RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 DiCarlo v. Potter No. 02-4010 ELECTRONIC CITATION: 2004 FED App. 0054P (6th Cir.) File Name: 04a0054p.06 for Appellant. Kathleen L. Midian, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which MARTIN, J., joined. KENNEDY, J. (pp. 24-26), delivered a FOR THE SIXTH CIRCUIT separate opinion concurring in part and dissenting in part. _________________ _________________ HENRY DICARLO , X - OPINION Plaintiff-Appellant, _________________ - - No. 02-4010 v. KAREN NELSON MOORE, Circuit Judge. Plaintiff- - > Appellant Henry DiCarlo (“DiCarlo”) appeals the district , court’s grant of summary judgment in favor of Defendant- JOHN E. POTTER , Postmaster - Appellee John Potter,1 Postmaster General (“Postal Service”), General, - DiCarlo’s former employer. DiCarlo was terminated near the Defendant-Appellee. - end of his probationary employment period for what the - Postal Service asserted as unsatisfactory work performance. N DiCarlo alleges that he was terminated on the basis of Appeal from the United States District Court national origin, age, and disability discrimination. He also for the Northern District of Ohio at Cleveland. asserts that his termination was in retaliation for the Equal No. 01-01072—Dan A. Polster, District Judge. Employment Opportunity (“EEO”) complaint he filed. The district court granted summary judgment in favor of the Argued: December 5, 2003 Postal Service on all four of DiCarlo’s claims, concluding that he had failed to meet his burden of proof on any of them. Decided and Filed: February 20, 2004 Because there are genuine issues of material fact as to Before: KENNEDY, MARTIN, and MOORE, Circuit DiCarlo’s claims of national origin discrimination, age Judges. discrimination, and retaliation, we REVERSE the district court’s grant of summary judgment on these claims, and _________________ REMAND for further proceedings consistent with this opinion. Additionally, because DiCarlo cannot establish a COUNSEL ARGUED: David A. Van Gaasbeek, North Canton, Ohio, for Appellant. Kathleen L. Midian, ASSISTANT UNITED 1 The original complaint was filed naming William J. Henderson, STATES ATTORNEY, Cleveland, Ohio, for Appellee. Postmaster General of the United States P ostal Service, as the defendant. ON BRIEF: David A. Van Gaasbeek, North Canton, Ohio, However, pursuant to Fed. R. Civ. P. 25(d), John E. Potter, the current Postmaster General, was substituted as the defendant in the present action.
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disability, we AFFIRM the district court’s grant of summary As a new employee, the first ninety days of DiCarlo’s judgment on DiCarlo’s disability discrimination claim. employment were deemed a “probationary period.” Under this agreement, the Postal Service reserved the right to I. BACKGROUND terminate DiCarlo’s employment at any point during the probationary period, which termination would not be subject A. Factual Background to the grievance procedure. DiCarlo commenced his employment on January 15, 2000, and was placed under the DiCarlo applied for and obtained a part-time flexible direct supervision of Timothy Bailey (“Bailey”). Bailey (“PTF”) mail processor position with the United States Postal would remain DiCarlo’s supervisor until DiCarlo’s Service on September 25, 1999. The employment had been termination on March 30, 2000. Bailey evaluated DiCarlo contingent on DiCarlo passing a drug screening and medical throughout his probationary period and generated evaluation. As part of the evaluation, DiCarlo was provided contemporaneous notes of his work performance. These a document, which he signed, outlining the “functional notes demonstrate that Bailey viewed DiCarlo’s on-the-job requirements” the mail processor position would entail. It performance as below standard.3 DiCarlo appeared to be included walking for two hours, standing for eight hours, and negatively reviewed on a rather consistent basis throughout repeated bending, and it stressed that both legs were required the probationary period.4 DiCarlo disputes these for the job. Additionally, DiCarlo confirmed in writing that he had no medical condition for which he was currently receiving treatment and further attested to the fact that “[t]o 3 the best of [his] knowledge, [he] d[id] not have any medical Bailey’s general comments about DiCarlo were that he lacked condition.” Joint Appendix (“J.A.”) at 84. After a complete enthusiasm about his job, and that his performance fell below the standard medical assessment conducted by the Postal Service, it was to which Bailey held the other employees. Bailey also noted that DiC arlo criticized Bailey about how he ran his operation. Finally, Bailey recorded concluded that DiCarlo had no medical limitations or the following: “Mr. DiCarlo did not show me or anyone else that he has restrictions, and that he was “medically qualified to perform worked with that he would like to work here. I don’t feel that he has the functions of the position.”2 J.A. at 85. DiCarlo was wanted to learn the job, or be here. He has projected the image to me and assigned to the Canton, Ohio Main Post Office, to begin work the other emp loyees that he is only to show up and get p aid. H e doesn’t on January 15, 2000. want to pull his own load in the o perations. I will not keep M r. DiC arlo as a PTF. He has not shown the dedication to his job . . . .” J.A. at 140.
4 The following are some of the entries made by Bailey about DiCarlo: 2 (1) “Jan 18, 2000: I had to give Mr. Dicarlo a talk DiC arlo claims that in his job application, which was supplemented about working as a team and keep moving . . . .” by two letters from the Department of Veterans Affairs, he informed the (2) “Feb 9, 2000: I talked with Mr. Dicarlo about Postal Service about a physical disability he had involving his left leg. He standing and talking, needing to have a sense of further alleges that during his orientation for his position with the Postal urgency, needing to move from one operation to Service, he informed the woman leading the orientation about his leg, another without having to b e told everyd ay, telling her that he would need “to rest the leg at intervals and that the leg staying gainfully employed, and keep moving stiffening was unpredictable,” to which she informed him that he “could and doing som e form of work.” do the job and that [he] should let the supervisor on duty at the time (3) “Feb 14, 2 000 : I gave his first evaluation (30 [know] that [he] needed a rest.” Joint Appendix (“J.A.”) at 172A day) noting his working slowly, his need for (DiCarlo Aff.). constant supervision, no sense of urgency, and No. 02-4010 DiCarlo v. Potter 5 6 DiCarlo v. Potter No. 02-4010
characterizations by Bailey.5 Bailey claims that he informed received three “unacceptable” ratings and three “satisfactory” DiCarlo of “his deficiencies, and [DiCarlo] failed to correct ratings.7 the problems,” and that he “talked to him repeatedly as well as on his 30 and 60 day evaluation[s].” J.A. at 186. DiCarlo During the course of his employment, on March 9, 2000, claims that he “was not advised of any work deficiencies prior DiCarlo requested an appointment with an EEO counselor to to [his] termination and [] was never given the opportunity to discuss alleged discriminatory actions taken by Bailey against correct alleged deficiencies.” J.A. at 167. DiCarlo on the basis of the latter’s national origin, age, and disability. 8 Specifically, DiCarlo asserts that he told Bailey Pursuant to DiCarlo’s probationary employee status, he, on March 8, 2000 that he “had a physical disability9 and like others during this period, received three performance []asked for a rest period because of the problems [he] was evaluations — the first after thirty days, the second after sixty having” with the disability. J.A. at 169. DiCarlo alleged that days, and the third after eighty days. In DiCarlo’s first Bailey responded that “he did not care about [DiCarlo’s] evaluation, dated February 14, 2000, out of the six categories physical disabilities,” and “informed [him] that [he] had better evaluated, he received two “unacceptable” ratings and four start pushing.”10 J.A. at 169. DiCarlo also asserted that on “satisfactory” ratings.6 In the second and third evaluations, the same day (March 8, 2000), Bailey informed him that “he dated March 15, 2000 and March 30, 2000 respectively, he was no spring chicken and that [he] would not be a supervisor at the facility because of [his] age.”11 J.A. at 169. Finally,
7 In both the seco nd and third evaluations, D iCarlo received low wo rk ethics.” “unacceptable” ratings in the work quantity, dependability, and work (4) “March 3, 20 00: Mr. Dicarlo had conflict with relations categories. other employee, not working together, and talking derogatory about other emplo yees.” 8 J.A. at 140. Bailey testified in his deposition that although he knew that an EEO complaint had been filed, he did not know that it involved him 5 specifically until after Dicarlo had been terminated. In particular, DiCarlo states in reaction to Bailey’s assertion that he failed to show any effort or that he wanted to work at the Postal Service, 9 that he “showed up for work on every d ay and worked ha rd every day,” The disability stemmed from a leg injury he had sustained in 1984 and that he “had to learn the machinery by [himself] because Mr. Bailey while in the Army. Documentation from the Veteran’s Administration or [sic] anyone e lse failed to train [him] on the machinery.” J.A. at 166. Medical Center corroborated the injury, revealing that the injury had He also asserts that contrary to what Bailey said, he did sho w enthusiasm resulted in a 20% disability in the left leg. for his job, in that he “kept asking how [he] could advance in the postal 10 service.” J.A. at 166. In DiCarlo ’s deposition testimony, he provided a similar account, stating that on that day, his left leg had stiffened up by the end of his shift, 6 so he leaned up against a machine for several minutes to relieve it. This DiC arlo received “unaccep table” ratings in the work quantity and dep endability categories. DiCarlo asserts that Bailey told him at this time is when Bailey allegedly said to him, “I’m tired of you limping around “that everyone gets this type of rating on the first probatio nary mon th here.” J.A. at 112. DiCarlo told him he had a bad leg and that he was a evaluation and not to wo rry abo ut it,” and that “[B ailey] did not tell disabled veteran, to which Bailey responded, “I don’t care about your [DiCarlo] what [he] was doing wrong.” J.A. at 168. Bailey, however, disabilities,” and “I want you to push, push, push.” J.A. at 112. denies having mad e such stateme nts. W e must view all controverted 11 evidence in favor of DiCarlo at the summary-judgment stage. DiC arlo was forty-six at the time o f this alleged incident. No. 02-4010 DiCarlo v. Potter 7 8 DiCarlo v. Potter No. 02-4010
DiCarlo said that Bailey called him a “dirty-wop” and B. Procedural background complained that “there were too many dirty wops around [the facility].” J.A. at 169. Bailey denies ever having made any On May 3, 2001, DiCarlo filed suit14 in district court of these comments, and further refutes any allegation that he alleging discrimination on the basis of national origin, age, ever discriminated against DiCarlo in any way. disability, and retaliation. The Postal Service filed a motion for summary judgment on June 20, 2002, which the district After meeting with an EEO counselor, both DiCarlo and the court granted on August 19, 2002. The district court found Postal Service agreed to mediate the dispute.12 However, the “none of [DiCarlo’s] claims [] sufficient to withstand mediation, which took place on March 29, 2000, failed to summary judgment,” as DiCarlo had failed to satisfy his result in a settlement. Meanwhile, several days earlier, on burden of proof on every allegation of discrimination and March 22, Bailey submitted a memorandum to his manager retaliation. J.A. at 259. This appeal followed. “requesting [DiCarlo’s] removal for failure to meet satisfactory performance levels.” J.A. at 107. His manager, The district court had jurisdiction over DiCarlo’s federal Gary Andriotti, agreed with the assessment and therefore claims pursuant to 28 U.S.C. § 1331. We have appellate approved the proposed termination. A letter was jurisdiction over the district court’s final order pursuant to 28 subsequently sent to DiCarlo on March 29, 2000, signed by U.S.C. § 1291. Bailey, stating that DiCarlo was terminated effective April 1, 2000 due to his “unsatisfactory work performance.” J.A. at 109. On April 13, 2000, DiCarlo withdrew the discrimination complaint he had filed on March 9, 2000. On April 25, 2000, DiCarlo filed a new complaint with the EEO office, alleging discrimination based upon national origin, age, and disability as well as retaliation, and naming Bailey as the alleged responsible discriminating official. The Postal Service 14 proceeded to conduct an investigation into the complaint, and Specifically, the comp laint states that the suit was: informed DiCarlo of his right to demand a hearing before an authorized and instituted pursuant to Title VII of the Civil Rights administrative judge of the EEO Commission.13 The Postal Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq, providing for relief from discrimination in employment on the basis of Service issued a Final Agency Decision on February 6, 2001, national origin; to the Age Discrimina tion in Employment Act concluding that the evidence failed to establish discrimination [(“ADEA ”)], specifically, 29 U.S.C. sec. 633a (c), providing for on the basis of national origin, age, disability, or retaliation. relief from d iscrimina tion in em ploym ent on the basis of age; to the Rehabilitation Act of 1973, specifically 29 U.S.C. sec. 794(a), providing for relief from discrimination in employment on the basis of disability; to 29 U .S.C. sec. 623(d), providing 12 relief from retaliation in employment for filing a complaint of DiC arlo specifically requested that Bailey have no involvement in discrimination on the basis of age; and, to 42 U.S.C. sec. 2000e- the mediation. 3 providing for relief from retaliation in employment on the 13 basis of filing a complaint of discrimination on the basis of DiC arlo never asked for a hearing before an administrative judge national origin.” of the EEO C ommission. J.A. at 5-6 (Compl. ¶ 3). No. 02-4010 DiCarlo v. Potter 9 10 DiCarlo v. Potter No. 02-4010
II. ANALYSIS announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). See also Vaughn v. Watkins Motor A. The Summary Judgment Standard Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). This court reviews de novo a grant of summary judgment. A plaintiff who successfully establishes a prima facie case Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263 receives the benefit of a presumption that the employer F.3d 627, 633 (6th Cir. 2001); Terry Barr Sales Agency, Inc. unlawfully discriminated against him. Burdine, 450 U.S. at v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). “Under 254. The burden then “shifts to the defendant ‘to articulate Rule 56(c), summary judgment is proper ‘if the pleadings, some legitimate, nondiscriminatory reason for the employee’s depositions, answers to interrogatories, and admissions on rejection.’” Id. at 253 (quoting McDonnell, 411 U.S. at 802). file, together with the affidavits, if any, show that there is no Finally, “should the defendant carry this burden, the plaintiff genuine issue as to any material fact and that the moving must then have an opportunity to prove by a preponderance party is entitled to a judgment as a matter of law.’” Celotex of the evidence that the legitimate reasons offered by the Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. defendant were not its true reasons, but were a pretext for Civ. P. 56(c)). “In deciding upon a motion for summary discrimination.” Id. Throughout this shifting burdens judgment, we must view the factual evidence and draw all framework applicable when circumstantial evidence is reasonable inferences in favor of the non-moving party.” involved, “[t]he ultimate burden of persuading the trier of fact Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. that the defendant intentionally discriminated against the 1997). “We examine the grant of summary judgment to plaintiff remains at all times with the plaintiff.” Id.; see also determine ‘whether the evidence presents a sufficient Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th disagreement to require submission to a jury or whether it is Cir. 1995). so one-sided that one party must prevail as a matter of law.’” C.T. Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir. The McDonnell Douglas burden-shifting framework for 1991) (quoting Booker v. Brown & Williamson Tobacco Co., circumstantial-evidence cases has been applied in the context 879 F.2d 1304, 1310 (6th Cir. 1989)). of claims brought under the Age Discrimination in Employment Act (“ADEA”), Grosjean v. First Energy Corp., B. Title VII Standards 349 F.3d 332, 335 (6th Cir. 2003), and the Rehabilitation Act. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001); In Title VII actions, “a plaintiff may establish Burns v. City of Columbus Dep’t of Pub. Safety, 91 F.3d 836, discrimination either by introducing direct evidence of 843 (6th Cir. 1996). discrimination or by proving inferential and circumstantial evidence which would support an inference of C. National Origin Discrimination Claim discrimination.” Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). When using circumstantial evidence to Title VII makes it unlawful for an employer “to . . . create an inference of discrimination, the complainant must discharge any individual, or otherwise to discriminate against carry the initial burden of establishing by a preponderance of any individual with respect to his compensation, terms, the evidence a prima facie case of discrimination by his or her conditions, or privileges of employment, because of such employer. In evaluating a claim of employment individual’s race, color, religion, sex, or national origin.” 42 discrimination, we employ the burden-shifting approach first U.S.C. § 2000e-2(a)(1). A plaintiff who alleges No. 02-4010 DiCarlo v. Potter 11 12 DiCarlo v. Potter No. 02-4010
discrimination on the basis of national origin and wishes to Specifically, DiCarlo alleges that Bailey called him a “dirty prove a prima facie case through the use of circumstantial wop” and complained of there being too many “dirty wops” evidence must prove four elements: (1) he or she was a working at the postal facility. Bailey denies having ever member of a protected class; (2) he or she suffered an adverse made such comments. employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside In light of the well-established rule on summary judgment the protected class or was treated differently than similarly- that, when viewing the factual evidence, we must draw all situated, non-protected employees. Talley, 61 F.3d at 1246. reasonable inferences in favor of DiCarlo, the nonmoving party, all contested facts must be assumed in his favor. When proving a claim through the use of direct evidence, Furthermore, although direct evidence generally cannot be a plaintiff does not have to proceed under the McDonnell based on isolated and ambiguous remarks, Weigel, 302 F.3d Douglas burden-shifting framework that applies to at 382, when made by an individual with decision-making circumstantial evidence cases. Christopher v. Stouder Mem’l authority, such remarks become relevant in determining Hosp., 936 F.2d 870, 879 (6th Cir. 1991). “[D]irect evidence whether there is enough evidence to establish discrimination. is that evidence which, if believed, requires the conclusion Cf. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. that unlawful discrimination was at least a motivating factor 2003)(“comments made by individuals who are not involved in the employer’s actions.” Jacklyn v. Schering-Plough in the decision-making process regarding the plaintiff’s Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. employment do not constitute direct evidence of 1999). “Consistent with this definition, direct evidence of discrimination”); Hopson v. DaimlerChrysler Corp., 306 F.3d discrimination does not require a factfinder to draw any 427, 433 (6th Cir. 2002)(comments by manager lacking any inferences in order to conclude that the challenged involvement in the decision-making process do not constitute employment action was motivated at least in part by prejudice direct evidence); Ercegovich v. Goodyear Tire & Rubber Co., against members of the protected group.” Johnson v. Kroger 154 F.3d 344, 354 (6th Cir. 1998) (“isolated discriminatory Co., 319 F.3d 858, 865 (6th Cir. 2003). “[T]he evidence must remark made by one with no managerial authority over the establish not only that the plaintiff’s employer was challenged personnel decisions is not considered indicative of predisposed to discriminate on the basis of [national origin], [] discrimination”). but also that the employer acted on that predisposition.” Hein v. All America Plywood Co., 232 F.3d 482, 488 (6th Cir. It is clear that Bailey was an individual with decision- 2000). Finally, “an employee who has presented direct making authority with respect to the decision to terminate evidence of improper motive does not bear the burden of DiCarlo. It was Bailey who recommended that DiCarlo be disproving other possible nonretaliatory reasons for the terminated. After thorough discussion with Bailey’s adverse action. Rather, the burden shifts to the employer to manager, Gary Andriotti, who agreed with the prove by a preponderance of the evidence that it would have recommendation, the decision was made to terminate made the same decision absent the impermissible motive.” DiCarlo. This shows that Bailey had decision-making Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th authority with regard to DiCarlo’s future at the Postal Service. Cir. 2002). Hence, Bailey’s remarks constitute direct evidence of the requisite discriminatory animus. DiCarlo asserts that the Postal Service discriminated against him on the basis of his Italian-American origin. No. 02-4010 DiCarlo v. Potter 13 14 DiCarlo v. Potter No. 02-4010
After concluding that DiCarlo has pointed to direct to fire Hein,” thereby failing to demonstrate causation. Id. evidence of Bailey’s discriminatory comments on DiCarlo’s This conclusion stemmed, we stressed, from the fact that the national origin, we must next determine whether Bailey sales update sheet and magazine cover were generated more terminated DiCarlo because of his predisposition to than five months prior to Hein’s termination, and there was discriminate on the basis of national origin. Hein, 232 F.3d no evidence to attribute the origin of the nicknames to the at 488. Very few cases exist to provide guidance on direct- company president. Id. evidence analysis in the arena of employment discrimination. However, Hein v. All America Plywood Co., 232 F.3d 482, is We believe the instant case is distinguishable from Hein helpful to the analysis of causation. Hein involved a 45-year such that the evidence presented successfully demonstrates a old, 5'8", 200-pound plaintiff employed as a truck driver, who genuine issue of material fact whether Bailey’s decision to was terminated because he could not make an out-of-town terminate DiCarlo was based on his predisposition to delivery on five-days-advance notice. The plaintiff had discriminate on the basis of national origin. In particular, the explained to his employer that he could not make the delivery fact that the comments were made by Bailey, DiCarlo’s because his supply of blood-pressure medication would not immediate supervisor and a decision-maker, that they have outlasted his return, and he could not arrange to have a specifically negatively and derogatorily referenced DiCarlo’s prescription filled before the departure date. Hein alleged that Italian-American heritage, and that the hate-speech occurred his termination constituted discrimination on the basis of his three weeks prior to DiCarlo’s termination, all culminate in age and weight. To bolster this claim, he presented three the conclusion that DiCarlo has presented sufficient evidence pieces of evidence: (1) a sales update sheet (produced and of causation to withstand summary judgment. Unlike Hein, distributed by the company president) “with a cartoon of a the temporal proximity between the discriminatory act and the reclining Big Boy from the Big Boy restaurant chain, termination creates a far different scenario, such that captioned ‘Wayne Hein Contemplates Lotto Scheme’”; (2) a causation may be demonstrated with a lesser quantum of magazine cover (hung in the president’s office) depicting a evidence than in other cases not involving such a tight time gorilla with a caption reading “Wayne Hein Ponders Weight line of events. Limits”; and (3) coworkers’ use of various nicknames, such as “Burger Boy,” “Buffet Boy,” “Double Cheese,” and Because we conclude that DiCarlo has presented evidence “Turtle Hein,” in reference to Hein, and the company driver- that Bailey had discriminatory animus against DiCarlo, and contact list’s reference to Hein as “Buffet Boy.” Id. at 485. that this predisposition to discriminate played a role in the decision to terminate DiCarlo, the plaintiff has successfully In assessing this evidence under the direct-evidence established a prima facie case of discrimination on the basis analytical framework, we concluded that it “failed to establish of national origin through the use of direct evidence. a prima facie case of intentional age or weight discrimination Therefore, we need not decide whether DiCarlo could have because the evidence was neither direct nor credible.” Id. at proven his case through the use of circumstantial evidence. 489. Addressing the weight discrimination claim in Accordingly, because DiCarlo has created a genuine issue of particular, we noted that although the evidence “might raise material fact as to whether he was terminated on the basis of a genuine issue of material fact as to [the company his national origin, we reverse the district court’s grant of president’s] predisposition towards weight discrimination, summary judgment on this claim. Hein presented no evidence to connect [the president’s] alleged prejudice against heavier individuals with his decision No. 02-4010 DiCarlo v. Potter 15 16 DiCarlo v. Potter No. 02-4010
D. Age Discrimination Claim demonstrated through direct evidence a prima facie case of age discrimination, a genuine issue of material fact exists, and The ADEA prohibits employers from discriminating the district court’s grant of summary judgment on this claim “against any individual with respect to his compensation, was erroneous. We therefore reverse the grant of summary terms, conditions, or privileges of employment, because of judgment on this claim. As a result, we need not assess such individual’s age.” 29 U.S.C. § 623(a). Where a plaintiff whether DiCarlo could have established a prima facie case of fails to present direct evidence of discrimination, they must age discrimination through circumstantial evidence. prove by a preponderance of the evidence the following four elements: (1) he or she was forty years old or older at the E. Disability Discrimination Claim time of their dismissal; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for The Rehabilitation Act prohibits the United States Postal the position; and (4) he or she was replaced by a younger Service from discriminating against their employees on the person. McDonald v. Union Camp Corp., 898 F.2d 1155, basis of a disability. 29 U.S.C. §794(a). “[I]f the plaintiff has 1159-60 (6th Cir. 1990). direct evidence that the employer relied on his or her disability in making an adverse employment decision,” the DiCarlo asserts that the Postal Service discriminated plaintiff must prove that he or she is “disabled.” Monette v. against him on the basis of his age because of statements that Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). he claims were made to him by Bailey. Specifically, Bailey On the other hand, “[i]f the plaintiff seeks to establish his or allegedly told DiCarlo that the latter was “no spring chicken” her case indirectly, without direct proof of discrimination, the and that he would never be a supervisor at the postal facility plaintiff may establish a prima facie case of discrimination by because of his age. J.A. at 122. Bailey denies ever having showing that: 1) he or she is disabled; 2) otherwise qualified made such statements. for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer Again, taking all inferences in the light most favorable to knew or had reason to know of the plaintiff’s disability; and DiCarlo, we assume for the purpose of this appeal that Bailey 5) the position remained open while the employer sought made the age-based comments. Additionally, as was other applicants or the disabled individual was replaced.” Id. established under the national-origin discrimination analysis, these remarks constitute direct evidence, as they were made “To be ‘disabled’ for the . . . Rehabilitation Act, an by someone with decision-making authority. individual must (1) have a physical or mental impairment which ‘substantially limits’ him or her in at least one ‘major With regard to causation, our discussion above of the Hein life activity,’ (2) have a record of such an impairment, or case and its distinction from this case applies here. Because (3) be regarded as having such an impairment.” Mahon v. of the close proximity between the age-related remarks and Crowell, 295 F.3d 585, 589 (6th Cir. 2002). “Major life DiCarlo’s termination, and because the remarks were made by activities” include “functions such as caring for one’s self, Bailey, someone with decision-making authority, and the performing manual tasks, walking, seeing, hearing, speaking, comments referenced DiCarlo’s age and stated that he would breathing, learning, and working.” Id. at 590 (quoting 45 never become a supervisor, DiCarlo has presented sufficient C.F.R. § 84.3(j)(2)(ii)). It appears that only the first category evidence to establish a genuine issue of material fact of disability is at issue in the present case. regarding causation. Therefore, because DiCarlo has No. 02-4010 DiCarlo v. Potter 17 18 DiCarlo v. Potter No. 02-4010
DiCarlo asserts that the Postal Service discriminated functions of the position.” J.A. at 85. In addition, DiCarlo against him on the basis of his disability by discharging him. was given a document detailing the functional requirements However, DiCarlo cannot establish a prima facie case through of the position for which he was applying, which included either direct or circumstantial evidence, because even though daily activities of walking for two hours, standing for eight he suffered from a knee injury which arguably can be hours, repeated bending for eight hours, and which stressed classified as an “impairment,” he submits no evidence that both legs were required for the position. He signed this establishing that this physical impairment substantially limits document, attesting that he had no “medical disorder or him in a major life activity, as is required by the physical impairment which could interfere in any way with Rehabilitation Act. Hence, he cannot demonstrate that he is the full performance of duties of the position for which [he disabled within the meaning of the Act. was] applying[.]” J.A. at 83. DiCarlo injured his knee in 1984 while in the Army, and as DiCarlo also signed another document attesting that he had a result, he had to undergo surgery. When evaluated by the no medical condition for which he was presently being treated Department of Veterans Affairs in June 1996, DiCarlo was (including the past year), and that to the best of his noted as having mild osteoarthritis and a twenty-percent leg knowledge, he did not have any medical conditions. All of disability. However, this evidence, by itself, is insufficient to this demonstrates that, by DiCarlo’s own admission, he demonstrate that DiCarlo is substantially limited in a major represented to the Postal Service that he did not have any life activity. “[A]ny impairment that only moderately or physical or mental impairment that could affect his job intermittently prevents an individual from performing major performance. Hence, because there is no evidence to support life activities is not a substantial limitation under the Act.” the notion that DiCarlo’s knee injury prevents him from Mahon, 295 F.3d at 590-91. In Mahon, we held that although engaging in any major life activities, he cannot be found the plaintiff suffered a back impairment that “cause[d] him disabled under the Rehabilitation Act. Accordingly, we distress and limit[ed] him in performing some activities,” the affirm the district court’s grant of summary judgment on this evidence he presented did not demonstrate that he was claim. severely restricted in any major life activities. Id. at 591. The same is true here, for although DiCarlo clearly suffers from DiCarlo also asserts that the Postal Service violated the his impairment, it hardly prohibits him from engaging in any Rehabilitation Act by failing to accommodate his disability. major life activities, and no evidence has been submitted demonstrating otherwise. In order for a plaintiff to prevail on an allegation of handicap discrimination based on failure to Indeed, the record indicates that at the time he commenced accommodate, he must first establish a prima facie case his Postal Service employment, DiCarlo was perfectly by showing that: (1) he is an individual with a handicap capable of performing his job duties, and that he suffered . . . ; (2) he is qualified for the position . . . ; (3) the from no medical conditions at all. Although he indicated on agency was aware of his disability; (4) an the Postal Service Authorization for Medical Report form that accommodation was needed, i.e., a causal relationship he had had knee surgery, the ultimate outcome of the medical existed between the disability and the request for evaluation that was completed before DiCarlo was hired accommodation; and (5) the agency failed to provide the concluded that he had no medical limitations or restrictions, necessary accommodation. Once the plaintiff has and deemed him “medically qualified to perform the presented a prima facie case, the burden shifts to the No. 02-4010 DiCarlo v. Potter 19 20 DiCarlo v. Potter No. 02-4010
employer to demonstrate that the employee cannot assisted, or participated in any manner in an investigation, reasonably be accommodated, because the proceeding, or hearing under this subchapter.” 42 U.S.C. accommodation would impose an undue hardship on the § 2000e-3(a). operation of its programs. Because DiCarlo presents no direct evidence of retaliation, Gaines v. Runyon, 107 F.3d 1171, 1175-76 (6th Cir. he must prove his claim through the use of circumstantial 1997)(citations omitted). evidence. “In order to find a prima facie case of retaliation under Title VII a plaintiff must prove by a preponderance of DiCarlo argues that the Postal Service discriminated against the evidence: 1) plaintiff engaged in activity protected by him on the basis of his disability by its failure to Title VII; 2) plaintiff’s exercise of [such protected activity] accommodate. Specifically, he claims that when he informed was known by the defendant; 3) that, thereafter, the defendant Bailey of his disability and the need to rest his leg, Bailey’s took an employment action adverse to the plaintiff; and indifference to his need and refusal to allow him to rest 4) that there was a causal connection between the protected amounted to discrimination on the basis of his disability. activity and the adverse employment action.” Equal Bailey asserted in his deposition that he was never told about Employment Opportunity Comm’n v. Avery Dennison Corp., DiCarlo’s leg disability, and that DiCarlo never asked Bailey 104 F.3d 858, 860 (6th Cir. 1997); see also Williams v. for permission to rest his leg. Bailey did concede that Nashville Network, 132 F.3d 1123, 1131 (6th Cir. 1997). DiCarlo had told him about a military disability but stated “The burden of establishing a prima facie case in a retaliation that DiCarlo never provided him with any specific details. Of action is not onerous, but one easily met.” Nguyen v. City of course, we view contested facts in the light most favorable to Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). “Once a prima DiCarlo. facie case is established, the burden of producing some non- discriminatory reason falls upon the defendant.” Williams, Once again, DiCarlo’s claim must fail, as successful 132 F.3d at 1131. “If the defendant demonstrates such, the establishment of a prima facie case of disability plaintiff then assumes the burden of showing that the reasons discrimination based on a failure to accommodate hinges on given by the defendant were a pretext for retaliation.” Id. the plaintiff’s proving that he is disabled under the Act’s definition. Because there is no evidence to support the claim DiCarlo asserts that he was terminated in retaliation for that DiCarlo’s knee injury prevents him from engaging in any filing an EEO complaint against Bailey. He argues that major life activities, he cannot be found disabled under the Bailey was fully aware of DiCarlo’s having filed the Rehabilitation Act. Accordingly, we affirm the district complaint prior to making the recommendation that DiCarlo court’s grant of summary judgment on this claim. be terminated. However, the Postal Service asserts that DiCarlo cannot make out a prima facie case of retaliation F. Retaliation Claim because he has produced no evidence that Bailey knew of DiCarlo’s protected EEO activity when Bailey recommended Title VII provides in pertinent part: “It shall be an unlawful DiCarlo’s termination, and because he presented no evidence employment practice for an employer to discriminate against of a causal connection between any prior protected activity any of his employees . . . because [the employee] has opposed and his termination. It is clear that DiCarlo engaged in any practice made an unlawful employment practice by this protected activity, and that he suffered an adverse subchapter, or because he has made a charge, testified, employment action when he was fired by the Postal Service. No. 02-4010 DiCarlo v. Potter 21 22 DiCarlo v. Potter No. 02-4010
Hence, only the second and fourth elements of the test are at temporal proximity alone would be sufficient to support” an issue. inference of a causal link); Parnell v. West, No. 95-2131, 1997 WL 271751, at *3 (6th Cir. May 21, 1997) (noting that With regard to the second element, it appears from the although “[a] time lag of seven months does not necessarily record that the Postal Service and Bailey in particular were support an inference of a causal link[,] previous cases that aware that DiCarlo had engaged in protected activity by filing have permitted a prima facie case to be made based on the an EEO complaint. DiCarlo filed his EEO complaint on proximity of time have all been short periods of time, usually March 9, 2000, one day after the remarks allegedly made by less than six months”). Bailey on March 8. Subsequently, on March 22, Bailey submitted a memorandum to his manager requesting Various of our sister circuits have also accepted this DiCarlo’s removal “for failure to meet satisfactory concept. See, e.g.,Oliver v. Digital Equip. Corp., 846 F.2d performance levels . . . .” J.A. at 92. Although Bailey 103, 110 (1st Cir. 1988) (employee’s discharge “soon after” testified that he did not know that DiCarlo’s EEO complaint engaging in protected activity “is indirect proof of a causal implicated Bailey personally, Bailey admitted that he knew connection between the firing and the activity because it is prior to March 22 that DiCarlo had in fact filed an EEO strongly suggestive of retaliation”); Miller v. Fairchild Indus., complaint. See J.A. at 207 (Bailey Dep.). Contrary to the Inc., 797 F.2d 727, 731 (9th Cir. 1986) (“[c]ausation assertions of the dissent, Bailey conceded that as of March 11, sufficient to establish a prima facie case of unlawful 2000, he knew that DiCarlo had filed an EEO complaint. retaliation may be inferred from the proximity in time Therefore, it is clear that Bailey, as well as the Postal Service, between the protected action and the allegedly retaliatory was aware of an EEO complaint having been filed. discharge”); Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th Cir. 1982) (“causal connection may be With regard to the last element, establishment of a “causal demonstrated by evidence of circumstances that justify an connection” between the protected activity and the adverse inference of retaliatory motive, such as protected conduct employment action, “[a]lthough no one factor is dispositive closely followed by adverse action”); Grant v. Bethlehem in establishing a causal connection, evidence . . . that the Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980) (“proof of causal adverse action was taken shortly after the plaintiff’s exercise connection can be established indirectly by showing that of protected rights is relevant to causation.” Nguyen, 229 protected activity is followed by discriminatory treatment”). F.3d at 563. In fact, this Circuit has embraced the premise that in certain distinct cases where the temporal proximity DiCarlo filed his EEO complaint on March 9, 2000. Bailey between the protected activity and the adverse employment submitted the memorandum recommending DiCarlo’s action is acutely near in time, that close proximity is deemed termination on March 22. The termination was carried out on indirect evidence such as to permit an inference of retaliation March 30, twenty-one days after DiCarlo engaged in to arise. See, e.g., Brown v. ASD Computing Ctr., 519 F. protected activity. In light of our prior precedent, the Supp. 1096, 1116 (S.D. Ohio 1981) (“where there is no direct temporal proximity between the two events is significant proof of a retaliatory motive, retaliation may be imputed if the enough to constitute indirect evidence of a causal connection timing of the retaliatory act is such as to allow an inference of so as to create an inference of retaliatory motive. As a result, retaliation to arise”), aff’d sub nom. Brown v. Mark, 709 F.2d DiCarlo has satisfied all the elements necessary to establish 1499 (6th Cir. 1983); see also Nguyen, 229 F.3d at 567 a prima facie case, thereby creating a genuine issue of (noting that there are instances in which “evidence of material fact as to whether his termination was effectuated in No. 02-4010 DiCarlo v. Potter 23 24 DiCarlo v. Potter No. 02-4010
retaliation for his filing an EEO complaint. Because the ______________________________________________ district court did not address the issues of whether a non- discriminatory reason existed to justify DiCarlo’s termination, CONCURRING IN PART, DISSENTING IN PART and whether DiCarlo could prove that the given reason was a ______________________________________________ pretext for retaliation, we need not engage in that analysis here. Accordingly, we reverse the district court’s grant of KENNEDY, Circuit Judge, concurring in part, and summary judgment on DiCarlo’s retaliation claim and remand dissenting in part. I agree with the majority that Plaintiff for further proceedings. failed to establish that he is disabled and accordingly agree with the decision to affirm the district court’s grant of III. CONCLUSION summary judgment on the disability discrimination claim. I also agree that the district court improperly granted summary For all of the reasons set forth above, we REVERSE the judgment on the claim of national origin discrimination. district court’s grant of summary judgment on DiCarlo’s However, for reasons explained below, I disagree with the claims of national origin discrimination, age discrimination, majority’s decision to reverse the district court’s grant of and retaliation, and REMAND for further proceedings summary judgment on claims of age discrimination and consistent with this opinion. We AFFIRM the district court’s retaliation. grant of summary judgment on DiCarlo’s disability discrimination claim. A. Age Discrimination With regard to direct evidence of intentional age discrimination, the district court noted that the “only evidence that Plaintiff has offered regarding his claim of age discrimination is his own affidavit attesting to the fact that on March 8, 2000, Bailey informed him that ‘he was no spring chicken’ and that he would not be a supervisor at the facility because of his age.” DiCarlo, No. 5:01CV1072, slip op. at 9- 10. The district court found, and I agree, that this evidence was insufficient to withstand a motion for summary judgment. Id. Plaintiff may not establish a prima facie case of age discrimination based on vague, ambiguous, or isolated remarks. Hein, 232 F.3d at 488 (citing Phelps v. Yale Sec., Inc., 986 F.2d 1020 (6th Cir. 1993) (finding no prima facie case of age discrimination, even though the plaintiff’s supervisor twice stated that the plaintiff was too old to continue at her prior secretarial position, because these were only isolated and ambiguous comments)). In the present case, a single remark about Plaintiff’s no longer being a “spring chicken” is exactly the type of an isolated remark that is insufficient to establish age discrimination. No. 02-4010 DiCarlo v. Potter 25 26 DiCarlo v. Potter No. 02-4010
Furthermore, to establish a prima facie case, Plaintiff must Bailey learned of the complaint at a meeting with Mr. establish “not only that plaintiff’s employer was predisposed Zernechel and Mr. Andreatti. J.A. at 206. Although we are to discriminate on the basis of age, but also that the employer not provided with the specific date of that meeting, Bailey acted on this predisposition.” Id. Had he not been promoted stated that “[t]he only E.E.O. activity that I knew of was with to a supervisor position, Bailey’s alleged remark could have Mr. Stoltz. And that was after I had already done the evidenced age discrimination. However, in the present case, paperwork for the removal.” J.A. at 216. Having carefully Plaintiff was fired for substandard performance. Plaintiff considered the chronology of the events, I cannot come to the simply failed to present any direct evidence that his conclusion that Bailey’s actions were retaliatory. As of evaluations were motivated by age bias. March 9, 2000, Judson Zernechel, Rick Stoltz, and Gary Andreatti knew of the filing of the complaint. On March 22, With regard to circumstantial evidence of disparate Bailey prepared the proposal to remove Plaintiff from treatment, the district court noted that “‘to establish a prima employment. At some point between March 22 and facie case of age discrimination..., a plaintiff must prove by March 29, Bailey learned of the EEO complaint. J.A. at 217 preponderance of the evidence that: (1) he was at least 40 (indicating that he wanted to wait until March 29th to allow years old at the time of the alleged discrimination; (2) he was Plaintiff to deal with his EEO complaint). On March 29, subjected to an adverse employment action; (3) he was 2000, the redress hearing ended in a “no agreement” letter. qualified for the position; and (4) he was replaced by a On March 30, 2000, Bailey sent the letter, dated March 29, younger person.’” DiCarlo, No. 5:01CV1072, slip op. at 10 2000, to Plaintiff indicating his termination. Based on this (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1328 chronology, I would find that Bailey recommended that (6th Cir. 1994)). The district court found that Plaintiff failed Plaintiff be terminated before he learned of the complaint.2 to show either prong (3) or (4). Although I do not agree that In my mind, his decision to issue the formal termination letter he had to establish prong (4) since apparently he was not after he learned of the complaint is legally irrelevant. replaced by anybody at all, I agree that Plaintiff failed to establish that he was qualified for the position. B. Retaliation The majority asserts that “[a]lthough Bailey testified that he did not know that DiCarlo’s EEO complaint implicated provided to this Court by the parties. I understand that the majority reads Bailey personally, Bailey admitted that he knew prior to this excha nge to mean that starting on March 11, 2000, Bailey knew of March 22 that DiCarlo had in fact filed an EEO complaint.” the complaint. I, however, read it to mean that at some point during the This assertion is not supported by the record.1 We know that period starting on Marc h 11, 200 0, Bailey learn ed of the com plaint. W hether the date that he learned of the co mplaint is before or after March 22, 2 000 , is therefore unclear. T his read ing is consistent with other portions of Bailey’s testimony that I describe below. 1 The majority cites to a question that was asked of Bailey at his 2 deposition: “So what you’re telling me is that from March the 11th, 2000, This conc lusion is buttressed by the fact that Plaintiff insisted that to August the 17th, 2000, you only had a passing reference of an E.E.O. the EE O comp laint and the mediation were kept private (with the lone complaint being filed against the Postal Service by Henry DiCarlo?” exception of Rick Stoltz). Contrary to majority’s assertion, Plaintiff has Bailey answered “R ight.” J.A . at 207. I am unable to determine the failed to show any evidence that B ailey knew of any EEO complaint significance of the March 11th date from the excerpted deposition between M arch 9 , 200 0 and March 2 2, 20 00.