                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                      No. 11-4283
                                     _____________

                                     ALIYA DAVIS,

                                                     Appellant

                                           v.

                                    DAVIS AUTO, INC.
                                TRI-STATE LENDING, LLC


                                     _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. No. 2:10-cv-03105)
                        District Judge: Hon. J. Curtis Joyner
                                   _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 September 24, 2012

     BEFORE: McKEE, Chief Judge, and JORDAN, VANASKIE, Circuit Judges.

                           (Opinion Filed: January 11, 2013)

Ari R. Karpf, Esquire
Adam C. Lease, Esquire
Karpf, Karpf & Cerrutti, P.C.
3331 Street Road
Two Greenwood Square
Suite 128
Bensalem, PA 19020
       Counsel for Appellant


                                           1
James M. Penny, Jr., Esquire
Terri Gillespie, Esquire
Obermayer Rebmann Maxwell
& Hippel LLP
One Penn Center, 19th Floor
Philadelphia, PA 19103
       Counsel for Appellee
                                        _____________

                                          OPINION
                                        _____________

McKee, Chief Judge.

       Aliya Davis (“Davis”) appeals the District Court‟s grant of summary judgment in

the defendants‟ favor in her suit against Davis Auto, Inc. (“Davis Auto”) and Tri-State

Lending, LLC (“Tri-State”), in which Davis alleged her termination from her job at Davis

Auto was motivated by unlawful retaliation in violation of the Americans with

Disabilities Act (“ADA”). 42 U.S.C. § 12203(a). For the following reasons, we will

affirm the District Court‟s judgment.

                                              I.

       Since we write primarily for the parties, it is unnecessary to set forth the factual or

procedural history of this case except to the extent it is helpful to our discussion.

       Davis Auto and Tri-State are family-run businesses located in Pennsylvania.

During the relevant time period, Davis Auto owned and operated two used automobile

dealerships in Philadelphia and Levittown. Joseph M. Davis, Jr. (“Davis, Jr.”) and

Joseph M. Davis, Sr. (“Davis, Sr.”) served as Davis Auto‟s President and Vice-President,

respectively. Father and son also served as the sole members of Tri-State, a separate

company that functioned as Davis Auto‟s controller. William Bach (“Bach”), Davis,

                                              2
Sr.‟s son-in-law and Davis, Jr.‟s brother-in-law, managed Tri-State‟s daily operations.

J.A. 52-53, 182.

       Davis, who is not related to the defendants, worked at Davis Auto and Tri-State in

varied clerical capacities from June 2006 through October 2008. During this time, Davis

suffered from several ailments including anxiety, asthma, and a thyroid disorder.

J.A. 436-38. In a meeting with her employers on July 7, 2008, Davis informed the

defendants that she might have cancer and added that she would likely need time off

work to take care of her medical hardships and treatments. J.A. 380, 476.

       Following the July 7, 2008 meeting, Davis worked for the defendants for

approximately three months. Davis‟s employment came to an end on October 15, 2008,

when Davis, Jr. notified her that she was being laid off. J.A. 379.

       After exhausting administrative remedies, Davis filed suit alleging unlawful

discrimination and retaliation in violation of the ADA and the Pennsylvania Human

Relations Act (“PHRA”). Thereafter, the District Court granted the defendants‟ request

for summary judgment. See Davis v. Davis Auto, 2011 WL 5902220 (E.D. Pa. Nov. 22,

2011). The District Court held that Davis could not establish a prima facie claim because

she could not show that she was “substantially limited” in a major life activity nor

demonstrate that her employers perceived her as disabled. Id. at *6-9. The District Court

also concluded that Davis could not make out a prima facie claim of unlawful retaliation

because she could not establish a causal connection between her alleged protected




                                             3
activity and the defendants‟ decision to terminate her employment. This appeal

followed.1

                                             II.

       Our review of a district court‟s grant of summary judgment is plenary. Turner v.

Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006). “„When reviewing a district

court‟s summary judgment decision in an ADA case, we . . . apply[] the same standard as

the district court.‟” Hip Heightened Indep. & Prog., Inc. v. Port Auth. of N.Y. and N.J.,

693 F.3d 345, 351 (3d Cir. 2012) (quoting Sulima v. Tobyhanna Army Depot, 602 F.3d

177, 184 (3d Cir. 2010)). Summary judgment is proper only where no genuine issue as to

any material fact exists such that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

       In order to establish a prima facie case of retaliation under the ADA, Davis must

show by a preponderance of the evidence that (1) she undertook some protected activity,

(2) that she suffered an adverse employment action, and (3) that there exists a causal

connection between the two. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir.

1997). If Davis establishes a prima facie claim, “„the burden shifts to the employer to

advance a legitimate, non-retaliatory reason for its adverse employment action.‟”

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (quoting

Krouse, 126 F.3d at 500). If the employer successfully meets this burden of production,

Davis has to show that the otherwise legitimate reasons advanced by her employer are

actually a pretext to mask a retaliatory animus. See Krouse, 126 F.3d at 501.

       1
           Davis withdrew her PHRA claim against the defendants before the District Court
                                           4
       The District Court assumed that Davis engaged in protected conduct when she

informed her employers about the possibility that she had cancer and requested an

accommodation in the form of an undetermined amount of time off from work in the July

7, 2008 meeting. Because the parties do not contest this issue, we will afford Davis the

benefit of the same presumption. It is also clear that Davis was subject to an adverse

employment action when the defendants terminated her on October 15, 2008. See

Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001)

(“[T]ermination clearly fulfills the second prong of the prima facie case for a retaliation

claim.”).

       The parties expend a substantial portion of their briefs discussing whether or not

the District Court correctly concluded that Davis could not establish a prima facie causal

connection between her asserted protected activity and the defendants‟ decision to

terminate her employment. However, we need not address that issue because it is clear

on this record that Davis cannot meet her ultimate burden of showing that the defendants‟

stated legitimate reason for her termination masked retaliatory motives.2



       2
         Davis‟s final argument attacks the defendants‟ proffered legitimate, non-
retaliatory reason for her termination. Davis argues that the defendants should be
estopped from claiming that she was laid off due to economic or performance-related
issues because in a deposition submitted to Pennsylvania‟s Department of Labor, Bach
stated that the reason for Davis‟s separation from employment was “lack of work.”
Inconsistent statements, however, “are not sanctionable unless a litigant has taken one or
both positions „in bad faith – i.e., with intent to play fast and loose with the court.‟”
Montrose Med. Grp. Participating Savs. Plan v. Bulger, 243 F.3d 773, 781-82 (3d Cir.
2001) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 361
(3d Cir. 1996)). We do not find the requisite bad faith element here.

                                              5
       Specifically, the defendants assert that declining business and corresponding

financial difficulties led them to decide to reduce personnel. Consistent with this

business decision, the defendants claim that Davis was selected for termination due to a

documented history of shortcomings in the areas of attendance and performance. J.A.

900-02.

       Davis underscores alleged inconsistencies in the witnesses‟ testimony, such as

Bach‟s failure to recall whether it was Davis, Jr. or Davis, Sr. who first proposed her

termination. However, even reading any such inconsistencies in the light most favorable

to Davis, other compelling evidence in the record undercuts any charge of pretext.3 Most

importantly, Davis discounts the undisputed fact that, once informed of the possibility

that Davis could have cancer on July 7, 2008, the defendants‟ immediate response was to

suggest that she join the companies‟ medical insurance plan and to offer her a $3.00

hourly raise. J.A. 186. Davis then continued to work for the defendants for

approximately fourteen weeks before being laid off in October 2008 – a period during

which she concedes the defendants underwent financial difficulties that led them to

reduce overall costs. J.A. 187. Davis‟s attempt to claim retaliatory motives after the

defendants tried to support her by offering her a medical insurance plan to cover any

cancer treatments and an hourly raise is patently frivolous.




3
 Defendants argue that Davis‟s claim of pretext was waived because it was not timely
asserted in the District Court. However, since the record does not raise a genuine issue of
fact regarding a pretextual motive, we reject that argument on its merits.
                                             6
       Moreover, the defendants‟ cost reduction efforts (and the effect these had on

personnel) are well-documented in the record.4 Based on these facts, we do not believe a

reasonable juror could find that the defendants‟ decision to terminate Davis was

motivated in whole or in part by her request for time off to tend to her ailments.5

                                            III.

   In light of the above, we will affirm the District Court‟s November 22, 2011 order.

COSTS TAXED AGAINST APPELLANT.




       4
         For example, at least 8 of the 21 employees in the defendants‟ combined 2008
payroll list were laid off between September and December of that year. J.A. 81-86. In
December 2008, the defendants also shuttered Davis Auto‟s location in Levittown,
Pennsylvania. J.A. 52, 182.
       5
         Contrary to Davis‟s argument, the fact that the defendants reassigned Davis‟s job
functions to an employee upon her departure does not, by itself, suggest pretext, nor does
it necessarily contradict the defendants‟ claim that her termination was the result of the
companies‟ financial difficulty. This court has recognized that an employer‟s decision to
reassign work duties to a higher-paid incumbent employee does not betray a causal link
between a plaintiff‟s protected activity and her termination unless “other evidence”
renders the employer‟s asserted legitimate motive “inconsistent or incongruous.” LeBoon
v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 234 (3d Cir. 2007). Here, we do not
find other such evidence.

                                             7
