Opinions of the United
2000 Decisions                                                                                                             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Precedential or Non-Precedential: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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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., 

, 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, 

, 409 (3d Cir. 1999). We must view the record in
the light most favorable to Shaner and draw all reasonable
inferences in his favor. 

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., 

, 580 (3d Cir. 1998); see
also Deane v. Pocono Med. Ctr., 

, 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., 

, 500 (3d Cir. 1997).

We have indicated that the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 

, 

(1973), applies to ADA disparate treatment and
retaliation claims. See Walton v. Mental Health Ass'n of
Southeastern Pa., 

, 667-68 (3d Cir. 1999);

; Newman v. GHS Osteopathic,
Inc., 

, 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 

, 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, 

, 252-53, 

, 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.' 

is that most cases turn on the third
       stage, i.e., can the plaintiff establish pretext.

.

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, 

, 515, 

, 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., 

, 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, 

(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.' 

; 

.

"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., 

, 931-35 (3d Cir. 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.") (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 , 

,
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., 

, 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

-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 

(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 

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." 

                                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 

(internal
quotation marks omitted); 

. 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

-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."); 

-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, 

, 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., 

, 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
_________________________________________________________________

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 six-
month 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 

-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, 

, 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." 

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 

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." 

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 

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 

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 

.

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