1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Mondzelewski v. Pathmark" (1998). 1998 Decisions. Paper 284.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/284
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-theshoulder 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. 

 17 
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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