Shaner v. Synthes (United States)

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-2-2000

Shaner v. Synthes (United States)

Precedential or Non-Precedential:

Docket 99-1037

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Filed March 2, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1037

ROBERT D. SHANER, JR.,

Appellant

v.

SYNTHES (USA)

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 97-04212)

District Judge: Honorable Louis C. Bechtle

Argued January 24, 2000

BEFORE: GREENBERG, ROTH and ROSENN,

Circuit Judges

(Filed: March 2, 2000)

Alan B. Epstein (argued)

Spector, Gadon & Rosen

1635 Market Street

Seven Penn Center, 7th Floor

Philadelphia, PA 19103

Attorneys for Appellant

Anthony B. Haller (argued)

Stephen J. Sundheim

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103-2799

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on appeal from

the district court's order entered December 14, 1998,

granting summary judgment in favor of appellee Synthes

(USA) ("Synthes" or "the company") dismissing appellant's

complaint asserting claims under the Americans with

Disabilities Act, 42 U.S.C. S 12101 et seq. ("ADA"), and

Pennsylvania common law. For the reasons we set forth

herein, we will affirm the order of the district court.

I. BACKGROUND

Synthes, which is in the business of manufacturing and

distributing orthopedic and spinal implants and

instrumentation, hired appellant Robert Shaner in

September 1991 as a senior programmer/analyst in its

information services department. In 1992, Synthes gave

Shaner a six percent raise despite its practice of capping

raises at five percent.

In July 1992, Dick Jarvis joined Synthes and became

Shaner's superior. In August 1992, Shaner was diagnosed

with multiple sclerosis ("MS"). It is undisputed that Shaner

did not disclose his ailment to the company until more than

a year later, on November 15, 1993.

In May 1993, Jarvis gave Shaner his first performance

evaluation. The evaluation indicated that the "major

problem" with Shaner was that he relied too heavily on

quick "fix" solutions without locating underlying problems

in the computer systems. It concluded that Shaner

2

"performs his duties as a Senior Programmer" but that he

"has not demonstrated that he has the skills of a senior

analyst."1 Shaner felt this evaluation was overly critical and

he was unhappy with it. Thus, Shaner filed a complaint

with the company regarding this evaluation. Shaner

suspected that Jarvis did not like him, and it appeared to

Shaner that the reason for the criticism was Jarvis's desire

to get rid of programmers, such as himself, who had been

with Synthes before Jarvis joined the company.

On April 5, 1994, Jarvis gave Shaner another evaluation.

This evaluation contained critical remarks similar to those

in the prior evaluation.2 It indicated that Shaner was not

proficient in identifying underlying problems in the

computer systems and it concluded that Shaner "has not

demonstrated [the] skills of a Senior Analyst." It further

indicated that Shaner "displays a negative attitude about

his job and does not seem happy with the job he performs."

Shaner felt that this evaluation was "almost a carbon copy"

of the 1993 evaluation.

On April 13, 1994, Shaner filed a charge of disability

discrimination with the Equal Employment Opportunity

Commission ("EEOC") alleging that Synthes had denied him

computer training in the area of "PC Applications."3 He

claimed the company had promised him this form of

training when he first began his employment and that the

training had been given to other programmer/analysts. In

January 1994, Shaner had sent a pointed email to Jarvis

asking "[i]s there any reason I'm being excluded from

_________________________________________________________________

1. The evaluation rated Shaner's performance on a scale of 1 to 4, with

4 being "superior," 3 being "above average," 2 being "average," and 1

being "below average." Shaner received a 3 in the category of

"assignments and results achieved," a 2.8 in"qualitative," and a 2.8 in

"overall performance."

2. In this evaluation, Shaner was graded "meets expectation" in the

category of "assignments and results achieved" and "marginal" in the

categories of "qualitative" and "overall performance." A "marginal" grade

indicated that Shaner "does not consistently meet objectives."

3. According to Shaner's brief, he first contacted the EEOC on March 30,

1994. There is nothing in the record to indicate that Synthes became

aware of Shaner's contact with the EEOC until after Shaner filed his

charge on April 13, 1994.

3

EXCEL TRAINING4 when other programmers in this

department have taken the training, with YOUR approval

[?]" Jarvis sent a responsive email stating"[w]e have not

offered Excel training to the AS/400 group [Shaner's group]

at this time. You do not need Excel to perform your job."

In the summer of 1994, Shaner went on a medical leave

of absence for more than one month. Upon his return, the

company lightened his work load during month-end closing

procedures, which often required long hours on his part.

Shaner welcomed this reduced work load. In addition, the

company permitted him to miss work every Tuesday

morning so he could attend an eleven a.m. water therapy

class at a location which was over an hour's drive from the

office.5 He continued to attend the water therapy class

throughout his employment with Synthes. The company

also permitted him to go home early when he was not

feeling well.

One of Shaner's principal allegations is that various

employees, along with Jarvis, frequently turned up the heat

in the office despite Shaner's requests that the office be

kept cool; the excessive warmth allegedly exacerbated

Shaner's MS symptoms. Shaner indicated in his deposition

that the heat had been a problem for him even before

November 1993, when he advised the company that he

suffered from MS. In response to a complaint from Shaner,

Mike DiGuglielmo, another of Shaner's superiors, emailed

Shaner in May 1994 asking him to provide a doctor's note

stating what working conditions were not good for his

medical condition. Nevertheless, Shaner did not present the

requested note from his doctor until November. The note

was not specific as it merely indicated that the temperature

in Shaner's work environment should be kept "on the low

side."

Shaner requested that a "lock box" be placed on the

thermostat to prevent employees from repeatedly adjusting

the office temperature. Although lock boxes were present on

thermostats elsewhere in the building, the company did not

_________________________________________________________________

4. Excel training involved the operation of PC applications.

5. Shaner was required to make up the missed time on other days.

4

place one in Shaner's work area. However, in November

1994, the company relocated Shaner's office to a converted

conference room which had its own thermostat so that he

could control the temperature in his work space. 6 Shaner

alleges that, on four or five occasions in 1995, an unknown

individual or individuals covertly entered the conference

room while Shaner was at lunch and turned the heat all

the way up. On these occasions, Shaner returned from

lunch and noticed that the room was overly warm,

whereupon he adjusted the heat back down.

In late 1994, DiGuglielmo told Shaner that it would be in

his "best interest" to seek counseling through the

company's employee assistance program. Shaner testified

that "[f]or the most part" he had a negative attitude at this

time, and he voluntarily agreed to attend counseling for

assistance with his "work and health problems." The

company permitted him to attend counseling sessions on

its time and at its expense. According to Shaner, after he

had attended several sessions, DiGuglielmo requested that

he stop going to counseling, or at least that he stop going

on company time. Shaner felt that this request was

"inappropriate," inasmuch as DiGuglielmo had asked him

to seek counseling in the first place. Shaner nevertheless

continued to attend counseling during work hours because

he felt that he was benefitting from it.

DiGuglielmo prepared a performance evaluation of

Shaner for the period ending March 15, 1995.7 According to

this evaluation, Shaner "has shown a very negative attitude

through out the last year" and he "has not performed to the

level expected of a Sr. Program Analyst [and] his analytical

skills are suspect." Further, the evaluation stated that

Shaner "continues to point fingers at others and make

excuses when things go wrong" and "[w]hen he is given

_________________________________________________________________

6. The thermostat in this room also affected the temperature in other

employees' nearby work areas, which somewhat limited Shaner's ability

to control the temperature.

7. In this evaluation, Shaner was graded "marginal" in the categories of

"assignments and results achieved" and "overall performance," and

"below expectations" in the category of "qualitative." "Below

expectations"

indicated that Shaner "frequently does not meet objectives."

5

assignments he complains about them and they drag out

longer than they should."

On April 19, 1995, Shaner again went on leave for

medical reasons and his condition has prevented him from

ever returning to work. Synthes notified Shaner by letter

dated October 5, 1995, that it was terminating his

employment effective October 19, 1995, "in accordance with

our company policy of terminating employment after six

months of medical leave of absence." The letter advised

Shaner that he could "reapply" for employment should his

condition improve. Shaner has been totally and

permanently disabled since he left Synthes in April 1995.

On April 17, 1996, Shaner filed a second EEOC charge

alleging discrimination on the basis of disability and

retaliation for the filing of his first EEOC charge. In this

second charge, Shaner alleged that he was "harassed" in

several respects. He complained about the heat being

turned up in the office, and he indicated that he had

"received a poor review" in April 1994. He stated that

"[a]round the end of 1994, I was told by Mike DiGuglielmo

that I had to go to counselling [sic] because I had a `bad

attitude.' " He claimed that he was "harassed to the point

that my disability was aggravated," which forced him to go

on disability and ultimately led to his termination.

Shaner filed this action in the district court on June 23,

1997. Count I of the complaint alleged disparate treatment

on account of disability in violation of the ADA, 42 U.S.C.

SS 12111-12117, "as evidenced by, inter alia, (a) [ ] sudden

change in [the company's] performance evaluations of

plaintiff, after being informed of plaintiff 's diagnosis of

Multiple Sclerosis . . . ; (b) refusing to allow[plaintiff] the

special training necessary to the successful completion of

his work, while allowing it to other employees;[and] (c)

engaging in harassment of plaintiff including the

manipulation of the room temperature of his workplace

with the knowledge that such behavior would cause

plaintiff serious illness or total disability." Count II alleged

retaliation in violation of the ADA, 42 U.S.C. S 12203, "as

evidenced by, inter alia, (a) [ ] harassment of plaintiff,

including turning up the heat in the office so as to cause

exacerbation of plaintiff 's condition; (b) transferring

6

plaintiff to a converted closet when he complained about

the manipulation of the heat; (c) making false accusations

of poor performance by plaintiff; (d) requiring plaintiff to

undertake counseling from a third party provider which

was harassing and unnecessary; and (e) terminating

plaintiff 's employment while he was out on that medical

leave." Count III alleged intentional infliction of emotional

distress. Following the company's motion for summary

judgment, the district court dismissed all claims in an

order dated December 11, 1998, and entered on December

14, 1998. Shaner filed a notice of appeal from the district

court's order.

II. JURISDICTION and STANDARD OF REVIEW

The district court had subject matter jurisdiction over

Shaner's ADA claims pursuant to 28 U.S.C. S 1331 and

supplemental jurisdiction over his state law claim pursuant

to 28 U.S.C. S 1367. We have jurisdiction pursuant to 28

U.S.C. S 1291. Our standard of review is plenary. See

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir.

1999). "Summary judgment is proper where the pleadings,

depositions, answers to interrogatories, admissions, and

affidavits show there is no genuine issue of material fact

and that the moving party is entitled to judgment as a

matter of law." Jones v. School Dist. of Philadelphia, 198

F.3d 403, 409 (3d Cir. 1999). We must view the record in

the light most favorable to Shaner and draw all reasonable

inferences in his favor. Id.

III. DISCUSSION

A. ADA Claims

In order to establish a prima facie case of disparate

treatment under the ADA, a plaintiff must show "(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 v.

Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998); see

also Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir.

7

1998) (en banc) (citing Gaul). 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. American Sterilizer

Co., 126 F.3d 494, 500 (3d Cir. 1997).

We have indicated that the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

1817 (1973), applies to ADA disparate treatment and

retaliation claims. See Walton v. Mental Health Ass'n of

Southeastern Pa., 168 F.3d 661, 667-68 (3d Cir. 1999);

Krouse, 126 F.3d at 500-01; Newman v. GHS Osteopathic,

Inc., 60 F.3d 153, 156-58 (3d Cir. 1995). We recently have

described the McDonnell Douglas framework as follows:

Briefly summarized, the McDonnell Douglas analysis

proceeds in three stages. First, the plaintiff must

establish a prima facie case of discrimination. If the

plaintiff succeeds in establishing a prima facie case,

the burden shifts to the defendant `to articulate some

legitimate, nondiscriminatory reason for the employee's

rejection.' [McDonnell Douglas, 411 U.S. at 802, 93

S.Ct. at 1824.] Finally, should the defendant carry this

burden, the plaintiff then must have an opportunity to

prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination. See

Texas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 252-53, 101 S.Ct. 1089, 1093 (1981) (citations

omitted). While the burden of production may shift,

`[t]he ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against

the plaintiff remains at all times with the plaintiff.' Id.

Our experience is that most cases turn on the third

stage, i.e., can the plaintiff establish pretext.

Jones, 198 F.3d at 410.

We have stated as follows with regard to the application

of the third step of the McDonnell Douglas framework at the

summary judgment stage:

8

At this point, the court focuses on whether there is

sufficient evidence from which a jury could conclude

that the purported reasons for defendant's adverse

employment actions were in actuality a pretext for

intentional race [or disability] discrimination. At trial,

the plaintiff must convince the finder of fact`both that

the reason was false, and that discrimination was the

real reason.' St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 515, 113 S.Ct. 2742, 2752 (1993) (emphasis in

original). The factfinder's rejection of the employer's

proffered reason allows, but does not compel, judgment

for the plaintiff. Sheridan [v. E.I. DuPont de Nemours

and Co., 100 F.3d 1061, 1066-67 (3d Cir. 1996) (en

banc)].

On numerous occasions, we have explained the

plaintiff 's burden at summary judgment on this aspect

of the McDonnell Douglas tripartite framework.

Specifically, in Fuentes v. Perskie, 32 F.3d 759 (3d Cir.

1994), and later in Sheridan, we stated that a plaintiff

may defeat a motion for summary judgment (or

judgment as a matter of law) by pointing `to some

evidence, direct or circumstantial, from which a

factfinder would reasonably either: (1) disbelieve the

employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the

employer's action.' Fuentes, 32 F.3d at 764; Sheridan,

100 F.3d at 1067.

Id. at 412-13.8 "To discredit the employer's proffered

reason, [ ] the plaintiff cannot simply show that the

employer's decision was wrong or mistaken . . . . Rather,

the non-moving plaintiff must demonstrate such

weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

_________________________________________________________________

8. We recently have made clear that a plaintiff 's ultimate burden in a

retaliation case is to convince the factfinder that retaliatory intent had

a

"determinative effect" on the employer's decision. See Woodson v. Scott

Paper Co., 109 F.3d 913, 931-35 (3d Cir. 1997); Krouse, 126 F.3d at 501

("The plaintiff must prove that retaliatory animus played a role in the

employer's decisionmaking process and that it had a determinative effect

on the outcome of that process.") (citing Woodson).

9

legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence, and hence

infer that the employer did not act for the asserted non-

discriminatory reasons." Fuentes v. Perskie , 32 F.3d 759,

765 (3d Cir. 1994) (citation and internal quotation marks

omitted).

According to Shaner's complaint, the company's violation

of the ADA was "evidenced by" several forms of improper

conduct--the denial of training, the poor performance

evaluations, the manipulation of office temperature, the

relocation of his office, the request that he attend

counseling, and the termination. It is unclear from the

complaint whether Shaner is claiming that each of these

forms of conduct constitute separate "adverse employment

actions"--and thus constitute separate substantive ADA

claims--or whether he is alleging some of them simply as

proof of discriminatory or retaliatory intent. Synthes

contends that the only substantive ADA claims properly

preserved through a timely EEOC charge were the

discriminatory denial of PC applications training (which

Shaner raised in his first EEOC charge) and the retaliatory

termination (which he raised in the second). According to

Synthes, Shaner conceded in the district court that he was

not pursuing any other allegations as substantive ADA

claims. The district court assumed that Shaner primarily

was challenging the denial of PC applications training and

the termination, and treated the other alleged conduct as

merely evidence of improper intent. Shaner's briefing on

this appeal does not clarify the matter; his reply brief

simply refers to all of the alleged improper conduct as

"evidence" of discrimination or retaliation.

We will not determine which of Shaner's allegations were

properly preserved through a timely EEOC charge, nor will

we dwell on whether Shaner seeks to pursue each of his

various allegations as separate substantive ADA claims.

Rather, we conclude, considering all of Shaner's allegations,

that there is not sufficient evidence to permit a reasonable

factfinder to conclude that the company acted with

discriminatory or retaliatory intent with respect to any of

the challenged conduct. More specifically, with respect to

the disparate treatment claim, we hold that Shaner has not

10

presented enough evidence to permit a factfinder either to

disbelieve the company's articulated reasons, or to conclude

that discrimination on account of disability was the real

reason for any of the alleged improper actions. With respect

to Shaner's retaliation claim, we hold that Shaner has not

presented sufficient evidence to establish a causal

connection between any of the alleged improper actions and

the filing of his first EEOC charge. Moreover, even

assuming a prima facie case of retaliation could be

established, we conclude that Shaner has not presented

sufficient evidence to permit a factfinder either to disbelieve

the company's reasons, or to conclude that retaliation was

the real reason, for any of the alleged improper actions.

Like many (if not most) employment discrimination

plaintiffs, Shaner has no direct evidence to indicate that

anyone at Synthes exhibited hostility towards him based on

his protected status (as a disabled person) or his protected

activity (the filing of his first EEOC charge). The following

exchanges from Shaner's deposition are illustrative:

Q. From the time you filed the [first EEOC] charge

until you left Synthes, did anyone at Synthes, any

manager at Synthes, including . . . Mike [DiGuglielmo]

and Dick Jarvis, say anything to you about the charge

you had filed with the EEOC in April of 1994?

A. I don't remember.

Q. Can you identify any conversation or any

statement that you heard about that charge made by

any of those people at this time?

A. No, I cannot.

Q. Did anyone report to you that any Synthes

manager, including . . . Dick Jarvis or Mike, had made

any statement regarding the EEOC charge that you

had filed in April of 1994 from April 1st, 1994 until the

time you left Synthes?

A. I can't remember.

. . . .

Q. [ ] Do you have any information that Synthes or

any of its managers were retaliating against you

11

because you filed an EEOC charge in April of 1994 at

any time that you were employed at Synthes?

A. Do I have any information? No.

. . . .

Q. Can you identify any fact or tell me about any

information or any evidence you have which would

indicate to you, in any way, that any manager of

Synthes, at any time, retaliated against you because

you filed an EEOC charge in April of 1994?

A. I don't remember any at this time.

. . . .

Q. Did you ever hear any comments made by any

Synthes manager, including . . . Dick Jarvis or Mike or

any other manager, that indicated that you were

discriminated against because of your disability or your

alleged disability?

A. No.

Q. Did anyone report to you any comments by any

member of Synthes management which indicated that

you were discriminated against because of your

disability or alleged disability?

A. I can't remember any, no.

App. at 78, 82.

Of course, direct evidence of intent is not required to

establish a discrimination claim. See Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir. 1999). In the

absence of direct evidence, a plaintiff may rely on

circumstantial evidence to "demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions" in the employer's proffered legitimate

reasons so as to permit a reasonable factfinder to infer that

the employer did not act for the proffered reasons. See

Fuentes, 32 F.3d at 764-65. Accordingly, we will examine in

detail the various instances of improper conduct Shaner

alleges to determine whether he possibly can show such

weaknesses or implausibilities. We conclude that he

12

cannot, and thus his ADA claims cannot survive a motion

for summary judgment.9

1. Denial of training

Shaner claims that, upon his commencing employment

with Synthes, the company promised him that he would

receive PC applications training. According to Shaner, he

was told that "every opportunity would be available" for

such training, and the company's "extensive PC network"

was one of the reasons he chose to accept a job at Synthes.

Shaner never received the PC applications training he

desired, despite his requests for it. He claims that other

similarly situated workers received this type of training,

including Vincent Jasinnas, who received training in July

1993 on Excel.

The company contends that PC applications and Excel

were not necessary for Shaner to perform his job. Shaner's

testimony fails to counter the company's contention, and

indeed tends to support it. At his deposition, Shaner

speculated that training in PC applications or Excel

"possibly" might have been helpful to him--for example, if

a user asked him a question related to PC applications --

but he gave no testimony indicating that training in these

areas was germane to his regular job functions. Indeed,

Shaner answered "No" when asked whether he needed

Excel in order to do his job as of January 1994, when he

and Jarvis exchanged emails regarding Excel training.

Further, Shaner indicated during his deposition that he did

not know whether Jasinnas, who received Excel training,

actually was doing work involving the use of Excel. Perhaps

most significantly, Shaner's testimony shows that the

_________________________________________________________________

9. We have indicated that "a discrimination analysis must concentrate

not on individual incidents, but on the overall scenario." See Woodson,

109 F.3d at 921 (citation omitted). Nevertheless, where, as here, a

plaintiff alleges that discrimination or retaliation is evidenced by

discrete

categories of conduct, we believe that some examination of each category

is necessary in order to assess the merits of the case. See id. We will

examine each of the categories of improper conduct alleged by Shaner,

keeping in mind our admonition that "[a] play cannot be understood on

the basis of some of its scenes but only on its entire performance." Id.

(citation omitted).

13

denial of PC applications and Excel training began before

November 1993, when he first advised the company of his

MS. Accordingly, we can see no basis for a reasonable jury

to conclude that Shaner was denied PC applications or

Excel training on account of his disability.10

Further, there is no evidence of a discriminatory denial of

training on the J.D. Edwards system. Shaner's testimony

indicates that he received a week-long training seminar on

J.D. Edwards in April 1994, along with other Synthes

programmers.11 In January 1995, Shaner was instructed to

spend four to five hours per week with J.D. Edwards on his

own in order to become comfortable with the system.

Manuals for J.D. Edwards were available, which Shaner

read and understood, and Shaner was advised that he

should seek help from another employee who was proficient

with the system. Shaner tried to comply with the company's

instruction, but he found the system difficult to learn,

although he was a computer professional. Shaner never

_________________________________________________________________

10. According to Shaner's brief, "the record revealed that all the

programmers except Shaner had received PC Applications training,

causing even the other programmers to wonder why plaintiff was being

excluded." We do not see any support in the record for this contention.

Shaner's brief cites only to the testimony of a Synthes employee, Crystal

Dean. However, Dean was referring not to PC Applications training but

to another form of training--on a system called J.D. Edwards--when she

testified that Shaner was denied training that others had received.

("[Shaner] was the last of the programmers who had not received training

for J.D. Edwards.") (emphasis added). Yet, Shaner conceded at his

deposition that he received a week of J.D. Edwards training along with

other programmers, and Dean testified that she was unaware that

Shaner had received this training. Indeed, Dean conceded that she had

no personal knowledge as to the J.D. Edwards training received by any

of the programmers, including Shaner, and she indicated that her

knowledge regarding denials of training was based almost entirely on

what Shaner had told her. Accordingly, Dean's testimony does not

provide a basis for inferring discriminatory intent in relation to the

denial of PC applications training, or any other form of training.

11. Shaner also contends that he wrongfully was excluded from meetings

of the "SIBIS" team, which was involved in programming the J.D.

Edwards system. Yet, Shaner testified that his exclusion from the SIBIS

team began when Jarvis joined the company, which was well before

Shaner disclosed his illness to the company in November 1993.

14

asked anyone for help, because he felt it would be

"humiliating" to do so, and he never indicated to anyone

that he could not or would not learn the system on his

own. He admitted in his deposition that he simply failed to

carry out his superiors' expectation that he familiarize

himself with J.D. Edwards. As with PC applications

training, we see no grounds for a reasonable jury to

conclude that the company acted with discriminatory intent

with respect to its decision not to provide Shaner with

additional formal training on J.D. Edwards.12

2. Performance evaluations

Shaner's allegation that there was a "sudden change" in

his performance evaluations after he informed the company

that he suffered from MS is not supported, and indeed is

contradicted, by the record evidence. Shaner's May 1993

performance evaluation--which Shaner himself viewed to be

highly critical--was given several months before he

informed Synthes about his disease and nearly a year

before he filed his first EEOC charge. According to Shaner's

testimony, he suspected at the time that the motive behind

the criticisms in the 1993 evaluation was Jarvis's desire to

force out programmers who pre-dated Jarvis's arrival at

Synthes. While this motive may not have been benevolent,

it could not have been based on Shaner's disability, which

had not yet been made known to the company. According

to Shaner's testimony, his next evaluation, in April 1994--

which he received prior to the filing of his first EEOC

charge, was a "carbon copy" of the 1993 evaluation. A

subsequent evaluation in March 1995, like the two prior

ones, indicated that Shaner was not performing to the level

expected of a senior analyst. In short, the record shows

that Shaner's performance evaluations contained similar

_________________________________________________________________

12. Our conclusions regarding PC applications training and J.D.

Edwards training are further bolstered by Shaner's testimony that the

company in fact provided him with various training during the course of

his employment, including the week-long seminar on J.D. Edwards.

Further, the company paid for Shaner to attend periodic seminars with

an organization called the "Delaware Valley Computer Users Group." The

fact that Shaner received some training from the company severely

undermines his claim that the company deprived him of other forms of

training on account of his disability.

15

criticisms both before and after he made the company

aware that he suffered from MS and before and after he

filed his first EEOC charge.13

Under these circumstances, there is simply no evidence

that any of these evaluations was causally linked to the

filing of Shaner's first EEOC charge or that any of them was

motivated by discriminatory or retaliatory intent. We have

indicated that temporal proximity between the employee's

protected activity and the alleged retaliatory action may

satisfy the causal link element of a prima facie retaliation

claim, at least where the timing is "unusually suggestive of

retaliatory motive." See Krouse, 126 F.3d at 503 (internal

quotation marks omitted); Woodson, 109 F.3d at 920. Yet

the timing of the performance evaluations in this case is

anything but suggestive, inasmuch as Shaner received the

1993 and 1994 evaluations prior to the filing of his first

EEOC charge, and the 1995 evaluation was prepared nearly

a year after the filing of the charge.

Moreover, although "mere passage of time is not legally

conclusive proof against retaliation," we have indicated that

the passage of a long period of time between protected

activity and an alleged retaliatory action weighs against a

finding of a causal link where there is no evidence of

retaliatory animus during the intervening period. See

Krouse, 126 F.3d at 503-04 ("Absent evidence of intervening

antagonism or retaliatory animus, we conclude that the

passage of time [between the filing of plaintiff 's charge and

the alleged retaliatory action] in this case is conclusive and

that [plaintiff] failed to establish a causal link as a matter

of law."); Woodson, 109 F.3d at 920-21. The record does not

support a finding that there was an intervening retaliatory

animus so as to establish a causal connection between the

filing of Shaner's first charge and the 1995 evaluation,

particularly in view of the circumstance that the three

evaluations were consistent.

We also make the following observation with respect to

performance evaluations. While it is possible that a

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13. Indeed, prior to November 15, 1993, Shaner complained to his MS

support group that he had received an unfairly critical performance

review from his employer.

16

manager might make a poor evaluation to retaliate against

an employee for making an EEOC charge, still it is

important that an employer not be dissuaded from making

what he believes is an appropriate evaluation by a reason

of a fear that the evaluated employee will charge that the

evaluation was retaliatory. In this regard, we are well aware

that some employees do not recognize their deficiencies and

thus erroneously may attribute negative evaluations to an

employer's prejudice. Accordingly, in a case like this in

which the circumstances simply cannot support an

inference that the evaluations were related to the EEOC

charges, a court should not hesitate to say so.

3. Office temperature

According to Shaner's testimony, prior to the relocation of

his office, he frequently saw employees, including Jarvis,

adjusting the thermostat in the area of the building where

Shaner and others worked. He admitted during his

deposition that he had no evidence that any of these people

were changing the thermostat in order to harm him.

Indeed, he responded "I would think so" when asked

whether these people were adjusting the thermostat simply

because they were uncomfortable with the office

temperature, and he indicated that he "disagreed" with

others regarding the appropriate temperature.14 Most

significantly, Shaner testified that the thermostat frequently

was adjusted too high for his liking prior to November 1993,

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14. Shaner's testimony in this regard is corroborated by testimony from

other Synthes employees. Denise Arms-Sadowski testified that she had

a low tolerance for cold temperatures and often asked Jarvis to raise the

heat. She also testified that there were other employees who complained

about the office being too cold. According to George Felix, "Bob [Shaner]

would go to the thermostat and turn the heat down. There were

employees that complained that it was then too cold in the office and

they would turn the heat back up." Indeed, at oral argument before us,

Shaner's counsel stated that "it is clear from the evidence on the record

that they were raising the heat to over 75 degrees for the comfort level

of

other employees." Oral Argument Tr. at 7 (emphasis added). Of course,

we do not suggest that this case turns on an inquiry as to how far an

employer must go to make a reasonable accommodation under the ADA

to a disabled person at the expense of other employees. See Kralik v.

Durbin, 130 F.3d 76, 80-84 (3d Cir. 1997).

17

when he first informed the company that he suffered from

MS. Thus, with respect to the period prior to the relocation

of Shaner's office, we see no basis for a finding that anyone

adjusted the temperature with discriminatory or retaliatory

intent, and no evidence of a causal link between Shaner's

problems with office temperature and the filing of his first

EEOC charge.15

According to Shaner, after his office was relocated, there

were four or five instances when an unknown individual or

individuals turned the heat all the way up while he was at

lunch. These isolated incidents do not in themselves rise to

the level of adverse action upon which to base a claim for

disparate treatment or retaliation. See Mondzelewski v.

Pathmark Stores, Inc., 162 F.3d 778, 787 (3d Cir. 1998)

("[M]inor or trivial actions that merely make an employee

`unhappy' are not sufficient to qualify as retaliation under

the ADA . . . ."). Even if a factfinder could infer that these

incidents were motivated by hostility toward Shaner's

disability, we do not believe, in light of all the evidence, that

these incidents provide a basis for a rational finding that

any of the company's other actions were motivated by

discriminatory or retaliatory intent.16

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15. We do not see how an intent to discriminate or retaliate can be

inferred from the fact that Shaner was required to work under the same

temperature conditions as other employees.

16. Shaner's claim that the company acted with retaliatory intent in

relocating his office is entirely without merit. The company was

responding to Shaner's own complaints about office temperature, and

Shaner conceded at his deposition that the company"attempted to

accommodate me" by moving him to a room with its own temperature

control. Indeed, according to Shaner's testimony, he and DiGuglielmo

agreed prior to the move that it would be better for him to work in an

area where he could control the temperature. Further, Shaner's

allegation that the conference room to which he was moved was a

"converted closet" is completely at odds with his own deposition

testimony. Although the conference room was once used for storage, it

also had been an office for two consultants, and it contained windows

looking out onto a hallway. We simply see no basis for a finding that the

office relocation was causally linked to the filing of the EEOC charge or

that the relocation was made with retaliatory intent.

We also see no evidence of retaliatory intent with respect to

DiGuglielmo's request that Shaner attend counseling. Shaner voluntarily

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4. Termination

Shaner does not challenge the company's general policy

requiring termination of employees who are on medical

leave for six months. Nor does he dispute that he was

permanently and totally disabled when he went on leave in

April 1995 and that he has been unable to work since.

Shaner's argument is that the company intentionally or

recklessly caused an exacerbation of his MS through its

discriminatory and retaliatory treatment--including the

manipulation of the office temperature--so as to compel

him to take a leave of absence, thereby allowing the

company to apply its termination policy as a pretext for

retaliation.17 To support this argument, Shaner cites his

own hearsay testimony that another employee told him that

the company began removing and rearranging things in

Shaner's office a day or two after Shaner went on leave in

April 1995. Shaner contends that the company did not

know at that time how long he was going to be absent.

We have no trouble concluding that a reasonable

factfinder cannot accept Shaner's theory that the company

intentionally or recklessly caused his MS to worsen.

Contrary to the inference which Shaner seeks to raise, the

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attended the counseling because he felt that it would be beneficial to

him. As with the relocation of Shaner's office, the evidence shows only

that the company was making efforts to help Shaner, rather than to

discriminate or retaliate against him. The very purpose of the ADA would

be undermined if, in the context presented here, we were to view the

company's attempts to aid or accommodate Shaner as evidence of

retaliatory treatment.

17. Shaner's brief argues as follows:

Focusing entirely on Synthes's `non-discriminatory reason' for

firing

Robert Shaner (Synthes's alleged policy of firing any employee out

on medical leave for more than six months), the court below

accepted Synthes's statements that they always adhered to the six

month policy, disallowing that Shaner need not have offered

evidence challenging the existence of such a policy, since he was

charging that Synthes had caused his disability so that it could

apply the policy to him. The punctilious procedural perfection of

Synthes's use of that policy is irrelevant.

Appellant's Br. at 37-38.

19

evidence shows that the company made substantial efforts

to accommodate him. When Shaner returned from hisfirst

leave of absence in 1994, the company lightened his

month-end work load and allowed him to attend water

therapy sessions during work hours. In November 1994,

the company moved him to an office with its own

thermostat so that he could control the temperature in his

work space. The company also permitted him to leave work

early when he was ill and allowed him to attend counseling

sessions during work hours. Considering all the evidence,

there is no basis for a factfinder to conclude that the six-

month policy was applied as a pretext for retaliation.

Further, the evidence does not establish a causal link

between the termination and the filing of Shaner'sfirst

EEOC charge. The termination took place approximately a

year and a half after the filing of the charge, and the

evidence does not support a finding that there was such

intervening discrimination or retaliatory harassment as to

permit an inference that the termination was linked to the

filing of the charge. See Krouse, 126 F.3d at 503-04

(affirming summary judgment for employer on retaliation

claim where there was no evidence of antagonism or

retaliatory animus during nineteen-month period between

the filing of the plaintiff 's charge and the alleged retaliatory

action). Although Shaner contends that the company

planned on firing him as soon as he began his leave in April

1995, the fact remains that he was not fired until six

months later, pursuant to a neutral policy. There is no

basis for a finding of retaliation here. In sum, the district

court properly granted summary judgment with respect to

Shaner's ADA claims.

B. Emotional Distress

We further conclude that there is not sufficient evidence

to establish a claim for intentional infliction of emotional

distress under Pennsylvania law. That tort is defined as

follows:

One who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional

distress to another is subject to liability for such

emotional distress, and if bodily harm to the other

results from it, for such bodily harm.

20

Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998) (quoting

Restatement (Second) of Torts S 46).18 "[C]ourts have been

chary to allow recovery for a claim of intentional infliction

of emotional distress. Only if conduct which is extreme or

clearly outrageous is established will a claim be proven." Id.

at 753-54. The Hoy court rejected an emotional distress

claim arising from workplace sexual harassment involving

sexual propositions, physical contact with the plaintiff 's

knee, off-color jokes, regular use of profanity, and the

posting of a sexually suggestive picture. See id. at 754-55.

In so ruling, the court stated that "the conduct exhibited

. . ., while unacceptable, was not so extremely outrageous

. . . that would allow for recovery under this most limited

of torts." Id. at 755.

We will assume that conduct which is intended to cause

a worsening of a disabled person's physical symptoms may

qualify as "extreme or clearly outrageous." Nevertheless,

viewing the record in the light most favorable to Shaner, we

do not find sufficient evidence to establish such a claim

here. Shaner's most serious allegation--manipulation of the

office temperature with intent to cause him harm or

reckless disregard for his health--is simply not supported

by the record, which indicates that others adjusted the

temperature simply for their own comfort.19 Accordingly,

Shaner's emotional distress claim cannot survive summary

judgment.20

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18. The Pennsylvania Supreme Court has not expressly adopted section

46 of the Restatement. See Hoy, 720 A.2d at 753 n.10. In Hoy, the court

assumed the existence of the tort under Pennsylvania law and concluded

that the plaintiff had failed to establish a right of recovery. See id.

19. Although Shaner testified as to four orfive occasions when someone

turned the heat all the way up in the conference room while he was at

lunch, we do not believe that these isolated incidents rise to the level

of

outrageous conduct, even assuming that the perpetrator was aware of

the effect of heat on Shaner's MS. Such isolated office pranks do not

meet the threshold of this "most limited of torts." See Hoy, 720 A.2d at

755.

20. The district court held that Shaner's emotional distress claim was

barred by the Pennsylvania Workers' Compensation Act, and further

indicated that any heat-related aggravation of Shaner's MS would be a

work-related injury compensable only through workers' compensation. In

light of our disposition, we need not address these issues.

21

IV. CONCLUSION

For the reasons set forth above, the district court's order

entered December 14, 1998, granting summary judgment

in favor of Synthes will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

22