Mondzelewski v. Pathmark

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

12-23-1998

Mondzelewski v. Pathmark

Precedential or Non-Precedential:

Docket 97-7475

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Filed December 23, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7475

JOSEPH A. MONDZELEWSKI,

REBECCA MONDZELEWSKI

Appellants

v.

PATHMARK STORES, INC.,

SUPERMARKETS GENERAL CORP.

Appellee

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

(D.C. No. 96-cv-00359)

(District Judge: Honorable Murray M. Schwartz)

Argued: September 15, 1998

Before: SLOVITER, SCIRICA, and ALITO, Circuit Judges

(Opinion Filed: December 23, 1998)

GARY W. ABER (ARGUED)

Heiman, Aber & Goldlust

First Federal Plaza, Suite 600

702 King Street, P.O. Box 1675

Wilmington, DE 19899

Counsel for Appellants

C. GREGORY STEWART

PHILIP B. SKLOVER

LORRAINE C. DAVIS

ROBERT J. GREGORY

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

1801 L Street, N.W.

Washington, D.C. 20507

Counsel for Amicus-Appellant

DEBBIE RODMAN SANDLER

(ARGUED)

White and Williams LLP

1800 One Liberty Place

Philadelphia, PA 19193-7395

Hal R. Crane, Of Counsel

Pathmark Stores

301 Blair Road

Woodbridge, NJ 07095-0915

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Joseph A. Mondzelewski ("Mondzelewski") and his wife,

Rebecca Mondzelewski, sued Pathmark Stores, Inc., and

Supermarkets General Corp. (collectively, "Pathmark"),

asserting claims under the Americans with Disabilities Act

of 1990, 42 U.S.C. S 12101 et seq. (the "ADA"), and

Delaware law. The District Court granted summary

judgment for Pathmark and declined to exercise

supplemental jurisdiction on the state-law claims. On

appeal, Mondzelewski argues that the District Court erred

in holding that he is not disabled within the meaning of the

ADA because he is not substantially limited in the major

life activity of working. In addition, relying on Krouse v.

American Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997),

which was handed down after the District Court ruled in

this case, Mondzelewski contends that the District Court

2

erred in rejecting his retaliation claim on the ground that

he is not disabled. We reverse the District Court on both

grounds and remand for further proceedings in accordance

with this opinion.

I.

A. Viewed in the light most favorable to Mondzelewski,

the relevant facts are as follows. Mondzelewski, a 55-year

old with a sixth-grade education, has worked at Pathmark

for 35 years, first as a bagger and then as a meat cutter. In

March 1992, he injured his back lifting boxes of meat and

was treated by Dr. Henry, Pathmark's doctor, who

diagnosed him as having a herniated vertebral disc. After

Mondzelewski spent a short time on disability, Dr. Henry

released him to work but restricted him from lifting objects

weighing more than 50 pounds and from carrying objects

weighing more than 25 pounds. Mondzelewski informed

Pathmark of his lifting restrictions.

In December 1993, Mondzelewski re-injured his back

while lifting boxes of meat. After a few additional months on

disability, Mondzelewski was again released to work with

the same lifting restrictions, and he again provided a copy

of the restrictions to Pathmark.

Mondzelewski claims that, after returning to work from

his second injury, Pathmark retaliated against him for

asserting his right under the ADA to obtain reasonable

accommodation for a disability. See 42 U.S.C.

S 12112(b)(5)(A). Mondzelewski first maintains that

Pathmark unlawfully changed his work schedule. In

Pathmark's meat department, workers were generally given

schedules that allowed them free time in either the

mornings or the afternoons. Some workers began their

shifts between 6 and 8 a.m. and finished by 2 p.m., while

others began at noon and worked until evening. In addition,

workers generally were not required to work in the evening

on weekends on a regular basis. Before his second injury,

Mondzelewski's schedule generally followed this pattern,

but after his second injury, Pathmark assigned him to work

from 9:30 a.m. to 6:00 p.m. and consistently required him

to work on Saturday evenings. According to Mondzelewski

3

and his fellow workers, these shifts were considered

"punishment shifts." App. 122-125.

Mondzelewski also contends that he was given several

retaliatory reprimands. First, Mondzelewski stated in his

deposition that he received an oral warning for taking his

work break during the last hour of his shift and that no

other employees were given such warnings. Second,

Mondzelewski was given a written notice of counseling

because he had "left ground beef in [the] case" instead of

making "frozen patties" or "consult[ing] management for

direction." App. 138. Mondzelewski described this notice as

one for grinding up too much meat, and he asserted that it

was not unusual for employees to grind up more meat than

could be sold. App. 81-82. Although this notice stated that

it was for "counseling only," it also stated that "future

violations will result in additional disciplinary action

including separation." App. 138. Mondzelewski claims that

this was the first written reprimand he had ever received

during his 35-year career at Pathmark.

Last, within a week of the earlier written notice,

Mondzelewski received another written notice for

"insubordination" for refusing to lift a piece of meat. The

meat was unmarked as to its weight, but Mondzelewski

estimated it to weigh between 50 and 100 pounds. Because

his co-worker refused to assist in lifting the meat,

Mondzelewski called on a department manager for help.

Instead of offering assistance, Mondzelewski claims the

department manager wrote specific weights on this and

other pieces of meat without actually weighing them. The

department manager then allegedly told Mondzelewski to

lift the meat stating: "You want to play those[expletive]

games, well, I'm not. You want a write up. I'm telling you to

do these chucks. You either do it or you go home." App. 45.

Mondzelewski refused, and as a result, he was written up

and suspended for the afternoon. Like his previous written

notice, this notice stated that "future violations will result

in additional disciplinary action including separation." App.

139. At a grievance meeting to discuss the matter,

Mondzelewski was told, he asserts, that his restrictions

were disrupting the work of his fellow employees.

4

Mondzelewski asserts that on one occasion his supervisor

refused to give him time off for a medical test and told him

he would have to reschedule it. He also stated that on some

occasions the department manager refused his request for

help in lifting meat and said: "Things are not that heavy.

You can pick that up." App. 48.

Finally, Mondzelewski claims that Pathmark's managers

and employees harassed and humiliated him. Mondzelewski

was sent to a worker's compensation seminar at which a

speaker said that some employees fake accidents. On

another occasion, he states, he was not given a"butcher's

white coat" and was told it was because he would not be

around much longer. At another time, he was allegedly told

that Pathmark should release him and find him a job

pumping gas. Moreover, he stated that he was told: "We

don't need a meat cutter. We don't need a wrapper, and we

don't need you." App. 83. Further, Mondzelewski asserts

that a manager made a derogatory and offensive hand

gesture to his wife and him.

Mondzelewski claims that Pathmark's conduct caused

him to suffer a mental breakdown and to miss work for

several months. During this period, he filed a charge

against Pathmark with the Equal Employment Opportunity

Commission ("EEOC"). Later that year, he returned to work,

but he was assigned to a different store in order to prevent

any further acts of retaliation. At present, Mondzelewski

continues to work at Pathmark, and according to him, the

harassment has ended. However, he states that he

continues to require medication and psychological

counseling.

B. Mondzelewski filed a six-count complaint in the

United States District Court for the District of Delaware.

Count I alleged that Pathmark discriminated against him,

in violation of 42 U.S.C. S 12112, by failing to provide

reasonable accommodation for his lifting restrictions. Count

II claimed that Pathmark violated 42 U.S.C. S 12203 by

retaliating against him for requesting a reasonable

accommodation when he returned to work after his second

injury. Count III asserted that Pathmark violated a

Delaware statute, 19 Del. Code S 2365, by retaliating

against him for filing a worker's compensation claim.

5

Counts IV and V alleged common law torts, and Count VI

asserted injury to the Mondzelewskis' marital relationship.

The District Court granted summary judgment for

Pathmark on the federal claims. See Mondzelewski v.

Pathmark Stores, Inc., 976 F. Supp. 277 (D. Del. 1997). The

Court first held (id. at 279-81) that Mondzelewski was not

disabled under the ADA because his back injury did not

"substantially limit[ ]" him in the"major life activities" of

"lifting" or "working." See 42 U.S.C.S 12102(2)(A) (defining

a "disability" as including "a physical . .. impairment that

substantially limits one or more of the major life activities

of such individual"). In an effort to show that he was

substantially limited in the major life activity of working,

Mondzelewski provided a report by Thomas Yohe, a

vocational expert, which detailed Mondzelewski's job

prospects. However, the District Court held that Yohe's

report "fail[ed] to raise a material issue of fact on

Mondzelewski's claim for several reasons," including its

failure to "relate the effect of Mondzelewski's `medium-duty

restrictions' on his ability to perform jobs in the economy"

and its failure to "quantify the number or type of jobs he is

precluded from performing due to those restrictions."

Mondzelewski, 976 F. Supp. at 281. Most important, the

Court stressed that Mondzelewski's "employability

problems" were not caused by his impairment, but rather

by his "personal characteristics [such as his limited

education, training, and skills] that ha[d] nothing to do with

his impairment." Id. Accordingly, the Court granted

summary judgment for the defendants on Count I.

Turning to Mondzelewski's retaliation claim, the Court

held that "Mondzelewski may not assert a claim for

retaliation because he is not disabled." Mondzelewski, 976

F. Supp. at 282. The court went on to note precedent to the

effect that a plaintiff in a Title VII retaliation case must

show that he or she suffered what is often termed a

materially "adverse employment action." See, e.g., Robinson

v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)

(citing cases). The District Court then wrote:

Despite such precedent, the Court does not hold that

the acts alleged by Mondzelewski do not, as a matter of

law, constitute adverse employment action, although it

6

does not believe it would be error to do so. For

example, Mondzelewski's most tangible complaint--

the change in shifts -- must be discounted because of

the common sense notion that a 9:00 a.m. to 5:00 p.m.

shift cannot be considered an extreme hardship given

most of this country's workers are governed by that

shift.

Mondzelewski, 976 F. Supp. at 283-84. The Court thus

granted summary judgment for the defendants on

Mondzelewski's retaliation claim, and the court declined to

exercise supplemental jurisdiction on the remaining state

law claims. Mondzelewski then appealed.

In this appeal, we must decide (1) whether the District

Court correctly concluded that Mondzelewski is not

disabled within the meaning of the ADA and (2) whether a

claim for retaliation can be asserted even if the underlying

disability claim fails. In addition, since the District Court

stated that it would not be error to hold that Mondzelewski

had not suffered any "adverse employment action," we will

address that question as well.

II.

We turn first to the District Court's conclusion that

Mondzelewski is not disabled within the meaning of the

ADA. Mondzelewski does not challenge the District Court's

holding that he is not substantially limited in the major life

activity of lifting, but he contends that the District Court

erred in granting summary judgment against him on the

question whether his back impairment, coupled with his

limited education, training, and skills, substantially limits

his ability to work. We agree.

A. The ADA prohibits an employer from discriminating

against a qualified individual with a disability because of

the disability, 42 U.S.C. S 12101, and as noted, the term

"disability" is defined to mean, among other things, "a

physical . . . impairment that substantially limits one or

more of the major life activities of such individual." 42

U.S.C. S 12102(2)(A).1 Pathmark does not dispute that

_________________________________________________________________

1. In the District Court, Mondzelewski also argued that he was disabled

under 42 U.S.C. SS 12102(2)(B) and (C) because he has a record of an

7

Mondzelewski's back injury is a "physical impairment," but

Pathmark argues that this impairment does not

substantially limit any major life activity.

Although the ADA does not define the term "substantially

limits," the EEOC regulations provide guidance. See 42

U.S.C. S 12116 (empowering the EEOC to promulgate

regulations implementing the ADA); Deane v. Pocono

Medical Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc)

(regulations entitled to substantial deference). As provided

by the regulations, the phrase "substantially limits" means

"[u]nable to perform a major life activity that the average

person in the general population can perform" or

"[s]ignificantly restricted as to the condition, manner or

duration under which an individual can perform a

particular major life activity as compared to the condition,

manner, or duration under which the average person in the

general population can perform that same major life

activity." 29 C.F.R. S 1630.2(j)(1)(i), (ii). The regulations

further provide that, in assessing whether a major life

activity has been substantially limited, a court should

consider the following factors: "(i) [t]he nature and severity

of the impairment; (ii) [t]he duration or expected duration of

the impairment; and (iii) [t]he permanent or long term

impact, or the expected permanent or long term impact of

[the impairment] or resulting from the impairment." 29

C.F.R. S 1630.2(j)(2)(i)-(iii).

According to the regulations, "working" is a "major life

activity." 29 C.F.R. S 1630.2(i).2 The regulations state that

an individual is substantially limited in the major life

_________________________________________________________________

impairment that constitutes a disability and because Pathmark regarded

him as having such an impairment. The District Court rejected these

arguments and Mondzelewski has not raised them on appeal.

2. Major life activities also include: "caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning

. . . ." 29 C.F.R. S 1630.2(i). This list is not meant to be exhaustive,

and

also includes sitting, standing, lifting, and reaching. 29 C.F.R. Pt.

1630,

App. S 1630.2(i). In the District Court, Mondzelewski argued that he is

substantially limited in the major life activities of lifting and working.

On

appeal, Mondzelewski argues only that he is substantially limited in the

major life activity of working.

8

activity of working if there is a significant restriction in the

ability "to perform either a class of jobs or a broad range of

jobs in various classes as compared to the average person

having comparable training, skills and abilities." 29 C.F.R.

S 1630.2(j)(3)(i). When analyzing whether there has been a

substantial limitation on the major life activity of working,

the regulations provide that the courts may also consider:

(1) the geographical area to which the individual has

reasonable access; (2) the job from which the individual has

been disqualified, and the number and types of jobs

utilizing similar training, knowledge, skills or abilities from

which the individual is also disqualified ("class of jobs");

and/or (3) the job from which the individual has been

disqualified, and the number and types of other jobs not

utilizing similar training, knowledge, skills or abilities from

which the individual is also disqualified ("broad range of

jobs"). 29 C.F.R. S 1630.2(j)(3)(ii); see also Deane, 142 F.3d

at 144 n.7.

On Pathmark's motion for summary judgment, the

District Court held that Mondzelewski had not provided

sufficient evidence to demonstrate that he is substantially

limited in the major life activity of working. Mondzelewski,

976 F. Supp. at 281. The Court provided several reasons

for its holding. We begin with the "most important" basis

for the District Court's decision. See id.

B. The District Court concluded that, "while

Mondzelewski's employability problems stem from a

combination of factors -- limited education, limited job

skills, advanced age, and lifting restrictions -- the first

three of these factors dwarf the last one in effect on

employability." Id. The Court stressed that "[t]o hold

Mondzelewski is substantially limited in the major life

activity of work would permit him to gain protection from

the ADA for personal characteristics that have nothing to

do with his impairment." Id. We conclude that the District

Court's legal analysis was flawed because, as the ADA

regulations explicitly provide, a court should consider the

individual's "training, skills and abilities" in determining

whether the individual is substantially limited in the major

life activity of working. 29 C.F.R. S 1630.2(j)(3)(i).

9

Under the EEOC's interpretive guidelines,3 determining

whether an individual is substantially limited in one or

more of the major life activities requires a two-step

analysis. First, the court determines whether the individual

is substantially limited in any major life activity other than

working, such as walking, seeing, or hearing. 29 C.F.R. Pt.

1630, App. S 1630.2(j). In making this determination, the

court compares the effect of the impairment on that

individual as compared with the "average person in the

general population." 29 C.F.R. S 1630.2(j)(1); 29 C.F.R. Pt.

1630, App. S 1630.2(j) (stating that the determination must

be conducted on a case by case basis). For example, "an

individual who had once been able to walk at an

extraordinary speed would not be substantially limited in

the major life activity of walking if, as a result of a physical

impairment, he or she were only able to walk at an average

speed, or even at a moderately below average speed." 29

C.F.R. Pt. 1630, App. S 1630.2(j). If the court finds that the

individual is substantially limited in any of these major life

activities, the inquiry ends there. Id. On the other hand, if

the individual is not so limited, the court's next step is to

determine whether the individual is substantially limited in

the major life activity of working.4 Id.

In determining whether an individual is substantially

limited in the ability to work, the proper inquiry, according

to the relevant regulation, is whether the individual is

"significantly restricted in the ability to perform either a

_________________________________________________________________

3. We have afforded these guidelines "a great deal of deference." Matczak

v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937 (3d Cir. 1997).

4. Specifically, the Interpretive Guidelines provide:

If an individual is not substantially limited with respect to any

other

major life activity, the individual's ability to perform the major

life

activity of working should be considered. If an individual is

substantially limited in any other major life activity, no

determination should be made as to whether the individual is

substantially limited in working. For example, if the individual is

blind, i.e., substantially limited in the major life activity of

seeing,

there is no need to determine whether the individual is also

substantially limited in the major life activity of working.

29 C.F.R. Pt. 1630, App. S 1630.2(j).

10

class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training,

skills and abilities." 29 C.F.R. S 1630.2(j)(3)(i) (emphasis

added). This approach requires a court to consider the

individual's training, skills, and abilities in order to

evaluate "whether the particular impairment constitutes for

the particular person a significant barrier to employment."

Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996)

(citing Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986));

accord E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088,

1099 (D. Haw. 1980) (explaining that "it is the impaired

individual that must be examined, and not just the

impairment in the abstract"); 29 C.F.R. Pt. 1630, App.

S 1630.2(j) (stating that the determination of whether an

individual is limited in working must be conducted on a

case by case basis). Because a "person's expertise,

background, and job expectations are relevant factors in

defining the class of jobs used to determine whether an

individual is disabled," Webb, 94 F.3d at 487, the court

must consider the effect of the impairment on the

employment prospects of that individual with all of his or

her relevant personal characteristics. Forrisi, 794 F.2d at

933. Thus, a substantially limiting impairment for one

individual may not be substantially limiting for another

individual with different characteristics. 29 C.F.R. Pt. 1630,

App. S 1630.2(j); see also McKay v. Toyota Motor Mfg.

U.S.A., Inc., 110 F.3d 369 (6th Cir. 1997) (finding plaintiff

with carpal tunnel syndrome not disabled because, among

other things, she had a college degree); Smith v. Kitterman,

Inc., 897 F. Supp. 423, 427 (W.D. Mo. 1995) (finding

plaintiff with carpal tunnel syndrome had raised material

issue of fact because of her limited education, training, and

employment background); Heilweil v. Mount Sinai Hospital,

32 F.3d 718, 724 (2d Cir. 1994) (finding plaintiff not

hindered in her ability to work because of her advanced

educational degrees).

We accept this approach -- under which an individual's

training, skills, and abilities are taken into account in

determining whether the individual is substantially limited

in the major life activity of working -- because we owe

"substantial deference" to the EEOC regulation in which it

is set out, see Deane, 142 F.3d at 143 n.4, and because it

11

is entirely reasonable. Indeed, because the effect that a

particular impairment will have on a person's ability to

work varies depending on that person's background and

skills, it is not easy to envision how any other approach

could be taken.

C. Under the approach set out above, the District Court

in the present case was required to determine whether

Mondzelewski's evidence was sufficient to show that his

lifting restrictions significantly limit his ability to perform

the requisite jobs "as compared to the average person

having comparable training, skills and abilities." 29 C.F.R.

S 1630.2(j)(3)(i). This determination necessitated

consideration of the "personal characteristics" that the

District Court's analysis factored out. Whether

Mondzelewski's lifting restriction would not limit him in the

major life activity of working if he possessed more or

different training, skills, or abilities is not determinative;

rather, the question is whether his ability to work is

sufficiently limited in light of the training, skills, and

abilities that he does possess.

In finding that Mondzelewski is not disabled, the District

Court mistakenly relied on a provision in the EEOC

guidelines that states:

[T]he restriction on the performance of the major life

activity must be the result of a condition that is an

impairment. . . . [A]dvanced age, physical or

personality characteristics, and environmental,

cultural, and economic disadvantages are not

impairments. Consequently, even if such factors

substantially limit an individual's ability to perform a

major life activity, this limitation will not constitute a

disability.

29 C.F.R. Pt. 1630, App. S 1630.2(j). By its plain language,

this provision relates to the question whether the individual

has a physical or mental impairment, not whether the

impairment substantially limits a major life activity and

thus constitutes a disability. The guideline provides the

following example:

[A]n individual who is unable to read because he or she

was never taught to read would not be an individual

12

with a disability because lack of education is not an

impairment.

Id. But if an individual who previously held a job that did

not require much if any reading developed a physical

impairment, that individual's ability to read would have to

be taken into account in determining whether he or she

was "significantly restricted in the ability to perform either

a class of jobs or a broad range of jobs in various classes

as compared to the average person having comparable

training, skills and abilities." 29 C.F.R. S 1630.2(j)(3)(i).

For these reasons, we hold that the District Court

committed legal error by failing to conduct the necessary

individualized assessment of the extent to which

Mondzelewski's back condition coupled with his personal

characteristics substantially limits his ability to work.

D. The District Court also suggested that the

defendants were entitled to summary judgment on Count I

because the report of Mondzelewski's vocational expert

failed to "relate the effect of Mondzelewski's `medium duty'

restrictions on his ability to perform jobs in the economy"

and failed to "quantify the number or type of jobs he is

precluded from performing due to those restrictions."

Mondzelewski, 976 F. Supp. at 281. We conclude, however,

that this report is sufficient to show for the purpose of

surviving summary judgment that Mondzelewski was

"significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes.

. . ." 29 C.F.R. S 1630.2(j)(3)(i). Cf. 29 C.F.R. Pt. 1630, App.

S 1630.2(j) (stating that the terms "number and types of

jobs" are not intended to impose an onerous evidentiary

burden but are meant only to require evidence of the

approximate number of jobs from which the individual is

precluded from working).

Yohe's report recounted Mondzelewski's educational and

vocational background and reported that Mondzelewski had

received "extremely low" scores on an achievement test and

a career ability placement test that Yohe had administered.

App. 162. According to his report, Yohe compared

Mondzelewski's profile "to each of the almost 13,000 jobs

listed in the [Department of Labor's] Dictionary of

13

Occupational Titles and found that "there were a total of

eight positions that would be suitable for him that

essentially involve unskilled work." App. 163. Yohe stated

that his investigation showed that for these positions there

were "very low employment opportunities" in

Mondzelewski's geographical area. Id. He concluded:

In essence, the best that could be hoped for . . . him,

outside of his Pathmark situation, would be a

minimum wage type of position in an unskilled light or

medium duty capacity. For him to obtain these types of

jobs, he would likely need some sort of assistance from

a professional Rehabilitation Specialist.

App. 164. Whatever else may be said of Yohe's report, we

believe that it is sufficient to show for present purposes

that Mondzelewski is "significantly restricted in the ability

to perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having

comparable training, skills and abilities." 29 C.F.R.

S 1630.2(j)(3)(i).

We reject Pathmark's argument that Mondzelewski

cannot be substantially limited in the major life activity of

working because he is now working. In determining

whether an individual is substantially limited in a major life

activity, a court must examine the individual's situation

without accommodation for the individual's impairment.

Matczak, 136 F.3d at 937; see also, e.g., Washington v.

HCA Health Servs. of Texas, Inc., 152 F.3d 464 (5th Cir.

1998). Here, Pathmark granted Mondzelewski's request for

"assistance with lifting of over fifty pounds and with

frequent carrying of over twenty-five pounds." Appellees' Br.

at 3. Thus, the mere fact that Mondzelewski has been able

to continue to perform his job with accommodation does

not necessarily mean that he is not disabled.

In sum, we hold that the question whether

Mondzelewski's impairment substantially limits him in the

major life activity of working cannot be resolved at the

summary judgment stage.

III.

A. Mondzelewski next challenges the District Court's

decision to grant summary judgment to Pathmark on his

14

retaliation claim. While recognizing that persons who do not

have a disability but "who in good faith file formal disability

discrimination charges with [the appropriate state agency]

or [the] EEOC" may assert a retaliation claim, 976 F. Supp.

at 284, the District Court held that "Mondzelewski -- who

is not disabled -- cannot recover under the ADA for the

particular acts of harassment he has alleged." Id. The Court

added that "individuals who are not disabled cannot claim

the protections of the ADA for the more trivial acts of

harassment that may be visited upon them in response to

their requests for assistance." Id. The District Court thus

suggested that a retaliation claim can be brought by a

person who is adjudged not to have a disability only if that

person filed a formal ADA complaint and/or suffered a

more severe form of retaliation than would otherwise be

required. Id.

After the District Court's decision, this Court held that "a

person's status as a `qualified individual with a disability' is

not relevant in assessing the person's claim for retaliation

under the ADA." Krouse v. American Sterilizer, Co., 126

F.3d 494, 498 (3d Cir. 1997). The Court wrote:

By its own terms, the ADA retaliation provision

protects "any individual" who has opposed any act or

practice made unlawful by the ADA or who has made

a charge under the ADA. 42 U.S.C. S 12203(a). This

differs from the scope of the ADA disability

discrimination provision, 42 U.S.C. S 12112(a), which

may be invoked only by a "qualified individual with a

disability." An individual who is adjudged not to be a

"qualified individual with a disability" may still pursue

a retaliation claim under the ADA.

Id. at 502. Under this analysis, we see no basis for holding

that a person who is adjudged not to have a disability may

not assert a retaliation claim based on some form of

protected activity other than the filing of a formal

complaint. Nor do we see any basis for holding that such a

person must have suffered some form of retaliation that is

more severe than the statute would otherwise demand.

Consequently, Krouse necessitates reversal here.

B. Although the District Court did not squarely hold

that Mondzelewski's retaliation claim could not survive

15

summary judgment because the evidence did not show that

Mondzelewski had suffered an "adverse employment

action," the Court stated that "it does not believe it would

be error" to so hold. Mondzelewski, 976 F. Supp. at 284. In

light of this statement, we find it necessary to address this

issue.

Mondzelewski argues that "[p]erhaps the most egregious

actions" taken against him were the "use of`punishment

shifts.' " Appellant's Br. at 30. The District Court, however,

wrote that, while this was "Mondzelewski's most tangible

complaint," "the change in shifts . . . must be discounted

because of the common sense notion that a 9:00 a.m. to

5:00 p.m. shift cannot be considered an extreme hardship

given most of this country's workers are governed by that

shift." Mondzelewski, 976 F. Supp. at 284. We are unable

to agree with the District Court's analysis and instead hold

that the change in Mondzelewski's shifts could be found to

constitute a change in the terms, conditions, or privileges of

his employment and thus to fall within the prohibition of 42

U.S.C. S 12203(a).

This provision states in pertinent part:

No person shall discriminate against any individual

because such individual has opposed any act or

practice made unlawful by this chapter . . . .

42 U.S.C. S 12203(a). As we have noted, see Krouse, 126

F.3d at 500, this provision resembles Section 704 of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e-3(a),

which makes it an unlawful employment practice to

"discriminate" against an employee "because he has

opposed any practice made an unlawful employment

practice by this subchapter. . . ." Both provisions make it

unlawful to "discriminate" against an employee in

retaliation for protected conduct.

In Title VII cases, our Court and others have interpreted

"discriminat[ion]" to mean conduct that falls within the

basic prohibition against employment discrimination found

in 42 U.S.C. S 2000e-2(a)(1), which makes it an "unlawful

employment practice" to discriminate with respect to

"compensation, terms, conditions, or privileges of

employment." See Robinson v. City of Pittsburgh, 120 F.3d

16

1286, 1300 (3d Cir. 1997) (citing cases). Courts customarily

express this concept by stating that a retaliation plaintiff

must show that he or she suffered a "materially adverse

employment action." Id. (quoting McDonnell v. Cisneros, 84

F.3d 256, 258 (7th Cir. 1996)). In view of the resemblance

between 42 U.S.C. S 12203(a) and 42 U.S.C.S 2000e-3(a), a

similar approach is appropriate here. Consequently, we

interpret the concept of "discriminat[ion]" under 42 U.S.C.

S 12203(a) to mean discrimination "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. S 12112(a). We reiterate, however,

as we observed in Robinson, 120 F.3d at 1300, that minor

or trivial actions that merely make an employee "unhappy"

are not sufficient to qualify as retaliation under the ADA,

for otherwise every action that an "irritable, chip-on-the-

shoulder employee did not like would form the basis of a

discrimination suit."5 Id. (citing Smart v. Ball State Univ., 89

F.3d 437, 441 (7th Cir. 1996)).

We hold that Mondzelewski proffered evidence sufficient

to establish for present purposes that the change in his

schedule may have altered the "terms, conditions, or

privileges" of his employment in violation of 42 U.S.C.

S 12203(a). He proffered evidence that meat workers

generally worked shifts that provided them with certain

periods of free time and that did not require them to work

weekend evenings consistently. His evidence suggested that

his fellow employees considered this type of schedule to be

_________________________________________________________________

5. Mondzelewski seems to assert that because the alleged harassment

caused him to suffer a "nervous breakdown," the acts are per se

retaliatory under the ADA. Mondzelewski erroneously draws support

from Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). The Court,

however,

did not set forth a per se rule that if a person suffers "tangible

psychological injury," the employer must have engaged in "adverse

employment action." Instead, the Court set forth an objective standard:

whether a reasonable person would find the conduct hostile or abusive.

If an individual's hypersensitivity causes him or her to suffer tangible

psychological harm that a reasonable person would not suffer under

similar circumstances, then that individual cannot seek protection from

the ADA's anti-retaliation provision.

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a highly desirable benefit. Although Mondzelewski

previously had worked under the typical meat worker's

schedule, after his second injury, he was singled out to

work a different shift. This shift left him none of the

customary free time and required him to work every

Saturday evening. Moreover, he proffered affidavits of fellow

employees stating that only workers that Pathmark

intended to punish were assigned to this undesirable shift.

Indeed, according to these affidavits, workers referred to

these shifts as "punishment shifts." We find this evidence

sufficient to raise a triable question as to whether

Mondzelewski's terms, conditions, or privileges of

employment were altered.

Assigning an employee to an undesirable schedule can be

more than a "trivial" or minor change in the employee's

working conditions. See Hampton v. Borough of Tinton Falls

Police Dep't, 98 F.3d 107, 116 (3d Cir. 1996) (under Title

VII, appointment to undesirable police assignment

sufficient to withstand summary judgment on retaliation

claim); Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987)

(under Title VII, holding adverse action does not require

loss of money or benefits but rather may consist of changes

in location, duties, perks, or other basic aspects of the job);

Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986)

(under Title VII, holding district court's conclusion, i.e., a

change to night shift constitutes sufficient evidence of

retaliatory job assignment, not clearly erroneous), overruled

on other grounds, Harvey v. Blake, 913 F.2d 226, 228 n.2

(5th Cir. 1990); McGill v. Board. of Educ., 602 F.2d 774,

780 (7th Cir. 1979) (under 42 U.S.C. S 1983, teacher

transferred to a less desirable school is retaliation for

protected speech); Florence v. Runyon, 990 F. Supp. 485,

498 (N.D. Tex. 1997) (under Title VII, denying summary

judgment where transfer to new position with different work

hours raised material issue of fact as to whether plaintiff

suffered adverse employment action); Khan v. Cook County,

No. 96-C-1113, 1996 WL 432410, at *2 (N.D. Ill. July 30,

1996) (under the ADA, refusing to hold as a matter of law

that a transfer to the night shift does not constitute adverse

action); Snodgrass v. Brown, No. 89-1171-K, 1990 WL

198431, at *17 (D. Kan. Nov. 26, 1990) (under Title VII,

concluding that changes in employee's schedule raised

18

material issue of fact as to whether plaintiff suffered

adverse employment action); Maddox v. County of San

Mateo, 746 F. Supp. 947, 953 (N.D. Cal. 1990) (under Title

VII, permitting retaliation claim where, among other things,

employer refused to transfer plaintiff from graveyard shift);

see also 2 EEOC Compliance Manual 613:0004, at 613.3

(BNA June 1986) ("Title VII prohibits discrimination with

respect to practices or activities such as length of

employment contract, hours of work, or attendance since

they are terms, conditions, or privileges of employment.").

Cf. 29 U.S.C. S 158(d) (obligation to bargain collectively with

respect to, among other things, "hours . . . and other terms

and conditions of employment") (emphasis added); Meat

Cutters Locals v. Jewel Tea Co., 381 U.S. 676, 691 (1965)

("the particular hours of the day and the particular days of

the week during which employees shall be required to work

are subjects well within the realm of `wages, hours, and

other terms and conditions of employment' about which

employers and unions must bargain"); Long Lake Lumber

Co., 160 NLRB 1475 (1966) (changing employee's schedule

from normal workweek to a Tuesday through Saturday

workweek violated National Labor Relations Act). Thus, we

believe that Mondzelewski has produced evidence that

raises a genuine issue as to whether Pathmark altered his

terms, conditions or privileges of employment, in violation

of 42 U.S.C. S 12203(a), when it changed his work

schedule.

We readily agree with the District Court's observation

that assignment to a 9:00 a.m. to 5:00 p.m. shift "cannot

be considered an extreme hardship given most of this

country's workers are governed by that shift."

Mondzelewski, 976 F. Supp. at 284. But the critical

question for present purposes is not whether Mondzelewski

suffered an "extreme hardship," but whether his terms,

conditions, or privileges of employment were altered.

Nothing in the ADA suggests that employers are prohibited

from taking only those retaliatory actions that impose an

"extreme hardship." To be sure, the relatively mild nature of

Pathmark's allegedly retaliatory conduct may not be

without legal or practical significance, but it is not

dispositive with respect to the narrow legal question now

before us regarding 42 U.S.C. S 12203(a).

19

Although the District Court did not expressly address the

other alleged acts of retaliation on which Mondzelewski

relies, it appears that the Court may have applied the same

"extreme hardship" test there as well. Moreover, the Court

did not address 42 U.S.C. S 12203(b), which arguably

sweeps more broadly than 42 U.S.C. S 12203(a). Subsection

(b) provides in pertinent part that it is "unlawful to coerce,

intimidate, threaten, or interfere with any individual . . . on

account of his or her having . . . exercise[d] . . . any right

granted or protected by this chapter." On remand, the

Court should consider whether Mondzelewski has proffered

sufficient evidence to survive summary judgment under this

subsection as well as under subsection (a).

Pathmark has urged us to affirm the grant of summary

judgment on the retaliation claim on several alternative

grounds. Pathmark contends that Mondzelewski did not

make a retaliation charge in his EEOC complaint.

Pathmark also argues that it proffered a legitimate

explanation for assigning Mondzelewski to the shifts in

question -- viz., because it was better able to provide

reasonable accommodation for his lifting restrictions during

those shifts -- and that Mondzelewski failed to raise a

triable issue with respect to Pathmark's explanation. The

District Court did not reach these issues, and we decline to

reach them at this time. Pathmark can renew these

arguments on remand in the District Court.

IV.

For the reasons explained above, we reverse the grant of

summary judgment on Counts I and II and remand for

further proceedings. We also vacate the dismissal of the

counts asserting state-law claims so that the District Court

can reassess its decision relating to those counts in light of

its disposition on remand of the remaining federal claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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