired

with each other to have Kovac fired was vague, speculative and conclusory. There

was little or no evidence to show that Brimmier and Hatalowich ever discussed the

comments Kovac alleges he made to Brimmier.

       The only corroborating evidence Kovac presented was that Hatalowich

knew Shelton and Kovac had “conflicts and difficulties” in the past, that several

years before his termination Shelton and Rowe may have pressured Kovac about

certain union and political issues, and that PTC Hatalowich and Brimmier met

with the head of Kovac’s department about her budget and personnel plan before

                                         5
any layoffs were announced. This evidence is insufficient to create a genuine

issue of material fact. We agree with the District Court that there is simply too

little support for a causal chain between Kovac’s alleged protected activities and

his termination for a reasonable jury to be able to infer that his termination was a

retaliatory act caused by his protected activities.

       In retaliation cases where we have found sufficient evidence to defeat

summary judgment, the circumstantial causation evidence has been much stronger.

For example, in Scranton the plaintiffs’ evidence of retaliation was sufficient to

defeat summary judgment where the plaintiff was terminated for violating a local

residency requirement while other similarly situated employees who had not

engaged in protected activities were not terminated. 411 F.3d at 127. Likewise, in

Merkle, the protected activity was well documented, and objective evidence and

disinterested testimony showed the alleged retaliatory action – a criminal

prosecution – may have been caused by the plaintiff’s decision to engage in

protected activity. 211 F.3d at 795. Similarly, in San Filippo v. Bongiovanni, we

found the evidence sufficient to defeat summary judgment where there had been

public statements by a terminated employee’s superior that he “might have been

treated differently,” had “he behaved better earlier in terms of his relations with

his colleagues.” 30 F.3d 424, 434 (3d Cir. 1994).

       In each of these cases, there was sufficient evidence to create a genuine

issue of material fact as to whether the actions were triggered by a desire to

retaliate against the plaintiff for engaging in protected activity. In contrast, in the

                                           6
instant case, there is no evidence of a similar nature. Instead, Kovac’s case is

analogous to DeFlaminis, where we upheld summary judgment, because there was

simply no evidence in the record to support an inference of causation. See 480

F.3d at 272.4

       We need not address Defendants’ contention that Kovac was terminated

along with others for budgetary reasons – and due to his poor performance –

because Kovac’s failure to offer sufficient evidence of causation dooms his case.

                                              III.

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

summary judgment.




4
 Kovac also urges that “how” he was terminated and the fact that his
unemployment benefits were contested after he was fired constitutes evidence of
causation. We are not persuaded that this evidence helps Kovac satisfy his
burden.
                                          7
