Mondzelewski v. Pathmark

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

12-23-1998

Mondzelewski v. Pathmark
Precedential or Non-Precedential:

Docket 97-7475

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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1998/284

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Filed December 23, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7475

JOSEPH A. MONDZELEWSKI,
REBECCA MONDZELEWSKI
Appellants

v.

PATHMARK STORES, INC.,
SUPERMARKETS GENERAL CORP.
Appellee

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

(D.C. No. 96-cv-00359)
(District Judge: Honorable Murray M. Schwartz)

Argued: September 15, 1998

Before: SLOVITER, SCIRICA, and ALITO, Circuit Judges

(Opinion Filed: December 23, 1998)

GARY W. ABER (ARGUED)
Heiman, Aber & Goldlust
First Federal Plaza, Suite 600
702 King Street, P.O. Box 1675
Wilmington, DE 19899

Counsel for Appellants
 C. GREGORY STEWART
PHILIP B. SKLOVER
LORRAINE C. DAVIS
ROBERT J. GREGORY
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507

Counsel for Amicus-Appellant

DEBBIE RODMAN SANDLER
(ARGUED)
White and Williams LLP
1800 One Liberty Place
Philadelphia, PA 19193-7395

Hal R. Crane, Of Counsel
Pathmark Stores
301 Blair Road
Woodbridge, NJ 07095-0915

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Joseph A. Mondzelewski ("Mondzelewski") and his wife,
Rebecca Mondzelewski, sued Pathmark Stores, Inc., and
Supermarkets General Corp. (collectively, "Pathmark"),
asserting claims under the Americans with Disabilities Act
of 1990, 42 U.S.C. S 12101 et seq. (the "ADA"), and
Delaware law. The District Court granted summary
judgment for Pathmark and declined to exercise
supplemental jurisdiction on the state-law claims. On
appeal, Mondzelewski argues that the District Court erred
in holding that he is not disabled within the meaning of the
ADA because he is not substantially limited in the major
life activity of working. In addition, relying on Krouse v.
American Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997),
which was handed down after the District Court ruled in
this case, Mondzelewski contends that the District Court

2
erred in rejecting his retaliation claim on the ground that
he is not disabled. We reverse the District Court on both
grounds and remand for further proceedings in accordance
with this opinion.

I.

A. Viewed in the light most favorable to Mondzelewski,
the relevant facts are as follows. Mondzelewski, a 55-year
old with a sixth-grade education, has worked at Pathmark
for 35 years, first as a bagger and then as a meat cutter. In
March 1992, he injured his back lifting boxes of meat and
was treated by Dr. Henry, Pathmark's doctor, who
diagnosed him as having a herniated vertebral disc. After
Mondzelewski spent a short time on disability, Dr. Henry
released him to work but restricted him from lifting objects
weighing more than 50 pounds and from carrying objects
weighing more than 25 pounds. Mondzelewski informed
Pathmark of his lifting restrictions.

In December 1993, Mondzelewski re-injured his back
while lifting boxes of meat. After a few additional months on
disability, Mondzelewski was again released to work with
the same lifting restrictions, and he again provided a copy
of the restrictions to Pathmark.

Mondzelewski claims that, after returning to work from
his second injury, Pathmark retaliated against him for
asserting his right under the ADA to obtain reasonable
accommodation for a disability. See 42 U.S.C.
S 12112(b)(5)(A). Mondzelewski first maintains that
Pathmark unlawfully changed his work schedule. In
Pathmark's meat department, workers were generally given
schedules that allowed them free time in either the
mornings or the afternoons. Some workers began their
shifts between 6 and 8 a.m. and finished by 2 p.m., while
others began at noon and worked until evening. In addition,
workers generally were not required to work in the evening
on weekends on a regular basis. Before his second injury,
Mondzelewski's schedule generally followed this pattern,
but after his second injury, Pathmark assigned him to work
from 9:30 a.m. to 6:00 p.m. and consistently required him
to work on Saturday evenings. According to Mondzelewski

3
and his fellow workers, these shifts were considered
"punishment shifts." App. 122-125.

Mondzelewski also contends that he was given several
retaliatory reprimands. First, Mondzelewski stated in his
deposition that he received an oral warning for taking his
work break during the last hour of his shift and that no
other employees were given such warnings. Second,
Mondzelewski was given a written notice of counseling
because he had "left ground beef in [the] case" instead of
making "frozen patties" or "consult[ing] management for
direction." App. 138. Mondzelewski described this notice as
one for grinding up too much meat, and he asserted that it
was not unusual for employees to grind up more meat than
could be sold. App. 81-82. Although this notice stated that
it was for "counseling only," it also stated that "future
violations will result in additional disciplinary action
including separation." App. 138. Mondzelewski claims that
this was the first written reprimand he had ever received
during his 35-year career at Pathmark.

Last, within a week of the earlier written notice,
Mondzelewski received another written notice for
"insubordination" for refusing to lift a piece of meat. The
meat was unmarked as to its weight, but Mondzelewski
estimated it to weigh between 50 and 100 pounds. Because
his co-worker refused to assist in lifting the meat,
Mondzelewski called on a department manager for help.
Instead of offering assistance, Mondzelewski claims the
department manager wrote specific weights on this and
other pieces of meat without actually weighing them. The
department manager then allegedly told Mondzelewski to
lift the meat stating: "You want to play those[expletive]
games, well, I'm not. You want a write up. I'm telling you to
do these chucks. You either do it or you go home." App. 45.
Mondzelewski refused, and as a result, he was written up
and suspended for the afternoon. Like his previous written
notice, this notice stated that "future violations will result
in additional disciplinary action including separation." App.
139. At a grievance meeting to discuss the matter,
Mondzelewski was told, he asserts, that his restrictions
were disrupting the work of his fellow employees.

4
Mondzelewski asserts that on one occasion his supervisor
refused to give him time off for a medical test and told him
he would have to reschedule it. He also stated that on some
occasions the department manager refused his request for
help in lifting meat and said: "Things are not that heavy.
You can pick that up." App. 48.

Finally, Mondzelewski claims that Pathmark's managers
and employees harassed and humiliated him. Mondzelewski
was sent to a worker's compensation seminar at which a
speaker said that some employees fake accidents. On
another occasion, he states, he was not given a"butcher's
white coat" and was told it was because he would not be
around much longer. At another time, he was allegedly told
that Pathmark should release him and find him a job
pumping gas. Moreover, he stated that he was told: "We
don't need a meat cutter. We don't need a wrapper, and we
don't need you." App. 83. Further, Mondzelewski asserts
that a manager made a derogatory and offensive hand
gesture to his wife and him.

Mondzelewski claims that Pathmark's conduct caused
him to suffer a mental breakdown and to miss work for
several months. During this period, he filed a charge
against Pathmark with the Equal Employment Opportunity
Commission ("EEOC"). Later that year, he returned to work,
but he was assigned to a different store in order to prevent
any further acts of retaliation. At present, Mondzelewski
continues to work at Pathmark, and according to him, the
harassment has ended. However, he states that he
continues to require medication and psychological
counseling.

B. Mondzelewski filed a six-count complaint in the
United States District Court for the District of Delaware.
Count I alleged that Pathmark discriminated against him,
in violation of 42 U.S.C. S 12112, by failing to provide
reasonable accommodation for his lifting restrictions. Count
II claimed that Pathmark violated 42 U.S.C. S 12203 by
retaliating against him for requesting a reasonable
accommodation when he returned to work after his second
injury. Count III asserted that Pathmark violated a
Delaware statute, 19 Del. Code S 2365, by retaliating
against him for filing a worker's compensation claim.

5
Counts IV and V alleged common law torts, and Count VI
asserted injury to the Mondzelewskis' marital relationship.

The District Court granted summary judgment for
Pathmark on the federal claims. See Mondzelewski v.
Pathmark Stores, Inc., 976 F. Supp. 277 (D. Del. 1997). The
Court first held (id. at 279-81) that Mondzelewski was not
disabled under the ADA because his back injury did not
"substantially limit[ ]" him in the"major life activities" of
"lifting" or "working." See 42 U.S.C.S 12102(2)(A) (defining
a "disability" as including "a physical . .. impairment that
substantially limits one or more of the major life activities
of such individual"). In an effort to show that he was
substantially limited in the major life activity of working,
Mondzelewski provided a report by Thomas Yohe, a
vocational expert, which detailed Mondzelewski's job
prospects. However, the District Court held that Yohe's
report "fail[ed] to raise a material issue of fact on
Mondzelewski's claim for several reasons," including its
failure to "relate the effect of Mondzelewski's `medium-duty
restrictions' on his ability to perform jobs in the economy"
and its failure to "quantify the number or type of jobs he is
precluded from performing due to those restrictions."
Mondzelewski, 976 F. Supp. at 281. Most important, the
Court stressed that Mondzelewski's "employability
problems" were not caused by his impairment, but rather
by his "personal characteristics [such as his limited
education, training, and skills] that ha[d] nothing to do with
his impairment." Id. Accordingly, the Court granted
summary judgment for the defendants on Count I.

Turning to Mondzelewski's retaliation claim, the Court
held that "Mondzelewski may not assert a claim for
retaliation because he is not disabled." Mondzelewski, 976
F. Supp. at 282. The court went on to note precedent to the
effect that a plaintiff in a Title VII retaliation case must
show that he or she suffered what is often termed a
materially "adverse employment action." See, e.g., Robinson
v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)
(citing cases). The District Court then wrote:

Despite such precedent, the Court does not hold that
the acts alleged by Mondzelewski do not, as a matter of
law, constitute adverse employment action, although it

6
 does not believe it would be error to do so. For
example, Mondzelewski's most tangible complaint--
the change in shifts -- must be discounted because of
the common sense notion that a 9:00 a.m. to 5:00 p.m.
shift cannot be considered an extreme hardship given
most of this country's workers are governed by that
shift.

Mondzelewski, 976 F. Supp. at 283-84. The Court thus
granted summary judgment for the defendants on
Mondzelewski's retaliation claim, and the court declined to
exercise supplemental jurisdiction on the remaining state
law claims. Mondzelewski then appealed.

In this appeal, we must decide (1) whether the District
Court correctly concluded that Mondzelewski is not
disabled within the meaning of the ADA and (2) whether a
claim for retaliation can be asserted even if the underlying
disability claim fails. In addition, since the District Court
stated that it would not be error to hold that Mondzelewski
had not suffered any "adverse employment action," we will
address that question as well.

II.

We turn first to the District Court's conclusion that
Mondzelewski is not disabled within the meaning of the
ADA. Mondzelewski does not challenge the District Court's
holding that he is not substantially limited in the major life
activity of lifting, but he contends that the District Court
erred in granting summary judgment against him on the
question whether his back impairment, coupled with his
limited education, training, and skills, substantially limits
his ability to work. We agree.

A. The ADA prohibits an employer from discriminating
against a qualified individual with a disability because of
the disability, 42 U.S.C. S 12101, and as noted, the term
"disability" is defined to mean, among other things, "a
physical . . . impairment that substantially limits one or
more of the major life activities of such individual." 42
U.S.C. S 12102(2)(A).1 Pathmark does not dispute that
_________________________________________________________________

1. In the District Court, Mondzelewski also argued that he was disabled
under 42 U.S.C. SS 12102(2)(B) and (C) because he has a record of an

7
Mondzelewski's back injury is a "physical impairment," but
Pathmark argues that this impairment does not
substantially limit any major life activity.

Although the ADA does not define the term "substantially
limits," the EEOC regulations provide guidance. See 42
U.S.C. S 12116 (empowering the EEOC to promulgate
regulations implementing the ADA); Deane v. Pocono
Medical Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc)
(regulations entitled to substantial deference). As provided
by the regulations, the phrase "substantially limits" means
"[u]nable to perform a major life activity that the average
person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a
particular major life activity as compared to the condition,
manner, or duration under which the average person in the
general population can perform that same major life
activity." 29 C.F.R. S 1630.2(j)(1)(i), (ii). The regulations
further provide that, in assessing whether a major life
activity has been substantially limited, a court should
consider the following factors: "(i) [t]he nature and severity
of the impairment; (ii) [t]he duration or expected duration of
the impairment; and (iii) [t]he permanent or long term
impact, or the expected permanent or long term impact of
[the impairment] or resulting from the impairment." 29
C.F.R. S 1630.2(j)(2)(i)-(iii).

According to the regulations, "working" is a "major life
activity." 29 C.F.R. S 1630.2(i).2 The regulations state that
an individual is substantially limited in the major life
_________________________________________________________________

impairment that constitutes a disability and because Pathmark regarded
him as having such an impairment. The District Court rejected these
arguments and Mondzelewski has not raised them on appeal.

2. Major life activities also include: "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning
. . . ." 29 C.F.R. S 1630.2(i). This list is not meant to be exhaustive,
and
also includes sitting, standing, lifting, and reaching. 29 C.F.R. Pt.
1630,
App. S 1630.2(i). In the District Court, Mondzelewski argued that he is
substantially limited in the major life activities of lifting and working.
On
appeal, Mondzelewski argues only that he is substantially limited in the
major life activity of working.

8
activity of working if there is a significant restriction in the
ability "to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person
having comparable training, skills and abilities." 29 C.F.R.
S 1630.2(j)(3)(i). When analyzing whether there has been a
substantial limitation on the major life activity of working,
the regulations provide that the courts may also consider:
(1) the geographical area to which the individual has
reasonable access; (2) the job from which the individual has
been disqualified, and the number and types of jobs
utilizing similar training, knowledge, skills or abilities from
which the individual is also disqualified ("class of jobs");
and/or (3) the job from which the individual has been
disqualified, and the number and types of other jobs not
utilizing similar training, knowledge, skills or abilities from
which the individual is also disqualified ("broad range of
jobs"). 29 C.F.R. S 1630.2(j)(3)(ii); see also Deane, 142 F.3d
at 144 n.7.

On Pathmark's motion for summary judgment, the
District Court held that Mondzelewski had not provided
sufficient evidence to demonstrate that he is substantially
limited in the major life activity of working. Mondzelewski,
976 F. Supp. at 281. The Court provided several reasons
for its holding. We begin with the "most important" basis
for the District Court's decision. See id.

B. The District Court concluded that, "while
Mondzelewski's employability problems stem from a
combination of factors -- limited education, limited job
skills, advanced age, and lifting restrictions -- the first
three of these factors dwarf the last one in effect on
employability." Id. The Court stressed that "[t]o hold
Mondzelewski is substantially limited in the major life
activity of work would permit him to gain protection from
the ADA for personal characteristics that have nothing to
do with his impairment." Id. We conclude that the District
Court's legal analysis was flawed because, as the ADA
regulations explicitly provide, a court should consider the
individual's "training, skills and abilities" in determining
whether the individual is substantially limited in the major
life activity of working. 29 C.F.R. S 1630.2(j)(3)(i).

9
Under the EEOC's interpretive guidelines,3 determining
whether an individual is substantially limited in one or
more of the major life activities requires a two-step
analysis. First, the court determines whether the individual
is substantially limited in any major life activity other than
working, such as walking, seeing, or hearing. 29 C.F.R. Pt.
1630, App. S 1630.2(j). In making this determination, the
court compares the effect of the impairment on that
individual as compared with the "average person in the
general population." 29 C.F.R. S 1630.2(j)(1); 29 C.F.R. Pt.
1630, App. S 1630.2(j) (stating that the determination must
be conducted on a case by case basis). For example, "an
individual who had once been able to walk at an
extraordinary speed would not be substantially limited in
the major life activity of walking if, as a result of a physical
impairment, he or she were only able to walk at an average
speed, or even at a moderately below average speed." 29
C.F.R. Pt. 1630, App. S 1630.2(j). If the court finds that the
individual is substantially limited in any of these major life
activities, the inquiry ends there. Id. On the other hand, if
the individual is not so limited, the court's next step is to
determine whether the individual is substantially limited in
the major life activity of working.4 Id.

In determining whether an individual is substantially
limited in the ability to work, the proper inquiry, according
to the relevant regulation, is whether the individual is
"significantly restricted in the ability to perform either a
_________________________________________________________________

3. We have afforded these guidelines "a great deal of deference." Matczak
v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937 (3d Cir. 1997).

4. Specifically, the Interpretive Guidelines provide:

If an individual is not substantially limited with respect to any
other
major life activity, the individual's ability to perform the major
life
activity of working should be considered. If an individual is
substantially limited in any other major life activity, no
determination should be made as to whether the individual is
substantially limited in working. For example, if the individual is
blind, i.e., substantially limited in the major life activity of
seeing,
there is no need to determine whether the individual is also
substantially limited in the major life activity of working.

29 C.F.R. Pt. 1630, App. S 1630.2(j).

10
class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training,
skills and abilities." 29 C.F.R. S 1630.2(j)(3)(i) (emphasis
added). This approach requires a court to consider the
individual's training, skills, and abilities in order to
evaluate "whether the particular impairment constitutes for
the particular person a significant barrier to employment."
Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996)
(citing Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986));
accord E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088,
1099 (D. Haw. 1980) (explaining that "it is the impaired
individual that must be examined, and not just the
impairment in the abstract"); 29 C.F.R. Pt. 1630, App.
S 1630.2(j) (stating that the determination of whether an
individual is limited in working must be conducted on a
case by case basis). Because a "person's expertise,
background, and job expectations are relevant factors in
defining the class of jobs used to determine whether an
individual is disabled," Webb, 94 F.3d at 487, the court
must consider the effect of the impairment on the
employment prospects of that individual with all of his or
her relevant personal characteristics. Forrisi, 794 F.2d at
933. Thus, a substantially limiting impairment for one
individual may not be substantially limiting for another
individual with different characteristics. 29 C.F.R. Pt. 1630,
App. S 1630.2(j); see also McKay v. Toyota Motor Mfg.
U.S.A., Inc., 110 F.3d 369 (6th Cir. 1997) (finding plaintiff
with carpal tunnel syndrome not disabled because, among
other things, she had a college degree); Smith v. Kitterman,
Inc., 897 F. Supp. 423, 427 (W.D. Mo. 1995) (finding
plaintiff with carpal tunnel syndrome had raised material
issue of fact because of her limited education, training, and
employment background); Heilweil v. Mount Sinai Hospital,
32 F.3d 718, 724 (2d Cir. 1994) (finding plaintiff not
hindered in her ability to work because of her advanced
educational degrees).

We accept this approach -- under which an individual's
training, skills, and abilities are taken into account in
determining whether the individual is substantially limited
in the major life activity of working -- because we owe
"substantial deference" to the EEOC regulation in which it
is set out, see Deane, 142 F.3d at 143 n.4, and because it

11
is entirely reasonable. Indeed, because the effect that a
particular impairment will have on a person's ability to
work varies depending on that person's background and
skills, it is not easy to envision how any other approach
could be taken.

C. Under the approach set out above, the District Court
in the present case was required to determine whether
Mondzelewski's evidence was sufficient to show that his
lifting restrictions significantly limit his ability to perform
the requisite jobs "as compared to the average person
having comparable training, skills and abilities." 29 C.F.R.
S 1630.2(j)(3)(i). This determination necessitated
consideration of the "personal characteristics" that the
District Court's analysis factored out. Whether
Mondzelewski's lifting restriction would not limit him in the
major life activity of working if he possessed more or
different training, skills, or abilities is not determinative;
rather, the question is whether his ability to work is
sufficiently limited in light of the training, skills, and
abilities that he does possess.

In finding that Mondzelewski is not disabled, the District
Court mistakenly relied on a provision in the EEOC
guidelines that states:

[T]he restriction on the performance of the major life
activity must be the result of a condition that is an
impairment. . . . [A]dvanced age, physical or
personality characteristics, and environmental,
cultural, and economic disadvantages are not
impairments. Consequently, even if such factors
substantially limit an individual's ability to perform a
major life activity, this limitation will not constitute a
disability.

29 C.F.R. Pt. 1630, App. S 1630.2(j). By its plain language,
this provision relates to the question whether the individual
has a physical or mental impairment, not whether the
impairment substantially limits a major life activity and
thus constitutes a disability. The guideline provides the
following example:

[A]n individual who is unable to read because he or she
was never taught to read would not be an individual

12
 with a disability because lack of education is not an
impairment.

Id. But if an individual who previously held a job that did
not require much if any reading developed a physical
impairment, that individual's ability to read would have to
be taken into account in determining whether he or she
was "significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable
training, skills and abilities." 29 C.F.R. S 1630.2(j)(3)(i).

For these reasons, we hold that the District Court
committed legal error by failing to conduct the necessary
individualized assessment of the extent to which
Mondzelewski's back condition coupled with his personal
characteristics substantially limits his ability to work.

D. The District Court also suggested that the
defendants were entitled to summary judgment on Count I
because the report of Mondzelewski's vocational expert
failed to "relate the effect of Mondzelewski's `medium duty'
restrictions on his ability to perform jobs in the economy"
and failed to "quantify the number or type of jobs he is
precluded from performing due to those restrictions."
Mondzelewski, 976 F. Supp. at 281. We conclude, however,
that this report is sufficient to show for the purpose of
surviving summary judgment that Mondzelewski was
"significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes.
. . ." 29 C.F.R. S 1630.2(j)(3)(i). Cf. 29 C.F.R. Pt. 1630, App.
S 1630.2(j) (stating that the terms "number and types of
jobs" are not intended to impose an onerous evidentiary
burden but are meant only to require evidence of the
approximate number of jobs from which the individual is
precluded from working).

Yohe's report recounted Mondzelewski's educational and
vocational background and reported that Mondzelewski had
received "extremely low" scores on an achievement test and
a career ability placement test that Yohe had administered.
App. 162. According to his report, Yohe compared
Mondzelewski's profile "to each of the almost 13,000 jobs
listed in the [Department of Labor's] Dictionary of

13
Occupational Titles and found that "there were a total of
eight positions that would be suitable for him that
essentially involve unskilled work." App. 163. Yohe stated
that his investigation showed that for these positions there
were "very low employment opportunities" in
Mondzelewski's geographical area. Id. He concluded:

In essence, the best that could be hoped for . . . him,
outside of his Pathmark situation, would be a
minimum wage type of position in an unskilled light or
medium duty capacity. For him to obtain these types of
jobs, he would likely need some sort of assistance from
a professional Rehabilitation Specialist.

App. 164. Whatever else may be said of Yohe's report, we
believe that it is sufficient to show for present purposes
that Mondzelewski is "significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities." 29 C.F.R.
S 1630.2(j)(3)(i).

We reject Pathmark's argument that Mondzelewski
cannot be substantially limited in the major life activity of
working because he is now working. In determining
whether an individual is substantially limited in a major life
activity, a court must examine the individual's situation
without accommodation for the individual's impairment.
Matczak, 136 F.3d at 937; see also, e.g., Washington v.
HCA Health Servs. of Texas, Inc., 152 F.3d 464 (5th Cir.
1998). Here, Pathmark granted Mondzelewski's request for
"assistance with lifting of over fifty pounds and with
frequent carrying of over twenty-five pounds." Appellees' Br.
at 3. Thus, the mere fact that Mondzelewski has been able
to continue to perform his job with accommodation does
not necessarily mean that he is not disabled.

In sum, we hold that the question whether
Mondzelewski's impairment substantially limits him in the
major life activity of working cannot be resolved at the
summary judgment stage.

III.

A. Mondzelewski next challenges the District Court's
decision to grant summary judgment to Pathmark on his

14
retaliation claim. While recognizing that persons who do not
have a disability but "who in good faith file formal disability
discrimination charges with [the appropriate state agency]
or [the] EEOC" may assert a retaliation claim, 976 F. Supp.
at 284, the District Court held that "Mondzelewski -- who
is not disabled -- cannot recover under the ADA for the
particular acts of harassment he has alleged." Id. The Court
added that "individuals who are not disabled cannot claim
the protections of the ADA for the more trivial acts of
harassment that may be visited upon them in response to
their requests for assistance." Id. The District Court thus
suggested that a retaliation claim can be brought by a
person who is adjudged not to have a disability only if that
person filed a formal ADA complaint and/or suffered a
more severe form of retaliation than would otherwise be
required. Id.

After the District Court's decision, this Court held that "a
person's status as a `qualified individual with a disability' is
not relevant in assessing the person's claim for retaliation
under the ADA." Krouse v. American Sterilizer, Co., 126
F.3d 494, 498 (3d Cir. 1997). The Court wrote:

By its own terms, the ADA retaliation provision
protects "any individual" who has opposed any act or
practice made unlawful by the ADA or who has made
a charge under the ADA. 42 U.S.C. S 12203(a). This
differs from the scope of the ADA disability
discrimination provision, 42 U.S.C. S 12112(a), which
may be invoked only by a "qualified individual with a
disability." An individual who is adjudged not to be a
"qualified individual with a disability" may still pursue
a retaliation claim under the ADA.

Id. at 502. Under this analysis, we see no basis for holding
that a person who is adjudged not to have a disability may
not assert a retaliation claim based on some form of
protected activity other than the filing of a formal
complaint. Nor do we see any basis for holding that such a
person must have suffered some form of retaliation that is
more severe than the statute would otherwise demand.
Consequently, Krouse necessitates reversal here.

B. Although the District Court did not squarely hold
that Mondzelewski's retaliation claim could not survive

15
summary judgment because the evidence did not show that
Mondzelewski had suffered an "adverse employment
action," the Court stated that "it does not believe it would
be error" to so hold. Mondzelewski, 976 F. Supp. at 284. In
light of this statement, we find it necessary to address this
issue.

Mondzelewski argues that "[p]erhaps the most egregious
actions" taken against him were the "use of`punishment
shifts.' " Appellant's Br. at 30. The District Court, however,
wrote that, while this was "Mondzelewski's most tangible
complaint," "the change in shifts . . . must be discounted
because of the common sense notion that a 9:00 a.m. to
5:00 p.m. shift cannot be considered an extreme hardship
given most of this country's workers are governed by that
shift." Mondzelewski, 976 F. Supp. at 284. We are unable
to agree with the District Court's analysis and instead hold
that the change in Mondzelewski's shifts could be found to
constitute a change in the terms, conditions, or privileges of
his employment and thus to fall within the prohibition of 42
U.S.C. S 12203(a).

This provision states in pertinent part:

No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this chapter . . . .

42 U.S.C. S 12203(a). As we have noted, see Krouse, 126
F.3d at 500, this provision resembles Section 704 of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e-3(a),
which makes it an unlawful employment practice to
"discriminate" against an employee "because he has
opposed any practice made an unlawful employment
practice by this subchapter. . . ." Both provisions make it
unlawful to "discriminate" against an employee in
retaliation for protected conduct.

In Title VII cases, our Court and others have interpreted
"discriminat[ion]" to mean conduct that falls within the
basic prohibition against employment discrimination found
in 42 U.S.C. S 2000e-2(a)(1), which makes it an "unlawful
employment practice" to discriminate with respect to
"compensation, terms, conditions, or privileges of
employment." See Robinson v. City of Pittsburgh, 120 F.3d

16
1286, 1300 (3d Cir. 1997) (citing cases). Courts customarily
express this concept by stating that a retaliation plaintiff
must show that he or she suffered a "materially adverse
employment action." Id. (quoting McDonnell v. Cisneros, 84
F.3d 256, 258 (7th Cir. 1996)). In view of the resemblance
between 42 U.S.C. S 12203(a) and 42 U.S.C.S 2000e-3(a), a
similar approach is appropriate here. Consequently, we
interpret the concept of "discriminat[ion]" under 42 U.S.C.
S 12203(a) to mean discrimination "in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment." 42 U.S.C. S 12112(a). We reiterate, however,
as we observed in Robinson, 120 F.3d at 1300, that minor
or trivial actions that merely make an employee "unhappy"
are not sufficient to qualify as retaliation under the ADA,
for otherwise every action that an "irritable, chip-on-the-
shoulder employee did not like would form the basis of a
discrimination suit."5 Id. (citing Smart v. Ball State Univ., 89
F.3d 437, 441 (7th Cir. 1996)).

We hold that Mondzelewski proffered evidence sufficient
to establish for present purposes that the change in his
schedule may have altered the "terms, conditions, or
privileges" of his employment in violation of 42 U.S.C.
S 12203(a). He proffered evidence that meat workers
generally worked shifts that provided them with certain
periods of free time and that did not require them to work
weekend evenings consistently. His evidence suggested that
his fellow employees considered this type of schedule to be
_________________________________________________________________

5. Mondzelewski seems to assert that because the alleged harassment
caused him to suffer a "nervous breakdown," the acts are per se
retaliatory under the ADA. Mondzelewski erroneously draws support
from Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). The Court,
however,
did not set forth a per se rule that if a person suffers "tangible
psychological injury," the employer must have engaged in "adverse
employment action." Instead, the Court set forth an objective standard:
whether a reasonable person would find the conduct hostile or abusive.
If an individual's hypersensitivity causes him or her to suffer tangible
psychological harm that a reasonable person would not suffer under
similar circumstances, then that individual cannot seek protection from
the ADA's anti-retaliation provision.

17
a highly desirable benefit. Although Mondzelewski
previously had worked under the typical meat worker's
schedule, after his second injury, he was singled out to
work a different shift. This shift left him none of the
customary free time and required him to work every
Saturday evening. Moreover, he proffered affidavits of fellow
employees stating that only workers that Pathmark
intended to punish were assigned to this undesirable shift.
Indeed, according to these affidavits, workers referred to
these shifts as "punishment shifts." We find this evidence
sufficient to raise a triable question as to whether
Mondzelewski's terms, conditions, or privileges of
employment were altered.

Assigning an employee to an undesirable schedule can be
more than a "trivial" or minor change in the employee's
working conditions. See Hampton v. Borough of Tinton Falls
Police Dep't, 98 F.3d 107, 116 (3d Cir. 1996) (under Title
VII, appointment to undesirable police assignment
sufficient to withstand summary judgment on retaliation
claim); Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987)
(under Title VII, holding adverse action does not require
loss of money or benefits but rather may consist of changes
in location, duties, perks, or other basic aspects of the job);
Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986)
(under Title VII, holding district court's conclusion, i.e., a
change to night shift constitutes sufficient evidence of
retaliatory job assignment, not clearly erroneous), overruled
on other grounds, Harvey v. Blake, 913 F.2d 226, 228 n.2
(5th Cir. 1990); McGill v. Board. of Educ., 602 F.2d 774,
780 (7th Cir. 1979) (under 42 U.S.C. S 1983, teacher
transferred to a less desirable school is retaliation for
protected speech); Florence v. Runyon, 990 F. Supp. 485,
498 (N.D. Tex. 1997) (under Title VII, denying summary
judgment where transfer to new position with different work
hours raised material issue of fact as to whether plaintiff
suffered adverse employment action); Khan v. Cook County,
No. 96-C-1113, 1996 WL 432410, at *2 (N.D. Ill. July 30,
1996) (under the ADA, refusing to hold as a matter of law
that a transfer to the night shift does not constitute adverse
action); Snodgrass v. Brown, No. 89-1171-K, 1990 WL
198431, at *17 (D. Kan. Nov. 26, 1990) (under Title VII,
concluding that changes in employee's schedule raised

18
material issue of fact as to whether plaintiff suffered
adverse employment action); Maddox v. County of San
Mateo, 746 F. Supp. 947, 953 (N.D. Cal. 1990) (under Title
VII, permitting retaliation claim where, among other things,
employer refused to transfer plaintiff from graveyard shift);
see also 2 EEOC Compliance Manual 613:0004, at 613.3
(BNA June 1986) ("Title VII prohibits discrimination with
respect to practices or activities such as length of
employment contract, hours of work, or attendance since
they are terms, conditions, or privileges of employment.").
Cf. 29 U.S.C. S 158(d) (obligation to bargain collectively with
respect to, among other things, "hours . . . and other terms
and conditions of employment") (emphasis added); Meat
Cutters Locals v. Jewel Tea Co., 381 U.S. 676, 691 (1965)
("the particular hours of the day and the particular days of
the week during which employees shall be required to work
are subjects well within the realm of `wages, hours, and
other terms and conditions of employment' about which
employers and unions must bargain"); Long Lake Lumber
Co., 160 NLRB 1475 (1966) (changing employee's schedule
from normal workweek to a Tuesday through Saturday
workweek violated National Labor Relations Act). Thus, we
believe that Mondzelewski has produced evidence that
raises a genuine issue as to whether Pathmark altered his
terms, conditions or privileges of employment, in violation
of 42 U.S.C. S 12203(a), when it changed his work
schedule.

We readily agree with the District Court's observation
that assignment to a 9:00 a.m. to 5:00 p.m. shift "cannot
be considered an extreme hardship given most of this
country's workers are governed by that shift."
Mondzelewski, 976 F. Supp. at 284. But the critical
question for present purposes is not whether Mondzelewski
suffered an "extreme hardship," but whether his terms,
conditions, or privileges of employment were altered.
Nothing in the ADA suggests that employers are prohibited
from taking only those retaliatory actions that impose an
"extreme hardship." To be sure, the relatively mild nature of
Pathmark's allegedly retaliatory conduct may not be
without legal or practical significance, but it is not
dispositive with respect to the narrow legal question now
before us regarding 42 U.S.C. S 12203(a).

19
Although the District Court did not expressly address the
other alleged acts of retaliation on which Mondzelewski
relies, it appears that the Court may have applied the same
"extreme hardship" test there as well. Moreover, the Court
did not address 42 U.S.C. S 12203(b), which arguably
sweeps more broadly than 42 U.S.C. S 12203(a). Subsection
(b) provides in pertinent part that it is "unlawful to coerce,
intimidate, threaten, or interfere with any individual . . . on
account of his or her having . . . exercise[d] . . . any right
granted or protected by this chapter." On remand, the
Court should consider whether Mondzelewski has proffered
sufficient evidence to survive summary judgment under this
subsection as well as under subsection (a).

Pathmark has urged us to affirm the grant of summary
judgment on the retaliation claim on several alternative
grounds. Pathmark contends that Mondzelewski did not
make a retaliation charge in his EEOC complaint.
Pathmark also argues that it proffered a legitimate
explanation for assigning Mondzelewski to the shifts in
question -- viz., because it was better able to provide
reasonable accommodation for his lifting restrictions during
those shifts -- and that Mondzelewski failed to raise a
triable issue with respect to Pathmark's explanation. The
District Court did not reach these issues, and we decline to
reach them at this time. Pathmark can renew these
arguments on remand in the District Court.

IV.

For the reasons explained above, we reverse the grant of
summary judgment on Counts I and II and remand for
further proceedings. We also vacate the dismissal of the
counts asserting state-law claims so that the District Court
can reassess its decision relating to those counts in light of
its disposition on remand of the remaining federal claims.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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