                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-1997

Krouse v. Amer Sterilizer Co
Precedential or Non-Precedential:

Docket
96-3669




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Krouse v. Amer Sterilizer Co" (1997). 1997 Decisions. Paper 231.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/231


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed September 26, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3669

ROBERT V. KROUSE,

       Appellant

v.

AMERICAN STERILIZER COMPANY; LIBERTY MUTUAL
INSURANCE COMPANY; MICHAEL J. COUGHLIN; SCOTT
G. LIGHTNER; JOHN T. HARDIN; NANETTE S.
STAFFORD; JASON M. NUARA

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-00309)

Argued
July 22, 1997

Before: BECKER, MANSMANN and ROSENN,
Circuit Judges.

(Filed September 26, 1997)

       Wayne G. Johnson, Sr.
       Wayne G. Johnson, Jr. (ARGUED)
       558 West Sixth Street
       Erie, Pennsylvania 16507

        COUNSEL FOR APPELLANT




       Stephen X. Munger, Esquire
       Lisa A. Schreter, Esquire
        (ARGUED)
       Jackson, Lewis, Schnitzler
        & Krupman
       233 Peachtree Street, N.E.
       2400 Peachtree Center-Harris Tower
       Atlanta, Georgia 30303-1509

       COUNSEL FOR APPELLEES
       AMERICAN STERILIZER
       COMPANY, MICHAEL J.
       COUGHLIN, SCOTT G. LIGHTNER,
       JOHN T. HARDIN

       John D. Petruso, Esquire (ARGUED)
       Fuller, Kinnunen, Petruso, Gamble,
        Fabian & Hall
       373 Center Street
       Meadville, Pennsylvania 16335

       COUNSEL FOR APPELLEES
       LIBERTY MUTUAL INSURANCE,
       NANETTE S. STAFFORD,
       JASON M. NUARA

OPINION OF THE COURT

MANSMANN, Circuit Judge.

After American Sterilizer Company ("AMSCO") placed him
on workers' compensation leave, channel welder Robert
Krouse filed this action against AMSCO and Liberty Mutual
Insurance Company, asserting retaliation claims under the
Americans with Disabilities Act, 42 U.S.C. S 12101 et seq.
(ADA), and discrimination claims under the Age
Discrimination in Employment Act, 29 U.S.C. S 621 et seq.
(ADEA). Relying on McNemar v. Disney Store, Inc., 91 F.3d
610 (3d Cir. 1996), cert. denied, 117 S.Ct. 958 (1997), the
district court determined that Krouse was judicially
estopped from claiming to be a "qualified individual with a
disability" under the ADA based on prior assertions of total

                                2



disability made in connection with applications for
disability and pension benefits. Since Krouse was estopped
from claiming to be a "qualified individual with a disability,"
the court reasoned, Krouse could not invoke the protection
of the ADA. Alternatively, the court held that Krouse's ADA
claims failed on the merits as a matter of law. The court
also held that Krouse's ADEA claims failed as a matter of
law. The district court granted the defendants' motions for
summary judgment.

We hold that a person's status as a "qualified individual
with a disability" is not relevant in assessing the person's
claim for retaliation under the ADA. Thus, the district court
erred in relying on McNemar to dismiss Krouse's ADA
retaliation claims. We also hold, however, that Krouse's
ADA and ADEA claims must fail on the merits as a matter
of law. Krouse is unable to articulate a prima facie case of
retaliation, and he is unable to offer any evidence which
would permit a trier of fact to conclude that AMSCO's
articulated reasons for its employment decisions were a
mere pretext for unlawful retaliation or discrimination. We
will affirm the judgment of the district court. Since we do
not rely on McNemar in affirming the judgment of the
district court, we are not prompted to revisit that
controversial decision at this time.

I.

AMSCO designs, manufactures, sells and services
hospital equipment. Krouse began employment with
AMSCO in 1974 as a member of the bargaining unit
represented by Local 832 of the United Auto Workers
("UAW"). In 1989, Krouse became a channel welder.
AMSCO evaluates channel welders pursuant to established
performance and time standards set by AMSCO's industrial
engineers for the completion of various work projects.
Employees' "performance percentages" are calculated every
week; fully trained channel welders are expected to pursue
the applicable performance percentage standards.

On January 14, 1991, Krouse suffered a work-related
back injury. Following this injury, Krouse's advising health
care professionals placed certain medical restrictions on the

                                3



type of activity he could perform. From January 15, 1991
through May 20, 1994, AMSCO provided work assignments
for Krouse that complied with his medical restrictions.
From April 21, 1993 to June 21, 1993, Krouse was
assigned to the Transitional Work Group ("TWG"), which
provides light-duty work for employees who have suffered
temporary injuries or illness. While Krouse was assigned to
the TWG, AMSCO implemented requested modifications to
the channel welder position in anticipation of his return.

Prior to his return to the channel welder position in June
1993, Krouse's doctor modified his medical restrictions and
indicated that Krouse was able to perform the essential
functions of the modified position. From January 1 to May
20, 1994, Krouse's performance percentages ranged
between sixteen and thirty percent of the expected
performance standard; other fully trained channel welders
performed at or above fifty percent of the expected
standard. During a March 31, 1994, meeting with Krouse's
supervisor to discuss Krouse's performance level, Krouse
stated that, since he was not "living up to" the supervisor's
expectations, he was going to go home. Krouse's
chiropractor excused Krouse from work the next day on the
ground that he was totally disabled.

On April 20, 1994, Krouse received a medical release to
return to work. After reviewing the medical restrictions
imposed by the chiropractor, Krouse admitted that no
further accommodations were necessary to allow him to
perform the essential functions of the modified channel
welder position. Krouse also stated, however, that he was
working to the highest percentage possible. AMSCO advised
Krouse that his performance percentages were
unacceptable. Krouse responded that AMSCO should
provide Krouse with an assistant.

During this meeting, AMSCO also expressed concern
about Krouse's frequent absences from work. During the
eleven-month period in which he held the modified channel
welder position, Krouse left the facility without prior notice
more than fifty times for unscheduled visits with his
chiropractor. Krouse's unscheduled absences often left
AMSCO without a welder to perform critical production
functions and resulted in substantial production delays and

                                4



backlogs. AMSCO asked Krouse to schedule appointments
in advance, but Krouse responded that he could not
guarantee the frequency or the time of his appointments.

On May 3, 1994, AMSCO performed another review of
Krouse's performance and found that it ranged between
twenty-five and thirty percent. Based on this evaluation,
coupled with Krouse's admission that he was working to
the highest percentage possible, AMSCO concluded that
Krouse could not perform the essential functions of the
channel welder position. AMSCO had provided Krouse all of
the accommodations and modifications requested by his
physician, and there were no other vacant positions
available which Krouse could perform. On May 23, 1994,
AMSCO placed Krouse on workers' compensation leave.

On February 21, 1995, Krouse was placed in a modified
Dismantle and Tag position for which he had bid. This job
required Krouse to perform duties which were consistent
with his medical restrictions. Krouse returned to leave
status on April 21, 1995, however, and he has not since
returned to active status.

II.

On October 21, 1993, Krouse filed an action, Civ.A. No.
93-313-ERIE ("Krouse I"), alleging that AMSCO
discriminated and retaliated against him in violation of the
ADA. On August 8, 1995, the district court dismissed
Krouse I with prejudice because of Krouse's failure to
prosecute it. See Krouse v. American Sterilizer Co., 928 F.
Supp. 543, 544 & n.1 (W.D. Pa. 1996). Krouse did not
appeal that order.

On November 10, 1994, Krouse filed a second action,
Civ.A. No. 94-309-ERIE ("Krouse II"), against AMSCO and
Liberty Mutual, AMSCO's workers' compensation carrier.
Krouse alleged retaliation under the ADA and age
discrimination under the ADEA. On March 6, 1995, Krouse
filed a third action, Civ.A. No. 95-55-ERIE ("Krouse III"),
against AMSCO and Liberty Mutual. Krouse raised
additional ADA retaliation and ADEA discrimination claims.
On June 30, 1995, the district court consolidated Krouse II
and Krouse III.

                                5



In his consolidated complaints, Krouse alleged that
AMSCO retaliated against him for filing ADA charges with
the Equal Employment Opportunity Commission in October
1992. Specifically, Krouse alleged that AMSCO retaliated
by: (1) placing Krouse on workers' compensation leave on
May 20, 1994; (2) failing to offer Krouse a disability
pension; and (3) refusing to create an alternative position
as a "Long Service Employee" under the collective
bargaining agreement between AMSCO and the UAW.
Krouse also alleged that AMSCO and Liberty Mutual
harassed him by requiring him to undergo a functional
capacity examination pursuant to the Pennsylvania
Workers' Compensation Act. Krouse's age discrimination
claims largely mirrored his ADA retaliation allegations. In
his ADEA claims, Krouse alleged that the above
employment decisions were motivated by age animus. With
the possible exception of his harassment claim, Krouse did
not allege disability discrimination under the ADA in the
consolidated complaints.1
_________________________________________________________________

1. Although Krouse did allege disability discrimination in Krouse   I, those
allegations were dismissed with the complaint and were not raised   again.
On appeal, Krouse attempts to argue issues relating to disability
discrimination and failure to accommodate that were not raised in   his
consolidated complaints. Krouse's failure to include these claims   in his
consolidated complaints is fatal to his efforts here.

Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must
provide a defendant with "fair notice of what the plaintiff 's claim is
and
the grounds upon which it rests." Williams v. New Castle County, 970
F.2d 1260, 1265-66 (3d Cir. 1992) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Although the background sections of the complaints in
Krouse II and Krouse III refer briefly to AMSCO's alleged failure to
accommodate Krouse's disability, the complaints specifically allege that
each of the injuries for which Krouse seeks recovery under the ADA was
based on unlawful retaliation or harassment. Indeed, Krouse
acknowledged at his deposition that his ADA claims were based on
retaliation, not failure to accommodate.

Although a complaint's allegations are to be construed favorably to the
pleader, Williams, 970 F.2d at 1266, we will not read causes of action
into a complaint when they are not present. The ADA is one statutory
scheme, but it provides more than one cause of action. Where, as here,
a plaintiff asserts a cause of action for retaliation under 42 U.S.C.

                                6



On September 28, 1996, the district court granted the
defendants' motions for summary judgment as to each of
Krouse's causes of action. Krouse appealed.2

III.

We begin our analysis by examining the framework for
deciding a claim of unlawful retaliation under the ADA. The
ADA retaliation provision, 42 U.S.C. S 12203(a), states that
"[n]o person shall discriminate against any individual
because such individual has opposed any act or practice
made unlawful by [the ADA] or because such individual
made a charge . . . under [the ADA]." Id. This provision is
similar to Title VII's prohibition of retaliation. See 42 U.S.C.
S 2000e-3(a). Accordingly, we analyze ADA retaliation
claims under the same framework we employ for retaliation
claims arising under Title VII. Stewart v. Happy Herman's
Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.
1997); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16
(1st Cir. 1997). This framework will vary depending on
whether the suit is characterized as a "pretext" suit or a
"mixed motives" suit. See Woodson v. Scott Paper Co., 109
F.3d 913, 920 (3d Cir. 1997), petition for cert.filed, 66
U.S.L.W. 3157 (U.S. Aug. 4, 1997) (No. 97-266). Krouse
proceeded under a "pretext" theory, and so will our
analysis.
_________________________________________________________________

S 12203(a), we will not find an implicit cause of action for failure to
accommodate under 42 U.S.C. S 12112(a). This is true even when the
complaint's background section makes a brief reference to failure to
accommodate. AMSCO was not placed on "fair notice" that Krouse
intended to pursue a failure to accommodate claim.

2. The district court had jurisdiction pursuant to 28 U.S.C. S 1331. We
have jurisdiction pursuant to 28 U.S.C. S 1291. We conduct a de novo
review of the district court's order granting summary judgment in favor
of the appellees. We must apply the same test used by the district court;
namely, we must be satisfied that there is "no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). In determining whether to affirm
the
district court's order granting the defendants' motions for summary
judgment, we must draw all inferences in favor of Krouse, as the non-
moving party.

                                7



We begin, as all "pretext" cases begin, with the prima
facie case. To establish a prima facie case of retaliation
under the ADA, a plaintiff must show: (1) protected
employee activity; (2) adverse action by the employer either
after or contemporaneous with the employee's protected
activity; and (3) a causal connection between the employee's
protected activity and the employer's adverse action.
Woodson, 109 F.3d at 920 (prima facie case of retaliation
under Title VII); Quiroga v. Hasbro, Inc., 934 F.2d 497, 501
(3d Cir. 1991) (same); Jalil v. Avdel Corp., 873 F.2d 701,
708 (3d Cir. 1989) (same); see also Stewart, 117 F.3d at
1287 (prima facie case of retaliation under ADA); Morgan v.
Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (same);
Soileau, 105 F.3d at 16 (same).

If an employee establishes a prima facie case of
retaliation under the ADA, the burden shifts to the
employer to advance a legitimate, non-retaliatory reason for
its adverse employment action. Woodson, 109 F.3d at 920
n.2. The employer's burden at this stage is "relatively light:
it is satisfied if the defendant articulates any legitimate
reason for the [adverse employment action]; the defendant
need not prove that the articulated reason actually
motivated the [action]." Id.

If the employer satisfies its burden, the plaintiff must be
able to convince the factfinder both that the employer's
proffered explanation was false, and that retaliation was the
real reason for the adverse employment action. Id.; see also
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) ("It
is not enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff 's explanation of intentional
discrimination.") (emphasis omitted); Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1067-68 (3d Cir.
1996) (en banc) (explaining how plaintiff may satisfy
burden), cert. denied, 117 S.Ct. 2532 (1997). The plaintiff
must prove that retaliatory animus played a role in the
employer's decisionmaking process and that it had a
determinative effect on the outcome of that process.
Woodson, 109 F.3d at 931-35 (discussing proper standard
to apply in Title VII retaliation case). The burden of proof
remains at all times with the plaintiff. Id. at 920 n.2.
                                8



To obtain summary judgment, the employer must show
that the trier of fact could not conclude, as a matter of law,
(1) that retaliatory animus played a role in the employer's
decisionmaking process and (2) that it had a determinative
effect on the outcome of that process. This may be
accomplished by establishing the plaintiff's inability to
raise a genuine issue of material fact as to either: (1) one or
more elements of the plaintiff's prima facie case or, (2) if
the employer offers a legitimate non-retaliatory reason for
the adverse employment action, whether the employer's
proffered explanation was a pretext for retaliation. See Jalil,
873 F.2d at 708 (explaining shifting burdens under Title VII
retaliation); see also Stewart, 117 F.3d at 1287 (explaining
shifting burdens under ADA retaliation).

The district court offered two alternative grounds for
granting AMSCO's motion for summary judgment on
Krouse's ADA retaliation claims. First, the court concluded
that Krouse was judicially estopped from asserting his
status as a "qualified individual with a disability" and was
therefore not protected by the ADA. Second, the court
concluded that Krouse failed to establish a case of
retaliation, both because Krouse failed to establish a prima
face case and because Krouse failed to adduce any evidence
rebutting AMSCO's articulated reasons for its employment
decisions.

A.

The district court concluded that in order to come within
the protection of the ADA, a plaintiff must establish that he
or she is a "qualified individual with a disability." Slip Op.
at 12 (citing 42 U.S.C. S 12112(a)). The court concluded
that Krouse was judicially estopped from asserting his
status as a "qualified individual with a disability" by virtue
of his previous assertions of total disability in connection
with applications for Social Security disability insurance
benefits, disability pension benefits, and disability credit
insurance benefits.

In Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,
81 F.3d 355 (3d Cir. 1996), we stated that "absent any good
explanation, a party should not be allowed to gain an

                                9



advantage by litigation on one theory, and then seek an
inconsistent advantage by pursuing an incompatible
theory." Id. at 358 (quotation omitted). We held that the
doctrine of judicial estoppel, which prevents a litigant from
asserting a position inconsistent with one previously
asserted, applies when: (1) the party's position is
inconsistent with a position taken in the same or in a
previous proceeding and (2) the party asserted either or
both of the inconsistent positions in bad faith. Id. at 361.

In McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir.
1996), cert. denied, 117 S.Ct. 958 (1997), the plaintiff
claimed that he was discharged from his employment due
to his HIV-positive status in violation of the ADA. The
district court determined that McNemar was judicially
estopped from claiming status as a "qualified individual
with a disability" under the ADA based on his prior sworn
statements, made in his application for Social Security
disability benefits, New Jersey state disability benefits, and
an exemption from repayment of an educational loan from
the Pennsylvania Higher Education Agency, that he was
totally and permanently disabled and unable to work. Id. at
615-16.

We affirmed the judgment of the district court. We
reasoned:

       McNemar has represented to one federal agency and to
       the agencies of two different states that he was totally
       disabled and unable to work--while now, in claiming
       relief under the [ADA], he states that he is a qualified
       person with a disability . . . .

Id. at 618 (internal quotation omitted). We observed that
McNemar's previous statements were "unconditional
assertions as to his disability" and inability to work. Id.
(quotation omitted, emphasis supplied). We concluded that
"the district court was well within its discretion to hold that
McNemar is estopped from arguing now that he is`qualified'
under the ADA." Id. at 617 (internal quotation omitted).

The district court applied McNemar to this case and
concluded that Krouse was barred by the doctrine of
judicial estoppel from asserting status as a "qualified
individual with a disability." Slip Op. at 17. Since Krouse

                                10



was estopped from claiming to be a "qualified individual
with a disability," the court reasoned, Krouse could not
invoke the protection of the ADA.

The district court erred in this regard. Unlike a plaintiff
in an ADA discrimination case, a plaintiff in an ADA
retaliation case need not establish that he is a "qualified
individual with a disability." By its own terms, the ADA
retaliation provision protects "any individual" who has
opposed any act or practice made unlawful by the ADA or
who has made a charge under the ADA. 42 U.S.C.
S 12203(a). This differs from the scope of the ADA disability
discrimination provision, 42 U.S.C. S 12112(a), which may
be invoked only by a "qualified individual with a disability."
An individual who is adjudged not to be a "qualified
individual with a disability" may still pursue a retaliation
claim under the ADA. Cf. Soileau, 105 F.3d at 16 (plaintiff
may assert ADA retaliation claim "even if the underlying
claim of disability fails"). Thus, Krouse was permitted to
pursue his retaliation claims under the ADA.

McNemar has been the object of considerable criticism.3
_________________________________________________________________

3. In a thoughtful opinion, the Court of Appeals for the District of
Columbia Circuit reasoned that since the Social Security Administration
does not take into account the possible effect of reasonable
accommodation on a claimant's ability to work, receipt of Social Security
benefits cannot automatically preclude an individual from being a
"qualified individual with a disability" under the ADA, a status that
expressly considers the possibility of reasonable accommodation.
Swanks v. Washington Metro. Area Transit Auth., 116 F.3d 582, 584-87
(D.C. Cir. 1997). The court of appeals squarely rejected McNemar,
reasoning that "the Third Circuit's decision . . . disregards the fact
that
Social Security disability determinations take no account of reasonable
accommodation." Id. at 587; see also Robinson v. Neodata Servs., Inc., 94
F.3d 499, 502 n.2 (8th Cir. 1996)(Social Security determinations are "not
synonymous with a determination of whether a plaintiff is a `qualified
person' for purposes of the ADA"). Recognizing that the ADA's definition
of "qualified individual with a disability" differs from the definition of
"totally disabled" under the Social Security Act, the Court of Appeals for
the Seventh Circuit concluded that "representations made in benefits
applications will not be conclusive as to whether one is a `qualified
individual with a disability' under the ADA." Weigel v. Target Stores, __
F.3d __, __ n.6, 1997 WL 526163 (7th Cir. Aug. 26, 1997).

                                11



Some of this criticism might be well-founded. Nevertheless,
it is not the role of a panel to revisit a previous panel's
decision. See 3d Cir. I.O.P. 9.1. It may be that this court,
sitting en banc, will revisit the issue of judicial estoppel in
this type of case. This is not the case to prompt such a
discussion. Since Krouse's status as a "qualified individual
with a disability" has no bearing on the outcome of this
case, we do not have any reason to review McNemar or to
ask the entire court to revisit McNemar at this time.4
McNemar remains the law in this circuit.5
_________________________________________________________________

In a comprehensive enforcement guidance, the EEOC stated that the
court in McNemar "ignored [a] fundamental difference between the ADA
and [the Social Security Administration] and failed to conduct the
individual inquiry mandated by the ADA definition of `qualified individual
with a disability.' . . . McNemar was wrongly decided." EEOC
Enforcement Guidance on the Effect of Representations Made in
Applications for Benefits on the Determination of Whether a Person is a
"Qualified Individual with a Disability" under the Americans with
Disabilities Act of 1990 (ADA)(Feb. 12, 1997), reprinted in 3 EEOC
Compliance Manual (BNA) N:2281, at 2290 (1997). McNemar was decided
before the EEOC issued its enforcement guidance. Likewise, the
associate commissioner of the Social Security Administration wrote in an
information memorandum that "the ADA and the disability provisions of
the Social Security Act have different purposes, and have no direct
application to one another." Daniel L. Skoler, Assoc. Comm'r, Soc. Sec.
Admin., Disabilities Act Info. Mem., at 2 (June 2, 1993), reprinted in 2
Social Security Practice Guide, App. S 15C[9], at App. 15-402 (Matthew
Bender & Co. 1997). McNemar has also been criticized in academia. See,
e.g., Anne E. Beaumont, This Estoppel Has Got to Stop: Judicial
Estoppel and the Americans with Disabilities Act, 71 N.Y.U. L.Rev. 1529,
1567-68 (1996) (criticizing reasoning behind application of judicial
estoppel to ADA cases).

4. Judge Becker is persuaded by the authorities set forth in footnote 3
that McNemar was wrongly decided, and believes that the court should
reconsider it at its first opportunity.

5. We do take this opportunity to express our concern that district courts
in this circuit are misapplying McNemar without first considering the
unique facts of that case. See McNemar, 91 F.3d at 618 (McNemar's
representations were unconditional assertions at to disability and
inability to work). Here, the district court's error was clear -- since
Krouse's status as a "qualified individual with a disability" is not
relevant

                                12



B.

The district court did not rest its decision to grant
AMSCO's motion for summary judgment solely on judicial
estoppel and McNemar. The court also concluded that
Krouse's retaliation claims failed on the merits as a matter
of law.

As to Krouse's claim that he was placed on workers'
compensation leave in retaliation for filing an EEOC charge
in October 1992, the district court concluded that Krouse
"adduced no evidence" to support the claim"aside from the
fact he was placed on worker's compensation some 19
months after filing an EEOC charge in October, 1992." Slip
Op. at 22-23. We agree. After carefully reviewing the record,
we are convinced that Krouse has not proffered any
evidence establishing a causal connection between his
EEOC charge and AMSCO's decision to place Krouse on
workers' compensation leave.

Nineteen months passed between the time Krouse filed
his EEOC charge and the time AMSCO placed Krouse on
workers' compensation leave. In Robinson v. City of
Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), we held that "the
mere fact that adverse employment action occurs after a
complaint will ordinarily be insufficient to satisfy the
plaintiff's burden of demonstrating a causal link between
the two events." Id. at ___. As noted in Robinson, our cases
are "seemingly split" on the question of whether the timing
of the allegedly retaliatory action can, by itself, ever support
a finding of causation. Id. at ___. Compare Woodson, 109
F.3d at 920 (stating in dicta that "temporal proximity
between the protected activity and the termination is
_________________________________________________________________

to his retaliation claims, the court's reliance on McNemar was misplaced.
Even where an individual's status as a "qualified individual with a
disability" is relevant to the resolution of an ADA claim, courts should
carefully adhere to the two-part test of Ryan Operations, 81 F.3d at 361,
before concluding that previous representations as to disability and
inability to work judicially estop the individual from asserting such
status. Courts should not assume that McNemar always bars an
individual's ADA claims merely because prior representations or
determinations of disability exist in the record.

                                13



sufficient to establish a causal link") with Delli Santi v. CNA
Ins. Cos., 88 F.3d 192, 199 n.10 (3d Cir. 1996) ("timing
alone will not suffice to prove retaliatory motive"). We need
not resolve this apparent conflict here. Even if timing alone
could ever be sufficient to establish a causal link, we
believe that the timing of the alleged retaliatory action must
be "unusually suggestive" of retaliatory motive before a
causal link will be inferred. Robinson, 120 F.3d at ___; see,
e.g., Jalil, 873 F.2d at 708 (causal link established where
"discharge followed rapidly, only two days later, upon
Avdel's receipt of notice of Jalil's EEOC claim"). Here, the
timing of the allegedly retaliatory employment action
cannot, standing alone, support a finding of causal link.

We have also held that the "mere passage of time is not
legally conclusive proof against retaliation." Robinson v.
Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir.
1993) ("SEPTA"). When temporal proximity between
protected activity and allegedly retaliatory conduct is
missing, courts may look to the intervening period for other
evidence of retaliatory animus. For example, in SEPTA, we
stated: "The temporal proximity noted in other cases is
missing here and we might be hard pressed to uphold the
trial judge's finding [of causal link] were it not for the
intervening pattern of antagonism that SEPTA
demonstrated." Id. at 895 (internal citation omitted); accord
Woodson, 109 F.3d at 920-21. Here, Krouse did not offer
any evidence that suggests that AMSCO's decision to place
him on workers' compensation leave was in any way linked
to his filing of an EEOC charge nineteen months earlier.
Indeed, AMSCO returned Krouse to the channel welder
position in June 1993 -- after Krouse filed his EEOC
charge. Absent evidence of intervening antagonism or
retaliatory animus, we conclude that the passage of time in
this case is conclusive and that Krouse failed to establish
a causal link as a matter of law.

The district court also concluded that AMSCO articulated
a legitimate, non-retaliatory explanation for its employment
decision -- that Krouse could not perform to his expected
level as a channel welder. The court concluded that Krouse
failed to adduce evidence that would adequately rebut this
explanation. Slip Op. at 24 n.9. Again, we agree.

                                14



AMSCO supported its decision to place Krouse on
workers' compensation leave with uncontroverted evidence
that Krouse performed at a level of between twenty-five and
thirty percent, even though Krouse performed duties which
were within Krouse's medical restrictions. Other fully
trained channel welders performed at or above fifty percent
performance efficiency. AMSCO also demonstrated that
Krouse's frequent unscheduled absences resulted in
substantial production delays and increased costs.

In order to survive a motion for summary judgment in a
pretext case, the plaintiff must produce "sufficient evidence
to raise a genuine issue of fact as to whether the employer's
proffered reasons were not its true reasons for the
challenged employment action." Sheridan, 100 F.3d at
1067. This is ordinarily done by demonstrating "such
weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them `unworthy of credence.' " Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (emphasis omitted)
(quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983
F.2d 509, 531 (3d Cir. 1993)).
On appeal, Krouse does not seriously contest the
evidence supporting AMSCO's decision to place Krouse on
workers' compensation leave. Rather, Krouse contends that
an allegedly similarly situated employee, Dan Oler, did not
file an EEOC charge and was retained as a channel welder.
The district court rejected this comparison, concluding that
"Oler was not similarly situated to Krouse." Slip Op. at 23
n.8. We agree.

Oler is a channel welder who suffered a temporary injury.
Oler's performance percentages during his recovery were on
average substantially higher than Krouse's. Oler performed
at a rate of twenty-three to eighty-five percent during his
recovery, while Krouse's performance percentage remained
between sixteen and thirty percent. Oler also showed
significant improvement as time progressed; during the last
month of his recovery, Oler's performance rate remained
above sixty percent. In contrast, Krouse's disability was
permanent, and Krouse admitted that he would not exceed
thirty percent without assistance. As the district court

                                15



concluded, "Oler's performance efficiency was higher and
showed a potential for improvement, whereas Krouse's did
not." Slip Op. at 43. The fact that AMSCO retained Oler in
the channel welder position does not, as a matter of law,
demonstrate such weaknesses or implausibilities in
AMSCO's articulated legitimate non-retaliatory reason for
its decision to place Krouse on workers' compensation leave
so as to permit a trier of fact to disbelieve AMSCO.

As to Krouse's claim that he was denied a disability
pension in October 1994 in retaliation for filing an EEOC
charge in October 1992, the court concluded that there is
"insufficient evidence as a matter of law to establish a
causal connection between Krouse's filing of EEOC charges,
or other protected activity, and his denial of a disability
pension." Slip Op. at 24. Again, we agree. In addition to the
lack of temporal proximity between the 1992 protected
conduct and the 1994 decision to deny Krouse's application
for a disability pension, there is no evidence that the
members of the pension plan committee were aware of
Krouse's protected activity.6

As to Krouse's claim that he was denied a position under
Section K of the collective bargaining agreement, the court
concluded that Krouse failed to establish a prima facie case
of retaliation. Slip Op. at 26. At the time Krouse requested
a Section K position, the UAW/AMSCO collective bargaining
agreement provided that "employees who have grown old in
the service of the company, but who are no longer
physically able to perform their usual work, will be given
_________________________________________________________________

6. In addition, the decision to deny Krouse a disability pension was made
by a bilateral committee of the independent Pension Board -- not
AMSCO. The pension plan committee was comprised of three UAW
representatives and one AMSCO representative. Although a joint labor-
management committee may be a "covered entity" under the ADA, 42
U.S.C. S 12111(2), Krouse did not name the pension plan committee or
any union representatives as defendants in these actions. Krouse has
not offered any evidence tending to support his theory that AMSCO can
be held accountable for the decision to deny Krouse's application for
disability pension benefits. As noted in the text, even if AMSCO could be
implicated in the decision to deny Krouse's application for disability
pension benefits, Krouse's claim would fail as a matter of law due to his
inability to establish a prima facie case.

                                16



consideration by the company and an effort will be made to
provide them with some sort of employment which they are
able to do." AMSCO and the UAW agreed that, in order to
qualify for Section K treatment, an employee must be at
least fifty-five years of age with at least thirty years of
AMSCO employment.

It is undisputed that Krouse did not meet these
requirements. These specific terms, while not in the
language of the agreement itself, were agreed to by both
AMSCO and the union and represent a reasoned
interpretation of the phrase "employees who have grown old
in the service of the company." There is no evidence that
Section K positions were offered to individuals who did not
meet the age and term of service requirements. Likewise,
there is no evidence that Section K positions were
discriminatorily withheld from qualified individuals with
disabilities or from individuals who engaged in activity
protected by the ADA. In other words, there is no evidence
suggesting that AMSCO declined to provide Krouse with a
Section K position in retaliation for Krouse's protected
activity.

Krouse's final ADA claim, his only claim brought under
42 U.S.C. S 12112(a), is that Liberty Mutual and AMSCO,
for the purpose of harassing Krouse, unlawfully required
Krouse to undergo a functional capacity examination and
filed a utilization review petition before the Pennsylvania
Bureau of Workers' Compensation. As to AMSCO, the
district court concluded that there was no evidence that
AMSCO required Krouse to undergo a functional capacity
examination or a utilization review. Slip Op. at 35. We
agree. On appeal, Krouse does not point to any evidence of
record that would establish AMSCO's liability under this
cause of action.

As to Liberty Mutual, the district court held that the
insurance company was not a "covered entity" and was
therefore not liable to Krouse under the ADA. Slip Op. at
28-35. Section 12112(a) prohibits discrimination by a
"covered entity." A "covered entity" is an "employer,
employment agency, labor organization, or joint labor-
management committee." 42 U.S.C. S 12111(2). Krouse
asserts that Liberty Mutual acted as AMSCO's agent and is

                                17



therefore Krouse's "employer" under the ADA. See 42 U.S.C.
S 12111(5)(A) ("employer" includes employer's agent). The
district court concluded that there was insufficient evidence
as a matter of law to support Krouse's agency theory. After
carefully reviewing the record, we agree with the district
court. Krouse's assertion that Liberty Mutual acted at the
direction of AMSCO to harass Krouse in violation of the
ADA is simply without foundation in this record. 7 On this
record, Liberty Mutual is not an agent of AMSCO; it is
therefore not a covered entity under the ADA.

We find the district court's careful and exhaustive
discussion of its merits-based reasons for granting the
defendants' motions for summary judgment on Krouse's
ADA claims to be correct as a matter of law, and we agree
with the district court that the defendants were entitled to
summary judgment on all of those claims.

As Krouse's ADEA claims mirror his claims under the
ADA, we may dispose of them without further discussion. It
is sufficient for us to note that Krouse did not offer any
evidence from which a trier of fact could conclude that
AMSCO's articulated reasons for its treatment of Krouse
were a mere pretext for unlawful age discrimination.

We will affirm the judgment of the district court.
_________________________________________________________________

7. In his appellate brief and at oral argument, Krouse referred to alleged
evidence of an agency relationship taken from a deposition in the
unrelated case of Cassidy v. American Sterilizer Co., Civ.A. No. 95-62-
ERIE. Before the district court, Krouse relied on the same deposition
testimony in an effort to reopen discovery. The district court denied
Krouse's motion, concluding that Krouse (1) failed to explain how the
testimony would preclude summary judgment and (2) did not provide a
reasonable explanation as to why the "newly discovered evidence" was
not previously obtained. Slip Op. at 54 (citing Pastore v. Bell Tel. Co.
of
Pa., 24 F.3d 508, 511 (3d Cir. 1994)). Krouse does not argue on appeal
that the district court erred in denying his motion to reopen discovery,
and if faced with the question we would find that the court properly
denied Krouse's motion. Accordingly, the Cassidy evidence is not part of
this record, and we do not consider it.

                                18



A True Copy:
Teste:

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

                                19
