                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-1286
                                     ____________

                               MOHAMMED HUSSEIN,
                                    Appellant

                                           v.

                              UPMC MERCY HOSPITAL
                                   ___________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2-09-cv-00547)
                    District Judge: Honorable Terrence F. McVerry
                                     ___________

                        Submitted Under Third Circuit LAR 34.1
                                  February 10, 2012

 Before:   SLOVITER and VANASKIE, Circuit Judges, and POLLAK, District Judge*

                               (Filed: February 24, 2012 )
                                      ___________

                              OPINION OF THE COURT
                                   ___________


VANASKIE, Circuit Judge.




      *
        The Honorable Louis H. Pollak, Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
          Mohammed Hussein appeals the District Court‟s grant of summary judgment in

favor of UPMC Mercy Hospital (the “Hospital”) on his retaliation claims under Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the

Pennsylvania Human Relations Act (the “PHRA”), 43 Pa. Const. Stat. § 951 et seq. We

agree with the District Court that the Hospital is entitled to summary judgment and will

affirm.

                                               I.

          We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

          The Hospital hired Hussein as a nuclear medicine technologist in 1976. His job

responsibilities included performing diagnostic tests and completing medical

documentation for Hospital patients. His direct supervisor was Amy Dietz, the lead

nuclear medicine technologist, who reported to Becky Volk, the Radiology Department

director.

          Hussein was a practicing Muslim, and learned in June 2006 of an opportunity to

attend a group pilgrimage to Mecca from December 2006 to January 2007. The Hospital

had a seniority system for allocating vacation time and required employees to submit

vacation requests for December by the preceding February. Because Hussein did not

learn of the opportunity to travel to Mecca until well after February, he submitted a late

vacation request in June 2006. Volk denied the request, stating that another technologist

had already requested vacation time on the same dates. In October 2006, Hussein told

Sister Patricia Hespelein, a vice president at the Hospital, that Volk had violated his

                                               2
“religious rights” by denying his vacation request, and asked for assistance in obtaining

permission to attend a pilgrimage in December of 2007. (A. 231.)

       Hussein then submitted a new vacation request in January 2007, requesting leave

to participate in the December 2007 pilgrimage. Although Hussein‟s second vacation

request was timely, he submitted it outside of the Hospital‟s seniority-based system for

allocating vacation time. Volk denied the request on the grounds that Hussein had failed

to follow the Hospital‟s policy for submitting vacation requests.

       Hussein testified that Hespelein, acting on Hussein‟s October 2006 complaint,

informed him that she spoke with Volk in February 2007 and obtained permission for

him to attend the December 2007 pilgrimage.1 In April 2007, Hussein claims that Volk

“showed her displeasure” for his report to Hespelein by calling him into her office

concerning an unrelated matter and asking him to explain why he spoke with Hespelein

about the vacation requests. (A. 234.) Hussein also claims that Volk “just was plain[,]

short, [and] cold [in] demeanor to [him],” and “became more hostile” to him after his

report to Hespelein. (A. 234-35.) According to an affidavit by Amy Helfrich, a former

employee at the Hospital, “Becky Volk told [her] that [she] should „document‟ anything

[she] saw that Mr. Hussein did wrong” and “made it clear . . . that she wanted Mr.

Hussein out of the department.” (A. 249.)

       One year later, in April 2008, Hussein engaged in two acts of purported

misconduct that the Hospital investigated, culminating in his termination on April 24,



       1
           Hussein did participate in a pilgrimage at the end of December 2007.
                                              3
2008.2 Amy Dietz, Hussein‟s direct supervisor, testified that she began investigating

Hussein‟s alleged misconduct after a doctor informed her on April 14, 2008 that Hussein

failed to notify a Hospital physician, Dr. Schultheis, about missing images in a renal scan

on April 12, 2008. Dietz testified that Hussein‟s alleged failure to notify the physician of

the missing images was an infraction because the patient “could have had some serious

medical issues with her care had they gone off of what [Hussein] had done.” (A. 269.)

       According to Hussein, he realized while he was conducting the renal scan that the

machine was malfunctioning and that several images were missing, so he immediately

informed Dr. Schultheis about both the malfunction and the missing images. Dr.

Schultheis submitted an affidavit, attesting that Hussein notified him that he had

“technical problems” during the scan. (A. 264.) According to Dietz‟s notes, however,

Dr. Schultheis agreed that Hussein notified him of “camera issues,” but did not notify

him of the missing images. (A. 192.)

       On the same day that Dietz learned about Hussein‟s alleged failure to report the

missing images, Sharon Boros, another technologist in Hussein‟s department, reported to

Dietz that Hussein had placed her initials on a record for a blank scan on April 3, 2008.

According to Dietz, placing another employee‟s name on a scan record violated Hospital

policy because it attributed responsibility for the scan to that employee. She further

testified that she interpreted Boros‟s complaint as indicating that Hussein was placing

multiple initials on scan records to avoid full responsibility for potential mistakes.

       2
         The Hospital initially claimed in Hussein‟s termination letter that he engaged in
three acts of misconduct, but the Hospital now claims on appeal that Hussein committed
only two acts of misconduct.
                                              4
       Hussein claims that he did not know how to perform the blank scan, so Boros

helped him to prepare for it. Around the time that the camera began scanning, Boros left,

and Hussein completed the scan. Afterwards, Hussein placed both his initials and

Boros‟s initials in the Hospital record, because it was common practice in the Radiology

Department to give credit to an employee who assisted in conducting a scan by placing

that employee‟s initials in the record.

       Dietz testified that she began her investigation of Hussein‟s alleged misconduct by

speaking with Dr. Schultheis and Hussein about the April 12, 2008 incident. She then

reported her findings about both the April 3, 2008 and April 12, 2008 incidents to Volk,

who responded that she “had a history” with Hussein, and instructed Dietz to “talk to

[Human Resources], and [to] please do all of it with [department manager] Lisa

[Haskins].” (A. 266.) Dietz understood Volk‟s response as meaning that Volk “didn‟t

want to be involved” in the investigation, and therefore proceeded by speaking with

Haskins and with Human Resources. (A. 266.)

       Haskins knew that Hussein had complained to Hespelein about Volk at some

point, but likewise testified that Dietz indicated that Volk “had a prior issue” with

Hussein, “and [that] [Volk] want[ed] to stay out of it, so [that the investigation] could be

objective.” (A. 253.) Haskins further testified that she instructed Dietz to conduct a full

investigation, and then she and Dietz consulted with Human Resources. Neither Haskins

nor Dietz testified that Volk directed the investigation or recommended Hussein‟s

dismissal.



                                              5
       Hussein testified in his deposition that he believed Volk was on a leave of absence

during the investigation and that Haskins was “[t]aking [Volk‟s] place.” (A. 117.) He

also testified that he believed that Volk was involved in the investigation because he

assumed, without knowing, that Haskins spoke with Volk before terminating him, and

because Haskins copied Volk on the termination letter.

       After Hussein‟s termination, he sued the Hospital under Title VII; the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.; and the PHRA. His

Title VII and PHRA claims alleged both discrimination and retaliation. The parties filed

cross-motions for summary judgment, and the District Court granted summary judgment

to the Hospital on each of Hussein‟s claims.

       In granting summary judgment on Hussein‟s retaliation claims, the District Court

reasoned that Hussein “failed to adduce any evidence from which a reasonable factfinder

could find that [the Hospital‟s] real reason for terminating Plaintiff‟s employment was

discriminatory animus.” Hussein v. UPMC Mercy Hosp., No. 2:09-cv-00547, 2011 U.S.

Dist. LEXIS 396, at *32 (W.D. Pa. Jan. 4, 2011) (citing Reeves v. Sanderson Plumbing

Prods., 530 U.S. 133, 146-47 (2000)). The District Court noted that “Volk, the person

with alleged retaliatory motives, did not participate in either the internal investigation

into his instances of misconduct or in the decision to terminate his employment,” and that

Hussein “is unaware whether Sister Hespelein ever communicated his complaints to

Volk.” Id. at *33-34. Hussein now appeals the District Court‟s decision only as to his

retaliation claims.

                                              II.

                                               6
       The District Court had jurisdiction over Hussein‟s Title VII claim under 28 U.S.C.

§ 1331 and had supplemental jurisdiction over Hussein‟s PHRA claim under 28 U.S.C. §

1367. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review over district court decisions granting summary judgment. See Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is appropriate

when the movant demonstrates “that 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).

                                             A.

       Hussein asserts that the District Court erred in holding that he fails to show

evidence of retaliation. His theory is that Volk harbored retaliatory animus against him

because he reported her vacation request denials to Hespelein. Although he

acknowledges that Dietz and Haskins, rather than Volk, conducted the investigation that

led to his termination, he posits that the investigation was “at the direction of Becky

Volk.” (Appellant‟s Br. 13.) The Hospital counters that Hussein fails to establish a

prima facie case of retaliation, because he does not present any evidence linking Volk‟s

alleged retaliatory animus to Hussein‟s termination. Alternatively, the Hospital argues

that Hussein‟s two acts of alleged misconduct were legitimate reasons for his termination,

and that Hussein does not present sufficient evidence to discredit these reasons.

       Title VII‟s anti-retaliation provision forbids an employer from “discriminat[ing]

against any of his employees . . . because he has opposed any practice made an unlawful

employment practice by [Title VII], or because he has made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or hearing under [Title

                                             7
VII].” 42 U.S.C. § 2000e-3(a). The PHRA, which we generally interpret consistently

with Title VII, likewise forbids employers from retaliating against employees for

asserting their rights under the PHRA.3 See Fogleman v. Mercy Hosp., 283 F.3d 561,

567 (3d Cir. 2002) (“The language of the PHRA is . . . substantially similar to [Title VII

and other federal] anti-retaliation provisions, and we have held that the PHRA is to be

interpreted as identical to federal anti-discrimination laws except where there is

something specifically different . . . .”) (citing Dici v. Pennsylvania, 91 F.3d 542, 552 (3d

Cir. 1996)).

       To assert a prima facie Title VII retaliation claim, the employee must show that

“(1) she engaged in activity protected by Title VII; (2) the employer took an adverse

employment action against her; and (3) there was a causal connection between her

participation in the protected activity and the adverse employment action.” Moore v. City

of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d

383, 386 (3d Cir. 1995)). If the employee establishes his or her prima facie claim, “the

familiar McDonnell Douglas approach applies[,] in which „the burden shifts to the

employer to advance a legitimate, non-retaliatory reason‟ for its conduct.” Id. at 342

(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). If the employer

provides such a reason, the burden shifts back to the employee to show “that the



       3
         The PHRA‟s anti-retaliation provision forbids employers from “discriminat[ing]
in any manner against any individual because such individual has opposed any practice
forbidden by this act, or because such individual has made a charge, testified or assisted,
in any manner, in any investigation, proceeding or hearing under this act.” 43 Pa. Cons.
Stat. § 955(d).
                                              8
employer‟s proffered explanation was false, and that retaliation was the real reason for

the adverse employment action.” Id. (quoting Krouse, 126 F.3d at 501).

                                             B.

       We agree with the Hospital that Hussein fails to establish a prima facie retaliation

claim because he does not show a causal connection between Volk‟s alleged retaliatory

animus and the Hospital‟s termination decision. In deciding whether the plaintiff has

shown causation, we “have tended to focus on two factors: (1) the „temporal proximity‟

between the protected activity and the alleged discrimination and (2) the existence of „a

pattern of antagonism in the intervening period.‟” Jensen v. Potter, 435 F.3d 444, 450

(3d Cir. 2006) (quoting Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288

(3d Cir. 2001)) (internal citation and quotation marks omitted), abrogated in part on

other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Additionally, we may consider whether the record “as a whole” suggests retaliation.

Kachmar v. Sungard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997).

       Hussein appears to argue that the record as a whole suggests retaliation, noting

that Volk specifically noted her displeasure in April, 2007 with his earlier report to

Hespelein, that she treated him less favorably after his report, and that she indicated to

Helfrich “that she wanted Mr. Hussein out of the department.”4 (A. 249.) Hussein



       4
        Hussein does not argue that the temporal proximity between his complaint to
Hespelein and his termination raises an inference of retaliation, presumably because well
over a year passed between his complaint and his termination. See, e.g., LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (“[A] gap of three
months between the protected activity and the adverse action, without more, cannot
                                              9
provides little explanation, however, for how Volk‟s alleged retaliatory animus infected

the Hospital‟s termination decision, speculating only that the investigation operated under

Volk‟s direction.

       The record does not support Hussein‟s theory. To the contrary, Hussein admitted

in his deposition that he has no actual knowledge that Volk was involved in his

termination, instead testifying that he believed that Volk was on a leave of absence

during the investigation and termination decision.5 While Dietz and Haskins did not

suggest that Volk was on a leave of absence, they both indicated that they believed that

Volk was not participating in the investigation to avoid imparting bias. Although Dietz

spoke with Volk before initiating a full investigation, Hussein presents no evidence that

Volk was behind the investigation or that she encouraged his termination.

       Hussein‟s argument is similar to the plaintiff‟s argument in Weston v.

Pennsylvania, in which Weston contended that his employer retaliated against him by

suspending him after he complained of sexual harassment to his supervisor. See 251 F.3d

420, 424 (3d Cir. 2001), abrogated in part on other grounds by Burlington N. & Santa Fe

Ry. Co., 548 U.S. 53. Although Weston‟s supervisor may have harbored retaliatory

animus and “did play a role in the suspensions,” a panel of three impartial hearing

officers “ultimately decided” to issue the suspensions. Id. at 433. We concluded that


create an inference of causation and defeat summary judgment.”) (internal citations
omitted).
       5
          The only direct evidence of Volk‟s involvement to which Hussein points is
Haskins‟s decision to copy Volk on his termination letter. We do not agree, however,
that this shows that Volk was involved in the termination decision.
                                            10
Weston failed to show causation, in part because the hearing officers who made the

suspension decisions had no retaliatory animus. Id.; see also Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 415 (3d Cir. 1999) (holding that the plaintiff failed to show retaliation

where there was no evidence that the employees who disciplined him knew of his

protected activity).

       As in Weston, Hussein asserts that a supervisory employee harbored retaliatory

animus against him, but fails to show that the decisionmakers responsible for his

termination held any retaliatory animus. Instead, he speculates that Dietz and Haskins

may have acted under Volk‟s direction, but he offers no factual support for his assertion.

Accordingly, as in Weston, Hussein has failed to present sufficient facts to raise an

inference of a causal relationship between his protected activity and his termination.

Because causation is a necessary element of Hussein‟s prima facie case, the Hospital is

entitled to summary judgment. 6

                                          III.

       For the foregoing reasons, we will affirm the District Court‟s judgment.




       6
          Because we hold that Hussein has failed to establish a prima facie case of
retaliation, we do not address the parties‟ remaining dispute over whether the Hospital‟s
proffered reasons for Hussein‟s termination were pretextual.
                                             11
