NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 09-4680


                                TODD GLADYSIEWSKI,
                                          Appellant

                                             v.

                                 ALLEGHENY ENERGY


                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              (D.C. Civil No. 2-07-cv-01339)
                    District Judge: Honorable David Stewart Cercone


                       Submitted Under Third Circuit LAR 34.1(a)
                                    September 16, 2010

               Before: SCIRICA, RENDELL and FISHER, Circuit Judges.

                               (Filed: September 20, 2010)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Plaintiff Todd Gladysiewski appeals from a District Court order granting

defendant’s motion for summary judgment on plaintiff’s claims of retaliatory termination.

For the reasons set forth below, we will affirm the ruling of the District Court.
                                               I.

       Gladysiewski is a former employee of defendant Allegheny Energy Service

Corporation, where he worked as a technician. He was hired in 1987 and attained the

“Serviceman A” classification in 1994, which he retained until October 2004, when he

was demoted to the “Serviceman B” classification and placed on a performance

improvement plan. Gladysiewski’s supervisor, David Smith, gave him a letter explaining

the reasons for the demotion, which included his failure to accept after-hours service

calls, failure to follow Allegheny’s policies and procedures, failure to pay attention during

work assignments, and unwillingness to participate in projects with co-workers.

Gladysiewski filed administrative complaints in January and June 2005 alleging age

discrimination. He then filed a lawsuit in federal court on July 21, 2005, and the District

Court granted summary judgment to Allegheny on April 11, 2007. On June 26, 2008, we

affirmed the District Court’s order.

       On May 15, 2007, Gladysiewski was informed that his employment was being

terminated. He then brought a second lawsuit in federal court in October 2007, asserting

claims of retaliation under 29 U.S.C. § 621 and 43 P.S. § 951. Specifically, Gladysiewski

claims that he was terminated in retaliation for filing the earlier administrative complaint

and the federal lawsuit against the company.

       Allegheny filed a motion for summary judgment. Chief Magistrate Judge Amy

Reynolds Hay issued a Report recommending that the motion be granted, and the District



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Court adopted the Report and entered judgment in favor of Allegheny.

                                               II.

       Gladysiewski argues that the District Court erred in granting summary judgment

for Allegheny because he raised issues of material fact regarding whether Allegheny’s

proffered reasons for his termination were pretextual. We exercise plenary review over

the District Court’s decision to grant summary judgment, and we apply the same standard

as the District Court. We therefore view the underlying facts and evidence in the light

most favorable to the non-moving party. McGreevy v. Stroup, 

, 363 (3d Cir.

2005) (internal citations omitted).1

       We analyze Gladysiewski’s retaliation claim under the three-step burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 

, 802-04

(1973). The plaintiff has the burden of establishing a prima facie case. See 

Once a prima facie case is established, the burden shifts to the defendant to present a non-

retaliatory explanation for the challenged employment decision. See 

then

shifts back to the plaintiff to prove by a preponderance of the evidence that the articulated

reason is pretext for retaliation. See 

       To establish a prima facie case of retaliation, Gladysiewski must prove that (1) he

engaged in protected conduct; (2) an adverse action was taken; and (3) there is a causal


       1
         The District Court had jurisdiction pursuant to 29 U.S.C. § 626(c), 28 U.S.C.
§ 1367(a), and 28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28
U.S.C. § 1291.

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link between the protected conduct and the adverse action. Woodson v. Scott Paper Co.,

, 920 (3d Cir. 1997). For the purposes of its summary judgment motion,

Allegheny assumed that Gladysiewski engaged in protected activity and suffered an

adverse employment action. However, Allegheny disputes that Gladysiewski can

establish a causal connection between his filing of his first lawsuit, Gladysiewski I, on

July 21, 2005, and the termination of his employment nearly two years later on May 15,

2007.

        We have recognized two primary ways to substantiate a causal connection between

the protected activity and an adverse employment action: showing that the temporal

proximity between the two is “unusually suggestive,” or pointing to an “ongoing

antagonism” between the plaintiff and defendant. Farrell v. Planters Lifesavers Co., 

, 280-81 (3d Cir. 2000) (internal citations omitted). In his brief opposing the

motion for summary judgment, Gladysiewski contended both that the temporal proximity

between his termination and the dismissal of the first suit was “unusually suggestive” and

that there was evidence of an “ongoing antagonism” between him and Allegheny. The

District Court considered the issue of causation at length, and was skeptical as to whether

Gladysiewski had made an adequate showing, especially given the passage of time before

the alleged retaliation, and Gladysiewski’s reliance on authority that the District Court

believed was not well reasoned. However, “out of an abundance of caution,” the Court

assumed that a prima facie case had been established. App. 25.



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       On appeal, Allegheny argues that we should affirm the District Court’s ruling both

because Gladysiewski failed to make out a prima facie case and because, even if he had,

he failed to show that Allegheny’s reasons for terminating him were pretextual.

Curiously, Gladysiewski has failed to respond to Allegheny’s argument regarding the

prima facie case, requiring us to rely exclusively on the District Court record to

understand why he presumably believes that he did establish a prima facie case of

retaliation. For the reasons explained below, we believe that it is clear from the record

that Gladysiewski failed to demonstrate a causal link between his filing of the

discrimination complaint and his subsequent termination, and will affirm the District

Court’s order on that basis. See, e.g., Erie Telecomm., Inc. v. City of Erie, 

, 1089 n.10 (3d Cir. 1988) (“An appellate court may affirm a correct decision by a

lower court on grounds different than those used by the lower court in reaching its

decision.”).

       Gladysiewski’s first argument regarding causation was that the temporal proximity

between the resolution of Gladysiewski I and his termination is “unusually suggestive”

since he was informed of his termination just over one month after the suit was resolved.

App. 235-36. “In certain narrow circumstances, an ‘unusually suggestive’ proximity in

time between the protected activity and the adverse action may be sufficient, on its own,

to establish the requisite causal connection.” Marra v. Phila. Hous. Auth., 

,

302 (3d Cir. 2007) (internal citation omitted). We engage in a fact-based analysis to



                                              5
determine whether the temporal proximity between the protected activity and the adverse

action establishes a causal connection, taking into consideration “how proximate the

events actually were, and the context in which the issue came before us.” 

.

       Here, the first administrative complaint that led to Gladysiewski I was filed in

January 2005; the resulting litigation was resolved by the District Court on April 11,

2007, but we did not decide Gladysiewski’s appeal until over a year later. Gladysiewski

was terminated on May 15, 2007. Although there is certainly some “proximity” between

the dismissal of his lawsuit and his termination, we typically measure temporal proximity

from the date of filing rather than from the date a lawsuit is resolved, see, e.g., Jalil v.

Avdel Corp., 

, 703 (3d Cir. 1989), since the “protected activity” in which a

litigant engages is the filing of a complaint, not its dismissal by a court. In this case, over

two years passed between Gladysiewski’s filing of his administrative complaint and his

termination, a period that is too long to constitute temporal proximity.2

       Even if we were to give greater weight to the time of the District Court’s dismissal

of Gladysiewski I, the chronology actually undermines Gladysiewski’s claims.

Gladysiewski’s performance improvement plan was implemented in October 2004, before




       2
         Like the District Court, we are not persuaded by the approach taken in Annett v.
University of Kansas, 

(10th Cir. 2004), where the plaintiff was permitted
to rely on the date of a jury verdict in an earlier case, rather than on the date she filed the
case.

                                               6
he filed either his administrative complaints or Gladysiewski I. When Gladysiewski was

terminated in May 2007, Allegheny explained that it was because of his failure to

improve his work performance. Specifically, Gladysiewski had continued not to respond

to service calls, meet company standards, or adequately participate in company meetings

and training sessions. These reasons are similar to those that were given for

Gladysiewski’s demotion in 2004, and suggest the same continued pattern of deficient

conduct by Gladysiewski. As the Supreme Court has explained, “[e]mployers need not

suspend previously planned transfers upon discovering that a Title VII suit has been filed,

and their proceeding along lines previously contemplated, though not yet definitively

determined, is no evidence whatever of causality.” Clark County Sch. Dist. v. Breeden

, 272 (2001). Here, the existence of the performance improvement plan

suggests that Allegheny was “proceeding along lines previously contemplated” when it

terminated Gladysiewski.

       Gladysiewski also argued that his prima facie case is supported by what he

suggests are two examples of “ongoing antagonism” between him and Allegheny. First,

he stated that he was subjected to heightened scrutiny after he filed the complaints. He

claimed that he was criticized for his work and forced to redo projects, while the identical

work of a co-worker was not challenged. However, in his deposition, Gladysiewski

admitted that this actually occurred in 2004--before he filed his first administrative

complaint in January 2005. App. 24. This “scrutiny” thus does not support his causation



                                              7
argument. Second, Gladysiewski claimed that, during the last year of his employment, he

was selected for drug and alcohol testing each time a random drug screening was

conducted. Allegheny responded that the random drug tests were conducted by an

independent third-party vendor. In any event, to whatever extent the drug testing might

show antagonism between Allegheny and Gladysiewski, it is not sufficient to demonstrate

that Gladysiewski was terminated because of the complaints that he had filed.

       Because we conclude that Gladysiewski has failed to establish a causal connection

between his termination and his filing of an administrative complaint and federal lawsuit

against Allegheny, we need not discuss the District Court’s ruling as to pretext. We will

therefore affirm the order of the District Court.




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