                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2009

Steve Evans v. MAAX KSD Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1627




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                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 08-1627


                               STEVE EVANS, Appellant

                                             v.

                             MAAX-KSD CORPORATION


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                             District Court No. 06-CV-02804
                      District Judge: The Honorable J. Curtis Joyner


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 29, 2009

         Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges

                                 (Filed: February 6, 2009)


                                         OPINION




SMITH, Circuit Judge.

       After Maax-KSD Corporation terminated Steve Evans’ employment, Evans filed a

complaint in the United States District Court for the Eastern District of Pennsylvania.

Evans alleged that Maax-KSD had violated his rights under the Americans with


                                             1
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112 and § 12203(a), and the Pennsylvania

Human Relations Act (PHRA), 43 Pa. Cons. Stat. § 955(a) and (d), by terminating his

employment and by retaliating against him for filing a charge of disability discrimination.

       Maax-KSD moved for summary judgment after the close of discovery. The

District Court granted the motion. It concluded that Evans had failed to establish a prima

facie case not only of discrimination, but also retaliation.1 In addition, the Court observed

that even if a prima facie case existed, Evans had failed to adduce any evidence that

Maax-KSD’s reason for discharging him was a pretext for discrimination or retaliation.

Evans appealed.2

       After a careful review of the record, we agree with the District Court’s analysis.

Evans did not adduce sufficient evidence to establish that he had a permanent or long

term impairment that substantially affected a major life activity, thereby constituting a

disability under the ADA. See Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002).

Inasmuch as the existence of a disability is a prima facie element of a claim of disability

discrimination, Evans’ claim of disability discrimination cannot survive summary

judgment. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).



       1
               The District Court correctly pointed out that Evans’ PHRA claims were governed
by the same legal standard as his ADA claims. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.
1996). For that reason, it did not separately analyze Evans’ PHRA claims, but treated them as
coextensive. Id. We do likewise.
       2
               The District Court had federal question jurisdiction under 28 U.S.C. § 1331. We
have final order jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s grant of summary judgment. Turner v. Hershey Chocolate U.S., 440 F.3d 604,
611 (3d Cir. 2006).

                                               2
       Nor do we find any error by the District Court in granting summary judgment on

Evans’ retaliation claims. As the District Court explained, Evans failed to establish that

he engaged in protected activity under the Act. In Fogleman v. Mercy Hospital, 283 F.3d

561 (3d Cir. 2002), we noted that in order to establish a prima facie case of illegal

retaliation in an ADA claim, a plaintiff must show, inter alia, that he engaged in protected

activity. Id. at 567-68. Section 12203(a) provides that this predicate activity may be as a

result of opposition to any act or practice made unlawful or “because such individual

made a charge, testified, assisted or participated in any manner in an investigation,

proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Although it was

Evans’ burden to show that he engaged in protected activity, the record established that

Maax-KSD had never been served with a charge of discrimination or a request for

accommodation prior to terminating Evans’ employment. As the District Court pointed

out, Evans admitted during his deposition that he had mistakenly believed that a charge

had been filed three months before his termination, and that he stated as much to his

employer on the day of his termination. In the absence of evidence indicating that a

charge of discrimination had actually been filed or that Evans had engaged in protected

activity, it was not improper for the District Court to conclude that Evans had failed to

establish a prima facie element of his claim of retaliation.

       For the above reasons, we will affirm.
