James Aguiar v. MORGAN CORPORATION On Appeal from the United States District Court for the Eastern…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 00-1296
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JAMES AGUIAR,
Appellant
v.
MORGAN CORPORATION
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 99-cv-00496
(Honorable Franklin S. Van Antwerpen)
___________________
Argued December 13, 2001
Before: SCIRICA and BARRY, Circuit Judges,
and MUNLEY, District Judge*
(Filed: January 23, 2002)
*The Honorable James M. Munley, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
MARK S. SCHEFFER, ESQUIRE (ARGUED)
Pomerantz, Scheffer & Associates
Stephen Girard Building, 7th Floor
21 South 12th Street
Philadelphia, Pennsylvania 19107
Attorney for Appellant
G. THOMPSON BELL, III, ESQUIRE (ARGUED)
Stevens & Lee
111 North Sixth Street
P.O. Box 679
Reading, Pennsylvania 19603
Attorney for Appellee
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OPINION OF THE COURT
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PER CURIAM.
Plaintiff James Aguiar appeals an order granting summary judgment to the
Morgan Corporation on retaliation claims made under Title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e), the Civil Rights Act of 1870 (42 U.S.C. 1981), and the
Pennsylvania Human Relations Act (43 P.S. 951). Aguiar contends Morgan unlawfully
took adverse employment action against him because he made a statement on behalf of a
black co-worker who filed a complaint of race discrimination with the Reading-Berks
Human Relations Council (RBHRC). The District Court granted summary judgment for
the defendants because plaintiff failed to respond to Morgan’s allegation that he
presented no evidence of an adverse employment action or a causal connection between
the alleged harassment and the termination. (District Court March 2, 2000 Opinion at 9)
("Without any such evidence it is impossible for a jury to find the plaintiff’s retaliation
argument to have merit; therefore, summary judgment must be granted.").
We will affirm.
I.
We have jurisdiction under 28 U.S.C. 1291. Our review of a grant of summary
judgment is plenary. Cardenas v. Massey, No. 00-5225, 2001 U.S. App. LEXIS 22372, at
*4 (3d Cir. Oct. 16, 2001). Federal Rule of Civil Procedure 56(c) "mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial." Id. (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
II.
At issue is whether summary judgment was properly granted on Aguiar’s
retaliation claim. To establish a prima facie case of unlawful retaliation under Title VII,
1981, and the PHRA , a plaintiff must demonstrate that: (1) he or she engaged in
activity protected by Title VII; (2) the employer took an adverse employment action after
or contemporaneous with the protected activity; and (3) a causal link exists between the
protected activity and the adverse employment action. Weston v. Commonwealth of
Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); Robinson v. City of Pittsburgh, 120
F.3d 1286 (3d Cir. 1997). We conclude there is sufficient evidence of the first two
elements, but not enough evidence of the requisite causal connection, and therefore we
will affirm the District Court’s judgment.
a. Aguiar engaged in protected activity
In October or November of 1996, Aguiar went to the Reading-Berks Human
Relations Council and made a statement on behalf of a black co-worker who had filed a
complaint of race discrimination. Thus, we hold that the record contains a sufficient
showing that Aguiar engaged in a protected activity. See Abramson v. William Patterson
College of New Jersey, 260 F.3d 265 (3d Cir. 2001) (describing acceptable indicia of
protected conduct in the ADEA and Title VII contexts).
b. Aguiar suffered adverse employment action
Although the actual date and cause of termination is in dispute, both parties agree
Aguiar was fired from his position of production employee at Morgan Corporation in
July 1997. Aguiar’s termination therefore fulfills the second prong of the prima facie
case for a retaliation claim.
c. Insufficient evidence of causal link
On appeal, Aguiar alleges he presented sufficient evidence of a causal connection
because in his deposition he asserted that (1) a group of Morgan employees threatened
him with adverse employment action one and a half weeks after he gave a statement
regarding racial remarks to the human relations council in 1996; (2) one person from that
same group fired him over the telephone on July 7, 1997 when he requested more time
off; and (3) a Morgan human relations employee informed him he was not getting a
requested transfer because he was being "blackballed."
We see no merit in Aguiar’s contention that these alleged events establish the

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requisite causal connection "by way of a threat and the implementation of the threat."
(Appellant’s Brief at 16). We have stated that the existence of a causal link "must be
considered with a careful eye to the specific facts and circumstances encountered."
Farrell v. Planter’s Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000). Evidence
probative of a causal link can be inferred from evidence "gleaned from the record as a
whole." Id. at 281 ("temporal proximity or antagonism merely provides an evidentiary
basis from which an inference can be drawn") (citations and alterations omitted).
Here, plaintiff has not provided sufficient evidence from which an inference of a
causal connection can be drawn. Following his report to the human relations council,
Aguiar received positive performance evaluations and merit pay increases until the time
of his termination. (District Court March 2, 2000 Opinion at 2). When Aguiar requested
a different position to accommodate his diabetes symptoms, defendant complied by
offering him the only available position for which he was qualified, a paint prepper. Id.
Aguiar refused this position even though Morgan offered to pay him his former higher
salary because he "didn’t get along" with paint. Id. at 3. Because of his diabetes,
plaintiff was granted intermittent FMLA leave from June 16, 1997 until July 14, 1997.
When Aguiar failed to show up for work on July 14, Morgan’s Employee Benefits
Manager sent a letter to Aguiar’s physician on July 16, 1997 requesting medical
information explaining Aguiar’s continued absence and "called every number we had for
[Aguiar] to try and contact him and could not get a hold of him." When the manager did
not hear from Aguiar’s physician after a week and a half (Whitmoyer Dep. 108a), another
human relations manager sent plaintiff a letter informing him that he was being
terminated in accordance with the corporation’s "no call/no show" policy. This
termination occurred in July 1997 more than eight months after the meeting with the
human relations council. Aguiar has provided insufficient evidence of temporal
proximity or a pattern of antagonism. On these facts, we conclude plaintiff has not raised
a genuine issue of material fact with regard to the causal connection between the alleged
adverse employment actions and the protected activity.
III.
For these reasons, the judgment of the District Court will be affirmed.

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