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w . vi l l a no va . e du/thir dc ir c uit_2004/411NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT 

### Nos. 03-3289 and 03- 3294
JAMES F. VAN HOUTEN , Appellant

v. ANTHONY J. PRINCIPI, SECRETARY DEPARTMENT OF VETERANS AFFAIRS

APPEAL FROM THE U NITED STATES DISTRI CT COURT FO R T HE EA STE RN DIST RIC T O F PE NN SY LV AN IA

D.C. CivilNo. 98-cv-00270 Distric t Judg e: Th e H ono rable L egro me D . Dav is

Submitte d Under Third Circ uit LAR 34.1(a)

July13, 2004

Bef or e: RENDEL L, BARRY, and FIS HE R, Circuit Judges (Opinion Fi led: August 6, 2004)

OPI NION

BA RR Y, Circuit

Judge In th es e c ons ol id at ed ap pe al s, Ja mes Van Hou te n ( “Va n Ho ut en ”) ch al le nge s two Distri ct Court orders granting s ummary judgment in favor of hi s employ er, t he2

Department of Vete rans Affair s (the“VA”). In the f irst , a di scri minati on case under t he Rehabili tati on Act of 1973 (the“Act”), 29 U.S.C. § 791, the Dist rict Court concl uded that Va n H out en f ailed to es tabli sh th at he wa s dis able d. Van Houten v. Gober , 98-CV-0270 (E.D. Pa . June 6, 200 3). In the secon d, a retaliation case und er the Ac t, the Court

conc luded that V an H outen failed to estab lish a ne xus b etwe en an y advers e actio n and his hav ing filed EE O c om plain ts. Van Houten v. Principi , 02-CV-2173 (E.D. Pa. July30, 200 3). O ur ju risdi ction arise s un der 28 U .S.C . § 12 91. W e w ill aff irm b oth ord ers. I. Background The parti es are fami liar with the unde rly ing fact s. As such, we will provi de a brie f

sum mary of those facts a t the ou tset, inco rpora ting ad ditiona l facts o nly as nec essary to our disc ussion of t

he issue s. I n October 1993, Van Houten was hi red as a Fi rst Noti ce of Death Clerk ( levelGS-3) by t he VA in the Phila delphia Regional Office . Upon hiri ng, he informed the VA that he had carpaltunnel s yndr ome and a cervic al condi tion and t hat the Vet er an s Ad mi ni st

rati on h ad re ce nt ly

rate d hi m 30 % di sabl ed . H is pos it io n wi thth e VA required him to type notific ations of death, eight hour s a day , fivedays a week. The constant ty ping exacer

bated hi s carpaltunnel s yndr ome, causi ng burning i n his arms and weakness in hi s shoulder s but, accordi ng to Van Houten, he l earned t o “tough[] i t out. ” In October 1994, Van Houten w as accepted to the Insurance Phone Specialist tr ai ni ng p ro gr am ( le velGS-5 ). He be gan an i nt ens iv e, si x mon th tr ai ni ng p ro gr am, expe cting to be aw arded an In suran ce Ph one S pecia list position (level G S-7) a fter its1 Upon starting the program, Van Houten informed management that he was impaire d and needed cert ain accommodati ons. He was provide d with a speci al chai r for hi s back, one-on-one t

raini ng, and addi tionaltime t o input i nformati on into t he computer. He was also permitted t o wear w rist guards. 3 completi on. Pri or to comple ting t he program, however, Van Houten was removed from the tr aining s essions , and on May 31, 1995, he was tr ansferred to a Clai ms Clerk posi tion (GS-5). Accordi ng to Van Houten, he was si ngled out, harasse d, unfai rlyscrutinize d, and ultima tely remo ved b ecau se of his disa bility. He cla ims th at his su perv isor, K aren B erent, frequentlyspoke to hi m in a loud t one and that she provi ded bett er assi stance to other trainees, although he admits he was the only trai nee provided various accomm odations, includi ng one-on-one i nstruc tion. 1 According to the VA , he was transferred in response to an inc ident on May 11, 1995 invol ving “ins ubordination and a phy sicalthreat to a supe rvisor” and “ disresp ectfu l cond uct to o ther em ployees.” Ac cord ing to B erent, however, Van Houten was asked t o use his t raini ng manuals to l ook up information on dividends , when, i n front of ot her students, he began banging t he manuals and t

hen stood up a nd l oud ly exc laim ed th at he wo uld be d am ned if he wa s go ing to b e hu milia ted. On July 18, 1995, Van Houten fil ed an EEO complaint, alle ging that he had been removed from the t

raini ng sessi ons because of di scri minati on. On April 17, 1996, he filed a secon d com plaint in conne ction with h is transfer, and in 19 96 he f iled a third

co m pl ain t, a lle gi ng th at t he 19 96 co m pl ain t w as pr oc es se d i m pr op er ly. The Agency dism issed the c om plain ts.4

In March 1998, Van Houten appli ed for a vacant Veterans Claims Examiner position (GS-7/9) . His new supervi sor, Jeffrey Branin, as requi red, s ubmitt ed a Sup erviso ry App raisal of Em ployee P rom otion f orm . Altho ugh it is clear tha t Bran in knew about V an H outen’s E EO comp laints at the time he w rote the appra isal, this form requ ired him to calc ulate n um erical ra tings b y applying la rgely obje ctive d ata to a grid matrix. Van Houten received a r ating of 3 out of 5 in e ach area analyzed: (1) knowledge of V A life insura nce ru les, regu lations a nd p roced ures; (2 ) ability to dem onstra te inter personaloral communicat ion ski lls ; (3) abili tyto communicat e in writing; and ( 4) skil l in analy zing dat a and making deci sions. Based on this report , he was not one of the eleven i ndividual s sele cted for an inte rview, of whom two were hir ed. On July14, 1998, Van Houten filed anot

her EEO complaint, alle ging that Branin’s mediocre evaluation was in re taliati on f or V an H out en’ s pre vio us E EO com plain ts. In Nove mber

199 8, th e VA po st ed anotic e of vac anc y for

a Veter ans Cla ims Trainee/ Examiner posi tion ( GS-5/7). Van Houten applied for one of seven openi ngs and, again, Branin submit

ted a Supervi soryAppraisalform. This time, Van Houten was selected for an i ntervi ew, but he di d not rece ive an offer . On July12, 2000, heamended his A ugu st 26, 1 998 EE O c om plaint to includ e alleg ed dis crimin ation b y Branin with regard to this late st Supervi soryAppraisalform. After a heari ng, an ALJ iss ued a findi ng of no discrimination, whic h was adopted bythe Agency . Around thi s ti me, Van Houten

wa s pro mo ted to Le ad C laim s A dju stm ent T ech nicia n (G S-6 ).2 Van Houten does not appealthe Dist rict Court’s f

inding t hat he di d not in fa ct have such an im pairm ent. N or ha s he e ver as serted that he has a record of su ch an impa irmen t. 5 II. An alys is A. Disc rimin ation C laim Under the Rehabil itat

ion Act, an employ er willbe grante d summary j udgment if an employee is un able to establish at least a ge nuine issue o f material fact as to “ one or m ore elements of his prima faciecase.” Krouse v. American Steril izer Co. , 126 F.3d 494, 501 (3d Cir. 1997). To make out a prim a facie cas e of disc rimi natio n un der the A ct, a plaintiff mu st set fo rth the f ollow ing: 1) th at he o r she h as a d isability; 2) that h e or sh e is otherwis e quali fied t o perform theessential f unctions of the j ob, with or without reasonable accommod ations by t he employer; and 3) that he or she was nonetheless term inate d or oth erw ise p rev ente d fr om per for min g th e job
. Gagliardo v. Connaught Laboratories, Inc. , 311 F .3d 56 5, 568 (3d C ir. 2002 ). Disa bility is define d as: (1) A phys icalor mentalimpairment that s ubstantially l imit s one or more of the m ajor life a ctivi ties . . . (2) A recor d of such impai rment; or (3) be ing reg arded as ha ving such an im pairm ent. 29 C .F.R . § 16 30.2 (g)(1 998 ). Van H outen claims he was impermissibly removed from the Phone Sp ecialist trai ning progr am because of his disabi lit y. At issue i s whether he ade quatel y es tabli shed that t he V A r ega rde d hi m a s an ind ivid ual w ith a d isab ility, i.e . , “a phy sicalor mental imp airm ent th at su bsta ntial ly limits one or m ore of [ his] m ajor life a ctivi ties.” 2 A person6

can be “regarded as having s uch an impairment” in one of two ways, ei ther: 1) his or her emp loyer mista kenly be lieves h e or sh e has a physica l impa irmen t that sub stantially limits one or more major

lifeacti viti es; or

2) his or her employ er mist akenlybelie ves that an actu al no nlim iting imp airm ent s ubs tanti ally lim its on e or mo re m ajor life a ctivi ties. Sutton v. United Air Li ne, Inc. 527 U.S . 471, 4 89 (1 999 ). Her e, the latte r situation is impli cated. There is no di sagreement that c arpal t

unnel sy ndrome is an “i mpairment, ” and that the r elev ant “ major lif e ac tivity” is that o f w ork ing , see 29 C .F.R. § 163 0.2(I). W ith respect to working, “[t]heterm substantially limi ts means si gnific antly restricted in the abili tyto perform either a class of jobs or

a broad rangeof jobs i n various class es as compared to t

he average per son having comparable tr aining, skil ls and abi lities. ” Id. at § 1630.2(j). O ur inquiry is thus wh ether Va n Ho uten set forth fa cts from w hich a jury could rea sonablyconclude that theVA regarded his car pel tunne l sy ndrome as an impairme nt that “significantly restricted [his] ability to perform either a class o f jobs or a bro ad r ang e of job s.” 1 9 C .F.R . § 16 30.2 (j). W e be lieve he d id n ot. To be sure, t

he VA knew that Van Houten had carpal t unnel sy ndrome, but , even when viewed in the l ight most favorabl e to Van Houten, t he facts do not est ablis h that t he VA thought his i mpairment s ubstantially l imit ed his abi lit y t o work. He held theposition of Claims Cler

k for seven y ears and was pr omoted in 2000. Further , theposition of Cla ims Cle rk g ene rally req uire s m ore typing than that o f In sura nce Ph one Sp ecia list.7

That the VA denied Van Houten a posi tion bec ause it considered him disabl ed, y et trans ferred hi m to a long-term position that would have been more dif ficul t for a pe rson with such a di sabil ity

to perform, stretches t

he imagination. B. Reta liation C laim We turn n ow to V an H outen ’s retaliatio n claim . It is unlaw ful fo r an em ployer to discriminate against

an employ ee “because he ha s made a charge, testifie d, ass ist ed, or parti cipat ed in anymanner in an i nvesti gation, proceedi ng or a heari ng under [Title VII] .” 42 U.S.C. § 2000e- 3a. To est ablis h a prim a facie case of retaliat ion, a plaintiff must show the foll owing: 1) t hat he or s he engaged in pr otect ed acti vity ; 2) t hat his or her employer took an adverse employment action against hi m or her; and 3) that there was a

cau sal c onn ectio n be twe en th e pr otec ted a ctivi ty and the a dve rse a ction
. Weston v. Pen nsylvan ia , 251 F.3d 420, 430 (3d Cir. 2001). The Dist rict Court correctl y found t hat Van Houten failed to establ ish a prim a facie case. At i ssue is whether Van Houten adequ ately set forth a causal con nection be tween his comp laints to the EEO and B ranin’s

me dio cre e valu ation . He did not . Van Houten reli es pri marily on the sequenc e of events . In Robinson v. Cit y of Pitt sburgh , 120 F.3d 1286 ( 3d Cir. 1997) , we noted that “our c ases ar e seemingl y spl it on the question w hether the timing of the alleged ly retali atory conduct can , by itself, support a finding of causation.” It appears that if timing alone is ever sufficient , that timing must be “unusually sugge sti ve.” See Farrel l v. Pl anters Lifesaver s Co. , 206 F.3d 271, 280 (3d3 It should be n oted that V an H outen do es not allege that the se cond a ppraisal differs

from the fi rst. Under these fac ts, theref ore, hi s EEO complaint regarding hi s fir st nonselectio n cou ld no t have mo tivated Bran in to pro duce the sec ond appr aisal. 8 Cir. 20 00) (h olding that tem pora l prox imity alone will ge nerally “b e insu fficien t to establish the ne cessa ry causal c onn ection wh en the temp oral rela tionsh ip is no t ‘unu sually sugg estive’” ); see also , Clark CountySchool Dist rict v. Breeden , 532 U.S. 268, 273 (2001) ( hol ding that

even “[t] he cases t

hat accept

mere temporalproximit y between an employe r' s knowledge of protected act ivit y and an a dverse employment acti on as suffici ent evi dence of causal ity to est ablis h a prima faci e case uni formlyhold that the tem por al pr oxi mity m ust b e ‘v ery clo se’” ) (cita tion s om itted ). The time peri od between Van Houten’s most recent EEO complaint (March 1997) and th e first no n-sele ction in June 199 8 is m ore tha n 15 mo nths. E ven w ere w e to measure as of Oct ober 10, 1997, the dat e Branin fi rst mani fested hi s knowledge of the EE O c om plain ts (as evid enc ed in an e ma il), the per iod of tim e is m ore than eigh t mo nth s. By it self, this sequence of event s is not unusuall y sugge sti ve. 3 Van Hou te n ha s a ls o fai le d t o s et fo rt h a nyad di ti onal e vi de nc e o f r et al iati on. He merely clai ms that he had “demon strablybetter quali fications than all of the selecti ons” and th at the a bov e-refe rence d em ail sent b y Branin dem onstra tes rese ntme nt tow ards h is protected activities. Va n Ho uten, how ever, provide s no evide nce that he w as more qualif ied tha n app licants w ho re ceive d hig her ratin gs, an d B ranin’ s em ail not o nly fails to show any ani mus but, to the contrary , evi dences a l ack of animus: “with workloadcurrentlybeing li ght at t he cat l evel, [J]i m’s visi ts t o the union of fice aren’t c urren tly hurting our c ustomers .” (em pha sis ad ded ). In sum , Van Ho uten f ailed to establish any cau sal con nectio n betw een h is protected activi ty and Branin’s apprais als. III. Conclusion For th e fore goin g reas ons w e w ill affirm both orde rs gran ting su mm ary judgm ent.