                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 19-1984
                                         ______

                                MATTHEW KOWALSKI,

                                         Appellant

                                             v.

                POSTMASTER GENERAL OF THE UNITED STATES
                              ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 2-16-cv-01707)
                    Magistrate Judge: Honorable Cynthia Reed Eddy
                                    ____________

                       Submitted under Third Circuit LAR 34.1(a)
                                   January 16, 2020

             Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

                                  (Filed: April 29, 2020)

                                      ____________

                                        OPINION*
                                      ____________




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

       Matthew Kowalski worked for the United States Postal Service as a part-time

Flexible Letter Carrier at the Greentree Branch Post Office in Pittsburgh, Pennsylvania

from 2004 until his termination in 2012. After his termination, Kowalski sued the

Postmaster General under the Rehabilitation Act, claiming discriminatory and retaliatory

treatment due to his anxiety disorder. The District Court entered summary judgment

against Kowalski, and in reviewing that judgment de novo, we will affirm.

                                              I

       This case is shadowed heavily by a prior employment dispute between Kowalski

and the Postal Service. That disagreement arose in January 2011 out of a conversation

that Kowalski had with his station manager in response to the reassignment of his normal

route. During that exchange, Kowalski expressed his stress level, which he associated

with a recent mass shooting in Arizona. Interpreting those statements as a threat within

the meaning of the Postal Service’s zero-tolerance policy, the station manager placed

Kowalski on emergency off-duty status. As a result, Kowalski could return to work only

upon providing medical substantiation that he was not a threat to himself or others.

       During his absence, Kowalski was diagnosed with general anxiety disorder. After

treating him for it, his psychologist supplied a letter stating that Kowalski was not a

danger to himself or others. The Postal Service accepted that letter and scheduled

Kowalski’s return in late February 2011.

       Perhaps due to a miscommunication, Kowalski did not arrive for work on the

scheduled date. Instead, he appeared the next workday. But after marking him absent



                                              2
without leave for the workday before, the Postal Service commenced termination

proceedings against him and later issued a Notice of Removal, which Kowalski

challenged through a grievance.

        Kowalski and the Postal Service resolved that dispute through a Last Chance

Agreement. As part of that agreement, Kowalski admitted that the Postal Service had just

cause for the Notice of Removal. Also, he agreed that for two years he would adhere to

all rules and regulations of the Postal Service, and he would comply with any order from

his supervisor before disputing it. Those terms were strict, and Kowalski expressed

reservations about them, in part because he did not get along with one of the managers,

Tony Piergrossi. But ultimately, he signed the agreement and returned to work in July

2011.

        Upon Kowalski’s return, and consistent with his apprehensions, Piergrossi became

his supervisor. Piergrossi disparaged and mocked Kowalski – calling him “Killer

Kowalski,” Appx. 325, and telling other postal employees that they should wear a bullet-

proof vest around Kowalski. (Also, Kowalski testified that Piergrossi referred to him as

“crazy” or “nuts,” Appx. 325, but in a sworn statement, Piergrossi denies doing so, Appx.

489, ¶ 4.) Kowalski did not file a grievance to complain about Piergrossi’s conduct.

        On December 27, 2011, Kowalski and Piergrossi had a disagreement that became

the undoing of Kowalski’s tenure with the Postal Service. That day, Piergrossi ordered

Kowalski to deliver mail on a rural route in addition to his regular route, and Kowalski

did not do so. Kowalski argued that the additional assignment violated the collective

bargaining agreement, and he requested an opportunity to speak with the union



                                            3
representative. In a visible display of irritation, if not anger, Piergrossi denied that

request. Kowalski nonetheless spoke with the union representative, who advised

Kowalski to “carry the route, and grieve it later.” Appx. 331. Kowalski followed a

different course: he submitted an immediate request for sick leave asserting that due to

his anxiety disorder, he did not feel comfortable driving. After Piergrossi orally denied

that written request, he threw it in the trash. He then stated that he would have Kowalski

fired and ordered Kowalski to leave the building. With that, Kowalski departed.

       Due to that incident, the Postal Service began the process of terminating Kowalski.

Another manager submitted a Request for Discipline, and Kowalski had an opportunity to

respond. The Postal Service then issued a Notice of Removal for his termination,

identifying two violations of the Last Chance Agreement: (i) failing to follow instructions

and (ii) abandoning the route.

       Through a grievance, Kowalski disputed that just cause supported his removal. A

‘Step B Team,’ which consisted of a representative from the Postal Service and a

representative from the union, reviewed Kowalski’s grievance. After finding just cause,

the Step B Team directed that Kowalski’s termination become official.

       Kowalski next pursued his administrative remedies with the Postal Service’s Equal

Employment Opportunity Office. In challenging his termination, he alleged that the

Postal Service terminated him not due to the Last Chance Agreement but rather due to his

anxiety disorder and his osteoarthritis. Kowalski asserted that his supervisors “provoked

him, called him names and subjected him to numerous workplace slights.” Appx. 46. An

Administrative Judge for the Equal Employment Opportunity Commission resolved



                                               4
Kowalski’s complaint without a hearing, concluding that “[a] preponderance of the

record evidence does not prove that the actions complained of were taken on account of

[Kowalski’s] disability.” Appx. 189. Kowalski appealed that decision to the EEOC’s

Office of Federal Operations, which affirmed the Administrative Judge’s decision. It

determined that “the alleged incidents were more likely the result of routine supervision,

personality conflicts, and general workplace disputes and tribulations.” Appx. 197.

       Unsatisfied with the administrative adjudicatory process, Kowalski sued the

Postmaster General under the Rehabilitation Act for discrimination and retaliation. In

exercising federal-question jurisdiction over the lawsuit, see 28 U.S.C. § 1331, the

District Court determined that Kowalski had exhausted only claims related to his

termination, and on those, the District Court entered summary judgment for the

Postmaster General.

       Kowalski timely appealed that judgment, and we have jurisdiction over his appeal.

See 28 U.S.C. § 1291.

                                             II

       On appeal, Kowalski challenges only the entry of summary judgment on his

termination-related claims. He brings both of those claims – one for discrimination and

the other for retaliation – under the Rehabilitation Act. But the Rehabilitation Act and its

amendments contain several provisions prohibiting disability discrimination, and the

resulting statutory scheme can fairly be described as “somewhat bewildering.” Lane v.

Pena, 518 U.S. 187, 196 (1996). Two relevant provisions permit causes of action against

the federal government: Section 501 (codified at 29 U.S.C. § 791) and Section 504



                                             5
(codified at 29 U.S.C. § 794). See 29 U.S.C. § 794a(a)(1), (2). Both causes of action

have notable limitations.

       Section 501 requires federal agencies to submit affirmative action plans for “the

hiring, placement, and advancement of individuals with disabilities.” Id. § 791(b)

(emphasis added). It also recognizes the ability to sue for “nonaffirmative action

employment discrimination under this section.” Id. § 791(f) (emphasis added). By

limiting claims to “nonaffirmative action employment discrimination,” the cause of

action under Section 501 is not for all employment discrimination, but only for that

related to nonaffirmative action, meaning “the hiring, placement, and advancement of

individuals with disabilities.” Id. § 791(b).

       By contrast, Section 504 of the Rehabilitation Act permits claims for “employment

discrimination.” Id. § 794(d). But it has limitations too. First, Section 504 applies only

to disability discrimination in any “program or activity” receiving federal financial

assistance or conducted by an executive agency or the Postal Service. Id. § 794(b)

(defining “program or activity” to implicate primarily entities receiving federal funding,

as opposed to federal agencies themselves). Second, Section 504 does not waive

sovereign immunity for damages claims against federal agencies or the Postal

Service. See Lane, 518 U.S. at 196-97; see also Barnes v. Gorman, 536 U.S. 181, 188-90

(2002) (holding that “punitive damages . . . may not be awarded in suits brought under

. . . § 504 of the Rehabilitation Act”). And third, Section 504 has a sole causation

requirement, meaning the discrimination must be “solely by reason of . . . disability.”

29 U.S.C. § 794(a).



                                                6
       Here, the parties disagree on whether Kowalski sues under Section 501 or

Section 504. Kowalski’s complaint did not specify either. Nor did his summary

judgment briefing. In its summary judgment decision, the District Court viewed

Kowalski as proceeding under Section 504. And Kowalski did not challenge that

conclusion in his opening appellate brief. See Fed. R. App. P. 28(a)(5) (requiring a

statement of issues presented for review). The Postal Service’s appellate brief relied on

the sole-causation limitation for Section 504 claims, and Kowalski then devoted most

prominent attention in his reply brief to argue that he proceeds under Section 501.

       Kowalski has enjoyed the best of both worlds for too long: an appellate reply brief

is too late to identify the statutory basis for a cause of action. See Shell Petroleum, Inc. v.

United States, 182 F.3d 212, 218 (3d Cir. 1999) (“[A litigant] must unequivocally put its

position before the trial court at a point and in a manner that permits the court to consider

its merits.”); see also United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is

well settled that an appellant’s failure to identify or argue an issue in his opening brief

constitutes waiver of that issue on appeal.”). Without arguing previously that his claim

was under Section 501, Kowalski cannot do so for the first time in an appellate reply

brief. He has not surrendered much, however, because his challenges on appeal involve

only his termination – and not decisions made redressable by Section 501, i.e., those

regarding hiring, placement, or advancement.

                                              III

       A plaintiff may support discrimination and retaliation claims through direct

evidence, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or indirect evidence,



                                              7
see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For his disability

discrimination claim, Kowalski invokes both approaches. He supports his retaliation

claim with only indirect evidence. None of that evidence brings any material fact into

genuine dispute. See Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (explaining that a genuine dispute arises “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party”). And even

viewing that evidence in the light most favorable to Kowalski, the Postal Service still

merits judgment as a matter of law. See Fed. R. Civ. P. 56(a); see also Smith v. City of

Allentown, 589 F.3d 684, 689 (3d Cir. 2009).

       A.     Direct Evidence of Discrimination

       In challenging the entry of summary judgment, Kowalski argues that he produced

enough direct evidence of discriminatory animus to defeat summary judgment. The

direct evidence standard originates in the mixed-motive context, where an adverse

employment decision “was the product of a mixture of legitimate and illegitimate

motives.” Price Waterhouse, 490 U.S. at 247. For such a mixed-motive claim, “direct

evidence” constitutes evidence that is “so revealing of retaliatory animus that it is

unnecessary to rely on the McDonnell Douglas / Burdine burden-shifting framework,

under which the burden of proof remains with the plaintiff.” Walden v. Georgia-Pacific

Corp., 126 F.3d 506, 512 (3d Cir. 1997).

       But this is not a mixed-motive case. Section 504 of the Rehabilitation Act does

not premise liability on discrimination as a motivating factor for the adverse employment

decision. Cf. 42 U.S.C. § 2000e-2(m) (permitting mixed-motive discrimination claims



                                              8
under Title VII). Rather, Section 504 requires that a disability be the sole cause of the

discrimination. See 29 U.S.C. § 794(a). Due to that sole-causation requirement, direct

evidence that discrimination was a factor does not suffice. Rather, the direct evidence

must establish that discriminatory animus was the sole cause of the adverse employment

decision.

       The evidence that Kowalski proffers does not meet that standard. He points to

statements by Piergrossi that associate ill-will toward Kowalski with Kowalski’s general

anxiety disorder – words and phrases such as “nuts,” “crazy,” and “Killer Kowalski,” as

well as telling Kowalski’s co-workers to wear a bullet-proof vest around Kowalski

because he might go “postal.” Appx. 325. From those statements, Kowalski argues that

an anti-disability animus motivated Piergrossi in assigning Kowalski the additional route

on December 27.

       But that issue is immaterial. Kowalski must prove that discrimination was the sole

cause of his termination – not merely the sole cause of the additional route assignment on

December 27. And for that, he has no direct evidence. The record establishes that the

Postal Service terminated Kowalski for violating his Last Chance Agreement by not

carrying the additional route as instructed by his supervisor. It is undisputed that

Piergrossi did not participate in that decision to terminate Kowalski. Piergrossi did not

issue the Notice of Removal. Nor did he serve as the postal representative on the Step B

Team. And Kowalski has no evidence that any decision-maker for his termination held

any animus toward him due to his disability, much less that any such discriminatory

animus was the sole cause for his termination.



                                              9
       Without any direct evidence of discriminatory animus by an actual decision-

maker, Kowalski invokes, for the first time on appeal, a cat’s paw theory of liability.

Under that theory, which derives its name from one of Aesop’s fables, see Staub v.

Proctor Hosp., 562 U.S. 411, 415 n.1 (2011), an “employer is at fault because one of its

agents committed an action based on discriminatory animus that was intended to cause,

and did in fact cause, an adverse employment decision.” Id. at 421. But the cat’s paw

theory originated in the context of mixed-motive discrimination claims. See id.; see also

Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 330 (3d Cir. 2015); McKenna v. City of

Phila., 649 F.3d 171, 176-80 (3d Cir. 2011). And there, liability may rest on the animus

and actions of an immediate supervisor, regardless of the motivation of the ultimate

decision-maker. See Staub, 562 U.S. at 422; see also Jones, 796 F.3d at 330.

Section 504, however, does not permit mixed-motive claims; rather, it requires that a

disability be the sole, as opposed to a partial, cause of the adverse employment decision.

See 29 U.S.C. § 794(a). That requirement removes Section 504 claims from the reach of

the cat’s paw theory. Thus, even if this newly raised argument were not forfeited, see

Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 2006), Kowalski still could not overcome

summary judgment here, where he lacks evidence of a decision-maker’s discriminatory

animus.




                                             10
       B.     Indirect Evidence of Discrimination and Retaliation

       Kowalski also attempts to defeat summary judgment on his discrimination and

retaliation claims through indirect evidence. The dispute here is narrow.1 It pertains only

to the third stage of the McDonnell Douglas analysis, which, for both discrimination and

retaliation claims, permits a plaintiff to avoid summary judgment by demonstrating that

the employer’s stated reason is pretextual. See generally McDonnell Douglas, 411 U.S.

at 802-04 (articulating the three stages of indirect proof for discrimination); Daniels v.

Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015); Woodson v. Scott Paper Co.,

109 F.3d 913, 920 (3d Cir. 1997) (explaining that the McDonnell Douglas framework

generally applies to retaliation claims).

       Kowalski argues that the proffered reasons for his termination were pretextual.

Proving pretext requires two showings: (i) that the stated reason was false, and (ii) that

discrimination was the real reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515 (1993). This Circuit, however, has held that a plaintiff can survive summary

judgment within the McDonnell Douglas framework by producing evidence of either of

those two prongs. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also

Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc).

       Kowalski directs his efforts to the first prong – demonstrating that the Postal

Service’s stated reasons were false. That showing demands something more than




1
  The parties do not contest that the McDonnell Douglas framework applies to
Kowalski’s efforts to prove discrimination and retaliation indirectly. Nor do they dispute
that Kowalski’s discrimination and retaliation claims satisfy the first two McDonnell
Douglas stages (a prima facie case and a legitimate non-discriminatory reason).

                                             11
evidence that “the employer’s decision was wrong or mistaken.” Fuentes, 32 F.3d at

765; see also Keller, 130 F.3d at 1108. Instead, it requires proof of “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could rationally

find them unworthy of credence.” Fuentes, 32 F.3d at 765 (citation and quotation marks

omitted); see also Keller, 130 F.3d at 1108-09.

       Kowalski identifies such a contradiction with respect to the job-abandonment

justification for his termination. Because Piergrossi ordered him to leave work, Kowalski

could not have abandoned his job in derogation of his supervisor’s order or in violation of

the Last Chance Agreement.

       But Kowalski must demonstrate the falsity of each stated justification for his

termination. See Fuentes, 32 F.3d at 764-65. And the Postal Service also terminated him

for violating his Last Chance Agreement due to his refusal to carry the additional route

on December 27. Kowalski argues that he did not actually refuse to carry the route,

rather he was requesting an accommodation.

       The Postal Service cannot be faulted for reaching a different conclusion.

Kowalski did not originally mention a disability as the reason he did not carry the route;

he challenged the route as a violation of the collective bargaining agreement. And by not

carrying the route and disregarding his supervisor’s order not to speak with the union

representative, Kowalski violated his Last Chance Agreement, which required him to

obey supervisors’ orders and submit grievances later. And as a matter of law, his request

for sick leave after the situation became more tense does not retroactively legitimize his



                                             12
prior conduct. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d

130, 137 (3d Cir. 2006) (“But as the Supreme Court has held, an employer need not

refrain from carrying out a previously reached employment decision because an

employee subsequently claims to be engaging in protected activity.”). Thus, Kowalski

has not demonstrated pretext for each basis for the Postal Service’s termination decision.

                                           ***

       For the foregoing reasons, we will affirm the District Court’s order entering

summary judgment for the Postmaster General.




                                            13
