                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3140
                                       ___________

                            JORGE SANTIAGO AGUILERA,
                                             Appellant

                                             v.

            ZACHARY W. DAVIS, Owner of Davis-Young Associates, Inc.;
                    DAVIS-YOUNG ASSOCIATES, INC.
                  ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                          (D.C. Civil Action No. 15-cv-00881)
                     District Judge: Honorable Richard G. Andrews
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 20, 2018
            Before: VANASKIE, COWEN and NYGAARD, Circuit Judges

                            (Opinion filed: February 22, 2018)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Pro se appellant Jorge Santiago Aguilera filed this employment discrimination suit




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
against Appellee Davis-Young Associates, Inc. (Davis-Young), and its owner, Zachary

W. Davis, alleging violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.,

and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ADA). The

District Court granted Defendants’ motion for summary judgment, and this appeal

ensued. For the reasons that follow, we will affirm.

       The District Court set forth the facts in the summary judgment record in the light

most favorable to Aguilera. In sum, Aguilera was employed as a master mason by Davis-

Young, a small landscaping company. In February 2003, he suffered a work-related back

injury, for which he received workers’ compensation benefits. He returned to full-time

work in March 2003. In July 2013, he suffered a second work-related back injury. He

returned to work in August 2013, but was restricted to “medium duty” work, which

Davis-Young accommodated.

       On Friday, October 24, 2014, while still under this work restriction, Aguilera

reported to work at 7:30 a.m., and, shortly thereafter, suffered yet another back injury.

Alone at the work site, Aguilera contacted his father, also employed by Davis-Young,

who picked up Aguilera at “about 8:30, 8:35,” and took him home. Dep. Tr. at 33. Cell

phones records reveal that Aguilera contacted Davis at 8:48 that morning. Aguilera

testified that he left a voice message indicating that he had hurt his back and that he was

seeing a doctor. He did not indicate how long he expected to be out of work.1


1
 Aguilera initially testified that he called Davis after seeing the doctor, and left a
message indicating why he had left the work site, and informing him “what the doctor
                                               2
       Aguilera was examined later that morning by a physician at MedExpress, who

filled out a “Duty Form” indicating that Aguilera could return to “modified duty” as of

that day, and anticipated a return to full duty on October 31, 2014. Aguilera’s father

provided the “Duty Form” to Tim Young, then co-owner of Davis-Young, on Monday,

October 27, 2017. Davis averred that he did not see the “Duty Form” “until about a week

or a week and a half later.” District Ct. Docket #36-1, pg. 4. Both Young and Davis

inquired about Aguilera’s whereabouts to his father, who responded that Aguilera was

“hanging out in the basement in the same house where they lived together.” Id.

       Aguilera did not contact Davis or anyone at Davis-Young until November 7, 2014,

when he went to the office to pick up a pay check. At that point, Davis informed him that

he had been terminated. Davis averred that he had believed Aguilera had abandoned his

job. Aguilera returned to Davis-Young on November 17, 2014, with medical forms,

seeking an accommodation for his injury; he was again informed that he no longer

worked for the company.




had said, which was to take medication and rest for two weeks.” Dep. Tr. at 33. He later
testified that he called Davis “shortly after the accident,” and corrected his testimony to
indicate that the call was made before going to the doctor. Id. at 59, 74. He also stated
that he didn’t inform Davis in the voice message how long he would be out of work
“because, and maybe it was my mistake, that I thought it was the same treatment as the
first injury,” which was two weeks’ rest. Id. at 48. Subsequently, in support of his
motion for summary judgment, Aguilera submitted a copy of his phone record with a
notation indicating that he had called Davis before the medical examination. The medical
record from MedExpress also supports this timeline.
                                                3
       Aguilera alleged in his complaint that he was terminated from his employment

because of his disability. The parties cross-moved for summary judgment. The District

Court denied Aguilera’s motion, and granted Defendants’ motion, determining, in part,

that Aguilera failed to offer evidence showing that Defendants’ proffered legitimate

explanation for the termination was pretext for discrimination.

       We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of an order

granting summary judgment is plenary. DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.

2004). Summary judgment is proper where, viewing the evidence in the light most

favorable to the nonmoving party and drawing all inferences in favor of that party, there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56; Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d

Cir. 2006). “Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       For the reasons provided by the District Court, Aguilera’s claim under the

Rehabilitation Act, and his ADA claim against Davis fail as a matter of law. See 29

U.S.C. § 794(b); Emerson v. Thiel Coll., 296 F.2d 184, 189-90 (3d Cir. 2017). We

therefore limit our analysis to his remaining claim against Davis-Young under the ADA.

       To establish an employment discrimination claim under the ADA, “a plaintiff

must demonstrate that he or she is a ‘qualified individual with a disability’ within the

meaning of the Act, and that he or she has suffered an adverse employment decision as a
                                             4
result of the discrimination.” Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 512 (3d Cir.

2001) (citation omitted); see also Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).

Where, as here, there is no direct evidence of discrimination, we analyze the

discrimination claim under the burden-shifting paradigm set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).2

       The Defendants did not contest that Aguilera established a prima facie case. We

agree with the District Court that they overcame the presumption of discrimination by

offering a legitimate, non-discriminatory reason for Aguilera’s termination – he had

abandoned his job – that Aguilera failed to demonstrate was pretextual. The evidence

was uncontroverted that, aside from the phone message left just after the incident,

Aguilera did not contact Defendants directly regarding the October 24th injury. The only

information that Davis-Young had regarding the extent of Aguilera’s injury came from

the Duty Form, which indicated that he could return to work the day of the injury for

medium duty,3 and return to full-time work a week later. In Aguilera’s absence, Davis-


2
  Under this framework, the plaintiff has the burden to make a prima facie showing of
discrimination; the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employment action; and the plaintiff must then
demonstrate by a preponderance of the evidence that the proffered explanation is
pretextual. See Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (noting, also, that
this framework is applicable to claims under the ADA).
3
  To dispute the proffered explanation, Aguilera notes that the MedExpress record also
prescribed follow up treatment, including rest and a muscle relaxant for pain.
Appellant’s Br. at 2. This information was not necessarily inconsistent with the
MedExpress doctor’s conclusion that Aguilera could return to modified duty on the day
of the injury. Absent any other evidence, Davis-Young could reasonably rely on this
conclusion.
                                              5
Young had to subcontract out his position to ensure contract deadlines, and, having not

heard from him for two weeks, the company could reasonably conclude that he had

abandoned his position. This conclusion is further supported by the record evidence that

Aguilera had “approached Davis about leaving Davis-Young and looking for other

employment,” just months’ prior. District Ct. Docket #36-1, pgs. 4-5. Finally, the record

demonstrates that Davis-Young has a history of accommodating its employees’ injuries,

including Aguilera’s previous injury, further indicating that the proffered reason was not

pretext for discrimination.4

       Aguilera claims on appeal that the District Court failed to consider his evidence,

including the witnesses he intended to present. However, he failed to produce any

potential witness evidence, in the form of declarations or affidavits, or any evidence that

would suggest “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in [Davis-Young’s] proffered legitimate reasons” for terminating him.

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Indeed, Aguilera did not indicate,

either in the District Court or on appeal, the nature of the evidence that his witnesses

could provide. Accordingly, Davis-Young was entitled to summary judgment.

       Based on the foregoing, we will affirm the District Court’s judgment.5


4
  To the extent that Aguilera claimed that Davis-Young failed to accommodate his
disability, we agree with the District Court that there is no support in the record for the
claim, particularly where he failed to seek accommodation until after his termination.
5
  Appellees’ motion to file Volume III of the Supplemental Appendix under seal is
granted. See Doe v. Delie, 257 F.3d 309, 314-15 (3d Cir. 2001); Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994)
                                              6
