                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3425
                                       ___________

                                  WILLIAM J. PEDEN,
                                              Appellant

                                             v.

                         DISTRICT COUNCIL 33 LOCAL 696
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-14-cv-03045)
                      District Judge: Honorable L. Felipe Restrepo
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 6, 2016

          Before: AMBRO, GREENAWAY, JR. and GARTH ♦, Circuit Judges

                            (Opinion filed: October 25, 2016)
                                     ___________

                                        OPINION *
                                       ___________
PER CURIAM

♦
  The Honorable Leonard I. Garth joined in the opinion of the Court but passed away
prior to the filing of the opinion.
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Pro se appellant William Peden appeals the District Court’s order granting the

defendant’s motion for summary judgment. For the reasons detailed below, we will

affirm.

          In 2014, Peden filed this civil action against his union, Local 696 of District

Council 33 (the “Union”), alleging that it had violated his rights under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and Title VII of the Civil

Rights Act of 1964, id. §§ 2000e et seq. The District Court appointed counsel to

represent Peden, and, after depositions were taken, the Union filed a motion for summary

judgment.

          The undisputed evidence revealed that Peden began working for the City of

Philadelphia in May 2005. Almost from the start, he had difficulties with regular

attendance. On several occasions, the City considered terminating Peden’s employment

because he had been absent without leave, but the Union successfully intervened and

arranged for Peden to return to work each time.

          In March 2009, the Union learned that, because of recurring attendance issues,

Peden was again facing termination. The union negotiated six months of medical leave,

which was set to expire in October 2009. At that time, however, Peden was still unable

to return to work. The City refused to extend his leave and told him that his choices were

to (1) return to work, (2) voluntarily resign, or (3) apply for non-service-connected

disability. Peden was unable to return to work and was ineligible for disability because

he had not completed ten years of employment. Therefore, Bobby Davis, the Union’s
                                                2
president, recommended that Peden resign. Under the Civil Service Regulations,

resigning would permit Peden to be reinstated within a year of his resignation. Peden

acknowledged that Davis advised him to resign. Davis testified that he had explained the

reinstatement rules to Peden, but Peden denied that. Despite the fact that “everybody was

telling [him] to resign,” D.C. dkt. #20-5 at 8, Peden wrote to the City and refused to

resign. As a result, he was terminated.

       After he was fired, Peden, with the Union’s help, filed an appeal to the Civil

Service Commission. Davis testified that after a member files an appeal, the Union’s

continued involvement is optional. If a member wants the Union to represent him during

a hearing, it is the member’s responsibility to request representation. Davis stated that

Peden did not ask the Union to attend his hearing (and had indicated while preparing the

appeal notice that he was receiving assistance from elsewhere). Peden, meanwhile,

claimed (somewhat vaguely) that he had sought union assistance. Ultimately, on the

hearing date, Peden appeared without accompaniment from the Union. He apparently

informed the Commission that he did not wish to proceed, and his appeal was dismissed

for want of prosecution. In his deposition, Peden complained that the Union “turned [its]

back” on him during “one of the hardest times in [his] life.” Id. at 19. He alleged,

broadly, that the Union had discriminated against him.

       The District Court granted summary judgment to the Union, concluding that Peden

had presented no evidence that the Union had discriminated against him due to his

disability (as required to maintain a discrimination claim under the ADA) or his race,
                                             3
color, gender, religion, or national origin (as required to maintain a discrimination claim

under Title VII). The Court also noted that, to the extent Peden sought to present a

retaliation claim under either statute, he had failed to show that he had ever engaged in a

protected activity. Peden filed a timely notice of appeal to this Court.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of

review and apply the same standard as the District Court to determine whether summary

judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566

F.3d 86, 89 (3d Cir. 2009).

       We agree with the District Court’s analysis of this case. In the District Court,

Peden focused mainly on his ADA claim. To make out a prima facie case of

discrimination under the ADA, the plaintiff must show, among other things, that he has

suffered an adverse action “as a result of discrimination.” Gaul v. Lucent Techs., Inc.,

134 F.3d 576, 580 (3d Cir. 1998). Here, Peden presented no evidence to show that the

Union’s failure to represent him on appeal was motivated by his disability. His

speculation is not adequate to save his claim from summary judgment. See Ramara, Inc.

v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016); see also Uhl v. Zalk Josephs

Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997) (“Facts, not an employee’s

perceptions and feelings, are required to support a discrimination claim.”). 1




1
 Indeed, in his appellate briefs, Peden states that he does not know why the Union did
not represent him. See Br. at 7; Reply Br. at 3.
                                              4
       Peden’s Title VII claim fares no better. Title VII provides that “[i]t shall be an

unlawful employment practice for a labor organization . . . to discriminate against[] any

individual because of his race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(c); see Connelly v. Lane Constr. Corp., 809 F.3d 780, 788 (3d Cir. 2016)

(explaining that under either the pretext or mixed-motive theory of discrimination, a Title

VII “plaintiff must establish that her protected status was a factor in the . . . challenged

action”). During his deposition, Peden specifically denied that the Union discriminated

against him because of his race, color, religion, sex, or national origin. See D.C. dkt.

#20-5 at 23-24. Therefore, the District Court did not err in granting judgment to the

Union on this claim. 2

       Finally, to show retaliation under either the ADA or Title VII, Peden must show,

among other things, that he engaged in protected activity. See Moore v. City of Phila.,

461 F.3d 331, 340-41 (3d Cir. 2006); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-

68 (3d Cir. 2002). There is no evidence in the record that Peden engaged in any such

activity.

       Accordingly, we will affirm the District Court’s judgment.

2
 The parties treated Peden’s ADA and Title VII claims as “hybrid” claims. So to
prevail, he had to show both (1) that the Union breached its duty of fair representation,
and (2) that the breach was motivated by discriminatory animus. We question whether
Peden actually needs to satisfy part (1) to maintain a claim under the ADA or Title VII.
See Goodman v. Lukens Steel Co., 777 F.2d 113, 127 (3d Cir. 1985); see also Garity v.
APWU Nat’l Labor Org., -- F.3d ---, 2016 WL 3607049, at *11-12 (9th Cir. July 5,
2016). In any event, because the District Court granted summary judgment based on
Peden’s failure to satisfy part (2), which is undoubtedly a legitimate component of a Title
VII or ADA claim, we need not decide whether it was proper to consider part (1).
                                               5
