NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 21-1031 ________________
WILLIAM A. BAUM,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action Nos. 2-19-cv-00421) District Judge: Honorable Cathy Bissoon
Submitted under Third Circuit LAR 34.1(a) On September 24, 2021
Before: MCKEE*, RESTREPO, and ROTH, Circuit Judges
(Opinion filed: November 14, 2022)
________________
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
*Judge McKee assumed senior status on October 21, 2022. ROTH, Circuit Judge
William Baum alleges that his employer, the Social Security Administration
(SSA), subjected him to discrimination and retaliation because of his sex and disabilities
(ulcerative colitis and liver disease), about which he had previously filed EEOC
complaints. The District Court granted the SSA’s motion for summary judgment,
finding that Baum presented no evidence that the SSA denied him promotions because of
his disability or in retaliation for filing EEOC charges. The District Court also held that
Baum had not meaningfully refuted any of the SSA’s stated non-discriminatory bases for
its decisions. We will affirm.
I.
Baum’s claims pertain to his non-selection for two promotions. Baum applied for
and was denied a promotion to district manager in his office in Butler, PA. He also
applied for and was denied a promotion to assistant district manager in Ambridge, PA. In
addition, Baum argued that his subsequent demotion from operations supervisor to claims
representative was discriminatory and retaliatory. 1
1 Baum additionally argued that a 2017 performance review by Amber Mundis was an adverse employment action. Although the SSA argued that any claim based on the performance review was waived, we do not conclude that waiver or forfeiture took place. Nonetheless, we hold that the 2017 review was not an adverse employment action as it was not “serious and tangible enough to alter [Baum’s] compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). In fact, Baum’s score of a 4.0 out of 5.0 was by no means a bad score, as it meant that he was eligible for a bonus. It also did not result in loss of pay or a demotion. See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (holding written reprimands were not adverse employment actions because they had not caused a “material change in the terms or conditions of his employment”). 2 The Butler position became available when Baum’s former supervisor, George
Ziecina, retired. Baum served as Ziecina’s right-hand man. Baum, and at least eight
other employees, applied to replace Ziecina. Ziecina’s immediate supervisor, Amber
Mundis, recommended against Baum’s selection. She noted that Baum had difficulties
providing honest and timely feedback, collaborating with coworkers, engaging
employees, demonstrating leadership, and communicating appropriately and sufficiently.
The position ultimately went to a different candidate who outranked Baum in the SSA,
had previously served as a district manager, and had received praise for his
communication skills. Baum later applied for an assistant district manager position in the
Ambridge office. The position again went to someone who had experience in the
position and office. Baum was then demoted for sending unprofessional text messages to
a coworker.
Baum was upset by his non-promotions and made several inappropriate and
potentially threatening remarks in response. The District Court discussed these after-the-
fact comments, which Baum now argues amounted to making an improper credibility
determination at the summary-judgment stage. In granting summary judgment, the
District Court held that Baum had not identified any evidence showing that he was denied
promotion in retaliation for filing an EEOC charge. Indeed, Baum failed to show that his
supervisor knew he had filed an EEOC charge before passing him over for the first
promotion. Baum also failed to cast doubt on the SSA’s evidence that he was not
promoted because he was less qualified for the position than other candidates.
3 II. 2
We review a district court’s grant of summary judgment de novo, applying the
same standard the district court would use. 3 Summary judgment is appropriate only if the
movant shows that there is no genuine dispute about any material fact and the movant is
entitled to judgment as a matter of law. 4
III.
Title VII prohibits an employer from discriminating against an employee on the
basis of race, color, religion, sex, or national origin. 5 Courts have also determined that
Title VII’s anti-retaliation protections extend to the federal government. 6 7
To state a prima facie case of retaliation, Baum must show that (1) he engaged in
a protected activity, (2) he suffered an adverse employment action, and (3) there was a
causal connection between the participation in the protected activity and the adverse
action. 8 A plaintiff seeking to prove his case through indirect evidence, as Baum seeks to
2 The District Court had jurisdiction under 28 U.S.C. § 1331, and we exercise appellate jurisdiction under 28 U.S.C. § 1291. 3 Matheis v. CSL Plasma, Inc., 936 F.3d 171, 176 (3d Cir. 2019). 4 FED. R. CIV. P. 56(a). 5 42 U.S.C. § 2000e–16(a). 6 See id. § 2000e–3(a); Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 294 (3d Cir. 2019) (“[F]ederal employees may bring claims of retaliation under Title VII.”) 7 Title VII does not protect against discrimination or retaliation based on disability. On appeal, the SSA maintains that Baum failed to assert a disability-based retaliation claim under the Americans with Disabilities Act, as applied to the federal government through the Rehabilitation Act. Baum, however, maintains that the SSA understood him to be asserting a claim for retaliation in addition to discrimination under the Rehabilitation Act, as evidenced by their failure to challenge this until appeal. We need not decide this issue because we will affirm the District Court’s order on alternative grounds. 8 Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006) 4 do here, may do so under the familiar McDonnell Douglas burden-shifting
framework. 9 After establishing a prima facie case, the burden shifts to the employer to
provide a legitimate non-retaliatory reason for its conduct. 10 If it does, the burden shifts
back to the plaintiff “to convince the factfinder both that the employer’s proffered
explanation was false [that is, a pretext], and that retaliation was the real reason for the
adverse employment action.” 11
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 21-1031 ________________
WILLIAM A. BAUM,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action Nos. 2-19-cv-00421) District Judge: Honorable Cathy Bissoon
Submitted under Third Circuit LAR 34.1(a) On September 24, 2021
Before: MCKEE*, RESTREPO, and ROTH, Circuit Judges
(Opinion filed: November 14, 2022)
________________
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
*Judge McKee assumed senior status on October 21, 2022. ROTH, Circuit Judge
William Baum alleges that his employer, the Social Security Administration
(SSA), subjected him to discrimination and retaliation because of his sex and disabilities
(ulcerative colitis and liver disease), about which he had previously filed EEOC
complaints. The District Court granted the SSA’s motion for summary judgment,
finding that Baum presented no evidence that the SSA denied him promotions because of
his disability or in retaliation for filing EEOC charges. The District Court also held that
Baum had not meaningfully refuted any of the SSA’s stated non-discriminatory bases for
its decisions. We will affirm.
I.
Baum’s claims pertain to his non-selection for two promotions. Baum applied for
and was denied a promotion to district manager in his office in Butler, PA. He also
applied for and was denied a promotion to assistant district manager in Ambridge, PA. In
addition, Baum argued that his subsequent demotion from operations supervisor to claims
representative was discriminatory and retaliatory. 1
1 Baum additionally argued that a 2017 performance review by Amber Mundis was an adverse employment action. Although the SSA argued that any claim based on the performance review was waived, we do not conclude that waiver or forfeiture took place. Nonetheless, we hold that the 2017 review was not an adverse employment action as it was not “serious and tangible enough to alter [Baum’s] compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). In fact, Baum’s score of a 4.0 out of 5.0 was by no means a bad score, as it meant that he was eligible for a bonus. It also did not result in loss of pay or a demotion. See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (holding written reprimands were not adverse employment actions because they had not caused a “material change in the terms or conditions of his employment”). 2 The Butler position became available when Baum’s former supervisor, George
Ziecina, retired. Baum served as Ziecina’s right-hand man. Baum, and at least eight
other employees, applied to replace Ziecina. Ziecina’s immediate supervisor, Amber
Mundis, recommended against Baum’s selection. She noted that Baum had difficulties
providing honest and timely feedback, collaborating with coworkers, engaging
employees, demonstrating leadership, and communicating appropriately and sufficiently.
The position ultimately went to a different candidate who outranked Baum in the SSA,
had previously served as a district manager, and had received praise for his
communication skills. Baum later applied for an assistant district manager position in the
Ambridge office. The position again went to someone who had experience in the
position and office. Baum was then demoted for sending unprofessional text messages to
a coworker.
Baum was upset by his non-promotions and made several inappropriate and
potentially threatening remarks in response. The District Court discussed these after-the-
fact comments, which Baum now argues amounted to making an improper credibility
determination at the summary-judgment stage. In granting summary judgment, the
District Court held that Baum had not identified any evidence showing that he was denied
promotion in retaliation for filing an EEOC charge. Indeed, Baum failed to show that his
supervisor knew he had filed an EEOC charge before passing him over for the first
promotion. Baum also failed to cast doubt on the SSA’s evidence that he was not
promoted because he was less qualified for the position than other candidates.
3 II. 2
We review a district court’s grant of summary judgment de novo, applying the
same standard the district court would use. 3 Summary judgment is appropriate only if the
movant shows that there is no genuine dispute about any material fact and the movant is
entitled to judgment as a matter of law. 4
III.
Title VII prohibits an employer from discriminating against an employee on the
basis of race, color, religion, sex, or national origin. 5 Courts have also determined that
Title VII’s anti-retaliation protections extend to the federal government. 6 7
To state a prima facie case of retaliation, Baum must show that (1) he engaged in
a protected activity, (2) he suffered an adverse employment action, and (3) there was a
causal connection between the participation in the protected activity and the adverse
action. 8 A plaintiff seeking to prove his case through indirect evidence, as Baum seeks to
2 The District Court had jurisdiction under 28 U.S.C. § 1331, and we exercise appellate jurisdiction under 28 U.S.C. § 1291. 3 Matheis v. CSL Plasma, Inc., 936 F.3d 171, 176 (3d Cir. 2019). 4 FED. R. CIV. P. 56(a). 5 42 U.S.C. § 2000e–16(a). 6 See id. § 2000e–3(a); Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 294 (3d Cir. 2019) (“[F]ederal employees may bring claims of retaliation under Title VII.”) 7 Title VII does not protect against discrimination or retaliation based on disability. On appeal, the SSA maintains that Baum failed to assert a disability-based retaliation claim under the Americans with Disabilities Act, as applied to the federal government through the Rehabilitation Act. Baum, however, maintains that the SSA understood him to be asserting a claim for retaliation in addition to discrimination under the Rehabilitation Act, as evidenced by their failure to challenge this until appeal. We need not decide this issue because we will affirm the District Court’s order on alternative grounds. 8 Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006) 4 do here, may do so under the familiar McDonnell Douglas burden-shifting
framework. 9 After establishing a prima facie case, the burden shifts to the employer to
provide a legitimate non-retaliatory reason for its conduct. 10 If it does, the burden shifts
back to the plaintiff “to convince the factfinder both that the employer’s proffered
explanation was false [that is, a pretext], and that retaliation was the real reason for the
adverse employment action.” 11
Baum does not establish causation at either stage because he failed to present
evidence that his non-selections and demotions were because of any prior, protected
EEOC activity. Although Baum maintains that it is possible that Mundis was aware that
he had engaged in protected activity by filing an EEOC complaint against her in
December 2016, Baum’s mere speculation that Area Director Greg Roy told her of the
claim or that she found out through other means is insufficient to show causation. 12
Baum also failed to establish a causal link because he did not show “unusually
suggestive” timing, as around ten months had passed between Baum’s initial EEOC
contact and his Butler non-selection, and another three months between Baum’s second
9 McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973). 10 Moore, 461 F.3d at 342. 11 Id. 12 See Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 197 (3d Cir. 2015) (“Daniels cannot justifiably rely on mere speculation that these adverse actors learned of her complaints from other employees in the school district.”); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (holding that an inference based on speculation or conjecture does not create an issue of material fact sufficient to survive summary judgment). 5 round of EEOC activity (after the Butler non-selection) and the Ambridge non-selection.
Without more, these gaps are too long to support a causal link. 13
Given that the timing is not “unusually suggestive,” we consider whether the
proffered evidence as a whole is sufficient to raise the inference of retaliation. “Among
the kinds of evidence that a plaintiff can proffer are intervening antagonism or retaliatory
animus, inconsistencies in the employer’s articulated reasons for terminating the
employee, or any other evidence in the record sufficient to support the inference of
retaliatory animus.” 14 Baum did not provide any such evidence, nor did he show that the
SSA’s reasons for its actions were pretextual. .
The District Court’s consideration of Baum’s inappropriate comments made after
his rejections was also proper. Rather than being used for credibility and intent
purposes, which would best be left to a jury, the District Court clearly referred to these
comments to underscore the non-discriminatory reasons why Baum was not promoted.
Finally, Baum argues that the District Court’s grant of summary judgment on his
Rehabilitation Act claim was improper as the District Court did not decide whether the
SSA failed to accommodate his disabilities or state any reasons for granting summary
judgment with respect to this claim. However, the District Court thoroughly and
thoughtfully canvassed the relevant record, referred to the Rehabilitation Act claim, and
13 See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.”). 14 LeBoon, 503 F.3d at 232–33. 6 correctly concluded that “[t]here is not one whiff of evidence that Plaintiff was passed
over, or demoted, because of a disability or in retaliation for having filed EEO charges.” 15
Baum’s Rehabilitation Act argument focused entirely on his non-selections for the
promotions, which the District Court adequately addressed.
IV.
For these reasons, we will affirm the judgment of the District Court.
15 Appx. 7. 7