                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 18-3173
                                                      _

                                   STANLEY SHINN;
                                     PAUL ELLIS,

                                                  Appellants

                                             v.

                                 FEDEX FREIGHT, INC.

                                                      _

                       Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 1-16-cv-00777)
                        District Judge: Honorable Noel L. Hillman
                                                       _

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 17, 2019

              Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

                             (Opinion filed: August 22, 2019)
                                                     _

                                        OPINION *
                                                      _

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Stanley Shinn and Paul Ellis appeal the District Court’s ruling on summary

judgment that FedEx Freight, Inc. did not violate the New Jersey Law Against

Discrimination (“NJLAD”) or the federal Family and Medical Leave Act (“FMLA”)

when it fired them for threats of violence against other FedEx employees. We affirm.

Background

       Shinn and Ellis worked as city drivers for FedEx in Delanco, New Jersey until

2015. While employed there, they were subject to the company’s employee handbook,

which included a code of conduct that prohibited “workplace violence.” J.A. 167. This

included “gestures and expressions that communicate a direct or indirect threat of harm,”

as well as “oral and written statements.” Id. FedEx also held a workplace violence

prevention meeting prior to the incidents here, which Shinn and Ellis attended. At this

meeting, FedEx addressed previous violations and reset its expectations: “Regardless of

how corrective action has previously been addressed at this center for threats or other

workplace violence incidents, going forward any team member who is found to have

engaged in such serious prohibited behavior will be subject to termination of

employment.” Id. at 204. FedEx terminated Shinn and Ellis after investigating each for

separate incidents of workplace violence.

   A. Shinn’s firing

       In April 2015, Steven Buckley, another driver, accosted Shinn in the breakroom,

referring to him and Ellis as “Facebook fags” and “union fags.” Id. at 89. Shinn

confronted Buckley, and they got into a heated argument. After they screamed

obscenities at each other, Shinn asked Buckley to “go outside away from everyone and

                                             2
talk about this,” but the argument was cut short when their shift meeting started. Id. at

88–90. Later in the day at the loading dock, Shinn again asked Buckley to go to a nearby

softball field to talk about the earlier fight. Buckley declined, and both men returned to

work.

        Neither Shinn nor Ellis reported Buckley’s use of homophobic slurs to their FedEx

supervisors. A different employee reported the breakroom incident, prompting FedEx to

investigate. Security Specialist Charles Bergeron interviewed Shinn, Ellis, and 11 other

employees, and shared his results with FedEx Manager Brian Jenkins, who concluded

that Shinn’s suggestion to take the conversation to a different location was a threat of

violence. FedEx terminated Shinn’s employment in late May 2015. He filed an internal

appeal of his termination with FedEx’s Termination Appeal Review Committee, which

upheld his termination.

        Buckley’s use of anti-gay slurs during the breakroom incident also violated FedEx

policy. FedEx suspended him for three days with pay.

   B. Ellis’s firing

        Before his termination, Ellis frequently took leave under the FMLA to receive

treatments for his chronic back pain and to take care of his sick mother. He alleges that

FedEx retaliated against him for his use of FMLA leave by assigning him to undesirable

routes and, eventually, terminating him.

        In late May 2015, Ellis called his supervisor early in the morning to use FMLA

leave. Later that morning, another driver sent Ellis a private Facebook message saying,

“Got u going to BJs 25 skids,” indicating that Ellis had been scheduled to make a

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delivery to BJs Warehouse, a difficult and undesirable shift. Id. at 256–57. Because Ellis

took the day off, this assignment was covered by another driver. Ellis was not assigned

to BJs again. He had serviced BJs six times between January 2013 and May 2015, both

before and after he was certified for FMLA leave.

       In addition to BJs, full-trailer deliveries to Performance Food Group and Dunkin’,

Ellis’ usual customers, were undesirable assignments. Ellis perceived a “pattern” of

getting these assignments immediately after taking FMLA leave, but he “did not keep

records of [his] days off or . . . when [he] had full trailer loads.” Id. at 127–128.

Between January 2013 and July 2015 when he was terminated, he made no full truckload

deliveries to Dunkin’ and only two full truckload deliveries to PFG.

       Use of FMLA leave was common at FedEx. Between May 2013 and May 2017,

its Delanco service center had 42 employees certified to take FMLA leave. FedEx first

approved Ellis’s use of intermittent FMLA leave in July 2013 and continued to

reauthorize his FMLA leave each subsequent year. Ellis called out approximately two

days per month under the Act. He continued to receive pay raises and benefits under the

same terms as other drivers, and FedEx never denied him time off when he called out.

       In late June 2015 an employee gave FedEx manager Chuck Long a printout of

Facebook comments made publicly by Shinn and Ellis from the previous night. The

printout included the following comments:

       Stan Shinn[:] It’s funny how low Snakes In the grass will stoop to kiss a
       little fedex ass people you used to trust and I called friend sneake up and
       ambush you and get me fired just to look good for fedex I wonder who they
       [are] going to send steve after next[.]


                                               4
       Paul Ellis[:] Me….that fucker just waltz’s down the dock every morning
       happy as can be….like nothing happened….given the chance…he’s gonna
       have an accident on the dock….
       Stan Shinn[:] Nothing lower than a fellow worker getting another worker
       fired[.]
       Paul Ellis[:] YUP He’s a SCUMBAG[.]

Id. at 183 (reactions and timestamps omitted). Bergeron investigated the Facebook

comments as an incident of possible workplace violence on July 1, 2015. During the

investigation, Ellis admitted that he understood how his post could be perceived as a

threat. Jenkins concluded those comments were threats of violence that violated the

employee handbook. Ellis was terminated effective July 9, 2015. He appealed to

FedEx’s Review Committee, but it upheld his termination.

      Shinn and Ellis brought claims for retaliation under the NJLAD in state court in

early 2016. Ellis also alleged retaliation under the FMLA. FedEx removed the case to

federal court. After plaintiffs amended their complaint twice and after discovery, FedEx

moved for summary judgment, which the District Court granted.

Standard of Review

      We review the District Court’s grant of summary judgment de novo. Faush v.

Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015). Viewing the facts in the light

most favorable to the nonmoving party, summary judgment is appropriate when “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018). There is no genuine issue when “the nonmoving party has failed to make




                                            5
a sufficient showing on an essential element of her case with respect to which she has the

burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Discussion

   A. NJLAD Claims

       The NJLAD protects employees against employer discrimination. As relevant

here, it provides that it is an unlawful employment practice

              [f]or any person to take reprisals against any person because that
              person has . . . filed a complaint, testified or assisted in any proceeding
              under this act or to coerce, intimidate, threaten or interfere with any
              person in the exercise or enjoyment of, or on account of that person
              having aided or encouraged any other person in the exercise or
              enjoyment of, any right granted or protected by this act.

N.J.S.A. 10:5-12(d). NJLAD plaintiffs must show three elements: “(1) they engaged in a

protected activity known by the employer; (2) thereafter their employer unlawfully

retaliated against them; and (3) their participation in the protected activity caused the

retaliation.” Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1192 (N.J. 2008)

(citation omitted).

       New Jersey courts have adopted the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), to analyze the causal relationship,

though they note that this test should not be used “inflexibly.” Grigoletti v. Ortho

Pharm. Corp., 570 A.2d 903, 907 (N.J. 1990). The McDonnell Douglas framework

entails three steps: (1) the plaintiff must first establish a prima facie case (meaning he has

provided sufficient evidence to prove the elements of his claims); if so, (2) the burden

then shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for

the termination; if it can, (3) the burden shifts back to the plaintiff to show that the
                                                6
employer’s stated reason was “pretext.” McDonnell Douglas, 411 U.S. at 802–04. The

plaintiff can show pretext by pointing to evidence that would allow a factfinder either to

“disbelieve the employer’s reason” or “believe that an invidious discriminatory reason

was ‘more likely than not a motivating or determinative cause.’” Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644–45 (3d Cir. 2015) (quoting Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

       Shinn cannot make a prima facie case because he cannot show that his assistance

of the investigation into the breakroom incident caused his termination. He relies heavily

on the proximity in time between the investigation on May 7 and his termination on May

21 to prove a causal link. In “certain narrow circumstances,” proximity in time can be

“unusually suggestive” and sufficient on its own to prove causation. Marra v. Phila.

Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (quoting Robinson v. City of Pittsburgh,

120 F.3d 1286, 1302 (3d Cir. 1997)). Generally, however, courts consider the broader

context surrounding the termination, including ongoing antagonism toward the employee

and inconsistent reasons given for the termination. Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 280–81 (3d Cir. 2000). Nothing here suggests that FedEx fired Shinn to

retaliate for participating in the investigation. He has presented no evidence of animus

toward the participants in the investigation, for of the 11 employees interviewed by

Bergeron, 10 are still employed with FedEx. Instead, he appears to have been fired for

his actual role in the breakroom incident.

       Ellis’s termination is even further removed from the breakroom investigation.

FedEx fired him two months after he participated in the investigation, which is too long

                                             7
to suggest a causal relationship on its own. See Williams v. Phila. Hous. Auth. Police

Dep’t, 380 F.3d 751, 759–60 (3d Cir. 2004) (explaining that a two-month gap is not

suggestive of a causal connection between protected activity and termination).

       Even if the plaintiffs could show a causal link, they cannot establish pretext.

Shinn and Ellis have not pointed to evidence that would make a factfinder doubt FedEx’s

given reason—that it fired them because it concluded they violated the employee code of

conduct.

       Shin and Ellis argue that the differential treatment of Buckley and another

employee, Steve Raidy, establishes pretext. We cannot agree. Although Buckley also

violated the employee handbook by using homophobic slurs, his lesser punishment could

reflect FedEx’s judgment that threats of violence require a more decisive intervention

than Buckley’s violations. Indeed, FedEx conveyed a new, no-tolerance stance towards

workplace violence less than a month before the breakroom incident. The discussion of

Raidy is similarly futile. Shinn and Ellis have failed to provide evidence of what

misconduct occurred, whether it was reported, how FedEx investigated it, or what

corrective actions were taken to reprimand him. The record only supports that some

“Raidy incident” occurred at some point. The District Court correctly found that the

“vague descriptions” of a Raidy incident, without more evidence, cannot create a genuine

issue of material fact required to survive summary judgment. Shinn v. FedEx Freight,

Inc., No. 1:16-cv-777 (NLH/KMW), 2018 WL 4275993, at *8 (D.N.J. Sept. 7, 2018).




                                             8
   B. Ellis’s FMLA Claim

       The FMLA “prohibits an employer from discriminating or retaliating against an

employee . . . for having exercised or attempted to exercise FMLA rights.” 29 CFR

§ 825.220(c). A plaintiff’s FMLA retaliation claim must demonstrate the following

elements: “(1) he took an FMLA leave, (2) he suffered an adverse employment decision,

and (3) the adverse decision was causally related to his leave.” Conoshenti v. Pub. Serv.

Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). FMLA retaliation claims based on

circumstantial evidence are, as with the NJLAD claim, evaluated using the McDonnell

Douglas framework. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302

(3d Cir. 2012).

       Ellis failed to provide sufficient evidence to show he was given undesirable routes

because of his use of FMLA leave. He alleges both a specific instance of retaliation on

May 22, 2015, and a general “pattern” of retaliation following the days on which he used

leave. Neither is supported by the record. FedEx supervisors scheduled Ellis to go to BJs

on May 22 before they realized that he had called out that morning, not to retaliate

against him. Once FedEx knew that Ellis was using FMLA leave, it reassigned the BJs’

delivery to a different driver and did not assign Ellis to BJs again. His allegation of a

general pattern of retaliation also lacks support. He did not keep a record of his days off

and the undesirable assignments. FedEx records indicate that the “undesirable” trips

were much less frequent than days he took off and occurred both before and after he was

certified for FMLA leave.



                                              9
       Likewise, Ellis cannot demonstrate a causal link between his FMLA leave and his

termination. He consistently used FMLA leave for two years without issue. Each time

he called out sick, his supervisors covered his shifts, and each year that he applied for

recertification, FedEx approved. It also actively accommodated FMLA leave for 42

employees between May 2013 and May 2017 at the Delanco service center.

       Instead, FedEx terminated Ellis because it concluded he violated the company’s

prohibition on workplace violence. He admitted to his supervisors that his Facebook

message could be perceived as threatening, and he was fired shortly after the

investigation concluded.

       In sum, Shinn and Ellis have failed to establish a genuine issue of material fact

that would allow the plaintiffs to survive summary judgment. Thus we affirm.




                                             10
