                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                       No. 14-1325
                                      ____________


                                 DARRYL MCELROY,
                                              Appellant

                                             v.

                                    SANDS CASINO



                    On Appeal from the United States District Court
                            for the Eastern District Pennsylvania
                            (District Court No.: 5-12-cv-06219)
                   District Court Judge: Honorable Jeffrey L. Schmehl



                       Submitted under Third Circuit LAR 34.1(a)
                                on November 17, 2014


             Before: RENDELL, JORDAN and NYGAARD, Circuit Judges

                           (Opinion filed: November 21, 2014)


                                      O P I N I O N*



*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Appellant Darryl McElroy appeals from the District Court’s grant of Appellee

Sands Casino’s motions for summary judgment and to strike McElroy’s opposition to

summary judgment. We affirm because there were no genuine disputes of material fact

and because the District Court did not abuse its discretion in granting the motion to strike.

                                      Factual Background

       McElroy worked for Sands Casino (“Sands”). In the Fall of 2011, McElroy

contacted Stacey Berasley, a Sands employee who handles benefits inquiries, to inquire

about Family Medical Leave Act (“FMLA”) leave. Berasley referred McElroy to Las

Vegas Sands Corp. Leave Administration (“Leave Administration”), an outside

organization that handles leave issues for Sands. In accordance with her typical practice,

Berasley did not tell anyone about McElroy’s inquiry. On December 15, 2011, Leave

Administration told McElroy that his form was incomplete. McElroy never supplemented

the information because Sands terminated him on December 19, 2011.

       Sands terminated McElroy after investigating an incident that occurred on

December 10, 2011 between McElroy and another Sands employee named Paul Lee. On

that date, while entering an elevator with Lee, McElroy grabbed Lee’s shoulder with one

hand and grabbed or prodded him in the waist or lower back with the other hand, pushing

Lee onto the elevator. Lee expressed anger and told McElroy not to touch him again, but




                                             2
McElroy touched him again when they exited the elevator. Sands investigated the

elevator incident and terminated McElroy.1

        The Sands employee handbook describes a peer review procedure for appealing

terminations. McElroy requested peer review, but Sands denied it because the termination

involved sexual harassment, which is excepted from peer review.2 The handbook also

states that it does not create a contract for employment or benefits.

        After his termination, McElroy filed suit against Sands, asserting claims for breach

of his contractual right to peer review and for violation of his FMLA rights.

        Sands filed a motion for summary judgment. McElroy filed an opposition brief

that exceeded the permissible page limit 21 days later. Sands filed a motion to strike

McElroy’s opposition, asserting that McElroy failed to attach an unemployment hearing

transcript referenced in his opposition brief, filed his opposition brief late, and exceeded

the page limit.

        The District Court granted the motion to strike, holding that the transcript should

have been produced as supplemental discovery and that McElroy’s opposition brief was

untimely because it was not filed within 14 days pursuant to Eastern District of

Pennsylvania Local Rule 7.1(c). The practical effect of the District Court’s grant of the

motion to strike is unclear. The District Court noted that “[t]hough striking the opposition

1
  Before Sands employed McElroy and Lee, McElroy had grabbed Lee’s nipple when they were both at dealer
school. And McElroy had been previously disciplined for inappropriate comments to female coworkers regarding a
massage, for ordering alcohol at Sands while in uniform contrary to Sands’ policy, and for making rude comments
to another dealer.
2
  McElroy claims that the elevator incident was not sexual harassment and therefore that Sands improperly denied
him peer review. This argument is immaterial because, as explained below, the handbook did not give him any
contractual right to peer review. Furthermore, even if the elevator incident was not sexual harassment, the handbook
specifies that Sands has the right to change its policies and benefits without prior notice and that Sands may make
exceptions, at its discretion, to the policies.

                                                         3
may seem like harsh punishment for counsel’s behavior, having reviewed the summary

judgment opposition papers in connection with the motion to strike, the Court is

confident nothing raised therein would seriously affect the outcome of the summary

judgment analysis . . . .” (Dist. Ct. Op. 6.) Thus, it appears that the District Court

considered McElroy’s opposition brief to some extent in any event.

       The District Court granted Sands’ motion for summary judgment because, even

though McElroy’s FMLA inquiry and his termination were temporally close, “there

surely can be no causal relationship between an FMLA request and a termination, and

any temporal proximity cannot be considered suggestive, if the party making the

termination decision had no knowledge of the FMLA request.” (Dist. Ct. Op. 7.) The

District Court noted that none of the employees involved in the termination decision

knew about McElroy’s FMLA request; the only Sands employee who knew was

Berasley, who declared that she did not tell anyone else, and that declaration was not

challenged or rebutted. The District Court concluded that “[n]othing in the record could

support a jury’s determination that anyone else knew; therefore, the retaliation claim fails

as a matter of law.” (Dist. Ct. Op. 9.) The District Court also held that McElroy’s breach

of contract claim failed because there was no contract, and the handbook did not show

any intent on Sands’ part to supplant Pennsylvania’s at-will employment rule; to the

contrary, the handbook evidenced Sands’ intent to enforce the at-will rule.

       On appeal, McElroy argues that the motion to strike should have been denied

because 21 days was an appropriate response time for a motion for summary judgment,



                                               4
the District Court failed to apply the Poulis factors in granting the motion to strike,3 and

he did not commit multiple errors. He also argues that summary judgment was improper

because Sands management must have known about his FMLA inquiry either directly or

constructively, and the timing between his FMLA request and his termination is

obviously suggestive. In addition, he claims that Sands breached its contractual

obligation to provide peer review before terminating him.

                                                    Discussion

         “We review the District Court’s decision [grant]ing the motion to strike for an

abuse of discretion.” Meditz v. City of Newark, 658 F.3d 364, 367 n.1 (3d Cir. 2011). The

District Court did not abuse its discretion. McElroy filed his opposition late, it was overly

long, and it was incomplete because it did not include the necessary transcript. We

conclude that the District Court did not err in granting summary judgment for Sands.

“We review the District Court’s order granting summary judgment de novo.” Id. at 369.4

         “To prevail on a retaliation claim under the FMLA, the plaintiff must prove that

(1) [he] invoked h[is] right to FMLA-qualifying leave, (2) [he] suffered an adverse

employment decision, and (3) the adverse action was causally related to h[is] invocation

of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir.

2012). To establish a prima facie case, McElroy “must point to evidence in the record

sufficient to create a genuine factual dispute about . . . (a) invocation of an FMLA right,

3
  Poulis v. State Farm Fire & Cas. Co. lists factors to consider in deciding whether to dismiss a case as a sanction.
747 F.2d 863, 868 (3d Cir. 1984). It is inapplicable because the District Court did not dismiss McElroy’s case as a
sanction; it granted a motion to strike and then adjudicated the motion for summary judgment, while giving
consideration to McElroy’s arguments.
4
  McElroy questions which documents the District Court reviewed in adjudicating the summary judgment motion
after granting the motion to strike. Because our review is de novo, that question is moot.

                                                           5
(b) termination, and (c) causation.” Id. at 302. If there is a prima facie case, “the burden

of production shifts to [Sands] to articulate some legitimate, nondiscriminatory reason for

its decision.” Id. (quotation marks omitted). If Sands meets that burden, McElroy “must

point to some evidence, direct or circumstantial, from which a factfinder could

reasonably . . . disbelieve [Sands’] articulated legitimate reasons.” Id. (omission in

original) (quotation marks omitted).

       McElroy cannot establish a prima facie case because he cannot show causation.

He has not pointed to any evidence that the decision-makers who investigated the

elevator incident and decided to terminate him knew about his FMLA inquiry. “To the

extent that [McElroy] relies upon the brevity of the time periods between the protected

activity and alleged retaliatory actions to prove causation, he will have to show as well

that the decision maker had knowledge of the protected activity.” Moore v. City of

Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) (citations omitted). Furthermore, even if

he had shown a prima facie case, he has not pointed to any evidence that could cause a

reasonable jury to disbelieve Sands’ proffered reason for the termination so as to

establish pretext. McElroy does not dispute that the elevator incident occurred. The sole

issue is whether Sands had a legitimate, non-discriminatory, non-retaliatory reason for

the termination. Sands investigated the elevator incident and concluded that McElroy’s

behavior warranted termination; there is no evidence that the decision-makers knew

about his FMLA inquiry. No reasonable factfinder could conclude, based on the evidence

presented, that Sands’ decision was retaliatory.



                                              6
       Furthermore, the District Court properly granted summary judgment on McElroy’s

breach of contract claim because the employee handbook expressly disclaimed that it

established a contractual right. Courts have rejected such claims when this disclaimer

language alerts the employee to the employer’s intent that the policies set forth do not

constitute a contract. E.g., Rutherfoord v. Presbyterian-Univ. Hosp., 612 A.2d 500, 504

(Pa. Super. Ct. 1992) (“[T]his ‘disclaimer’ language in the front of the employee

handbook . . . contains a clear expression of the Hospital’s intention that the policies

within the Manual, including those relating to disciplinary and grievance procedures, are

not intended to constitute a contract . . . . [A]s a matter of law, the Manual cannot be

found to create an implied contract of employment.”).

                                        Conclusion

       The District Court’s judgment is affirmed.




                                              7
