                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-2-2006

Walsh v. Wal Mart Stores Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3584




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _________________

                                    No. 05-3584
                                 _________________

                                EDWARD L. WALSH,
                                                             Appellant

                                           v.

                             WAL MART STORES INC.

                                  ________________

                                     Appeal from the
                           United States District Court for the
                             Western District of Pennsylvania
                                (D.C. No. 03-cv-00269E)
                    District Judge: The Honorable Maurice B. Cohill
                                   ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 29, 2006
                                 ________________

                   Before: MCKEE and AMBRO, Circuit Judges, and
                                RESTANI*, Judge

                                (Filed: October 2, 2006)
                                   _______________

                                     OPINION
                                  _______________



________________________
       *Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.

       Plaintiff-Appellant Edward L. Walsh (“Walsh”) is a former employee of Defendant-

Appellee Wal Mart Stores Inc. (“Wal-Mart”). Walsh claims that the termination of his

employment by Wal-Mart was motivated by retaliation in violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq.. The District Court granted Wal-

Mart’s motion for summary judgment. We will affirm.

                        I. Procedural and Factual Background

       On October 7, 2002, Walsh’s employment at Wal-Mart’s Cranberry, Pennsylvania

store was terminated by Wal-Mart on the basis of four complaints from employees alleging

acts of sexual harassment by Walsh. Walsh had been employed as a people greeter in the

store since June 1999, and was responsible for greeting and thanking customers, providing

shopping carts and other customer service, identifying returned items in accordance with

company procedures, and visually verifying customers’ receipts.

       Walsh’s job performance came into question following verbal and written reprimands

in December 2001 and February 2002 for failing to greet customers and properly mark

returned merchandise, and for failing to stop a customer who brought a BB gun into the store

for exchange. These incidents were also reflected in Walsh’s performance evaluations,

which stated that he generally met expectations, but was “below expectations” on some

requirements.

       Wal-Mart follows a sequenced discipline policy when an employee’s conduct falls

                                             2
below company expectations. This policy is implemented according to the severity of

conduct and the recurrence of poor performance. It follows three stages, including verbal

“coaching,” written reprimand, and “decision day,” which serves as a final opportunity to

evaluate performance and may result in termination of the employment. As a consequence

of his failure to stop the customer carrying a BB gun into the store, a “decision day” was

scheduled for Walsh, and he was required to submit a plan for improvement.

       After receiving these reprimands, Walsh submitted copies of a hand-written letter to

Wal-Mart’s corporate headquarters in February 2002, alleging discrimination and harassment

by the managers of the Cranberry store.1 In the letter, Walsh claimed that he was being

unfairly targeted for discipline and that the managers were creating a hostile work

environment.

       In September 2002, Wal-Mart received four complaints from employees in the

Cranberry store alleging acts of mild sexual harassment by Walsh. Three of the complaints

were made by purported victims of the harassment, and the fourth was made by a coworker

who claims to have witnessed Walsh inappropriately touch a female employee. Walsh

admits that these complaints were made, but denies their veracity. Walsh was subsequently

terminated for failure to adhere to Wal-Mart’s stated policy against sexual harassment. Ben

Stover, a new manager at the Cranberry store, declared in an affidavit that his decision to

terminate Walsh was made as a result of Walsh’s apparent violations of Wal-Mart’s sexual


       1
        Although neither party has been able to locate this letter, Wal-Mart has not
contested its existence for the purposes of summary judgment.

                                            3
harassment policy, and that at the time of the termination he was unaware of Walsh’s letter

to Wal-Mart headquarters.

       To the contrary, Walsh asserts that the complaints were solicited by Wal-Mart in order

to justify his termination. Walsh claims that his termination was in retaliation for the letter

to Wal-Mart headquarters, and offers testimony of an associate at Wal-Mart who was the

subject of the fourth complaint. Her testimony alleges that managers of the store had

solicited the claims against Walsh, and that she had not been harassed by him as described

in the complaint submitted by her coworker.

       Walsh filed suit against Wal-Mart in the District Court for the Western District of

Pennsylvania, claiming age and disability discrimination and retaliation in violation of the

ADA, ADEA, and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq.

The district court granted summary judgment in favor of Wal-Mart on all claims. Walsh

appeals only on the retaliation claims under the ADA and ADEA.

                                       II. Discussion

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant of summary

judgment de novo and apply the same standard as the District Court. MBIA Ins. Corp. v.

Royal Indem. Co., 426 F.3d 204, 209 (3d. Cir. 2005). Where the non-moving party would

bear the burden of proof at trial, the moving party must indicate a lack of evidence on an

element essential to the claim, and the burden then shifts to the nonmoving party to

demonstrate a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

       To establish a claim of unlawful retaliation in violation of the ADA and ADEA, a

                                              4
plaintiff must show: 1) protected activity by the employee; 2) adverse employment action by

the employer; and 3) a causal connection between the protected activity and the adverse

employment action. See Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). In this

case, only the third element is at issue.2 To sustain his claim of retaliation, Walsh must be

able to produce evidence of a causal connection between his February letter to Wal-Mart

headquarters and the termination of his employment almost eight months later.

       Proof of causation may depend on three types of evidence: temporal proximity, a

pattern of antagonism by the employer in response to the protected activity, and the

employer’s knowledge of that activity. While evidence of only one factor is generally

insufficient to establish causation, evidence of all three is not necessary, so long as the claim

reasonably supports an inference of causation. See Robinson v. City of Pittsburgh, 120 F.3d

1286, 1302 (3d Cir. 1997), abrogated on other grounds by Burlington No. & Santa Fe Ry.

Co. V. White, 126 S. Ct. 2405 (2006); see also Krouse v. American Sterilizer Co., 126 F.3d

494, 503 (3d Cir. 1997).

       In the present case, Walsh fails to establish causation on the basis of temporal

proximity. The fact that his termination occurred after the letter is not sufficient to infer a

causal link, and the elapsed period of eight months is not “‘unusually suggestive’ of

retaliatory motive.” Krouse, 126 F.3d at 503 (quoting Robinson 120 F.3d at 1302).

       In the absence of temporal proximity, causation may be established by a “pattern of


       2
       For the purposes of summary judgment, Wal-Mart conceded that the first two
elements of the test have been met. See Appellee’s Brief at n.2.

                                               5
antagonism” tending to show causation between the protected act and adverse employment

action. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (quoting Robinson

v. Se. Penn. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1997). Although the facts of this case

present a tense employment situation in which numerous reprimands and aggressive

monitoring of Walsh may have been excessive, there is no evidence to suggest that these

actions arose in response to Walsh’s letter, or even that the situation worsened after the

submission of the letter. In order to establish a causal link, a pattern of antagonism must

demonstrate retaliatory motive on the part of the employer. The evidence presented in this

case does not suggest such a link.

       Finally, causation may be supported by evidence that the employer knew of the

protected activity and acted with retaliatory motive. McGorrian v. E.M.S.A., 85 F. App’x

1, 3 (3d Cir. 2003) (not precedential); see also Wrighten v. Metro. Hosps., Inc., 726 F.2d

1346, 1354 (9th Cir. 1984). In the present case, there is no evidence that Mr. Stover, the

manager who made the decision to terminate Walsh’s employment, even knew of the letter.

Absent evidence that the decision-maker had knowledge of the protected activity, “a

substantial gap [exists] in any causal chain suggested [even] by temporal proximity.”

McGorrian, 85 F. App’x at 4. Without evidence to show that Walsh’s letter was a factor in

the decision to terminate his employment, there is no triable issue of fact as to the element

of causation.

       Moreover, even if a prima facie case of retaliation could be established by showing

causation, Walsh has not presented evidence to demonstrate that Wal-Mart’s stated reason

                                             6
for terminating his employment was pretextual. According to Wal-Mart’s sexual harassment

policy, the complaints against Walsh were sufficient to justify immediate termination.

Walsh’s prior progression through Wal-Mart’s disciplinary steps also indicates that an

additional infraction, even less serious than sexual harassment, would have been enough to

justify his termination. Although Walsh suggests that these reasons were also based on

pretextual grounds, his evidence fails to support such an assertion.

       Accordingly, we will affirm the grant of summary judgment in favor of Wal-Mart.




______________________________




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