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. e du/thir dc ir c uit_1998/284Filed 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 Judge s

(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 AppellantsC. 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 wif e, Rebecca Mondzelewski, sued Pathmark Stores, Inc., a nd Supermarkets General Corp. (collectively, "Pathmark "), asserting claims under the Americans with Disabilit ies 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 meani ng of the ADA because he is not substantially limited in the major life activity of working. In addition, relying on K rouse v. American Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997),
which was handed down after the District Court rule d in this case, Mondzelewski contends that the District Court

2erred in rejecting his retaliation claim on the gro und that

he is not disabled. We reverse the District Court o n both grounds and remand for further proceedings in accor dance with this opinion.

I.

A. Viewed in the light most favorable to Mondzelews ki, the relevant facts are as follows. Mondzelewski, a 55-year old with a sixth-grade education, has worked at Pat hmark for 35 years, first as a bagger and then as a meat cutter. In March 1992, he injured his back lifting boxes of me at 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 liftin g objects weighing more than 50 pounds and from carrying obje cts 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 provide d a copy
of the restrictions to Pathmark.

Mondzelewski claims that, after returning to work f rom his second injury, Pathmark retaliated against him for asserting his right under the ADA to obtain reasona ble 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 thei r shifts between 6 and 8 a.m. and finished by 2 p.m., while others began at noon and worked until evening. In a ddition, workers generally were not required to work in the evening on weekends on a regular basis. Before his second i njury, Mondzelewski's schedule generally followed this pat tern, but after his second injury, Pathmark assigned him to work from 9:30 a.m. to 6:00 p.m. and consistently requir ed him to work on Saturday evenings. According to Mondzele wski

3and his fellow workers, these shifts were considere d

"punishment shifts." App. 122-125.

Mondzelewski also contends that he was given severa l retaliatory reprimands. First, Mondzelewski stated in his deposition that he received an oral warning for tak ing his work break during the last hour of his shift and th at no other employees were given such warnings. Second, Mondzelewski was given a written notice of counseli ng because he had "left ground beef in [the] case" ins tead of making "frozen patties" or "consult[ing] management for direction." App. 138. Mondzelewski described this n otice 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 sta ted that it was for "counseling only," it also stated that " future violations will result in additional disciplinary a ction including separation." App. 138. Mondzelewski claim s that this was the first written reprimand he had ever re ceived 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 m eat. The meat was unmarked as to its weight, but Mondzelewsk i estimated it to weigh between 50 and 100 pounds. Be cause his co-worker refused to assist in lifting the meat
, Mondzelewski called on a department manager for hel p. Instead of offering assistance, Mondzelewski claims the department manager wrote specific weights on this a nd 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[expl etive] games, well, I'm not. You want a write up. I'm tell ing you to do these chucks. You either do it or you go home." App. 45. Mondzelewski refused, and as a result, he was writt en up and suspended for the afternoon. Like his previous written notice, this notice stated that "future violations will result in additional disciplinary action including separat ion." App. 139. At a grievance meeting to discuss the matter, Mondzelewski was told, he asserts, that his restric tions were disrupting the work of his fellow employees.

4Mondzelewski asserts that on one occasion his super visor

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 reques t 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 manage rs and employees harassed and humiliated him. Mondzele wski was sent to a worker's compensation seminar at whic h a speaker said that some employees fake accidents. On another occasion, he states, he was not given a"but cher's
white coat" and was told it was because he would no t be around much longer. At another time, he was alleged ly 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 ass erts 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 f or several months. During this period, he filed a char ge against Pathmark with the Equal Employment Opportun ity Commission ("EEOC"). Later that year, he returned t o work, but he was assigned to a different store in order t o prevent any further acts of retaliation. At present, Mondze lewski 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 De laware. Count I alleged that Pathmark discriminated against him, in violation of 42 U.S.C. S 12112, by failing to pr ovide reasonable accommodation for his lifting restrictio ns. 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 se cond injury. Count III asserted that Pathmark violated a Delaware statute, 19 Del. Code S 2365, by retaliati ng against him for filing a worker's compensation clai m.

5Counts IV and V alleged common law torts, and Count VI

asserted injury to the Mondzelewskis' marital relat ionship.

The District Court granted summary judgment for
Pathmark on the federal claims. See Mondzelewski v. Pathmark Stores, Inc., 976 F. Supp. 277 (D. Del. 19 97). 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 acti vities" of "lifting" or "working." See 42 U.S.C.S 12102(2)(A) (defining a "disability" as including "a physical . .. impair ment 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 jo b prospects. However, the District Court held that Yo he's report "fail[ed] to raise a material issue of fact on Mondzelewski's claim for several reasons," includin g its
failure to "relate the effect of Mondzelewski's `me dium-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 ra ther by his "personal characteristics [such as his limit ed 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 Co urt held that "Mondzelewski may not assert a claim for
retaliation because he is not disabled." Mondzelews ki, 976 F. Supp. at 282. The court went on to note preceden t 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 h old that the acts alleged by Mondzelewski do not, as a matter of law, constitute adverse employment action, a lthough it

6does not believe it would be error to do so. For

example, Mondzelewski's most tangible compla int-- the change in shifts -- must be discounted b ecause of
the common sense notion that a 9:00 a.m. to 5:00 p.m.
shift cannot be considered an extreme hardsh ip given most of this country's workers are governed by that
shift.

Mondzelewski, 976 F. Supp. at 283-84. The Court thu s granted summary judgment for the defendants on Mondzelewski's retaliation claim, and the court dec lined to exercise supplemental jurisdiction on the remaining state law claims. Mondzelewski then appealed.

In this appeal, we must decide (1) whether the Dist rict Court correctly concluded that Mondzelewski is not disabled within the meaning of the ADA and (2) whet her a
claim for retaliation can be asserted even if the u nderlying disability claim fails. In addition, since the Dist rict Court
stated that it would not be error to hold that Mond zelewski had not suffered any "adverse employment action," w e will address that question as well.

II.

We turn first to the District Court's conclusion th at Mondzelewski is not disabled within the meaning of the ADA. Mondzelewski does not challenge the District C ourt's holding that he is not substantially limited in the major life activity of lifting, but he contends that the Distr ict Court erred in granting summary judgment against him on t he question whether his back impairment, coupled with his limited education, training, and skills, substantia lly limits his ability to work. We agree.

A. The ADA prohibits an employer from discriminatin g against a qualified individual with a disability be cause of the disability, 42 U.S.C. S 12101, and as noted, th e 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 individua l." 42 U.S.C. S 12102(2)(A).1 Pathmark does not dispute th at

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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 h as a record of an

7Mondzelewski's back injury is a "physical impairmen t," but

Pathmark argues that this impairment does not substantially limit any major life activity.

Although the ADA does not define the term "substant ially 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 limit s" 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, ma nner or duration under which an individual can perform a particular major life activity as compared to the c ondition, 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 r egulations further provide that, in assessing whether a major life activity has been substantially limited, a court sh ould consider the following factors: "(i) [t]he nature a nd severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long t erm impact, or the expected permanent or long term impa ct 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

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impairment that constitutes a disability and becaus e Pathmark regarded him as having such an impairment. The District Cour t rejected these arguments and Mondzelewski has not raised them on a ppeal.

2. Major life activities also include: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, b reathing, learning . . . ." 29 C.F.R. S 1630.2(i). This list is not me ant to be exhaustive,

and also includes sitting, standing, lifting, and reach ing. 29 C.F.R. Pt. 1630, App. S 1630.2(i). In the District Court, Mondzelews ki argued that he is substantially limited in the major life activities of lifting and working.

On appeal, Mondzelewski argues only that he is substan tially limited in the major life activity of working.

8activity of working if there is a significant restr iction in the

ability "to perform either a class of jobs or a bro ad 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 o f working, the regulations provide that the courts may also co nsider: (1) the geographical area to which the individual h as reasonable access; (2) the job from which the indiv idual has been disqualified, and the number and types of jobs utilizing similar training, knowledge, skills or ab ilities from which the individual is also disqualified ("class o f jobs"); and/or (3) the job from which the individual has be en disqualified, and the number and types of other job s not utilizing similar training, knowledge, skills or ab ilities from which the individual is also disqualified ("broad r ange of jobs"). 29 C.F.R. S 1630.2(j)(3)(ii); see also Dean e, 142 F.3d

at 144 n.7.

On Pathmark's motion for summary judgment, the District Court held that Mondzelewski had not provi ded
sufficient evidence to demonstrate that he is subst antially limited in the major life activity of working. Mond zelewski, 976 F. Supp. at 281. The Court provided several rea sons 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, limite d job skills, advanced age, and lifting restrictions -- t he first
three of these factors dwarf the last one in effect on employability." Id. The Court stressed that "[t]o h old Mondzelewski is substantially limited in the major life activity of work would permit him to gain protectio n from the ADA for personal characteristics that have noth ing to do with his impairment." Id. We conclude that the D istrict Court's legal analysis was flawed because, as the A DA regulations explicitly provide, a court should cons ider the individual's "training, skills and abilities" in de termining whether the individual is substantially limited in the major life activity of working. 29 C.F.R. S 1630.2(j)(3)( i).

9Under the EEOC's interpretive guidelines,3 determi ning

whether an individual is substantially limited in o ne or more of the major life activities requires a two-st ep analysis. First, the court determines whether the i ndividual 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 determinatio n, 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 determinat ion 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 limi ted 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 fin ds that the individual is substantially limited in any of these major life activities, the inquiry ends there. Id. On the othe r hand, if the individual is not so limited, the court's next step is to determine whether the individual is substantially l imited in the major life activity of working.4 Id.

In determining whether an individual is substantial ly limited in the ability to work, the proper inquiry, according to the relevant regulation, is whether the individu al is "significantly restricted in the ability to perform either a

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3. We have afforded these guidelines "a great deal of deference." Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 9 37 (3d Cir. 1997).

4. Specifically, the Interpretive Guidelines provid e:

If an individual is not substantially limite d with respect to any

other major life activity, the individual's abilit y to perform the major
life activity of working should be considered. If an individual is substantially limited in any other major lif e activity, no
determination should be made as to whether t he individual is substantially limited in working. For exampl e, if the individual is blind, i.e., substantially limited in the ma jor life activity of seeing,
there is no need to determine whether the in dividual is also substantially limited in the major life acti vity of working.

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

10class of jobs or a broad range of jobs in various c lasses as

compared to the average person having comparable tr aining, 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 ord er to evaluate "whether the particular impairment constit utes for the particular person a significant barrier to empl oyment." Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Ci r. 1996) (citing Forrisi v. Bowen, 794 F.2d 931, 933 (4th Ci r. 1986)); accord E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1 088, 1099 (D. Haw. 1980) (explaining that "it is the imp aired individual that must be examined, and not just the impairment in the abstract"); 29 C.F.R. Pt. 1630, A pp. S 1630.2(j) (stating that the determination of whet her 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 facto rs in defining the class of jobs used to determine whethe r 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 an other
individual with different characteristics. 29 C.F.R . Pt. 1630, App. S 1630.2(j); see also McKay v. Toyota Motor Mf g. U.S.A., Inc., 110 F.3d 369 (6th Cir. 1997) (finding plaintiff with carpal tunnel syndrome not disabled because, a mong other things, she had a college degree); Smith v. K itterman, Inc., 897 F. Supp. 423, 427 (W.D. Mo. 1995) (findin g plaintiff with carpal tunnel syndrome had raised ma terial issue of fact because of her limited education, tra ining, and employment background); Heilweil v. Mount Sinai Hos pital, 32 F.3d 718, 724 (2d Cir. 1994) (finding plaintiff not hindered in her ability to work because of her adva nced educational degrees).

We accept this approach -- under which an individua l's training, skills, and abilities are taken into acco unt 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 w hich it is set out, see Deane, 142 F.3d at 143 n.4, and bec ause it

11is entirely reasonable. Indeed, because the effect that a

particular impairment will have on a person's abili ty to work varies depending on that person's background a nd skills, it is not easy to envision how any other ap proach

could be taken.

C. Under the approach set out above, the District C ourt in the present case was required to determine wheth er Mondzelewski's evidence was sufficient to show that his lifting restrictions significantly limit his abilit y to perform the requisite jobs "as compared to the average pers on having comparable training, skills and abilities." 29 C.F.R. S 1630.2(j)(3)(i). This determination necessitated consideration of the "personal characteristics" tha t 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 det erminative; rather, the question is whether his ability to work is sufficiently limited in light of the training, skil ls, and abilities that he does possess.

In finding that Mondzelewski is not disabled, the D istrict 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 t hat is an impairment. . . . [A]dvanced age, physical o r personality characteristics, and environment al, cultural, and economic disadvantages are not impairments. Consequently, even if such fact ors substantially limit an individual's ability to perform a major life activity, this limitation will no t 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 th e impairment substantially limits a major life activi ty and thus constitutes a disability. The guideline provid es the following example:

[A]n individual who is unable to read becaus e he or she was never taught to read would not be an ind ividual

12with 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 physica l 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 per form 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 nec essary individualized assessment of the extent to which Mondzelewski's back condition coupled with his pers onal characteristics substantially limits his ability to work.

D. The District Court also suggested that the defendants were entitled to summary judgment on Cou nt I because the report of Mondzelewski's vocational exp ert failed to "relate the effect of Mondzelewski's `med ium 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, how ever, that this report is sufficient to show for the purp ose 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 c lasses. . . ." 29 C.F.R. S 1630.2(j)(3)(i). Cf. 29 C.F.R. P t. 1630, App. S 1630.2(j) (stating that the terms "number and typ es of jobs" are not intended to impose an onerous evident iary burden but are meant only to require evidence of th e approximate number of jobs from which the individua l is precluded from working).

Yohe's report recounted Mondzelewski's educational and vocational background and reported that Mondzelewsk i had received "extremely low" scores on an achievement t est and a career ability placement test that Yohe had admin istered. App. 162. According to his report, Yohe compared Mondzelewski's profile "to each of the almost 13,00 0 jobs listed in the [Department of Labor's] Dictionary of

13Occupational Titles and found that "there were a to tal 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 positi ons 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 unskille d light or medium duty capacity. For him to obtain thes e types of jobs, he would likely need some sort of assi stance from a professional Rehabilitation Specialist.

App. 164. Whatever else may be said of Yohe's repor t, we believe that it is sufficient to show for present p urposes that Mondzelewski is "significantly restricted in t he ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person h aving 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 a ctivity 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 sit uation without accommodation for the individual's impairme nt. Matczak, 136 F.3d at 937; see also, e.g., Washingto n v. HCA Health Servs. of Texas, Inc., 152 F.3d 464 (5th Cir. 1998). Here, Pathmark granted Mondzelewski's reques t for "assistance with lifting of over fifty pounds and w ith frequent carrying of over twenty-five pounds." Appe llees' Br. at 3. Thus, the mere fact that Mondzelewski has bee n able to continue to perform his job with accommodation d oes 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 a t the summary judgment stage.

III.

A. Mondzelewski next challenges the District Court' s decision to grant summary judgment to Pathmark on h is

14retaliation claim. While recognizing that persons w ho do not

have a disability but "who in good faith file forma l 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 act s of harassment that may be visited upon them in respons e to their requests for assistance." Id. The District Co urt thus suggested that a retaliation claim can be brought b y a person who is adjudged not to have a disability onl y if that person filed a formal ADA complaint and/or suffered a more severe form of retaliation than would otherwis e be required. Id.

After the District Court's decision, this Court hel d that "a person's status as a `qualified individual with a d isability' is not relevant in assessing the person's claim for re taliation 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 provis ion protects "any individual" who has opposed an y 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 individu al with a disability." An individual who is adjudged n ot 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 fo r holding that a person who is adjudged not to have a disabil ity may
not assert a retaliation claim based on some form o f protected activity other than the filing of a forma l 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 hol d
that Mondzelewski's retaliation claim could not sur vive

15summary 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 ad dress this
issue.

Mondzelewski argues that "[p]erhaps the most egregi ous actions" taken against him were the "use of`punishm ent shifts.' " Appellant's Br. at 30. The District Cour t, however, wrote that, while this was "Mondzelewski's most tan gible complaint," "the change in shifts . . . must be dis counted
because of the common sense notion that a 9:00 a.m. to 5:00 p.m. shift cannot be considered an extreme har dship given most of this country's workers are governed b y that shift." Mondzelewski, 976 F. Supp. at 284. We are u nable to agree with the District Court's analysis and ins tead hold that the change in Mondzelewski's shifts could be f ound to constitute a change in the terms, conditions, or pr ivileges of his employment and thus to fall within the prohibit ion of 42 U.S.C. S 12203(a).

This provision states in pertinent part:

No person shall discriminate against any ind ividual 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 o f Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 20 00e-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 inter preted "discriminat[ion]" to mean conduct that falls withi n the basic prohibition against employment discrimination found in 42 U.S.C. S 2000e-2(a)(1), which makes it an "un lawful employment practice" to discriminate with respect t o "compensation, terms, conditions, or privileges of employment." See Robinson v. City of Pittsburgh, 12 0 F.3d

161286, 1300 (3d Cir. 1997) (citing cases). Courts cu stomarily

express this concept by stating that a retaliation plaintiff must show that he or she suffered a "materially adv erse employment action." Id. (quoting McDonnell v. Cisne ros, 84 F.3d 256, 258 (7th Cir. 1996)). In view of the rese mblance 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 4 2 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 privileg es of employment." 42 U.S.C. S 12112(a). We reiterate, ho wever, as we observed in Robinson, 120 F.3d at 1300, that minor or trivial actions that merely make an employee "un happy" 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 St ate Univ., 89 F.3d 437, 441 (7th Cir. 1996)).

We hold that Mondzelewski proffered evidence suffic ient to establish for present purposes that the change i n his schedule may have altered the "terms, conditions, o r 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 cer tain periods of free time and that did not require them to work weekend evenings consistently. His evidence suggest ed that his fellow employees considered this type of schedu le to be

___________________________________________________ ______________

5. Mondzelewski seems to assert that because the al leged harassment caused him to suffer a "nervous breakdown," the act s are per se retaliatory under the ADA. Mondzelewski erroneously draws support from Harris v. Forklift Sys., Inc., 510 U.S. 17 (19 93). The Court, however, did not set forth a per se rule that if a person su ffers "tangible psychological injury," the employer must have engag ed 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 h er to suffer tangible psychological harm that a reasonable person would n ot suffer under similar circumstances, then that individual cannot seek protection from the ADA's anti-retaliation provision.

17a highly desirable benefit. Although Mondzelewski

previously had worked under the typical meat worker 's schedule, after his second injury, he was singled o ut 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 undesirabl e shift. Indeed, according to these affidavits, workers refe rred to these shifts as "punishment shifts." We find this e vidence sufficient to raise a triable question as to whethe r Mondzelewski's terms, conditions, or privileges of employment were altered.

Assigning an employee to an undesirable schedule ca n be more than a "trivial" or minor change in the employ ee's working conditions. See Hampton v. Borough of Tinto n Falls Police Dep't, 98 F.3d 107, 116 (3d Cir. 1996) (unde r Title VII, appointment to undesirable police assignment sufficient to withstand summary judgment on retalia tion claim); Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987) (under Title VII, holding adverse action does not r equire 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. 19 86) (under Title VII, holding district court's conclusi on, i.e., a change to night shift constitutes sufficient eviden ce of retaliatory job assignment, not clearly erroneous), overruled on other grounds, Harvey v. Blake, 913 F.2d 226, 22 8 n.2 (5th Cir. 1990); McGill v. Board. of Educ., 602 F.2 d 774, 780 (7th Cir. 1979) (under 42 U.S.C. S 1983, teache r transferred to a less desirable school is retaliati on for protected speech); Florence v. Runyon, 990 F. Supp. 485, 498 (N.D. Tex. 1997) (under Title VII, denying summ ary judgment where transfer to new position with differ ent work hours raised material issue of fact as to whether p laintiff suffered adverse employment action); Khan v. Cook C ounty, No. 96-C-1113, 1996 WL 432410, at *2 (N.D. Ill. Jul y 30, 1996) (under the ADA, refusing to hold as a matter of law that a transfer to the night shift does not constit ute 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 rais ed

18material issue of fact as to whether plaintiff suff ered

adverse employment action); Maddox v. County of San Mateo, 746 F. Supp. 947, 953 (N.D. Cal. 1990) (unde r Title VII, permitting retaliation claim where, among othe r things, employer refused to transfer plaintiff from graveya rd shift); see also 2 EEOC Compliance Manual 613:0004, at 613. 3 (BNA June 1986) ("Title VII prohibits discriminatio n with respect to practices or activities such as length o f employment contract, hours of work, or attendance s ince they are terms, conditions, or privileges of employ ment."). Cf. 29 U.S.C. S 158(d) (obligation to bargain colle ctively with respect to, among other things, "hours . . . and ot her terms and conditions of employment") (emphasis added); Me at Cutters Locals v. Jewel Tea Co., 381 U.S. 676, 691 (1965) ("the particular hours of the day and the particula r days of the week during which employees shall be required t o work are subjects well within the realm of `wages, hours , and other terms and conditions of employment' about whi ch employers and unions must bargain"); Long Lake Lumb er Co., 160 NLRB 1475 (1966) (changing employee's sche dule from normal workweek to a Tuesday through Saturday workweek violated National Labor Relations Act). Th us, we believe that Mondzelewski has produced evidence tha t raises a genuine issue as to whether Pathmark alter ed his terms, conditions or privileges of employment, in v iolation of 42 U.S.C. S 12203(a), when it changed his work

schedule.

We readily agree with the District Court's observat ion that assignment to a 9:00 a.m. to 5:00 p.m. shift " cannot be considered an extreme hardship given most of thi s country's workers are governed by that shift." Mondzelewski, 976 F. Supp. at 284. But the critical question for present purposes is not whether Mondze lewski suffered an "extreme hardship," but whether his ter ms, conditions, or privileges of employment were altere d. Nothing in the ADA suggests that employers are proh ibited from taking only those retaliatory actions that imp ose 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 questi on now before us regarding 42 U.S.C. S 12203(a).

19Although the District Court did not expressly addre ss the

other alleged acts of retaliation on which Mondzele wski relies, it appears that the Court may have applied the same "extreme hardship" test there as well. Moreover, th e Court did not address 42 U.S.C. S 12203(b), which arguabl y sweeps more broadly than 42 U.S.C. S 12203(a). Subs ection (b) provides in pertinent part that it is "unlawful to coerce, intimidate, threaten, or interfere with any individ ual . . . on account of his or her having . . . exercise[d] . . . any right granted or protected by this chapter." On remand, t he Court should consider whether Mondzelewski has prof fered sufficient evidence to survive summary judgment und er this subsection as well as under subsection (a).

Pathmark has urged us to affirm the grant of summar y judgment on the retaliation claim on several altern ative grounds. Pathmark contends that Mondzelewski did no t make a retaliation charge in his EEOC complaint. Pathmark also argues that it proffered a legitimate explanation for assigning Mondzelewski to the shift s in question -- viz., because it was better able to pro vide reasonable accommodation for his lifting restrictio ns during
those shifts -- and that Mondzelewski failed to rai se a triable issue with respect to Pathmark's explanatio n. The District Court did not reach these issues, and we d ecline 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 gra nt of summary judgment on Counts I and II and remand for further proceedings. We also vacate the dismissal o f the counts asserting state-law claims so that the Distr ict 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

20