                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      __________

                                      No. 15-1085
                                      __________

                            CHARLES SCARBOROUGH,
                                   Appellant

                                           v.

                     CENTRAL BUCKS SCHOOL DISTRICT;
                    ABRAM LUCABAUGH; SCOTT KENNEDY;
                             MARTIN HAYES
                               __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Civil No. 2-13-cv-00127)

                 District Judge: Honorable Nitza I. Quinones Alejandro

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 5, 2015

            BEFORE: FUENTES, SMITH, and NYGAARD, Circuit Judges


                              (Filed: November 9, 2015)

                                      __________

                                       OPINION*
                                      __________

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

       This appeal arises out of a discrimination lawsuit brought by Plaintiff, Charles

Scarborough, against his former employer, Central Bucks School District (“the School

District”) and individual defendants, Scott Kennedy, Abram Lucabaugh, and Martin

Hayes. Scarborough alleges that the defendants violated the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12101 and 12203, as well as the Pennsylvania Human

Relations Act (“PHRA”), 43 P.S. § 951, by unlawfully discriminating against him on the

basis of his disability and retaliating against him for filing an internal disability

discrimination complaint.1 He also alleges that the individual defendants aided and

abetted those violations. After the jury returned a verdict in favor of the defendants on all

counts, Scarborough filed a motion for a new trial.            The District Court denied

Scarborough’s motion. For the following reasons, we affirm.


                                             I.


       Scarborough was employed by the School District from April 27, 2007 through

April 12, 2011 as a grounds and maintenance worker. His responsibilities included

supervising the custodial grounds and maintenance staff. During the summer of 2010,

Scarborough was disciplined on numerous occasions for disregarding work priorities and

assignments set by his supervisors. On one occasion, for example, Scarborough failed to


1
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
                                             2
comply with instructions from Central Bucks East High School Principal Martin Hayes

that Scarborough maintain the grounds in front of the high school. On another occasion,

according to Scott Kennedy, Director of Operations for the District, Scarborough was

absent and unreachable for over 90 minutes during the work day.

      On September 5, 2010, Kennedy and other supervisors met to discuss

Scarborough’s work performance. The problems discussed included the excessive time

that it took Scarborough to complete tasks; excessive supplies used by Scarborough to

complete tasks; and Scarborough’s outright failure to perform assigned tasks.        The

meeting was memorialized in a memorandum. Because of the issues cited during the

meeting, Scarborough was suspended for three days without pay. Scarborough was

suspended again for three days without pay for similar reasons later in September 2010.

Following various re-assignments and several 1-3 day suspensions, Scarborough

eventually received a letter from human resources informing him of the charges against

him and the Administration’s intent to terminate his employment. As a result of a school

board resolution, Scarborough was terminated on April 12, 2011.

      Upon    exhausting    his   administrative   remedies,   Scarborough   brought   a

discrimination lawsuit in District Court, claiming that the defendants unlawfully

discriminated and retaliated against him in violation of the ADA and PHRA. After a 4-

day jury trial, the jury reached a verdict in favor of the defendants, finding that

Scarborough had failed to establish, by a preponderance of the evidence, that he suffered

from a disability within the meaning of the ADA or that defendants retaliated against him

for engaging in a protected act. Scarborough then filed a motion for a new trial, arguing

                                            3
that the jury verdict should be vacated and a new trial ordered because the jury verdict

was against the weight of the evidence and constituted a miscarriage of justice.

Scarborough appeals the denial of that motion.

                                              II.


         Vacating a verdict and ordering a new trial because the verdict was against the

weight of the evidence should occur “only when the record shows that the jury’s verdict

resulted in a miscarriage of justice or where the verdict, on the record, cries out to be

overturned or shocks [the Court’s] conscience.”2 We will consider Scarborough’s ADA

and PHRA discrimination and retaliation claims simultaneously because “the Acts serve

the same goals and are interpreted coextensively.”3

         A plaintiff presents a prima facie case of discrimination under the ADA by

demonstrating: (1) he is a disabled person within the meaning of the Act; (2) he is

otherwise qualified to perform the essential functions of the job, with or without

reasonable accommodations by the employer; and (3) he has suffered an otherwise

adverse employment decision as a result of discrimination.4 Through regulation, the




2
    Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 128 (3d Cir. 2003).
3
    Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
4
    See Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996).

                                               4
EEOC has determined that “deafness substantially limits hearing,” that hearing is a major

life activity, and thus a deaf person is disabled within the meaning of the Act.5

       During the trial, Scarborough and his wife testified in support of his claim of

hearing loss. Scarborough’s testimony consisted of various examples of times when he

had trouble hearing while communicating with his wife. For example, Scarborough

testified that, on one occasion, he confused the word “coffee” with “happy” when his

wife was speaking to him. Scarborough also explained that he was exposed to loud noise

when he was in the military service. He testified that he would often read peoples’ lips

and asked people to repeat things when speaking. Scarborough did not, however, provide

testimony by an audiologist or any other qualified expert to support a diagnosis that he

was deaf.   6
                In fact, Scarborough’s coworkers testified that, while working and

communicating with Scarborough on a daily basis, it was not apparent that his hearing

interfered with his work.

       In sum, we believe that there was a substantial void in evidence supporting

Scarborough’s claim that he was disabled within the meaning of the ADA. We also


5
 29 C.F.R. § 1630.2(j)(3)(iii); see also Howze v. Jefferson Cnty. Comm., for Econ.
Opportunity, No. 2:11-CV-52-VEH, 2012 WL 3775871, at *11 (N.D. Ala. Aug. 28,
2012).
6
  In support of his brief, Scarborough submitted a document that he received in late
March, 2015 from the Department of Veteran Affairs, months after the trial had
concluded. The document purportedly suggests that he has “a service connected
combined disability rating of 70 percent.” This document, however, was not part of the
record before the District Court. Therefore, we will not consider it for the first time on
appeal. See System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d
1131, 1144 n.17 (3d Cir. 1977); Jaconski v. Avisun, 359 F.2d 931, 936 n.11 (3d Cir.
1966); In re Sugar Indus. Antitrust Litig., 579 F.2d 13, 19 (3d Cir. 1978).
                                             5
believe that the testimony of Scarborough’s coworkers, including Hayes and Kennedy,

substantially undermined Scarborough’s contention that he suffered from a disability.

Given the underwhelming evidence offered by Scarborough at trial, we therefore find that

a reasonable jury could have concluded that Scarborough failed to establish that he

suffered from a disability under the ADA.

         Scarborough also argues that the district court should not have denied his motion

for a new trial because the jury’s verdict regarding his retaliation claim was against the

weight of the evidence. To establish a prima facie case of retaliation under the ADA, a

plaintiff must show: (1) a protected employee activity; (2) adverse action by the employer

either after or contemporaneous with the employee’s protected activity; and (3) a causal

connection between the employee’s protected activity and the employer’s adverse

action.7

         In support of his retaliation claim, Scarborough places substantial weight on the

alleged short period of time between when he filed his internal complaint for disability

discrimination on September 3, 2010 and the suspensions levied upon him by the School

District in September 2010. However, we find that Scarborough’s termination on April

12, 2011, seven months later, was the true adverse action, not the suspensions of

September 2010.

         Moreover, it appears that Scarborough was disciplined for his performance prior to

filing the internal complaint. For example, Scarborough received a one day suspension

on August 30, 2010 based on his prior performance deficiencies in maintaining a field,

7
    Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).
                                              6
his disregard of priorities set by a supervisor, his non-completion of assignments, and the

fact that he could not be found at Central Bucks East High School for over 90 minutes

during the work day. In sum, a jury could reasonably find that the disciplinary actions

taken against Scarborough were the direct result of his poor performance and

insubordination, not the filing of his internal discrimination complaint.

                                            III.

       For the reasons stated above, we affirm the District Court’s order denying

Scarborough’s motion for a new trial.




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