United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 1997 Decided December 12, 1997
No. 96-7258
Angela Marshall,
Appellant
v.
Federal Express Corporation,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv02618)
Marc Fiedler argued the cause for appellant. With him on
the briefs was Roger C. Johnson.
Colby W. Morgan, Jr. argued the cause for appellee. With
him on the brief were Larry S. Kaplan, John T. Midgett and
Merrell B. Renaud. R. Mark Dare entered an appearance.
Before: Silberman, Williams and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Angela Marshall was injured
while on duty as a Senior Customer Service Agent with
Federal Express, making it difficult for her to continue in
that work. A fellow employee suggested that she apply for
another job with Federal Express, as an Operations Agent at
a different facility, which she would have been able to per-
form without difficulty. Soon thereafter, however, the same
employee relayed another employee's belief that because
Marshall's husband already worked at the same facility, Mar-
shall could not work there in light of Federal Express's anti-
nepotism rules. By the time Marshall discovered that this
advice was wrong, the deadline for applying had passed.
Shortly afterward she learned that the company had decided
not to fill the spot at all.
Marshall filed a timely complaint with the Equal Employ-
ment Opportunity Commission, saying that Federal Express
had "denied [her] the opportunity to apply for [the Operations
Agent] position," in violation, she believed, of the Americans
with Disabilities Act, 42 U.S.C. s 12101 et seq. ("ADA" or the
"Act"). Later, because of the impact of the injury on her
ability to perform her original job as a Customer Service
Agent, Federal Express dismissed her. She filed no EEOC
complaint on that subject.
Marshall then filed suit in district court under the Act,
claiming discrimination not only in regard to her failure to
secure the Operations Agent job but also her termination
from the company. The district court granted Federal Ex-
press's motion for summary judgment. We affirm. We
agree with the district court that Marshall exhausted her
administrative remedies only as to her failure to secure the
Operations Agent job, and that she failed to raise a material
issue of fact to support her claim that Federal Express
discriminatorily foreclosed that job.
* * *
Marshall began working at Federal Express in 1985. On
February 13, 1992 she injured her back while working as a
Senior Customer Service Agent at Federal Express's Nation-
al Press Building station in Washington. She was placed on
worker's compensation and began a leave of absence. In May
1992 she entered Federal Express's Temporary Return to
Work program, which provides injured workers with light-
duty work for 90 days. By the time her participation ended
in August, Federal Express had hired someone else to fill her
old job. The company, nonetheless, kept her on for some
time thereafter, allowing her to extend her leave of absence.
On September 21, 1992 Opal Shields, a Federal Express
Leave of Absence Manager, informed Marshall by letter that
the lifting restrictions brought on by her injury left her
unqualified to return to work as a Senior Customer Service
Agent. She would be allowed to file an unlimited number of
applications for jobs at Federal Express for which she was
qualified, and would be given "placement preference" for such
jobs, but if she did not find one within 90 days she would be
fired. Federal Express contracted with a rehabilitation coun-
selor to help Marshall find a job. Through Shields, the
company also informed her of several job openings for which
she could apply. Marshall declined to apply for positions at
Dulles Airport in Virginia and in Columbia, Maryland, saying
that her back condition prevented her from commuting to
those places. She did apply for a sales position in December
but Federal Express gave the job to someone else; that
decision is not at issue here.
On January 8, 1993 Shields told Marshall about an Opera-
tions Agent position that had opened up at Federal Express's
"DCA" station and urged her to apply. The parties seem to
agree that Marshall's back injury would not have hindered
her work as an Operations Agent. When Shields told Gary
Aldred, the Senior Manager of the DCA station, that Mar-
shall wanted to apply for the opening, Aldred balked. Mar-
shall's husband already worked at the DCA station, and
Aldred told Shields that company policy forbade relatives or
spouses from working together. Shields relayed this infor-
mation to Marshall and told her she could not apply after all.
Marshall suspected that someone had gotten the policy
wrong--she recalled that she used to work in the same
building as her sister--so she made further inquiries. It
turned out Aldred was mistaken. The Federal Express
policy manual says that "[b]lood-related and marriage-related
employees may be hired and be permitted to work at the
same locations, providing no direct reporting or supervisory
relationship exists." There would have been no direct report-
ing or supervisory relationship between Marshall and her
husband at the DCA station. By the time Marshall learned
that she was indeed eligible to apply, however, the job had
passed her by--on January 18 a personnel director told her
that no more applications were being accepted. Indeed it
soon became apparent that the job had passed everyone by--
on January 21 Marshall was told that the Operations Agent
vacancy at DCA had been withdrawn for budgetary reasons;
this was confirmed a week later in a memorandum to the five
candidates who had applied for the position.
In late January Marshall filed a charge with the EEOC,
alleging that Federal Express had violated the ADA by not
letting her apply for the Operations Agent job. On March 4,
1993--some 75 days after the expiration of her 90-day grace
period--Marshall was fired. In August 1994 the EEOC
concluded that the evidence was insufficient to support her
ADA claim. This lawsuit followed.
* * *
Before bringing suit in federal court, ADA plaintiffs, like
those under Title VII, must exhaust their administrative
remedies by filing an EEOC charge and giving that agency a
chance to act on it. 42 U.S.C. s 12117(a); Park v. Howard
University, 71 F.3d 904, 907-09 (D.C. Cir. 1995). A vague or
circumscribed EEOC charge will not satisfy the exhaustion
requirement for claims it does not fairly embrace. "[A]llow-
ing a complaint to encompass allegations outside the ambit of
the predicate EEOC charge would circumvent the EEOC's
investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge, as surely as would an
initial failure to file a timely EEOC charge." Schnellbaecher
v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989).
Naturally every detail of the eventual complaint need not be
presaged in the EEOC filing, but the substance of an ADA
claim, like that of a Title VII claim, must fall within the scope
of "the administrative investigation that can reasonably be
expected to follow the charge of discrimination." Park, 71
F.3d at 907 (citation and internal punctuation omitted).
Marshall's wrongful termination claim fails to meet this
test. The charge filed by Marshall with the EEOC made no
mention of her termination. The Commission could not rea-
sonably be expected to investigate Marshall's firing based on
the allegations in the charge, which spoke only of Federal
Express's failure to allow her to apply for the Operations
Agent job. Marshall never filed a second charge alleging a
discriminatory termination, nor did she amend her original
charge or otherwise bring her termination to the Commis-
sion's attention.
Marshall concedes that the wording of her administrative
charge failed to put the Commission on notice of her immi-
nent termination, but claims that the accompanying affidavit
did the trick. And indeed she did foreshadow her impending
discharge in that affidavit, noting that Opal Shields "was in
the process of terminating me," and adding, "I feel as if I am
being given the run around, and I will be terminated soon." 1
The Seventh Circuit takes the view that allegations in sup-
porting affidavits may be considered for exhaustion purposes
if the charging party makes clear that she wants the EEOC
to investigate them. See Cheek v. Western and Southern
Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994). Even assum-
ing the correctness of this approach, we do not read Mar-
shall's off-hand forecasts of looming termination as a request
that the EEOC investigate her discharge as a distinct act of
__________
1 Marshall also notes that in an internal grievance letter she
submitted to Federal Express six days before she lodged the EEOC
charge, she commented, "I have less than two weeks before I am
obsolete with this company." This letter, however, was not directed
to the EEOC and we cannot consider it in our exhaustion inquiry.
In any case, the letter adds nothing material to the vague forebod-
ings contained in the affidavit.
discrimination. Marshall's wrongful termination claim is not
properly before us.
Marshall also contends that Federal Express discriminated
against her by failing to reasonably accommodate her disabili-
ty. She says the company could have accommodated her in
her Customer Service Agent job by waiving the job's lifting
requirements or by transferring her to the Operations Agent
job. As for waiving the lifting requirements, Marshall runs
directly into the problem that thwarted her wrongful termi-
nation claim: her administrative charge makes no mention of
any refusal to accommodate her lifting limitations or even of
her termination (investigation of which might have led back to
such a refusal). Thus the EEOC was not on notice to
investigate the lifting issue, and Marshall is barred from
raising it for the first time in her complaint.
As for Federal Express's failure to transfer her, the story
is somewhat more complicated. As we have noted, Marshall's
EEOC charge (read in conjunction with its accompanying
papers) alleges that she was denied the opportunity to apply
for the Operations Agent job, implies that she was given
spurious reasons for the denial, and contends that this
amounted to discrimination. Now she says, in effect, that the
administrative charge implicitly included her current claim--
that Federal Express could and should have shifted her to the
Operations Agent job as a means of accommodating the
apparent conflict between her disability (which we here as-
sume) and the demands of the Customer Service Agent job.
The ADA provides that "[n]o covered entity shall discrimi-
nate against a qualified individual with a disability because of
the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employ-
ees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C.
s 12112(a) (emphasis added). The statute defines "discrimi-
nate" to include "not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee" absent undue hardship to the employer. 42 U.S.C.
s 12112(b)(5)(A). As the language of s 12112(a) makes clear,
for discrimination (including denial of reasonable accommoda-
tion) to be actionable, it must occur in regard to some adverse
personnel decision or other term or condition of employment.
Here, the only adverse action before us is denial of the chance
to apply for the Operations Agent job. In regard to that,
both parties agree, Marshall required no accommodation at
all: she was as capable of performing the job as anyone. If
her termination were properly before us, it might well bring
in its train the question whether Federal Express had a duty
to take action short of termination by accommodating Mar-
shall's disability-driven limitations in her former job. But, as
we have seen, that claim has not been preserved. Thus there
is no adverse action before us with any nexus to a possible
denial of reasonable accommodation.
The same analysis governs the definition of discrimination
in 42 U.S.C. s 12112(b)(5)(B), which includes "denying em-
ployment opportunities to a job applicant or employee who is
an otherwise qualified individual with a disability, if such
denial is based on the need of such covered entity to make
reasonable accommodation to the physical or mental impair-
ments of the employee or applicant." In view of the agree-
ment that Marshall was perfectly fit for the Operations Agent
job, denial of the opportunity to secure it could not have been
"based on the need of [Federal Express] to make reasonable
accommodation to [Marshall's] physical or mental impair-
ments."
We assume without deciding that if working conditions
inflict pain or hardship on a disabled employee, the employer
fails to modify the conditions upon the employee's demand,
and the employee simply bears the conditions, this could
amount to a denial of reasonable accommodation, despite
there being no job loss, pay loss, transfer, demotion, denial of
advancement, or other adverse personnel action. Such a
scenario might be viewed as the ADA equivalent of the hostile
working environment claim cognizable under other discrimi-
nation laws. Cf. Stewart v. County of Brown, 86 F.3d 107
(7th Cir. 1996); Vande Zande v. Wisc. Dep't of Administra-
tion, 44 F.3d 538, 546 (7th Cir. 1995). But Marshall's charge
failed to put any work environment before the EEOC; even if
we stretched the point and read her charge as implicating the
environment of the Operations Agent job, it remains the case
that her disability (if any) created no occasion for accommoda-
tion in that job.
* * *
We now turn to the question that was properly presented
by Marshall's EEOC charge: whether Federal Express dis-
criminated against her on the basis of disability in refusing to
let her apply for the Operations Agent position. The district
court found that it did not, holding that Marshall was not
disabled within the meaning of the ADA, 42 U.S.C.
s 12102(2)(A). The court also noted that Federal Express
had offered a legitimate, non-discriminatory reason for its
actions, and that Marshall had supplied no evidence to show
that the reason was pretextual. Because we agree with the
district court on this latter ground, we do not reach the issue
of disability.
We have approved the use of the familiar burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), as a tool for analysis in ADA cases--at least
in cases where the plaintiff offers no direct evidence tending
to show discriminatory animus and the defendant denies that
its decisions were motivated by the plaintiff's disability. See
Aka v. Washington Hospital Center, 116 F.3d 876, 885-86
(D.C. Cir. 1997), vacated on other grounds pending rehearing
en banc, 1997 WL 569524 (D.C. Cir., Sept. 5, 1997); cf. Barth
v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993) (Rehabilitation
Act). This is such a case: Marshall has come forward with
no direct proof of discriminatory motivation, and Federal
Express for its part asserts that the Operations Agent posi-
tion was eliminated after a staffing analysis had determined
that the job could be handled using current employees. We
assume without deciding that Marshall is disabled in the
statutory sense and has made out the other elements of her
prima facie case. Federal Express having offered a non-
discriminatory reason for the dismissal, the burden shifted to
Marshall to show that Federal Express's cost-cutting ratio-
nale was just a cover-up for illicit discrimination.
Marshall cites two items as indicators of pretext. First,
she says, based on her seven years of experience at Federal
Express and her husband's first-hand familiarity with the
DCA station, that the company's fiscal explanation simply
cannot be believed. As she put it in her deposition testimony,
"I know that they need an operations agent position." But
such a conclusory observation fails to create a material issue
of fact as to Federal Express's claimed motivation. Marshall
has laid no foundation for any expertise on the issue of
whether an extra employee at that position was worth the
cost to Federal Express.
Second, Marshall points to the confusion over Federal
Express's policy on employment of relatives as evidence that
the company's cost-cutting rationale is specious. Her argu-
ment seems to be that because a Federal Express employee
gave her what turned out to be an unfounded reason for
refusing to accept her application, Federal Express must be
giving the court an insincere reason for canceling the position
altogether. We find the logic of this difficult to fathom. If
the company's true aim was to disadvantage Marshall because
of her disability, why would it take the drastic step of zeroing
out the entire Operations Agent position, thereby also disad-
vantaging not only Marshall but all five applicants (none of
whom, so far as we know, was disabled), not to mention
depriving itself of the net advantage of filling the position? It
would have been much simpler to refrain from informing
Marshall about the job in the first place. Indeed, Marshall's
effort to draw a sinister inference from the nepotism mix-up
runs into the fact that the company itself alerted her to this
and several other job openings.
In sum, a rational fact-finder would need more than Mar-
shall has provided before it could "second-guess an employ-
er's personnel decision absent demonstrably discriminatory
motive." Fischbach v. District of Columbia Dep't of Correc-
tions, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting Milton v.
Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)). Even assum-
ing that Marshall made out a prima facie case under the first
part of the McDonnell Douglas test--a proposition the dis-
trict court rejected and on which we take no position--she
has failed to raise a genuine issue of fact as to whether
Federal Express's reason was pretextual.
The judgment of the district court is
Affirmed.