1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4789

___________

MICHAEL GERA,

Appellant

v.

COUNTY OF SCHUYLKILL

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-12-cv-01227)

District Judge: Honorable Richard P. Conaboy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2015

Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: July 15, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Michael Gera appeals pro se from the District Court’s grant of summary judgment 

to the defendant on his disability discrimination action. For the reasons set forth below, 

we will affirm.

I.

Gera began his career as a correctional officer for the Schuylkill County Prison in 

1986. Approximately 20 years later, he was diagnosed with a degenerative joint disease, 

which limited his mobility. Gera requested light-duty work and was assigned to the 

prison’s control room. In January 2008, a new collective bargaining agreement went into 

effect, and under its terms Gera was no longer eligible for the control room assignment, 

as that was reserved for employees with temporary, work-related injuries. Because 

Gera’s disability precluded him from returning to the regular duty correctional officer 

position, he was placed on medical leave on February 26, 2008. In accordance with the 

collective bargaining agreement, the County laid Gera off on January 19, 2011, due to a 

staff shortage. In the interim, Gera applied for and was awarded Social Security 

disability benefits retroactive to February 26, 2008.

In 2012, after obtaining a right to sue letter from the EEOC, Gera filed this action, 

alleging that Schuylkill County violated the ADA and the Pennsylvania Human Relations 

Act and wrongfully retaliated against him. Ultimately, the District Court granted the 

defendant’s motion for summary judgment, primarily because Gera failed to show that he 

was a qualified individual within the meaning of the ADA, his disability benefits claim 

precluded his ADA claim, and he failed to show retaliation. Gera timely appealed.

II.
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We have jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise plenary 

review over a District Court’s decision to grant summary judgment. Giles v. Kearney, 

571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate when the record 

establishes that “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making this 

determination, “[t]he evidence of the non-movant is to be believed, and all justifiable 

inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

255 (1986).1

The ADA prohibits employers from discriminating “against a qualified individual 

on the basis of disability in regard to job application procedures, the hiring, advancement, 

or discharge of employees, employee compensation, job training, and other terms, 

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified 

individual” with a disability is a person who, “with or without reasonable 

accommodation, can perform the essential functions of the employment position that such 

individual holds or desires.” 42 U.S.C. § 12111(8). To make a prima facie disability 

discrimination case, Gera must demonstrate that: “(1) he is a disabled person within the 

meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of 

the job, with or without reasonable accommodations by the employer; and (3) he has 

suffered an otherwise adverse employment decision as a result of discrimination.” Gaul 

 

1 Although the EEOC made preliminary findings in favor of Gera, we review his claims 

de novo and are not bound by these findings. See Morris v. Rumsfeld, 420 F.3d 287, 294 

(3d Cir. 2005).
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v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). It is Gera’s burden to 

demonstrate that he is a qualified individual. Id.

The District Court rejected Gera’s ADA claim because it found he was not a 

qualified individual. We agree. It is undisputed that Gera could not perform the essential 

functions of a regular duty correctional officer. In particular, Gera conceded that he 

could not engage in the custody or control of inmates due to his physical disabilities. No 

reasonable accommodation existed that would have enabled Gera to perform this 

function. Accordingly, Gera was not a qualified individual, and his disability 

discrimination claim fails.

Gera argues that the defendant should have accommodated him by allowing him to 

remain in the control room. But it is well-established that “[t]he ADA does not require 

an employer to create a new position . . . . [or] transform a temporary light duty position 

into a permanent position.” Buskirk v. Apollo Metals, 307 F.3d 160, 169 (3d Cir. 2002). 

As to Gera’s argument that he should have been transferred to a different position in the 

County, it was his burden to ‘“demonstrate that there were vacant, funded positions 

whose essential duties he was capable of performing,’” and he has failed to offer even 

one such position. Gaul, 134 F.3d at 580 (quoting Shiring v. Runyon, 90 F.3d 827, 832 

(3d Cir. 1996). Because Gera failed to demonstrate that he is a qualified individual, his 

argument that the defendant violated the ADA by not engaging in an interactive process 

also fails. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 193-94 & n.20 (3d Cir. 

2009) (collecting cases holding that failure to engage in interactive process is 

unimportant if employee is not a qualified individual). Gera raises no other meritorious 
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arguments in his appeal, and the record reveals none. We will therefore affirm the 

District Court’s grant of summary judgment to the defendant on Gera’s ADA disability 

discrimination claim.2

We will also affirm the District Court’s judgment on Gera’s retaliation claim. “To 

establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1) 

protected employee activity; (2) adverse action by the employer either after or 

contemporaneous with the employee’s protected activity; and (3) a causal connection 

between the employee’s protected activity and the employer’s adverse action.” Krouse v. 

Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). The District Court found that 

Gera’s request for accommodation in 2008 was protected conduct and his discharge was 

an adverse an action, but it rejected his claim because he failed to show a causal 

connection between the two events. Ordinarily, a causal connection may be shown by 

“(1) an unusually suggestive temporal proximity between the protected activity and the 

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to 

establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d 

Cir. 2007). As the District Court concluded, Gera offers no evidence of antagonism, and 

the nearly three year gap between his requested accommodation and discharge is not 

unusually suggestive of retaliation. Cf. Williams v. Phila. Hous. Auth. Police Dep’t, 380 

F.3d 751, 760 (3d Cir. 2004). Nor has Gera shown that “evidence gleaned from the 

record as a whole” suggests causation. Lauren W., 480 F.3d at 267 (quotation marks 

 

2 Accordingly, we need not address the argument that Gera’s disability benefits claim 

precludes his disability discrimination claim.
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omitted). Indeed, in his response to the defendant’s statement of undisputed facts, Gera 

did not dispute the defendant’s contention that it ultimately laid him off due to a staff 

shortage, in accordance with the collective bargaining agreement. Gera’s retaliation 

claim therefore fails, and the District Court properly granted summary judgment to the 

defendant on this claim.3

III.

For the foregoing reasons, we will affirm the judgment

 

3 Because Gera’s ADA discrimination and retaliation claims fail, his PHRA claim also 

fails. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002).