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D ock e t 99-1037

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. e du/thir dc ir c uit_2000/43Filed 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 fr om the district court's order entered December 14, 199 8, granting summary judgment in favor of appellee Synt hes(USA) ("Synthes" or "the company") dismissing appel lant'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 for th herein, we will affirm the order of the district co urt.

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 it s information services department. In 1992, Synthes g ave 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 diagn osed with multiple sclerosis ("MS"). It is undisputed th at Shaner did not disclose his ailment to the company until m ore than a year later, on November 15, 1993.

In May 1993, Jarvis gave Shaner his first performan ce evaluation. The evaluation indicated that the "majo r problem" with Shaner was that he relied too heavily on quick "fix" solutions without locating underlying p roblems in the computer systems. It concluded that Shaner

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"performs his duties as a Senior Programmer" but th at he

"has not demonstrated that he has the skills of a s enior analyst."1 Shaner felt this evaluation was overly c ritical and he was unhappy with it. Thus, Shaner filed a compla int with the company regarding this evaluation. Shaner suspected that Jarvis did not like him, and it appe ared 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 evalua tion.

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 th e 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 per forms."

Shaner felt that this evaluation was "almost a carb on copy"

of the 1993 evaluation.

On April 13, 1994, Shaner filed a charge of disabil ity discrimination with the Equal Employment Opportunit yCommission ("EEOC") alleging that Synthes had denie d 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 tha t the training had been given to other programmer/analyst s. In January 1994, Shaner had sent a pointed email to Ja rvis asking "[i]s there any reason I'm being excluded fr om

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1. The evaluation rated Shaner's performance on a s cale of 1 to 4, with 4 being "superior," 3 being "above average," 2 bein g "average," and 1 being "below average." Shaner received a 3 in the c ategory of "assignments and results achieved," a 2.8 in"qualit ative," and a 2.8 in "overall performance."

2. In this evaluation, Shaner was graded "meets exp ectation" in the category of "assignments and results achieved" and "marginal" in the categories of "qualitative" and "overall performanc e." A "marginal" grade indicated that Shaner "does not consistently meet o bjectives."

3. According to Shaner's brief, he first contacted the EEOC on March 30, 1994. There is nothing in the record to indicate th at Synthes became

aware of Shaner's contact with the EEOC until after Shaner filed his charge on April 13, 1994.

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EXCEL TRAINING4 when other programmers in this department have taken the training, with YOUR appro val [?]" Jarvis sent a responsive email stating"[w]e ha ve 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 lea ve of absence for more than one month. Upon his return , the company lightened his work load during month-end cl osing 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 the rapy class at a location which was over an hour's drive from the office.5 He continued to attend the water therapy c lass 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 vario us employees, along with Jarvis, frequently turned up the heat in the office despite Shaner's requests that the of fice be kept cool; the excessive warmth allegedly exacerbat ed Shaner's MS symptoms. Shaner indicated in his depos ition that the heat had been a problem for him even befor e November 1993, when he advised the company that hesuffered from MS. In response to a complaint from S haner,

Mike DiGuglielmo, another of Shaner's superiors, em ailed Shaner in May 1994 asking him to provide a doctor's note stating what working conditions were not good for h is medical condition. Nevertheless, Shaner did not pre sent the requested note from his doctor until November. The note was not specific as it merely indicated that the te mperature 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 adj usting the office temperature. Although lock boxes were pr esent on thermostats elsewhere in the building, the company did not

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4. Excel training involved the operation of PC appl ications.

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

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place one in Shaner's work area. However, in Novemb er 1994, the company relocated Shaner's office to a co nverted

conference room which had its own thermostat so tha t 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 conf erence room while Shaner was at lunch and turned the heat all the way up. On these occasions, Shaner returned fro m 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 testi fied that "[f]or the most part" he had a negative attitu de at this time, and he voluntarily agreed to attend counselin g 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, a fter he had attended several sessions, DiGuglielmo requeste d that he stop going to counseling, or at least that he st op 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 never theless continued to attend counseling during work hours be cause he felt that he was benefitting from it.

DiGuglielmo prepared a performance evaluation of Shaner for the period ending March 15, 1995.7 Accor ding to this evaluation, Shaner "has shown a very negative attitude through out the last year" and he "has not performe d to thelevel expected of a Sr. Program Analyst [and] his a nalytical

skills are suspect." Further, the evaluation stated that Shaner "continues to point fingers at others and ma ke excuses when things go wrong" and "[w]hen he is giv en

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6. The thermostat in this room also affected the te mperature in other employees' nearby work areas, which somewhat limite d 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 per formance," and "below expectations" in the category of "qualitativ e." "Below expectations"

indicated that Shaner "frequently does not meet obj ectives."

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assignments he complains about them and they drag o ut 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 accordan ce with our company policy of terminating employment after six

months of medical leave of absence." The letter adv ised Shaner that he could "reapply" for employment shoul d 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 charg e 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 bein g turned up in the office, and he indicated that he h ad "received a poor review" in April 1994. He stated t hat "[a]round the end of 1994, I was told by Mike DiGug lielmo that I had to go to counselling [sic] because I had a `bad

attitude.' " He claimed that he was "harassed to th e point that my disability was aggravated," which forced hi m to go on disability and ultimately led to his termination

.

Shaner filed this action in the district court on J une 23, 1997. Count I of the complaint alleged disparate tr eatment on account of disability in violation of the ADA, 4 2 U.S.C. SS 12111-12117, "as evidenced by, inter alia, (a) [ ] sudden change in [the company's] performance evaluations o f plaintiff, after being informed of plaintiff 's dia gnosis of Multiple Sclerosis . . . ; (b) refusing to allow[pl aintiff] thespecial training necessary to the successful comple tion 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 workpla ce with the knowledge that such behavior would cause plaintiff serious illness or total disability." Cou nt II alleged retaliation in violation of the ADA, 42 U.S.C. S 12 203, "as evidenced by, inter alia, (a) [ ] harassment of pla intiff, including turning up the heat in the office so as t o cause exacerbation of plaintiff 's condition; (b) transfe rring

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plaintiff to a converted closet when he complained about the manipulation of the heat; (c) making false accu sations of poor performance by plaintiff; (d) requiring pla intiff to undertake counseling from a third party provider wh ich was harassing and unnecessary; and (e) terminating plaintiff 's employment while he was out on that me dical leave." Count III alleged intentional infliction of emotional distress. Following the company's motion for summar y judgment, the district court dismissed all claims i n an order dated December 11, 1998, and entered on Decem ber 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 an d 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. S ee Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 30 5 (3d Cir. 1999). "Summary judgment is proper where the pleadi ngs, depositions, answers to interrogatories, admissions , and affidavits show there is no genuine issue of materi al fact and that the moving party is entitled to judgment a s a matter of law." Jones v. School Dist. of Philadelph ia, 198 F.3d 403, 409 (3d Cir. 1999). We must view the reco rd in the light most favorable to Shaner and draw all rea sonable

inferences in his favor. Id.

III. DISCUSSION

A. ADA Claims

In order to establish a prima facie case of dispara te 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 functi ons of the job, with or without reasonable accommodations by t he employer; and (3) he has suffered an otherwise adve rseemployment decision as a result of discrimination." Gaul v.

Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 199 8); see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 ( 3d Cir.

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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 con nection between the employee's protected activity and the employer's adverse action." Krouse v. American Ster ilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

We have indicated that the burden-shifting framewor k 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. 199 9); Krouse, 126 F.3d at 500-01; Newman v. GHS Osteopath ic, Inc., 60 F.3d 153, 156-58 (3d Cir. 1995). We recent ly have described the McDonnell Douglas framework as follow s:

Briefly summarized, the McDonnell Douglas an alysis proceeds in three stages. First, the plainti ff must establish a prima facie case of discriminati on. If the plaintiff succeeds in establishing a prima f acie case,
the burden shifts to the defendant `to artic ulate some legitimate, nondiscriminatory reason for the employee's rejection.' [McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.] Finally, should the defendan t carry this burden, the plaintiff then must have an oppo rtunity to prove by a preponderance of the evidence tha t the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrim ination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981) (ci tations omitted). While the burden of production may shift, `[t]he ultimate burden of persuading the tri er of fact that the defendant intentionally discriminat ed against the plaintiff remains at all times with the plaintiff.' Id. Our experience is that most cases turn on th e third stage, i.e., can the plaintiff establish pre text.

Jones, 198 F.3d at 410.

We have stated as follows with regard to the applic ation of the third step of the McDonnell Douglas framewor k at the summary judgment stage:

8At this point, the court focuses on whether there is

sufficient evidence from which a jury could conclude that the purported reasons for defendant's a dverse employment actions were in actuality a prete xt for intentional race [or disability] discriminat ion. At trial, the plaintiff must convince the finder of fa ct`both that the reason was false, and that discriminatio n was the real reason.' St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993) (empha sis 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. 199 6) (en banc)].

On numerous occasions, we have explained th e plaintiff 's burden at summary judgment on t his aspect of the McDonnell Douglas tripartite framewor k. 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 whi ch a factfinder would reasonably either: (1) disb elieve the employer's articulated legitimate reasons; o r (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 proffe red reason, [ ] the plaintiff cannot simply show that t he employer's decision was wrong or mistaken . . . . R ather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

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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); Kro use, 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).

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legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, an d hence infer that the employer did not act for the asserte d 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 viol ation of the ADA was "evidenced by" several forms of impr oper conduct--the denial of training, the poor performan ce evaluations, the manipulation of office temperature , the relocation of his office, the request that he atten d counseling, and the termination. It is unclear from the complaint whether Shaner is claiming that each of t hese forms of conduct constitute separate "adverse emplo yment actions"--and thus constitute separate substantive ADA claims--or whether he is alleging some of them simp ly as proof of discriminatory or retaliatory intent. Synt hes contends that the only substantive ADA claims prope rly preserved through a timely EEOC charge were the discriminatory denial of PC applications training ( which Shaner raised in his first EEOC charge) and the ret aliatory termination (which he raised in the second). Accord ing to Synthes, Shaner conceded in the district court that he was not pursuing any other allegations as substantive A DA claims. The district court assumed that Shaner prim arily was challenging the denial of PC applications train ing and the termination, and treated the other alleged cond uct as merely evidence of improper intent. Shaner's briefi ng on this appeal does not clarify the matter; his reply brief simply refers to all of the alleged improper conduc t as

"evidence" of discrimination or retaliation.

We will not determine which of Shaner's allegations were properly preserved through a timely EEOC charge, no r will we dwell on whether Shaner seeks to pursue each of his various allegations as separate substantive ADA cla ims. Rather, we conclude, considering all of Shaner's al legations, that there is not sufficient evidence to permit a r easonable factfinder to conclude that the company acted with discriminatory or retaliatory intent with respect t o any of the challenged conduct. More specifically, with res pect to the disparate treatment claim, we hold that Shaner has not

10

presented enough evidence to permit a factfinder ei ther to disbelieve the company's articulated reasons, or to conclude that discrimination on account of disability was th e real reason for any of the alleged improper actions. Wit h 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 acti ons 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 presen tedsufficient evidence to permit a factfinder either t o disbelieve

the company's reasons, or to conclude that retaliat ion was the real reason, for any of the alleged improper ac tions.

Like many (if not most) employment discrimination plaintiffs, Shaner has no direct evidence to indica te that anyone at Synthes exhibited hostility towards him b ased 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 Synthe s, any manager at Synthes, including . . . Mike [Di Guglielmo] and Dick Jarvis, say anything to you about t he 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 m ade 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, 1 994 until the time you left Synthes?

A. I can't remember.

. . . .

Q. [ ] Do you have any information that Synt hes or any of its managers were retaliating against you

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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 abou t any information or any evidence you have which w ould indicate to you, in any way, that any manage r 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 an y Synthes manager, including . . . Dick Jarvis or Mike or any other manager, that indicated that you w ere discriminated against because of your disabi lity 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 yo ur disability or alleged disability?

A. I can't remember any, no.

App. at 78, 82.

Of course, direct evidence of intent is not require d to

establish a discrimination claim. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir. 1999). I n the absence of direct evidence, a plaintiff may rely on

circumstantial evidence to "demonstrate such weakne sses, implausibilities, inconsistencies, incoherencies, o r contradictions" in the employer's proffered legitim ate 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 ex amine in detail the various instances of improper conduct Sh aner alleges to determine whether he possibly can show s uch weaknesses or implausibilities. We conclude that he

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cannot, and thus his ADA claims cannot survive a mo tion for summary judgment.9

1. Denial of training

Shaner claims that, upon his commencing employment with Synthes, the company promised him that he woul d receive PC applications training. According to Shan er, he was told that "every opportunity would be available " for such training, and the company's "extensive PC netw ork" 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 tha t other similarly situated workers received this type of tr aining, including Vincent Jasinnas, who received training i n July

1993 on Excel.The company contends that PC applications and Excel

were not necessary for Shaner to perform his job. S haner's testimony fails to counter the company's contention , and indeed tends to support it. At his deposition, Shan er speculated that training in PC applications or Exce l "possibly" might have been helpful to him--for exam ple, if a user asked him a question related to PC applicati ons -- but he gave no testimony indicating that training i n these areas was germane to his regular job functions. Ind eed,

Shaner answered "No" when asked whether he needed Excel in order to do his job as of January 1994, wh en he and Jarvis exchanged emails regarding Excel trainin g. Further, Shaner indicated during his deposition tha t he did not know whether Jasinnas, who received Excel train ing, actually was doing work involving the use of Excel. Perhaps most significantly, Shaner's testimony shows that t he

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9. We have indicated that "a discrimination analysi s must concentrate not on individual incidents, but on the overall sce nario." See Woodson, 109 F.3d at 921 (citation omitted). Nevertheless, w here, as here, a plaintiff alleges that discrimination or retaliatio n is evidenced by

discrete categories of conduct, we believe that some examina tion of each category is necessary in order to assess the merits of the c ase. See id. We will examine each of the categories of improper conduct alleged by Shaner, keeping in mind our admonition that "[a] play canno t be understood on the basis of some of its scenes but only on its ent ire performance." Id. (citation omitted).

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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 reasonab le 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 d enial of training on the J.D. Edwards system. Shaner's testi mony indicates that he received a week-long training sem inar on J.D. Edwards in April 1994, along with other Synthe s programmers.11 In January 1995, Shaner was instruct ed 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 Shan er read and understood, and Shaner was advised that he should seek help from another employee who was prof icient with the system. Shaner tried to comply with the co mpany's instruction, but he found the system difficult to l earn, although he was a computer professional. Shaner nev er

___________________________________________________ ______________10. According to Shaner's brief, "the record reveal ed that all the

programmers except Shaner had received PC Applicati ons training, causing even the other programmers to wonder why pl aintiff 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 Syn thes employee, Crystal Dean. However, Dean was referring not to PC Applica tions training but to another form of training--on a system called J.D . Edwards--when she testified that Shaner was denied training that othe rs had received. ("[Shaner] was the last of the programmers who had not received training for J.D. Edwards.") (emphasis added). Yet, Shaner c onceded 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 con ceded that she had no personal knowledge as to the J.D. Edwards traini ng received by any of the programmers, including Shaner, and she indic ated that her knowledge regarding denials of training was based a lmost entirely on what Shaner had told her. Accordingly, Dean's testi mony does not provide a basis for inferring discriminatory intent in relation to the denial of PC applications training, or any other fo rm of training.

11. Shaner also contends that he wrongfully was exc luded from meetings of the "SIBIS" team, which was involved in programm ing the J.D. Edwards system. Yet, Shaner testified that his excl usion from the SIBIS team began when Jarvis joined the company, which wa s well before Shaner disclosed his illness to the company in Nove mber 1993.

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asked anyone for help, because he felt it would be "humiliating" to do so, and he never indicated to a nyone that he could not or would not learn the system on his own. He admitted in his deposition that he simply f ailed to carry out his superiors' expectation that he famili arize himself with J.D. Edwards. As with PC applications training, we see no grounds for a reasonable jury t o 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 c ompany that he suffered from MS is not supported, and inde ed 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 yea r 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 arriva l atSynthes. While this motive may not have been benevo lent,

it could not have been based on Shaner's disability , which had not yet been made known to the company. Accordi ng to Shaner's testimony, his next evaluation, in Apri l 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 p rior ones, indicated that Shaner was not performing to t he level expected of a senior analyst. In short, the record shows that Shaner's performance evaluations contained sim ilar

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12. Our conclusions regarding PC applications train ing 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 peri odic seminars with an organization called the "Delaware Valley Compute r Users Group." The fact that Shaner received some training from the co mpany severely undermines his claim that the company deprived him of other forms of training on account of his disability.

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criticisms both before and after he made the compan y aware that he suffered from MS and before and after he filed his first EEOC charge.13

Under these circumstances, there is simply no evide nce that any of these evaluations was causally linked t o 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 emplo yee's protected activity and the alleged retaliatory acti on may satisfy the causal link element of a prima facie re taliation claim, at least where the timing is "unusually sugg estive of retaliatory motive." See Krouse, 126 F.3d at 503 (i nternal quotation marks omitted); Woodson, 109 F.3d at 920. Yet the timing of the performance evaluations in this c ase is anything but suggestive, inasmuch as Shaner receive d the 1993 and 1994 evaluations prior to the filing of hi s first EEOC charge, and the 1995 evaluation was prepared n early a year after the filing of the charge.

Moreover, although "mere passage of time is not leg ally conclusive proof against retaliation," we have indi cated that the passage of a long period of time between protec ted activity and an alleged retaliatory action weighs a gainst a finding of a causal link where there is no evidence of retaliatory animus during the intervening period. S ee Krouse, 126 F.3d at 503-04 ("Absent evidence of int ervening antagonism or retaliatory animus, we conclude that the passage of time [between the filing of plaintiff 's charge andthe alleged retaliatory action] in this case is con clusive 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 ret aliatory

animus so as to establish a causal connection betwe en the filing of Shaner's first charge and the 1995 evalua tion, particularly in view of the circumstance that the t hree

evaluations were consistent.

We also make the following observation with respect to performance evaluations. While it is possible that a

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13. Indeed, prior to November 15, 1993, Shaner comp lained to his MS support group that he had received an unfairly crit ical performance review from his employer.

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manager might make a poor evaluation to retaliate a gainst an employee for making an EEOC charge, still it is important that an employer not be dissuaded from ma king what he believes is an appropriate evaluation by a reason of a fear that the evaluated employee will charge t hat the evaluation was retaliatory. In this regard, we are well aware that some employees do not recognize their deficien cies and thus erroneously may attribute negative evaluations to an employer's prejudice. Accordingly, in a case like t his 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 reloc ation of his office, he frequently saw employees, including Jarvis, adjusting the thermostat in the area of the buildin g where Shaner and others worked. He admitted during his deposition that he had no evidence that any of thes e 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" w ith others regarding the appropriate temperature.14 Mos t significantly, Shaner testified that the thermostat frequently was adjusted too high for his liking prior to Novem ber 1993,

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14. Shaner's testimony in this regard is corroborat ed by testimony from other Synthes employees. Denise Arms-Sadowski testi fied that she had a low tolerance for cold temperatures and often ask ed Jarvis to raise the heat. She also testified that there were other empl oyees who complainedabout the office being too cold. According to Georg e 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 inquir y 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 employ ees. See Kralik v. Durbin, 130 F.3d 76, 80-84 (3d Cir. 1997).

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when he first informed the company that he suffered from MS. Thus, with respect to the period prior to the r elocation of Shaner's office, we see no basis for a finding t hat anyone adjusted the temperature with discriminatory or ret aliatory intent, and no evidence of a causal link between Sh aner'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 individ ual or individuals turned the heat all the way up while he was at

lunch. These isolated incidents do not in themselve s rise to the level of adverse action upon which to base a cl aim for disparate treatment or retaliation. See Mondzelewsk i v. Pathmark Stores, Inc., 162 F.3d 778, 787 (3d Cir. 1 998) ("[M]inor or trivial actions that merely make an em ployee `unhappy' are not sufficient to qualify as retaliat ion 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 find ing that any of the company's other actions were motivated b y discriminatory or retaliatory intent.16

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15. We do not see how an intent to discriminate or retaliate can be inferred from the fact that Shaner was required to work under the same temperature conditions as other employees.

16. Shaner's claim that the company acted with reta liatory intent in relocating his office is entirely without merit. Th e 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 ow n temperature control. Indeed, according to Shaner's testimony, h e and DiGuglielmo agreed prior to the move that it would be better fo r him to work in an area where he could control the temperature. Furthe r, Shaner'sallegation that the conference room to which he was moved was a

"converted closet" is completely at odds with his o wn deposition testimony. Although the conference room was once us ed 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 inten t.

We also see no evidence of retaliatory intent with respect to DiGuglielmo's request that Shaner attend counseling . Shaner voluntarily

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4. Termination

Shaner does not challenge the company's general pol icy requiring termination of employees who are on medic al leave for six months. Nor does he dispute that he w as permanently and totally disabled when he went on le ave in April 1995 and that he has been unable to work sinc e. 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 co mpel him to take a leave of absence, thereby allowing th e company to apply its termination policy as a pretex t for retaliation.17 To support this argument, Shaner cit es his own hearsay testimony that another employee told hi m that the company began removing and rearranging things i n Shaner's office a day or two after Shaner went on l eave in April 1995. Shaner contends that the company did no t know at that time how long he was going to be absen t.

We have no trouble concluding that a reasonable factfinder cannot accept Shaner's theory that the c ompany intentionally or recklessly caused his MS to worsen

. Contrary to the inference which Shaner seeks to rai se, the

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attended the counseling because he felt that it wou ld 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 pur pose 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-discrimi natory reason' for firing Robert Shaner (Synthes's alleged policy of f iring any employee out on medical leave for more than six months), the court belowaccepted Synthes's statements that they alwa ys adhered to the six

month policy, disallowing that Shaner need n ot have offered evidence challenging the existence of such a policy, since he was charging that Synthes had caused his disabil ity so that it could apply the policy to him. The punctilious pro cedural perfection of Synthes's use of that policy is irrelevant.

Appellant's Br. at 37-38.

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evidence shows that the company made substantial ef forts

to accommodate him. When Shaner returned from hisfi rst 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 199 4, 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 cou nseling sessions during work hours. Considering all the evi dence,

there is no basis for a factfinder to conclude that the sixmonth policy was applied as a pretext for retaliati on.

Further, the evidence does not establish a causal l ink between the termination and the filing of Shaner'sf irst EEOC charge. The termination took place approximate ly 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 harassmen t as to permit an inference that the termination was linked to the filing of the charge. See Krouse, 126 F.3d at 503-0 4 (affirming summary judgment for employer on retalia tion claim where there was no evidence of antagonism or retaliatory animus during nineteen-month period bet ween the filing of the plaintiff 's charge and the alleg ed 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 i s no basis for a finding of retaliation here. In sum, th e district court properly granted summary judgment with respec t to

Shaner's ADA claims.

B. Emotional Distress

We further conclude that there is not sufficient ev idence

to establish a claim for intentional infliction of emotional distress under Pennsylvania law. That tort is defin ed as

follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe em otionaldistress to another is subject to liability for such

emotional distress, and if bodily harm to th e other results from it, for such bodily harm.

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Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998) (quot ing Restatement (Second) of Torts S 46).18 "[C]ourts ha ve been chary to allow recovery for a claim of intentional infliction of emotional distress. Only if conduct which is ext reme or clearly outrageous is established will a claim be p roven." Id. at 753-54. The Hoy court rejected an emotional dist ress claim arising from workplace sexual harassment invo lving sexual propositions, physical contact with the plai ntiff 's knee, off-color jokes, regular use of profanity, an d the posting of a sexually suggestive picture. See id. a t 754-55. In so ruling, the court stated that "the conduct ex hibited . . ., while unacceptable, was not so extremely out rageous . . . that would allow for recovery under this most limited

of torts." Id. at 755.

We will assume that conduct which is intended to ca use a worsening of a disabled person's physical symptom s may qualify as "extreme or clearly outrageous." Neverth eless, viewing the record in the light most favorable to S haner, we

do not find sufficient evidence to establish such a claim here. Shaner's most serious allegation--manipulatio n of the office temperature with intent to cause him harm or reckless disregard for his health--is simply not su pported by the record, which indicates that others adjusted the temperature simply for their own comfort.19 Accordi ngly,

Shaner's emotional distress claim cannot survive su mmary judgment.20

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18. The Pennsylvania Supreme Court has not expressl y adopted section 46 of the Restatement. See Hoy, 720 A.2d at 753 n.1 0. In Hoy, the court assumed the existence of the tort under Pennsylvani a law and concluded that the plaintiff had failed to establish a right of recovery. See id.

19. Although Shaner testified as to four orfive occ asions when someone turned the heat all the way up in the conference ro om while he was at lunch, we do not believe that these isolated incide nts rise to the level

of

outrageous conduct, even assuming that the perpetra tor was aware of

the effect of heat on Shaner's MS. Such isolated of fice 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 Ac t, and further indicated that any heat-related aggravation of Shan er's MS would be awork-related injury compensable only through worker s' compensation. In

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

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IV. CONCLUSION

For the reasons set forth above, the district court 's order entered December 14, 1998, granting summary judgmen t in favor of Synthes will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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