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. e du/thir dc ir c uit_1997/231Filed September 26, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 3669

ROBERT V. KROUSE,

Appellant

v.

AMERICAN STERILIZER COMPANY; LIBERTY MUTUAL

INSURANCE COMPANY; MICHAEL J. COUGHLIN; SCOTT

G. LIGHTNER; JOHN T. HARDIN; NANETTE S.

STAFFORD; JASON M. NUARA

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 94

- cv

- 00309)

Argued

July 22, 1997

Before: BECKER, MANSMANN and ROSENN,

Circuit Judges.

(Fi led September 26, 1997)

Wayne G. Johnson, Sr.

Wayne G. Johnson, Jr. (ARGUED)

558 West Sixth Street

Erie, Pennsylvania 16507

COUNSEL FOR APPELLANT

Stephen X. Munger, Esquire

Lisa A. Schr eter, Esquire

(ARGUED)

Jackson, Lewis, Schnitzler

& Krupman

233 Peachtree Street, N.E.

2400 Peachtree Center

- Harris Tower

Atlanta, Georgia 30303

- 1509

COUNSEL FOR APPELLEES

AMERICAN STERILI ZER

COMPANY, MICHAEL J.

COUGHLIN, SCOTT G. LIGHTNER,JOHN T. HARDIN

John D. Petruso, Esquire (ARGUED)

Fuller, Kinnunen, Petruso, Gamble,

Fabian & Hall

373 Center Street

Meadville, Pennsylva nia 16335

COUNSEL FOR APPELLEES

LIBERTY MUTUAL INSURANCE,

NANETTE S. STAFFORD,

JASON M. NUARA

OPINION OF THE COURT

MANSMANN, Circuit Judge.

After American Sterilizer Company ("AMSCO") placed him

on workers' compe nsation leave, channel welder Robert

Krouse filed this action against AMSCO and Liberty Mutual

Insurance Company, asserting retaliation claims under the

Americans with Disabilities Act, 42 U.S.C. S 12101 et seq.

(ADA), and discrimination claims under t he Age

Discrimination in Employment Act, 29 U.S.C. S 621 et seq.

(ADEA). Relying on McNemar v. Disney Store, Inc., 91 F.3d

610 (3d Cir. 1996), cert. denied, 117 S.Ct. 958 (1997), the

district court determined that Krouse was judicially

estopped from c laiming to be a "qualified individual with a

disability" under the ADA based on prior assertions of total

2

disability made in connection with applications for

disability and pension benefits. Since Krouse was es topped

from claiming to be a "qualified individual with a disability,"

the court reasoned, Krouse could not invoke the protection

of the ADA. Alternatively, the court held that Krouse's ADA

claims failed on the merits as a matter of law. The court

als o held that Krouse's ADEA claims failed as a matter of

law. The district court granted the defendants' motions for

summary judgment.

We hold that a person's status as a "qualified individual

with a disability" is not relevant in assessing the person' s

claim for retaliation under the ADA. Thus, the district court

erred in relying on McNemar to dismiss Krouse's ADA

retaliation claims. We also hold, however, that Krouse's

ADA and ADEA claims must fail on the merits as a matter

of law. Krouse is unab le to articulate a prima facie case of

retaliation, and he is unable to offer any evidence which

would permit a trier of fact to conclude that AMSCO's

articulated reasons for its employment decisions were amere pretext for unlawful retaliation or disc rimination. We

will affirm the judgment of the district court. Since we do

not rely on McNemar in affirming the judgment of the

district court, we are not prompted to revisit that

controversial decision at this time.

I.

AMSCO designs, manufacture s, sells and services

hospital equipment. Krouse began employment with

AMSCO in 1974 as a member of the bargaining unit

represented by Local 832 of the United Auto Workers

("UAW"). In 1989, Krouse became a channel welder.

AMSCO evaluates channel welde rs pursuant to established

performance and time standards set by AMSCO's industrial

engineers for the completion of various work projects.

Employees' "performance percentages" are calculated every

week; fully trained channel welders are expected to pur sue

the applicable performance percentage standards.

On January 14, 1991, Krouse suffered a work

- related

back injury. Following this injury, Krouse's advising health

care professionals placed certain medical restrictions on the

3

type of activity he could perform. From January 15, 1991

through May 20, 1994, AMSCO provided work assignments

for Krouse that complied with his medical restrictions.

From April 21, 1993 to June 21, 1993, Krouse was

assigned to th e Transitional Work Group ("TWG"), which

provides light

- duty work for employees who have suffered

temporary injuries or illness. While Krouse was assigned to

the TWG, AMSCO implemented requested modifications to

the channel welder position in anticipat ion of his return.

Prior to his return to the channel welder position in June

1993, Krouse's doctor modified his medical restrictions and

indicated that Krouse was able to perform the essential

functions of the modified position. From January 1 to Ma y

20, 1994, Krouse's performance percentages ranged

between sixteen and thirty percent of the expected

performance standard; other fully trained channel welders

performed at or above fifty percent of the expected

standard. During a March 31, 1994, mee ting with Krouse's

supervisor to discuss Krouse's performance level, Krouse

stated that, since he was not "living up to" the supervisor's

expectations, he was going to go home. Krouse's

chiropractor excused Krouse from work the next day on the

ground that he was totally disabled.

On April 20, 1994, Krouse received a medical release toreturn to work. After reviewing the medical restrictions

imposed by the chiropractor, Krouse admitted that no

further accommodations were necessary to allow him to

perform the essential functions of the modified channel

welder position. Krouse also stated, however, that he was

working to the highest percentage possible. AMSCO advised

Krouse that his performance percentages were

unacceptable. Krouse responded tha t AMSCO should

provide Krouse with an assistant.

During this meeting, AMSCO also expressed concern

about Krouse's frequent absences from work. During the

eleven

- month period in which he held the modified channel

welder position, Krouse left the faci lity without prior notice

more than fifty times for unscheduled visits with his

chiropractor. Krouse's unscheduled absences often left

AMSCO without a welder to perform critical production

functions and resulted in substantial production delays and

4

backlogs. AMSCO asked Krouse to schedule appointments

in advance, but Krouse responded that he could not

guarantee the frequency or the time of his appointments.

On May 3, 1994, AMSCO performed another review o f

Krouse's performance and found that it ranged between

twenty

- five and thirty percent. Based on this evaluation,

coupled with Krouse's admission that he was working to

the highest percentage possible, AMSCO concluded that

Krouse could not perform the essential functions of the

channel welder position. AMSCO had provided Krouse all of

the accommodations and modifications requested by his

physician, and there were no other vacant positions

available which Krouse could perform. On May 23, 1994,

AMSC O placed Krouse on workers' compensation leave.

On February 21, 1995, Krouse was placed in a modified

Dismantle and Tag position for which he had bid. This job

required Krouse to perform duties which were consistent

with his medical restrictions. Kro use returned to leave

status on April 21, 1995, however, and he has not since

returned to active status.

II.

On October 21, 1993, Krouse filed an action, Civ.A. No.

93

- 313

- ERIE ("Krouse I"), alleging that AMSCO

discriminated and retaliated agains t him in violation of the

ADA. On August 8, 1995, the district court dismissed

Krouse I with prejudice because of Krouse's failure to

prosecute it. See Krouse v. American Sterilizer Co., 928 F.Supp. 543, 544 & n.1 (W.D. Pa. 1996). Krouse did not

appe al that order.

On November 10, 1994, Krouse filed a second action,

Civ.A. No. 94

- 309

- ERIE ("Krouse II"), against AMSCO and

Liberty Mutual, AMSCO's workers' compensation carrier.

Krouse alleged retaliation under the ADA and age

discrimination under t he ADEA. On March 6, 1995, Krouse

filed a third action, Civ.A. No. 95

- 55

- ERIE ("Krouse III"),

against AMSCO and Liberty Mutual. Krouse raised

additional ADA retaliation and ADEA discrimination claims.

On June 30, 1995, the district court consolidated K rouse II

and Krouse III.

5

In his consolidated complaints, Krouse alleged that

AMSCO retaliated against him for filing ADA charges with

the Equal Employment Opportunity Commission in October

1992. Specifically, Krouse alleged that AMSCO retaliated

by: (1) placing Krouse on workers' compensation leave on

May 20, 1994; (2) failing to offer Krouse a disability

pension; and (3) refusing to create an alternative position

as a "Long Service Employee" under the col lective

bargaining agreement between AMSCO and the UAW.

Krouse also alleged that AMSCO and Liberty Mutual

harassed him by requiring him to undergo a functional

capacity examination pursuant to the Pennsylvania

Workers' Compensation Act. Krouse's age d iscrimination

claims largely mirrored his ADA retaliation allegations. In

his ADEA claims, Krouse alleged that the above

employment decisions were motivated by age animus. With

the possible exception of his harassment claim, Krouse did

not allege disa bility discrimination under the ADA in the

consolidated complaints.1

_________________________________________________________________

1. Although Krouse did allege disability discrimination in Krouse I, those

allegations were dismissed with the comp laint and were not raised again.

On appeal, Krouse attempts to argue issues relating to disability

discrimination and failure to accommodate that were not raised in his

consolidated complaints. Krouse's failure to include these claims in his

consolidat ed complaints is fatal to his efforts here.

Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must

provide a defendant with "fair notice of what the plaintiff 's claim is

and

the grounds upon which it rests." Williams v. New Castle Cou nty, 970

F.2d 1260, 1265

- 66 (3d Cir. 1992) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)). Although the background sections of the complaints in

Krouse II and Krouse III refer briefly to AMSCO's alleged failure to

accommodate Krouse's disability, t he complaints specifically allege thateach of the injuries for which Krouse seeks recovery under the ADA was

based on unlawful retaliation or harassment. Indeed, Krouse

acknowledged at his deposition that his ADA claims were based on

retaliation, not failure to accommodate.

Although a complaint's allegations are to be construed favorably to the

pleader, Williams, 970 F.2d at 1266, we will not read causes of action

into a complaint when they are not present. The ADA is one statutory

scheme, but it provides more than one cause of action. Where, as here,

a plaintiff asserts a cause of action for retaliation under 42 U.S.C.

6

On September 28, 1996, the district court granted the

defendants' motions for summa ry judgment as to each of

Krouse's causes of action. Krouse appealed.2

III.

We begin our analysis by examining the framework for

deciding a claim of unlawful retaliation under the ADA. The

ADA retaliation provision, 42 U.S.C. S 12203(a), states th at

"[n]o person shall discriminate against any individual

because such individual has opposed any act or practice

made unlawful by [the ADA] or because such individual

made a charge . . . under [the ADA]." Id. This provision is

similar to Title VII's prohibition of retaliation. See 42 U.S.C.

S 2000e

- 3(a). Accordingly, we analyze ADA retaliation

claims under the same framework we employ for retaliation

claims arising under Title VII. Stewart v. Happy Herman's

Cheshire Bridge, Inc., 117 F.3d 1278, 12 87 (11th Cir.

1997); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16

(1st Cir. 1997). This framework will vary depending on

whether the suit is characterized as a "pretext" suit or a

"mixed motives" suit. See Woodson v. Scott Paper Co., 109

F.3d 9 13, 920 (3d Cir. 1997), petition for cert.filed, 66

U.S.L.W. 3157 (U.S. Aug. 4, 1997) (No. 97

- 266). Krouse

proceeded under a "pretext" theory, and so will our

analysis.

_________________________________________________________________

S 12203(a), we will not find an implicit cause of action for failure to

accommodate under 42 U.S.C. S 12112(a). This is true even when the

complaint's background section makes a brief reference to failure to

accommodate. AMSCO was not placed on "fair notice" that Kro use

intended to pursue a failure to accommodate claim.

2. The district court had jurisdiction pursuant to 28 U.S.C. S 1331. We

have jurisdiction pursuant to 28 U.S.C. S 1291. We conduct a de novo

review of the district court's order granting summary judgment in favor

of the appellees. We must apply the same test used by the district court;

namely, we must be satisfied that there is "no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as a

matter of law." Fe d. R. Civ. P. 56(c). In determining whether to affirm

the

district court's order granting the defendants' motions for summary

judgment, we must draw all inferences in favor of Krouse, as the non

moving party.

7

We begin, as all "pretext" cases begin, with the prima

facie case. 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.

Woodson, 109 F.3d at 920 (prima facie case of retaliation

under Title VII); Quiroga v. Hasbro, Inc., 934 F .2d 497, 501

(3d Cir. 1991) (same); Jalil v. Avdel Corp., 873 F.2d 701,

708 (3d Cir. 1989) (same); see also Stewart, 117 F.3d at

1287 (prima facie case of retaliation under ADA); Morgan v.

Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (same);

Soil eau, 105 F.3d at 16 (same).

If an employee establishes a prima facie case of

retaliation under the ADA, the burden shifts to the

employer to advance a legitimate, non

- retaliatory reason for

its adverse employment action. Woodson, 109 F.3d at 920

n.2 . The employer's burden at this stage is "relatively light:

it is satisfied if the defendant articulates any legitimate

reason for the [adverse employment action]; the defendant

need not prove that the articulated reason actually

motivated the [action] ." Id.

If the employer satisfies its burden, the plaintiff must be

able to convince the factfinder both that the employer's

proffered explanation was false, and that retaliation was the

real reason for the adverse employment action. Id.; see also

St . Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) ("It

is not enough . . . to disbelieve the employer; the factfinder

must believe the plaintiff 's explanation of intentional

discrimination.") (emphasis omitted); Sheridan v. E.I.

DuPont de Nemours & Co., 100 F.3d 1061, 1067

- 68 (3d Cir.

1996) (en banc) (explaining how plaintiff may satisfy

burden), cert. denied, 117 S.Ct. 2532 (1997). 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.

Woodson, 109 F.3d at 931

- 35 (discussing proper standard

to apply in Title VII retaliation case). The burden of proof

remains at all times with the plaintiff. Id. at 920 n.2.8

To obtain summary judgment, the employer must show

that the trier of fact could not conclude, as a matter of law,

(1) that retaliatory animus played a role in the employer's

decisionmaking process and (2) that it had a deter minative

effect on the outcome of that process. This may be

accomplished by establishing the plaintiff's inability to

raise a genuine issue of material fact as to either: (1) one or

more elements of the plaintiff's prima facie case or, (2) if

the empl oyer offers a legitimate non

- retaliatory reason for

the adverse employment action, whether the employer's

proffered explanation was a pretext for retaliation. See Jalil,

873 F.2d at 708 (explaining shifting burdens under Title VII

retaliation); see als o Stewart, 117 F.3d at 1287 (explaining

shifting burdens under ADA retaliation).

The district court offered two alternative grounds for

granting AMSCO's motion for summary judgment on

Krouse's ADA retaliation claims. First, the court concluded

that Krouse was judicially estopped from asserting his

status as a "qualified individual with a disability" and was

therefore not protected by the ADA. Second, the court

concluded that Krouse failed to establish a case of

retaliation, both because Krouse fa iled to establish a prima

face case and because Krouse failed to adduce any evidence

rebutting AMSCO's articulated reasons for its employment

decisions.

A.

The district court concluded that in order to come within

the protection of the ADA, a pla intiff must establish that he

or she is a "qualified individual with a disability." Slip Op.

at 12 (citing 42 U.S.C. S 12112(a)). The court concluded

that Krouse was judicially estopped from asserting his

status as a "qualified individual with a disabi lity" by virtue

of his previous assertions of total disability in connection

with applications for Social Security disability insurance

benefits, disability pension benefits, and disability credit

insurance benefits.

In Ryan Operations G.P. v. Santi am

- Midwest Lumber Co.,

81 F.3d 355 (3d Cir. 1996), we stated that "absent any good

explanation, a party should not be allowed to gain an

9

advantage by litigation on one theory, and then seek an

inconsistent adv antage by pursuing an incompatibletheory." Id. at 358 (quotation omitted). We held that the

doctrine of judicial estoppel, which prevents a litigant from

asserting a position inconsistent with one previously

asserted, applies when: (1) the party's pos ition is

inconsistent with a position taken in the same or in a

previous proceeding and (2) the party asserted either or

both of the inconsistent positions in bad faith. Id. at 361.

In McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir.

1996), cert. denied, 117 S.Ct. 958 (1997), the plaintiff

claimed that he was discharged from his employment due

to his HIV

- positive status in violation of the ADA. The

district court determined that McNemar was judicially

estopped from claiming status as a "qualif ied individual

with a disability" under the ADA based on his prior sworn

statements, made in his application for Social Security

disability benefits, New Jersey state disability benefits, and

an exemption from repayment of an educational loan from

the Pennsylvania Higher Education Agency, that he was

totally and permanently disabled and unable to work. Id. at

615

- 16.

We affirmed the judgment of the district court. We

reasoned:

McNemar has represented to one federal agency and to

the agencies of two different states that he was totally

disabled and unable to work

-- while now, in claiming

relief under the [ADA], he states that he is a qualified

person with a disability . . . .

Id. at 618 (internal quotatio n omitted). We observed that

McNemar's previous statements were "unconditional

assertions as to his disability" and inability to work. Id.

(quotation omitted, emphasis supplied). We concluded that

"the district court was well within its discretion to h old that

McNemar is estopped from arguing now that he is`qualified'

under the ADA." Id. at 617 (internal quotation omitted).

The district court applied McNemar to this case and

concluded that Krouse was barred by the doctrine of

judicial estoppel fr om asserting status as a "qualified

individual with a disability." Slip Op. at 17. Since Krouse

10

was estopped from claiming to be a "qualified individual

with a disability," the court reasoned, Krouse could not

invoke the protection of the ADA.

The district court erred in this regard. Unlike a plaintiff

in an ADA discrimination case, a plaintiff in an ADAretaliation case need not establish that he is a "qualified

individual with a disability." By its own terms, the ADA

retaliation provision protects "any individual" who has

opposed any act or practice made unlawful by the ADA or

who has made a charge under the ADA. 42 U.S.C.

S 12203(a). This differs from the scope of the ADA disability

discrimination provision, 42 U.S.C. S 12112(a), which may

be invoked only by a "qualified individual with a disability."

An individual who is adjudged not to be a "qualified

individual with a disability" may still pursue a retaliation

claim under the ADA. Cf. Soilea u, 105 F.3d at 16 (plaintiff

may assert ADA retaliation claim "even if the underlying

claim of disability fails"). Thus, Krouse was permitted to

pursue his retaliation claims under the ADA.

McNemar has been the object of considerable criticism.3

___ ______________________________________________________________

3. In a thoughtful opinion, the Court of Appeals for the District of

Columbia Circuit reasoned that since the Social Security Administration

does not take into account the possible effect of reasonable

accommodation on a claimant's ability to work, receipt of Social Security

benefits cannot automatically preclude an individual from being a

"qualified individual with a disability" under the ADA, a status that

expressly considers the poss ibility of reasonable accommodation.

Swanks v. Washington Metro. Area Transit Auth., 116 F.3d 582, 584

- 87

(D.C. Cir. 1997). The court of appeals squarely rejected McNemar,

reasoning that "the Third Circuit's decision . . . disregards the fact

that

Soci al Security disability determinations take no account of reasonable

accommodation." Id. at 587; see also Robinson v. Neodata Servs., Inc., 94

F.3d 499, 502 n.2 (8th Cir. 1996)(Social Security determinations are "not

synonymous with a determination of wh ether a plaintiff is a `qualified

person' for purposes of the ADA"). Recognizing that the ADA's definition

of "qualified individual with a disability" differs from the definition of

"totally disabled" under the Social Security Act, the Court of Appeals for

the Seventh Circuit concluded that "representations made in benefits

applications will not be conclusive as to whether one is a `qualified

individual with a disability' under the ADA." Weigel v. Target Stores, __

F.3d __, __ n.6, 1997 WL 526163 (7t h Cir. Aug. 26, 1997).

11

Some of this criticism might be well

- founded. Nevertheless,

it is not the role of a panel to revisit a previous panel's

decision. See 3d Cir. I.O.P. 9.1. It may be that this court,

sitt ing en banc, will revisit the issue of judicial estoppel in

this type of case. This is not the case to prompt such a

discussion. Since Krouse's status as a "qualified individual

with a disability" has no bearing on the outcome of this

case, we do not h ave any reason to review McNemar or to

ask the entire court to revisit McNemar at this time.4McNemar remains the law in this circuit.5

_________________________________________________________________

In a comprehensive enforcement guidance, the EEO C stated that the

court in McNemar "ignored [a] fundamental difference between the ADA

and [the Social Security Administration] and failed to conduct the

individual inquiry mandated by the ADA definition of `qualified individual

with a disability.' . . . McNemar was wrongly decided." EEOC

Enforcement Guidance on the Effect of Representations Made in

Applications for Benefits on the Determination of Whether a Person is a

"Qualified Individual with a Disability" under the Americans with

Disabilities A ct of 1990 (ADA)(Feb. 12, 1997), reprinted in 3 EEOC

Compliance Manual (BNA) N:2281, at 2290 (1997). McNemar was decided

before the EEOC issued its enforcement guidance. Likewise, the

associate commissioner of the Social Security Administration wrote in an

information memorandum that "the ADA and the disability provisions of

the Social Security Act have different purposes, and have no direct

application to one another." Daniel L. Skoler, Assoc. Comm'r, Soc. Sec.

Admin., Disabilities Act Info. Mem., a t 2 (June 2, 1993), reprinted in 2

Social Security Practice Guide, App. S 15C[9], at App. 15

- 402 (Matthew

Bender & Co. 1997). McNemar has also been criticized in academia. See,

e.g., Anne E. Beaumont, This Estoppel Has Got to Stop: Judicial

Estoppel an d the Americans with Disabilities Act, 71 N.Y.U. L.Rev. 1529,

1567

- 68 (1996) (criticizing reasoning behind application of judicial

estoppel to ADA cases).

4. Judge Becker is persuaded by the authorities set forth in footnote 3

that McNemar was wrongl y decided, and believes that the court should

reconsider it at its first opportunity.

5. We do take this opportunity to express our concern that district courts

in this circuit are misapplying McNemar without first considering the

unique facts of tha t case. See McNemar, 91 F.3d at 618 (McNemar's

representations were unconditional assertions at to disability and

inability to work). Here, the district court's error was clear

-- since

Krouse's status as a "qualified individual with a disability" is no t

relevant

12

B.

The district court did not rest its decision to grant

AMSCO's motion for summary judgment solely on judicial

estoppel and McNemar. The court also concluded that

Krouse's retaliation claims fa iled on the merits as a matter

of law.

As to Krouse's claim that he was placed on workers'

compensation leave in retaliation for filing an EEOC charge

in October 1992, the district court concluded that Krouse

"adduced no evidence" to support the cla im"aside from thefact he was placed on worker's compensation some 19

months after filing an EEOC charge in October, 1992." Slip

Op. at 22

- 23. We agree. After carefully reviewing the record,

we are convinced that Krouse has not proffered any

evidence establishing a causal connection between his

EEOC charge and AMSCO's decision to place Krouse on

workers' compensation leave.

Nineteen months passed between the time Krouse filed

his EEOC charge and the time AMSCO placed Krouse on

workers' compensat ion leave. In Robinson v. City of

Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), we held that "the

mere fact that adverse employment action occurs after a

complaint will ordinarily be insufficient to satisfy the

plaintiff's burden of demonstrating a causal link between

the two events." Id. at ___. As noted in Robinson, our cases

are "seemingly split" on the question of whether the timing

of the allegedly retaliatory action can, by itself, ever support

a finding of causation. Id. at ___. Compare Woodson, 109

F.3d at 920 (stating in dicta that "temporal proximity

between the protected activity and the termination is

_________________________________________________________________

to his retaliation claims, the court's reliance on McNemar was misplace d.

Even where an individual's status as a "qualified individual with a

disability" is relevant to the resolution of an ADA claim, courts should

carefully adhere to the two

- part test of Ryan Operations, 81 F.3d at 361,

before concluding that previous re presentations as to disability and

inability to work judicially estop the individual from asserting such

status. Courts should not assume that McNemar always bars an

individual's ADA claims merely because prior representations or

determinations of disa bility exist in the record.

13

sufficient to establish a causal link") with Delli Santi v. CNA

Ins. Cos., 88 F.3d 192, 199 n.10 (3d Cir. 1996) ("timing

alone will not suffice to prove retaliatory motive"). We nee d

not resolve this apparent conflict here. Even if timing alone

could ever be sufficient to establish a causal link, we

believe that the timing of the alleged retaliatory action must

be "unusually suggestive" of retaliatory motive before a

causal link will be inferred. Robinson, 120 F.3d at ___; see,

e.g., Jalil, 873 F.2d at 708 (causal link established where

"discharge followed rapidly, only two days later, upon

Avdel's receipt of notice of Jalil's EEOC claim"). Here, the

timing of the allegedly r etaliatory employment action

cannot, standing alone, support a finding of causal link.

We have also held that the "mere passage of time is not

legally conclusive proof against retaliation." Robinson v.

Southeastern Pa. Transp. Auth., 982 F.2d 892, 89 4 (3d Cir.1993) ("SEPTA"). When temporal proximity between

protected activity and allegedly retaliatory conduct is

missing, courts may look to the intervening period for other

evidence of retaliatory animus. For example, in SEPTA, we

stated: "The tem poral proximity noted in other cases is

missing here and we might be hard pressed to uphold the

trial judge's finding [of causal link] were it not for the

intervening pattern of antagonism that SEPTA

demonstrated." Id. at 895 (internal citation omitted ); accord

Woodson, 109 F.3d at 920

- 21. Here, Krouse did not offer

any evidence that suggests that AMSCO's decision to place

him on workers' compensation leave was in any way linked

to his filing of an EEOC charge nineteen months earlier.

Indeed, AMSCO returned Krouse to the channel welder

position in June 1993

-- after Krouse filed his EEOC

charge. Absent evidence of intervening antagonism or

retaliatory animus, we conclude that the passage of time in

this case is conclusive and that Krouse failed to establish

a causal link as a matter of law.

The district court also concluded that AMSCO articulated

a legitimate, non

- retaliatory explanation for its employment

decision

-- that Krouse could not perform to his expected

level as a channel welder. The court concluded that Krouse

failed to adduce evidence that would adequately rebut this

explanation. Slip Op. at 24 n.9. Again, we agree.

14

AMSCO supported its decision to place Krouse on

workers' compensat ion leave with uncontroverted evidence

that Krouse performed at a level of between twenty

- five and

thirty percent, even though Krouse performed duties which

were within Krouse's medical restrictions. Other fully

trained channel welders performed at or above fifty percent

performance efficiency. AMSCO also demonstrated that

Krouse's frequent unscheduled absences resulted in

substantial production delays and increased costs.

In order to survive a motion for summary judgment in a

pretext case, the p laintiff must produce "sufficient evidence

to raise a genuine issue of fact as to whether the employer's

proffered reasons were not its true reasons for the

challenged employment action." Sheridan, 100 F.3d at

1067. This is ordinarily done by demonstra ting "such

weaknesses, implausibilities, inconsistencies, incoherences,

or contradictions in the employer's proffered legitimate

reasons for its action that a reasonable factfinder could

rationally find them `unworthy of credence.' " Fuentes v.

Perski e, 32 F.3d 759, 765 (3d Cir. 1994) (emphasis omitted)

(quoting Ezold v. Wolf, Block, Schorr & Solis

- Cohen, 983

F.2d 509, 531 (3d Cir. 1993)).On appeal, Krouse does not seriously contest the

evidence supporting AMSCO's decision to place Krouse on

wo rkers' compensation leave. Rather, Krouse contends that

an allegedly similarly situated employee, Dan Oler, did not

file an EEOC charge and was retained as a channel welder.

The district court rejected this comparison, concluding that

"Oler was not sim ilarly situated to Krouse." Slip Op. at 23

n.8. We agree.

Oler is a channel welder who suffered a temporary injury.

Oler's performance percentages during his recovery were on

average substantially higher than Krouse's. Oler performed

at a rate of tw enty

- three to eighty

- five percent during his

recovery, while Krouse's performance percentage remained

between sixteen and thirty percent. Oler also showed

significant improvement as time progressed; during the last

month of his recovery, Oler's perform ance rate remained

above sixty percent. In contrast, Krouse's disability was

permanent, and Krouse admitted that he would not exceed

thirty percent without assistance. As the district court

15

concluded, "Oler's performance efficiency was higher and

showed a potential for improvement, whereas Krouse's did

not." Slip Op. at 43. The fact that AMSCO retained Oler in

the channel welder position does not, as a matter of law,

demonstrate such weaknesses or implausi bilities in

AMSCO's articulated legitimate non

- retaliatory reason for

its decision to place Krouse on workers' compensation leave

so as to permit a trier of fact to disbelieve AMSCO.

As to Krouse's claim that he was denied a disability

pension in Oc tober 1994 in retaliation for filing an EEOC

charge in October 1992, the court concluded that there is

"insufficient evidence as a matter of law to establish a

causal connection between Krouse's filing of EEOC charges,

or other protected activity, and his denial of a disability

pension." Slip Op. at 24. Again, we agree. In addition to the

lack of temporal proximity between the 1992 protected

conduct and the 1994 decision to deny Krouse's application

for a disability pension, there is no evidence tha t the

members of the pension plan committee were aware of

Krouse's protected activity.6

As to Krouse's claim that he was denied a position under

Section K of the collective bargaining agreement, the court

concluded that Krouse failed to establish a prima facie case

of retaliation. Slip Op. at 26. At the time Krouse requested

a Section K position, the UAW/AMSCO collective bargaining

agreement provided that "employees who have grown old inthe service of the company, but who are no longer

physical ly able to perform their usual work, will be given

_________________________________________________________________

6. In addition, the decision to deny Krouse a disability pension was made

by a bilateral committee of the independent Pension Board

-- not

AMSCO. The pension plan committee was comprised of three UAW

representatives and one AMSCO representative. Although a joint labor

management committee may be a "covered entity" under the ADA, 42

U.S.C. S 12111(2), Krouse did not name the pension plan committee or

any union representatives as defendants in these actions. Krouse has

not offered any evidence tending to support his theory that AMSCO can

be held accountable for the decision to deny Krouse's application for

disability pension benefi ts. As noted in the text, even if AMSCO could be

implicated in the decision to deny Krouse's application for disability

pension benefits, Krouse's claim would fail as a matter of law due to his

inability to establish a prima facie case.

16

consideration by the company and an effort will be made to

provide them with some sort of employment which they are

able to do." AMSCO and the UAW agreed that, in order to

qualify for Section K treatment, an employee must be at

least fifty

- five years of age with at least thirty years of

AMSCO employment.

It is undisputed that Krouse did not meet these

requirements. These specific terms, while not in the

language of the agreement itself, were agreed to by both

AMSCO an d the union and represent a reasoned

interpretation of the phrase "employees who have grown old

in the service of the company." There is no evidence that

Section K positions were offered to individuals who did not

meet the age and term of service requi rements. Likewise,

there is no evidence that Section K positions were

discriminatorily withheld from qualified individuals with

disabilities or from individuals who engaged in activity

protected by the ADA. In other words, there is no evidence

suggest ing that AMSCO declined to provide Krouse with a

Section K position in retaliation for Krouse's protected

activity.

Krouse's final ADA claim, his only claim brought under

42 U.S.C. S 12112(a), is that Liberty Mutual and AMSCO,

for the purpose of har assing Krouse, unlawfully required

Krouse to undergo a functional capacity examination and

filed a utilization review petition before the Pennsylvania

Bureau of Workers' Compensation. As to AMSCO, the

district court concluded that there was no evidence that

AMSCO required Krouse to undergo a functional capacity

examination or a utilization review. Slip Op. at 35. Weagree. On appeal, Krouse does not point to any evidence of

record that would establish AMSCO's liability under this

cause of action.

As to Liberty Mutual, the district court held that the

insurance company was not a "covered entity" and was

therefore not liable to Krouse under the ADA. Slip Op. at

28

- 35. Section 12112(a) prohibits discrimination by a

"covered entity." A "covered e ntity" is an "employer,

employment agency, labor organization, or joint labor

management committee." 42 U.S.C. S 12111(2). Krouse

asserts that Liberty Mutual acted as AMSCO's agent and is

17

therefore Krouse's "employer" under the ADA. See 42 U.S.C.

S 12111(5)(A) ("employer" includes employer's agent). The

district court concluded that there was insufficient evidence

as a matter of law to support Krouse's agency theory. After

carefully reviewing the record, we agree with the district

court. Krouse's assertion that Liberty Mutual acted at the

direction of AMSCO to harass Krouse in violation of the

ADA is simply without foundation in this record. 7 On this

record, Liberty Mutual is not an agent of AMSCO; it is

therefore not a covered entity under the ADA.

We find the district court's careful and exhaustive

discussion of its merits

- based reasons for granting the

defendants' motions for summary judgment on Krouse's

ADA claims to be correct as a matter o f law, and we agree

with the district court that the defendants were entitled to

summary judgment on all of those claims.

As Krouse's ADEA claims mirror his claims under the

ADA, we may dispose of them without further discussion. It

is sufficient fo r us to note that Krouse did not offer any

evidence from which a trier of fact could conclude that

AMSCO's articulated reasons for its treatment of Krouse

were a mere pretext for unlawful age discrimination.

We will affirm the judgment of the distric t court.

_________________________________________________________________

7. In his appellate brief and at oral argument, Krouse referred to alleged

evidence of an agency relationship taken from a deposition in the

unrelated case of Cassidy v. Ameri can Sterilizer Co., Civ.A. No. 95

- 62

- ERIE. Before the district court, Krouse relied on the same deposition

testimony in an effort to reopen discovery. The district court denied

Krouse's motion, concluding that Krouse (1) failed to explain how the

test imony would preclude summary judgment and (2) did not provide a

reasonable explanation as to why the "newly discovered evidence" wasnot previously obtained. Slip Op. at 54 (citing Pastore v. Bell Tel. Co.

of

Pa., 24 F.3d 508, 511 (3d Cir. 1994)). Krous e does not argue on appeal

that the district court erred in denying his motion to reopen discovery,

and if faced with the question we would find that the court properly

denied Krouse's motion. Accordingly, the Cassidy evidence is not part of

this reco rd, and we do not consider it.

18

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

19