2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
6-3-2004 

# D a w ley v . E r ie I nde mnit y C o P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3860

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min
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w . v i l l a no va . e du/thir dc ir c uit_2004/6191 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No
. 03-3860
SHAWN M. DAWLEY,

Appellant
v.
ER IE I ND EM NI TY CO M PA NY ,

d/b/a ERI E I NSURANCE GROUP

On A ppeal from the Un ited States District Co urt for the We stern D istrict of P enns ylvania (D ist. C t. No
. 00-CV-00106 ) Distric t Judg e: Ho nora ble Sean J. M cLa ugh lin

Submitte d Under Third Circ uit LAR 34.1(a)

May 14, 2004 Be for e: N YG AA RD , M CK EE and CH ER TO FF , Circuit Judges (Fil ed: June 3, 2004)

OPI NION
CH ER TO FF , Circuit

Judge

. Appellant

Shawn M . Dawley brought sui t agai nst appel lee Eri e Indemnity Co.2

(“Erie Indemnity ”) all eging viol ations of Titl e VII of the Ci vil Right s Act of 1964, 42 U.S .C. § 200 0e, et seq. , and the Americans with Disabil iti es Act, 42 U.S. C. § 12101 et seq. The Distric t Cou rt gran ted E rie Ind emn ity’s motion for su mm ary judgm ent on all cl ai ms a gai nst

it . F orth e fo ll owi ng r eas ons , we wil l a ffi rm. I. We exercise pl enaryreview over adist rict court’ s grant

of summary j udgment, and
we app ly the sa me stan dar d th e dis trict c our t sho uld hav e ap plied

. See Farrell v. Planters Lifesaver s Co. , 206 F.3d 271, 278 (3d Cir. 200 0). A cou rt should gran t summ ary ju dg m en t if , vi ew in g t he fa cts an d d ra w in g a ll in fe re nc es in fa vo r o f th e n on m ov in g p ar ty, “the pl eadings, depositions, answers to i nterr ogatori es, and admi ssions on file , toge ther with the a ffidavi ts, if any , show that there i s no genuine i ssue as t o any mat erialfact and that t he moving party i s enti tled to a judgment as a matter of law.” Id. (q uotin g Fe d. R. Civ. P. 56(c )). We therefore s et fort

h the fact s in abbr eviat ed fashion ( since we write solel y for the p artie s) an d in terp reted mo st fa vor ably to app ellan t, the n onm ovi ng p arty. II. Erie Inde mnityhired Dawleyto work for i t as a s ecurit y offi cer on March 25, 199 1. A bou t four m onth s later, on July 23, 1 991 , Daw ley wen t on a le ave o f abs ence to und erg o su rge ry to re mo ve a bra in tu mo r. Dawley ret

urned to work on a par

t-time basis approximatelya year later, i n Julyof 1992, and hi s doctor

clear ed him to re sume all of his j ob responsi bili ties , with no restrictions, on September 3, 1992. Dawley ha d been in traini ng when he went on leave, and w hen h e return ed to w ork h is supe rvisor (J ame s F. B om ba) d ecide d that h e sho uld start his trai ning from the beginning.1 Daw ley eventually received a right to sue letter after the EEO C determ ined that there

wa s ev iden ce th at de fen dan t had vio lated the A DA but not Title VI I.

3 On June 2, 199 4, Erie Inde mn ity annou nced that it w as elim inating three s ecurity officer positi ons. Dawley had received positive performance evaluations over the course of the prev ious tw o years, bu t his po sition w as on e of th e three that B om ba de cided to elimi nate. One of the securi ty officer s who maintaine d his posi tion, Michael B. Whren,
wa s Af rican A meric an. E rie Ind emn ity had hire d D aw ley appro xima tely a year after it hired Whren. Da wley the reafte r receiv ed a tra nsfe r to the D istribution Serv ices D epartm ent, where he worked as a mailcourier beginning J uly 7, 1994. Approxi matelytwo months late r, on September 15, 1994, Dawley fil ed a complaint with the EqualEmployment Opportunity Commissi on (“EEOC”). He alleged t hat his securi ty officer

position had been eli minated due to his ra ce and because he was di sabled. 1 In the meantime, Dawley continue d to rece ive posi tive e valuations for his work as a mail courier, and he eventual ly bid for a j ob as a grounds attendant. Dawleyobtaine d the posi tion and be gan the j ob on November 13, 1995. On October 9, 1996, he rec eived another po sitive perform ance ev aluation from his new supervisor, C huck S nyder. On M ay 16, 1997, however, Snyder instituted a formal disci plinaryaction against Dawley for al leged i nsubordinate conduct during a gr oundskeeper uni t meeti ng. Dawley was warned that a ny further argumentati veness, insubordi nation, violat ion of company policy , or fai lure t o perform his job duti es at an a cceptabl e levelwould not be tol erate d and would resul t in fur

ther di scipl inaryacti on, up to a nd includi ng termination. Richards held review meetings with Daw ley on June 20, 1997 and Augu st 20, 1997 to address simil ar job performance is sues, includi ng alle ged tardi ness and continuing argumentati ve2 Daw ley eventually received a right to sue letter after the EEO C determ ined that there

wa s evid ence that de fend ant ha d retaliate d aga inst him in viola tion of the A DA and T itle VII.

4 behav ior. Two days later, on August 22, 1997, Ri chards pl aced Dawley on a s ixty day probati onary period for alle ged conti nuing unsatisfactory job performance and argumentativeness . The accompany ing performance evaluation gave Dawley negati ve rati ngs in seve ral categori es, s uch as “interpers onal rel ations ” and “quali ty of job performance. ” On September 19, 1997, Richards met with Dawley a nd told hi m he was fire d be cau se h e co ntin ued to ex hib it un acc epta ble jo b pe rfo rma nce by, inter alia , smoking in t

he groundskeepi ng garage, fail ing to s tart work on time, and questi oning Richards’s directi ons. 2 Da wley alle ges th at Erie Inde mn ity (1) violated Title V II by elimin ating h is positio n as se curity off icer du e to his r ace; (2 ) violate d the A DA by elimin ating h is position as se curity offi cer due t o his di sabil ity ; (3) violated Titl e VII and the ADA by terminating hi m in reta liat ion for fi ling a c omplaint with the EEOC allegi ng race and disabi lit y di scri minati on; and (4) violated the ADA by termi nating hi m in order to cut the
cos ts ass ocia ted w ith h is alle ged disa bility. W e ad dre ss D aw ley’s c laim s ser iatim

. III. We apply the three -ste p McD onnell Dougla s burden shi fting s cheme to claims of dispar ate treatment

and reta liat

ion under Ti tle VIIand the ADA w here, a s here, a plai ntiff doe s no t off er d irect evid enc e of disc rimi natio n. See Jone s v. Sc h. D ist. of Ph iladelp hia , 198 F.3d 403 , 410 ( 3d C ir. 1999 ) (Title V II dispa rate trea tmen t); Woodson v. Scott Pape r Co. , 109 F .3d 91 3, 920 (3d C ir. 1997 ) (Title V II retaliation ); Shaner v. Sy nthes , 204 F.3d3 To succeed on a direct evi dence theory, “the evi dence must be suc h that i t demonstr ates

that the decisio nm akers place d sub stantial n egativ e relian ce on an illeg itimate c riterion in reachi ng their

decisi on.” Connors v. Chry sler Fin. Corp. , 160 F.3d 971, 976 (3d Cir. 199 8) (intern al citation s and quo tations o mitted ); see also Fakete v. Aetna, Inc
. , 308 F.3d 335, 338-39 ( 3d Cir. 2002) . Despite his as sertions t o the contrary , Dawley ha s not offered evid enc e tha t wo uld wa rran t pro cee din g alo ng t hat tr ack

.
5 494, 500 (3d Cir. 200 0) (AD A dispa rate treatment and retaliation). 3 In the first s tep, the plaint iff must make out

a prima faci e case. If he does, a presumpti on of discrimination or retal iati on aris es and the burden shift s to the defendant to produce “evi dence which, t aken as true, would permi t the c onclusi on that t here was a nondis criminatory[or nonretal iator

y] reason for

the unfavor able employment decis ion.” Fue ntes v . Persk ie , 32 F.3d 759, 763 ( 3d Cir. 1994) . If t he defendant carri es thi s burden, the pres umption drops out an d the p laintiff m ust sub mit ev idenc e “‘fro m w hich a factf inder c ould reaso nably eithe r (1) di sbeli eve the employ er’s arti culat ed legi timat e reasons ; or ( 2) beli eve that an invidi ous discriminat ory [or ret aliatory ] reas on was more likel y than not a moti vating or determi native cause of the employ er’s a ction. ’” Keller v. Orix Credit Allianc e, Inc. , 130 F.3d 1101, 1108 ( 3d Cir. 1997) (en banc) ( quoting Fuentes , 32 F.3d at 7 64). As a p reliminary matter, we ad dress w hether in review ing the D istrict Court’s ju dgme ntwe ca n pr ope rl y con si der certa in doc umen ts (the d et er min at io ns b y th e EEOC,
see supra notes 1- 2) that Dawley urges creat e disputed issue s of fact. Dawley attached t he documents to hi s second amended complai nt, but he did not of

fer the m to the Dist

rict Court when he opposed defendant ’s moti on for summary judgment. Nor did he make any mention of t

hem to the Dist

rict Court, e ither

in his papers or

at oralargument on def end ant’ s m otio n. To be s ure , a C our t can con side r “p lead ing s” o n a m otio n fo r sum ma ry judg me nt. But it i s not cl ear that a complai nt and accompany ing documents are part of the re cord on4 Indeed the Western Dist rict of Pennsy lvania ’s Local Rul e 56.1 requires a party opposing a motion for

summary j udgment to ci te to t he parti cular part of t

he record t

hat evi dences the e xiste nce of a n iss ue o f dis put ed f act.

6 sum ma ry judg me nt ab sen t a pa rty off erin g it to the D istrict Co urt p ursu ant to Ru le 56

. Inso far a s the y are n ot, w e ca nno t con side r the m o n ap pea l. See 

### Union Pac. R. R. Co. v. Greentr ee Transp. Trucking Co. , 293 F.3d 120, 125 -26 (3d Cir. 2002) (“[A ]n ap pellate court mayonly review the record as it exi sted at the ti me summary j udgment was entere d.”). Even if they are properly considered part of the summaryjudgment re cord, however, Dawley ’s fai lure t o refer t he District Court

to them as a

basis f or deny ing def end ant’ s m otio n fr om sum ma ry judg me nt p reclu des him fro m d oin g so now on a ppe al. Rule 56 does not obl ige a di stri ct court to scour the entire record to f

ind a fact

ual dis pute. See, e. g. , Am nesty Ame rican v. Tow n of W est Hartford , 288 F.3d 467, 470 -71 (2d C ir. 200 2) (co llecting c ases); Carm en v. S an F rancis co U nified Sch . Dist. , 237 F.3d 1026, 1029-3 1 (9th C ir. 2001). 4 Just as a party on appeal “‘ cannot add exhi bits , deposi tions , or affidavi ts t o support t

heir pos iti on,’” i t cannot “‘advance new theor

ies or rais e new issues in order to secur e a rever sal of t he lower court ’s det ermination.’ ” 

### Greentr ee Transp. Trucking Co. , 293 F.3d at 126 (quoting 10A Charles A . Wright & Arthur R . Miller, Federal P ractice and P rocedure § 27 16 ( 199 8) ). We the re fo re do n otco ns id erth e EE OC dete rmin ation s in re view ing the D istrict Co urt’s dec ision

. A. The Distri ct Court a ssumed arguendo that Dawley establi shed a prima facie case of dispar ate t

reatment under Title VII and pr oceeded to determine whether defendant sati sfied i ts burde n of producti on. To do so, Erie Indemni ty offered an affi davit f rom James Bomba describi ng how he chose which employ ees’ posi tions to eli minate. The7

affidavi t st ates t

hat he made the decisi on based on the respecti ve employ ees’ ( 1) amount of work experienc e at Eri e Indemnity as a securi ty officer ; (2) job performance as reflected in perf orman ce evalua tions; and (3) prior sec urity experience w ith employers other t han Erie I ndemnity . The District Court concl uded that

Erie Inde mnityhad sati sfied its burden, and we agr ee. Daw ley argues that a factfind er could disb elieve the reason s offered in Bom ba’s affidavi t because he in fact had commenced work at Erie I ndemnityearli er than Whren, the A frican Am erican secu rity officer w ho m aintain ed his positio n. Bu t Bom ba state s in his affi davit t

hat he di d not base hi s decis ion on the l ength of time each security officer was employed by

Erie Inde mnity . Rather , he l ooked at how much time each of ficer had actual ly worked as a security officer at Eri e Indemnity. In other words, the criterion was exp erien ce ra ther than sen iority. Da wle y beg an h is train ing ane w w hen he r etur ned to w ork in Ju ly of 1 992
. Whren, who began work at Erie Indemnity in Aprilof 2002, was therefore furt her ahead in his trai ning and job e xperienc e. Moreover, the rec ord indi cates t hat Whren had recei ved on overal l performance assess ment of 104 point s, whil e Dawley had re ceived an assessment of 100. Thus D awley has failed to demonstrate “s uch weakn esses, implausibilities, inconsistencies, incoh erencies, or con tradictions in the em ployer’s prof fered legitima te reaso ns fo r its action s that a re ason able f actfin der co uld ratio nally find the m unworthy of credence.” Fuentes , 32 F.3d at 765 (emphasis and inte rnal quotations o mitted). Ne xt, Da wley arg ues th at an a ffida vit from Lau rel H irt (a form er em ployee a t Erie Indemnity

and the gra nd-daughter of the company ’s co-f

ounder) t ends to show that an invidi ous reason was more l ikely than not a

motivating or determinative cause of the8

decisi on to eli minate hi s position. We agree wit h the Dist

rict Court’s c onclusi on, however, that “give n the three-fol d problems wit h Hirt’ s affidavi t, i .e. , the lack of personalknowledge, i ts re lianc e on hearsay , and i ts completelyspeculat ive nature, i t runs afou l of R ule 56 (e) of the F edera l Rule s of C ivil Pro cedu re and does not cre ate a triab le issue of fact. ” In the a ffidavi t Hirt avers, for example, that e limi nating t he “onlyblack Secu rity Offic er at E rie Ind emn ity Com pany, w ould likely hav e dam aged the rela tionsh ip the Company had wit

h Rev. Dwayne Brock,” who, she states, is “a voca l activis t for t he Af rican A meric an C om mu nity.” Ap pellee ’s Su pp. A pp. 45 4-55 . This s tatem ent is entirelyspeculat

ive. The remaining por tions of the affi davit s uffer from si milar sho rtco min gs. B. The Distri ct Court gr anted summaryjudgment on Dawley ’s ADA claim on the basis t hat he had not

offered evi dence tendi ng to show that he was an “indi vidual wit h a disa bility” w ithin the m ean ing of th e A DA , one of th e ele me nts o f a p rima fac ie ca se. See Taylor v . Pho enixv ille Sch . Dist. , 174 F.3d 142, 151 (3d Cir. 1999). The ADA defines “disability” as “(A) a physical or m ental impairm ent that substantially limits one or mo re of t he ma jo r l if e ac ti vi ti es of [ an] in di vi dua l; (B) a r eco rd of s uch imp ai rme nt ; o r ( C) being regard ed as havin g suc h an im pairm ent.” 4 2 U .S.C. § 121 02(2 ). Daw ley appe ars to argue that at t

he time of hi s transfer he was di sabled under eithe r the first or

second defini tion. We find that t here is insuffi cient

evidence i n the rec ord for a j ury to concl ude that D aw ley w as d isab led u nde r eith er o f the se sta nda rds. First , no evi dence tends to show that Dawley suffered from a phy sicalor mental impairment

that s ubstantiall y l imit ed one or more of hi s major l ife activities. Indeed, t he releva nt evide nce tends to show the contr ary . In a ques tionnaire Dawley s ubmitt ed to the9

EE OC , for ex amp le, he sta ted tha t “the o nly majo r life activ it[y] that I can not d o is w alk
on a r oof or run very fas t.” Ap p. 136 . He f urther testified at his de positio n that h is limi tati ons did not

affect hi s abil ity

to perform job-rel ated duties. Now, in his brief on appe al, Da wley co ntend s that he suff ers fro m a v ariety of p hysical lim itations d ue to h is operati on. But a moti on for summary judgment cannot “be defeate d by fact

ual ass erti ons in th e br ief o f the par ty opp osin g it.” 1 0A Ch arles A. W righ t & Ar thu r R. M iller, Federal Practice and Proced ure § 2723 , at 389-90 (3 d ed. 199 8). A party oppo sing sum mary jud gm ent m ust d o so thro ugh the m ean s co ntem plate d by R ule 5 6. Second, a “r ecord of such i mpairments ” exist s when “a record relie d on by an
em plo yer ind icate s tha t the i ndi vid ual h as o r ha s ha d a s ubs tanti ally lim iting imp airm ent.” 29 C.F.R. pt . 1630 App., § 1630.2(k) . Here, Dawley’s employment records show that ( 1) he lef t wo rk to h ave a n op eration to rem ove a tumo r; and ( 2) in S eptem ber o f 19 92 h is docto r wro te: “Th e patie nt, Sha wn Da wley, m ay return to wo rk w ithout re strictions at this time. Patient

has been working hi s regul ar job at Erie Ins urance with no problems or symptoms.” A ppellee’s Su pp. Ap p. 389. Th us Da wley canno t show th at he had a “record of such impai rments” bec ause “[t ]he impai rment indi cated i n the rec ord must be an impairment

that would s ubstantiall y l imit one or more of the indivi dual' s major l ife acti viti es.” Id. The fact th at Da wley too k a year le ave f rom wo rk to re cove r from his ope ratio n do es n ot cr eate a rec ord of im pair me nt. See Colwell v. Suffolk CountyPolice De pt. , 158 F.3 d 63 5, 64 5 (2 d C ir. 19 98)
. C. To make out a prima fac ie case of reta liat ion, aplaint

iff must s how that “(1) he was engaged in protected act ivit y; (2) he was di scharged s ubsequent to or contemporaneous ly with such act ivit y; and (3) there is a causal link between the prot ected10

acti vity and the di scharge. ” Woodson , 109 F .3d at 9 20. D aw ley’s retaliation claim s fail because no re asonable j ury could concl ude from the evi dence in the record t hat the re was
a ca usa l con nec tion betw een his E EO C f iling and term inati on. We hav e held that temporal proximity between protected conduct and an adv erse employment

acti on, absent

any addi tionalevidence of causati on, may suffice to defeat
sum ma ry judg me nt. See Farrel l v. Pl anters Lifesaver s Co. , 206 F.3d 271, 279-80 (3d Cir.2000) . But no t emporal proxi mityexist s here; Dawley was fired three year s after he file d his complai nt with t he EEOC . Further, Dawleyhas pointed to no evi dence from the intervening three ye ar peri od that would s upport an i nference of r etal iati on. D. Fina lly, Daw ley argue s that E rie Ind emn ity violated th e A DA beca use o ne of its executi ves fir ed him in orde r to sa ve the companymoney, and there by i ncrease t he executi ve’s compensation under a c ompany cost -cutting ince ntive pl an for seni or executi ves. The Dist

rict Court granted summary j udgment on the gr ounds that Dawley had faile d to exh aus t his a dm inistr ative rem edie s. We agree that ha d D aw ley alleged in his co mp laint that d efen dant f ired him because he was disabled in violation of the ADA , Dawley would have failed to exhaust the c laim as th e A DA req uire s. See Churchillv. Star Enterpri ses , 183 F.3d 184, 190 (3d Cir. 1999) . Dawley ne ver brought that c laim t o the attenti on of the EEOC, and it di d not fall w ithin the scop e of h is prev ious c om plaint to the E EO C alle ging that E rie Ind emn ity term inate d hi m in retal iatio n fo r his p rev iou s EE OC filin gs. See Antol v . Perry , 82 F.3d 1291, 12 95-96 (3 d Cir. 199 6). Bu t Daw ley failed to allege this claim in his co mp laint. Th us, be caus e the c laim was not properly before the District Court , the Court could not grant s ummary judgment5 We und erstan d fro m D aw ley’s brief th at he h as filed a claim with the E EO C an d is

aw aiting f inal ag ency ac tion. W e of c ourse expr ess no opin ion as to w hethe r res jud icata would bar anyfuture fe deral s uit on t hat cl aim under our de cisi on in Churchillv. Star Enterpri ses , 183 F.3d at 189-92.

11 on it. D aw ley states tha t he did not lea rn that h e w as fired beca use o f his d isability until disco very had occu rred. If th at wa s the ca se, he s hou ld hav e mo ved to ame nd h is comp la in t t o i nco rp or at e the n ew cl ai m. 5 IV. For th e fore goin g reas ons, w e w ill affirm the jud gm ent of the D istrict Co urt.