2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Shaner v. Synthes (United States)" (2000). 2000 Decisions. Paper 43.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/43
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 

_________________________________________________________________ 

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, 

_________________________________________________________________ 

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 

_________________________________________________________________ 

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 

 18 

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 sixmonth 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 

_________________________________________________________________ 

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