        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2       DiCarlo v. Potter                                  No. 02-4010
    ELECTRONIC CITATION: 2004 FED App. 0054P (6th Cir.)
                File Name: 04a0054p.06                    for Appellant. Kathleen L. Midian, ASSISTANT UNITED
                                                          STATES ATTORNEY, Cleveland, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                              MOORE, J., delivered the opinion of the court, in which
                                                          MARTIN, J., joined. KENNEDY, J. (pp. 24-26), delivered a
               FOR THE SIXTH CIRCUIT                      separate opinion concurring in part and dissenting in part.
                 _________________
                                                                                  _________________
 HENRY DICARLO ,                  X
                                   -                                                  OPINION
          Plaintiff-Appellant,                                                    _________________
                                   -
                                   -  No. 02-4010
           v.                                               KAREN NELSON MOORE, Circuit Judge. Plaintiff-
                                   -
                                    >                     Appellant Henry DiCarlo (“DiCarlo”) appeals the district
                                   ,                      court’s grant of summary judgment in favor of Defendant-
 JOHN E. POTTER , Postmaster       -                      Appellee John Potter,1 Postmaster General (“Postal Service”),
 General,                          -                      DiCarlo’s former employer. DiCarlo was terminated near the
          Defendant-Appellee. -                           end of his probationary employment period for what the
                                   -                      Postal Service asserted as unsatisfactory work performance.
                                  N                       DiCarlo alleges that he was terminated on the basis of
      Appeal from the United States District Court        national origin, age, and disability discrimination. He also
     for the Northern District of Ohio at Cleveland.      asserts that his termination was in retaliation for the Equal
     No. 01-01072—Dan A. Polster, District Judge.         Employment Opportunity (“EEO”) complaint he filed. The
                                                          district court granted summary judgment in favor of the
               Argued: December 5, 2003                   Postal Service on all four of DiCarlo’s claims, concluding that
                                                          he had failed to meet his burden of proof on any of them.
         Decided and Filed: February 20, 2004
                                                            Because there are genuine issues of material fact as to
  Before: KENNEDY, MARTIN, and MOORE, Circuit             DiCarlo’s claims of national origin discrimination, age
                    Judges.                               discrimination, and retaliation, we REVERSE the district
                                                          court’s grant of summary judgment on these claims, and
                  _________________                       REMAND for further proceedings consistent with this
                                                          opinion. Additionally, because DiCarlo cannot establish a
                       COUNSEL
ARGUED: David A. Van Gaasbeek, North Canton, Ohio,
for Appellant. Kathleen L. Midian, ASSISTANT UNITED           1
                                                               The original complaint was filed naming William J. Henderson,
STATES ATTORNEY, Cleveland, Ohio, for Appellee.           Postmaster General of the United States P ostal Service, as the defendant.
ON BRIEF: David A. Van Gaasbeek, North Canton, Ohio,      However, pursuant to Fed. R. Civ. P. 25(d), John E. Potter, the current
                                                          Postmaster General, was substituted as the defendant in the present action.

                            1
No. 02-4010                                    DiCarlo v. Potter           3    4       DiCarlo v. Potter                                  No. 02-4010

disability, we AFFIRM the district court’s grant of summary                        As a new employee, the first ninety days of DiCarlo’s
judgment on DiCarlo’s disability discrimination claim.                          employment were deemed a “probationary period.” Under
                                                                                this agreement, the Postal Service reserved the right to
                        I. BACKGROUND                                           terminate DiCarlo’s employment at any point during the
                                                                                probationary period, which termination would not be subject
A. Factual Background                                                           to the grievance procedure. DiCarlo commenced his
                                                                                employment on January 15, 2000, and was placed under the
  DiCarlo applied for and obtained a part-time flexible                         direct supervision of Timothy Bailey (“Bailey”). Bailey
(“PTF”) mail processor position with the United States Postal                   would remain DiCarlo’s supervisor until DiCarlo’s
Service on September 25, 1999. The employment had been                          termination on March 30, 2000. Bailey evaluated DiCarlo
contingent on DiCarlo passing a drug screening and medical                      throughout his probationary period and generated
evaluation. As part of the evaluation, DiCarlo was provided                     contemporaneous notes of his work performance. These
a document, which he signed, outlining the “functional                          notes demonstrate that Bailey viewed DiCarlo’s on-the-job
requirements” the mail processor position would entail. It                      performance as below standard.3 DiCarlo appeared to be
included walking for two hours, standing for eight hours, and                   negatively reviewed on a rather consistent basis throughout
repeated bending, and it stressed that both legs were required                  the probationary period.4        DiCarlo disputes these
for the job. Additionally, DiCarlo confirmed in writing that
he had no medical condition for which he was currently
receiving treatment and further attested to the fact that “[t]o
                                                                                    3
the best of [his] knowledge, [he] d[id] not have any medical                           Bailey’s general comments about DiCarlo were that he lacked
condition.” Joint Appendix (“J.A.”) at 84. After a complete                     enthusiasm about his job, and that his performance fell below the standard
medical assessment conducted by the Postal Service, it was                      to which Bailey held the other employees. Bailey also noted that DiC arlo
                                                                                criticized Bailey about how he ran his operation. Finally, Bailey recorded
concluded that DiCarlo had no medical limitations or                            the following: “Mr. DiCarlo did not show me or anyone else that he has
restrictions, and that he was “medically qualified to perform                   worked with that he would like to work here. I don’t feel that he has
the functions of the position.”2 J.A. at 85. DiCarlo was                        wanted to learn the job, or be here. He has projected the image to me and
assigned to the Canton, Ohio Main Post Office, to begin work                    the other emp loyees that he is only to show up and get p aid. H e doesn’t
on January 15, 2000.                                                            want to pull his own load in the o perations. I will not keep M r. DiC arlo
                                                                                as a PTF. He has not shown the dedication to his job . . . .” J.A. at 140.

                                                                                    4
                                                                                    The following are some of the entries made by Bailey about
                                                                                DiCarlo:
    2
                                                                                         (1) “Jan 18, 2000: I had to give Mr. Dicarlo a talk
      DiC arlo claims that in his job application, which was supplemented                    about working as a team and keep moving . . . .”
by two letters from the Department of Veterans Affairs, he informed the                  (2) “Feb 9, 2000: I talked with Mr. Dicarlo about
Postal Service about a physical disability he had involving his left leg. He                 standing and talking, needing to have a sense of
further alleges that during his orientation for his position with the Postal                 urgency, needing to move from one operation to
Service, he informed the woman leading the orientation about his leg,                        another without having to b e told everyd ay,
telling her that he would need “to rest the leg at intervals and that the leg                staying gainfully employed, and keep moving
stiffening was unpredictable,” to which she informed him that he “could                      and doing som e form of work.”
do the job and that [he] should let the supervisor on duty at the time                   (3) “Feb 14, 2 000 : I gave his first evaluation (30
[know] that [he] needed a rest.” Joint Appendix (“J.A.”) at 172A                             day) noting his working slowly, his need for
(DiCarlo Aff.).                                                                              constant supervision, no sense of urgency, and
No. 02-4010                                    DiCarlo v. Potter           5    6        DiCarlo v. Potter                                     No. 02-4010

characterizations by Bailey.5 Bailey claims that he informed                    received three “unacceptable” ratings and three “satisfactory”
DiCarlo of “his deficiencies, and [DiCarlo] failed to correct                   ratings.7
the problems,” and that he “talked to him repeatedly as well
as on his 30 and 60 day evaluation[s].” J.A. at 186. DiCarlo                       During the course of his employment, on March 9, 2000,
claims that he “was not advised of any work deficiencies prior                  DiCarlo requested an appointment with an EEO counselor to
to [his] termination and [] was never given the opportunity to                  discuss alleged discriminatory actions taken by Bailey against
correct alleged deficiencies.” J.A. at 167.                                     DiCarlo on the basis of the latter’s national origin, age, and
                                                                                disability. 8 Specifically, DiCarlo asserts that he told Bailey
   Pursuant to DiCarlo’s probationary employee status, he,                      on March 8, 2000 that he “had a physical disability9 and
like others during this period, received three performance                      []asked for a rest period because of the problems [he] was
evaluations — the first after thirty days, the second after sixty               having” with the disability. J.A. at 169. DiCarlo alleged that
days, and the third after eighty days. In DiCarlo’s first                       Bailey responded that “he did not care about [DiCarlo’s]
evaluation, dated February 14, 2000, out of the six categories                  physical disabilities,” and “informed [him] that [he] had better
evaluated, he received two “unacceptable” ratings and four                      start pushing.”10 J.A. at 169. DiCarlo also asserted that on
“satisfactory” ratings.6 In the second and third evaluations,                   the same day (March 8, 2000), Bailey informed him that “he
dated March 15, 2000 and March 30, 2000 respectively, he                        was no spring chicken and that [he] would not be a supervisor
                                                                                at the facility because of [his] age.”11 J.A. at 169. Finally,


                                                                                     7
                                                                                      In both the seco nd and third evaluations, D iCarlo received
               low wo rk ethics.”                                               “unacceptable” ratings in the work quantity, dependability, and work
         (4)   “March 3, 20 00: Mr. Dicarlo had conflict with                   relations categories.
               other employee, not working together, and
               talking derogatory about other emplo yees.”                           8
J.A. at 140.                                                                          Bailey testified in his deposition that although he knew that an EEO
                                                                                complaint had been filed, he did not know that it involved him
    5                                                                           specifically until after Dicarlo had been terminated.
      In particular, DiCarlo states in reaction to Bailey’s assertion that he
failed to show any effort or that he wanted to work at the Postal Service,           9
that he “showed up for work on every d ay and worked ha rd every day,”                The disability stemmed from a leg injury he had sustained in 1984
and that he “had to learn the machinery by [himself] because Mr. Bailey         while in the Army. Documentation from the Veteran’s Administration
or [sic] anyone e lse failed to train [him] on the machinery.” J.A. at 166.     Medical Center corroborated the injury, revealing that the injury had
He also asserts that contrary to what Bailey said, he did sho w enthusiasm      resulted in a 20% disability in the left leg.
for his job, in that he “kept asking how [he] could advance in the postal            10
service.” J.A. at 166.                                                                  In DiCarlo ’s deposition testimony, he provided a similar account,
                                                                                stating that on that day, his left leg had stiffened up by the end of his shift,
    6                                                                           so he leaned up against a machine for several minutes to relieve it. This
      DiC arlo received “unaccep table” ratings in the work quantity and
dep endability categories. DiCarlo asserts that Bailey told him at this time    is when Bailey allegedly said to him, “I’m tired of you limping around
“that everyone gets this type of rating on the first probatio nary mon th       here.” J.A. at 112. DiCarlo told him he had a bad leg and that he was a
evaluation and not to wo rry abo ut it,” and that “[B ailey] did not tell       disabled veteran, to which Bailey responded, “I don’t care about your
[DiCarlo] what [he] was doing wrong.” J.A. at 168. Bailey, however,             disabilities,” and “I want you to push, push, push.” J.A. at 112.
denies having mad e such stateme nts. W e must view all controverted                 11
evidence in favor of DiCarlo at the summary-judgment stage.                               DiC arlo was forty-six at the time o f this alleged incident.
No. 02-4010                                 DiCarlo v. Potter         7    8      DiCarlo v. Potter                                     No. 02-4010

DiCarlo said that Bailey called him a “dirty-wop” and                      B. Procedural background
complained that “there were too many dirty wops around [the
facility].” J.A. at 169. Bailey denies ever having made any                   On May 3, 2001, DiCarlo filed suit14 in district court
of these comments, and further refutes any allegation that he              alleging discrimination on the basis of national origin, age,
ever discriminated against DiCarlo in any way.                             disability, and retaliation. The Postal Service filed a motion
                                                                           for summary judgment on June 20, 2002, which the district
  After meeting with an EEO counselor, both DiCarlo and the                court granted on August 19, 2002. The district court found
Postal Service agreed to mediate the dispute.12 However, the               “none of [DiCarlo’s] claims [] sufficient to withstand
mediation, which took place on March 29, 2000, failed to                   summary judgment,” as DiCarlo had failed to satisfy his
result in a settlement. Meanwhile, several days earlier, on                burden of proof on every allegation of discrimination and
March 22, Bailey submitted a memorandum to his manager                     retaliation. J.A. at 259. This appeal followed.
“requesting [DiCarlo’s] removal for failure to meet
satisfactory performance levels.” J.A. at 107. His manager,                  The district court had jurisdiction over DiCarlo’s federal
Gary Andriotti, agreed with the assessment and therefore                   claims pursuant to 28 U.S.C. § 1331. We have appellate
approved the proposed termination.            A letter was                 jurisdiction over the district court’s final order pursuant to 28
subsequently sent to DiCarlo on March 29, 2000, signed by                  U.S.C. § 1291.
Bailey, stating that DiCarlo was terminated effective April 1,
2000 due to his “unsatisfactory work performance.” J.A. at
109.
  On April 13, 2000, DiCarlo withdrew the discrimination
complaint he had filed on March 9, 2000. On April 25, 2000,
DiCarlo filed a new complaint with the EEO office, alleging
discrimination based upon national origin, age, and disability
as well as retaliation, and naming Bailey as the alleged
responsible discriminating official. The Postal Service                        14
proceeded to conduct an investigation into the complaint, and                      Specifically, the comp laint states that the suit was:
informed DiCarlo of his right to demand a hearing before an                     authorized and instituted pursuant to Title VII of the Civil Rights
administrative judge of the EEO Commission.13 The Postal                        Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq, providing
                                                                                for relief from discrimination in employment on the basis of
Service issued a Final Agency Decision on February 6, 2001,                     national origin; to the Age Discrimina tion in Employment Act
concluding that the evidence failed to establish discrimination                 [(“ADEA ”)], specifically, 29 U.S.C. sec. 633a (c), providing for
on the basis of national origin, age, disability, or retaliation.               relief from d iscrimina tion in em ploym ent on the basis of age; to
                                                                                the Rehabilitation Act of 1973, specifically 29 U.S.C. sec.
                                                                                794(a), providing for relief from discrimination in employment
                                                                                on the basis of disability; to 29 U .S.C. sec. 623(d), providing
    12                                                                          relief from retaliation in employment for filing a complaint of
      DiC arlo specifically requested that Bailey have no involvement in        discrimination on the basis of age; and, to 42 U.S.C. sec. 2000e-
the mediation.                                                                  3 providing for relief from retaliation in employment on the
    13
                                                                                basis of filing a complaint of discrimination on the basis of
       DiC arlo never asked for a hearing before an administrative judge        national origin.”
of the EEO C ommission.                                                    J.A. at 5-6 (Compl. ¶ 3).
No. 02-4010                            DiCarlo v. Potter       9    10    DiCarlo v. Potter                            No. 02-4010

                       II. ANALYSIS                                 announced in McDonnell Douglas Corporation v. Green, 411
                                                                    U.S. 792, 802 (1973). See also Vaughn v. Watkins Motor
A. The Summary Judgment Standard                                    Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002); Texas Dep’t of
                                                                    Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
   This court reviews de novo a grant of summary judgment.          A plaintiff who successfully establishes a prima facie case
Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263            receives the benefit of a presumption that the employer
F.3d 627, 633 (6th Cir. 2001); Terry Barr Sales Agency, Inc.        unlawfully discriminated against him. Burdine, 450 U.S. at
v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). “Under           254. The burden then “shifts to the defendant ‘to articulate
Rule 56(c), summary judgment is proper ‘if the pleadings,           some legitimate, nondiscriminatory reason for the employee’s
depositions, answers to interrogatories, and admissions on          rejection.’” Id. at 253 (quoting McDonnell, 411 U.S. at 802).
file, together with the affidavits, if any, show that there is no   Finally, “should the defendant carry this burden, the plaintiff
genuine issue as to any material fact and that the moving           must then have an opportunity to prove by a preponderance
party is entitled to a judgment as a matter of law.’” Celotex       of the evidence that the legitimate reasons offered by the
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R.         defendant were not its true reasons, but were a pretext for
Civ. P. 56(c)). “In deciding upon a motion for summary              discrimination.” Id. Throughout this shifting burdens
judgment, we must view the factual evidence and draw all            framework applicable when circumstantial evidence is
reasonable inferences in favor of the non-moving party.”            involved, “[t]he ultimate burden of persuading the trier of fact
Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.           that the defendant intentionally discriminated against the
1997). “We examine the grant of summary judgment to                 plaintiff remains at all times with the plaintiff.” Id.; see also
determine ‘whether the evidence presents a sufficient               Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th
disagreement to require submission to a jury or whether it is       Cir. 1995).
so one-sided that one party must prevail as a matter of law.’”
C.T. Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir.                The McDonnell Douglas burden-shifting framework for
1991) (quoting Booker v. Brown & Williamson Tobacco Co.,            circumstantial-evidence cases has been applied in the context
879 F.2d 1304, 1310 (6th Cir. 1989)).                               of claims brought under the Age Discrimination in
                                                                    Employment Act (“ADEA”), Grosjean v. First Energy Corp.,
B. Title VII Standards                                              349 F.3d 332, 335 (6th Cir. 2003), and the Rehabilitation Act.
                                                                    Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001);
  In Title VII actions, “a plaintiff may establish                  Burns v. City of Columbus Dep’t of Pub. Safety, 91 F.3d 836,
discrimination either by introducing direct evidence of             843 (6th Cir. 1996).
discrimination or by proving inferential and circumstantial
evidence which would support an inference of                        C. National Origin Discrimination Claim
discrimination.” Kline v. Tenn. Valley Auth., 128 F.3d 337,
348 (6th Cir. 1997). When using circumstantial evidence to            Title VII makes it unlawful for an employer “to . . .
create an inference of discrimination, the complainant must         discharge any individual, or otherwise to discriminate against
carry the initial burden of establishing by a preponderance of      any individual with respect to his compensation, terms,
the evidence a prima facie case of discrimination by his or her     conditions, or privileges of employment, because of such
employer.        In evaluating a claim of employment                individual’s race, color, religion, sex, or national origin.” 42
discrimination, we employ the burden-shifting approach first        U.S.C. § 2000e-2(a)(1).           A plaintiff who alleges
No. 02-4010                          DiCarlo v. Potter     11    12   DiCarlo v. Potter                            No. 02-4010

discrimination on the basis of national origin and wishes to     Specifically, DiCarlo alleges that Bailey called him a “dirty
prove a prima facie case through the use of circumstantial       wop” and complained of there being too many “dirty wops”
evidence must prove four elements: (1) he or she was a           working at the postal facility. Bailey denies having ever
member of a protected class; (2) he or she suffered an adverse   made such comments.
employment action; (3) he or she was qualified for the
position; and (4) he or she was replaced by someone outside         In light of the well-established rule on summary judgment
the protected class or was treated differently than similarly-   that, when viewing the factual evidence, we must draw all
situated, non-protected employees. Talley, 61 F.3d at 1246.      reasonable inferences in favor of DiCarlo, the nonmoving
                                                                 party, all contested facts must be assumed in his favor.
   When proving a claim through the use of direct evidence,      Furthermore, although direct evidence generally cannot be
a plaintiff does not have to proceed under the McDonnell         based on isolated and ambiguous remarks, Weigel, 302 F.3d
Douglas burden-shifting framework that applies to                at 382, when made by an individual with decision-making
circumstantial evidence cases. Christopher v. Stouder Mem’l      authority, such remarks become relevant in determining
Hosp., 936 F.2d 870, 879 (6th Cir. 1991). “[D]irect evidence     whether there is enough evidence to establish discrimination.
is that evidence which, if believed, requires the conclusion     Cf. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.
that unlawful discrimination was at least a motivating factor    2003)(“comments made by individuals who are not involved
in the employer’s actions.” Jacklyn v. Schering-Plough           in the decision-making process regarding the plaintiff’s
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.       employment do not constitute direct evidence of
1999). “Consistent with this definition, direct evidence of      discrimination”); Hopson v. DaimlerChrysler Corp., 306 F.3d
discrimination does not require a factfinder to draw any         427, 433 (6th Cir. 2002)(comments by manager lacking any
inferences in order to conclude that the challenged              involvement in the decision-making process do not constitute
employment action was motivated at least in part by prejudice    direct evidence); Ercegovich v. Goodyear Tire & Rubber Co.,
against members of the protected group.” Johnson v. Kroger       154 F.3d 344, 354 (6th Cir. 1998) (“isolated discriminatory
Co., 319 F.3d 858, 865 (6th Cir. 2003). “[T]he evidence must     remark made by one with no managerial authority over the
establish not only that the plaintiff’s employer was             challenged personnel decisions is not considered indicative of
predisposed to discriminate on the basis of [national origin],   [] discrimination”).
but also that the employer acted on that predisposition.” Hein
v. All America Plywood Co., 232 F.3d 482, 488 (6th Cir.             It is clear that Bailey was an individual with decision-
2000). Finally, “an employee who has presented direct            making authority with respect to the decision to terminate
evidence of improper motive does not bear the burden of          DiCarlo. It was Bailey who recommended that DiCarlo be
disproving other possible nonretaliatory reasons for the         terminated. After thorough discussion with Bailey’s
adverse action. Rather, the burden shifts to the employer to     manager, Gary Andriotti, who agreed with the
prove by a preponderance of the evidence that it would have      recommendation, the decision was made to terminate
made the same decision absent the impermissible motive.”         DiCarlo. This shows that Bailey had decision-making
Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th      authority with regard to DiCarlo’s future at the Postal Service.
Cir. 2002).                                                      Hence, Bailey’s remarks constitute direct evidence of the
                                                                 requisite discriminatory animus.
  DiCarlo asserts that the Postal Service discriminated
against him on the basis of his Italian-American origin.
No. 02-4010                            DiCarlo v. Potter     13    14   DiCarlo v. Potter                            No. 02-4010

   After concluding that DiCarlo has pointed to direct             to fire Hein,” thereby failing to demonstrate causation. Id.
evidence of Bailey’s discriminatory comments on DiCarlo’s          This conclusion stemmed, we stressed, from the fact that the
national origin, we must next determine whether Bailey             sales update sheet and magazine cover were generated more
terminated DiCarlo because of his predisposition to                than five months prior to Hein’s termination, and there was
discriminate on the basis of national origin. Hein, 232 F.3d       no evidence to attribute the origin of the nicknames to the
at 488. Very few cases exist to provide guidance on direct-        company president. Id.
evidence analysis in the arena of employment discrimination.
However, Hein v. All America Plywood Co., 232 F.3d 482, is            We believe the instant case is distinguishable from Hein
helpful to the analysis of causation. Hein involved a 45-year      such that the evidence presented successfully demonstrates a
old, 5'8", 200-pound plaintiff employed as a truck driver, who     genuine issue of material fact whether Bailey’s decision to
was terminated because he could not make an out-of-town            terminate DiCarlo was based on his predisposition to
delivery on five-days-advance notice. The plaintiff had            discriminate on the basis of national origin. In particular, the
explained to his employer that he could not make the delivery      fact that the comments were made by Bailey, DiCarlo’s
because his supply of blood-pressure medication would not          immediate supervisor and a decision-maker, that they
have outlasted his return, and he could not arrange to have a      specifically negatively and derogatorily referenced DiCarlo’s
prescription filled before the departure date. Hein alleged that   Italian-American heritage, and that the hate-speech occurred
his termination constituted discrimination on the basis of his     three weeks prior to DiCarlo’s termination, all culminate in
age and weight. To bolster this claim, he presented three          the conclusion that DiCarlo has presented sufficient evidence
pieces of evidence: (1) a sales update sheet (produced and         of causation to withstand summary judgment. Unlike Hein,
distributed by the company president) “with a cartoon of a         the temporal proximity between the discriminatory act and the
reclining Big Boy from the Big Boy restaurant chain,               termination creates a far different scenario, such that
captioned ‘Wayne Hein Contemplates Lotto Scheme’”; (2) a           causation may be demonstrated with a lesser quantum of
magazine cover (hung in the president’s office) depicting a        evidence than in other cases not involving such a tight time
gorilla with a caption reading “Wayne Hein Ponders Weight          line of events.
Limits”; and (3) coworkers’ use of various nicknames, such
as “Burger Boy,” “Buffet Boy,” “Double Cheese,” and                  Because we conclude that DiCarlo has presented evidence
“Turtle Hein,” in reference to Hein, and the company driver-       that Bailey had discriminatory animus against DiCarlo, and
contact list’s reference to Hein as “Buffet Boy.” Id. at 485.      that this predisposition to discriminate played a role in the
                                                                   decision to terminate DiCarlo, the plaintiff has successfully
   In assessing this evidence under the direct-evidence            established a prima facie case of discrimination on the basis
analytical framework, we concluded that it “failed to establish    of national origin through the use of direct evidence.
a prima facie case of intentional age or weight discrimination     Therefore, we need not decide whether DiCarlo could have
because the evidence was neither direct nor credible.” Id. at      proven his case through the use of circumstantial evidence.
489. Addressing the weight discrimination claim in                 Accordingly, because DiCarlo has created a genuine issue of
particular, we noted that although the evidence “might raise       material fact as to whether he was terminated on the basis of
a genuine issue of material fact as to [the company                his national origin, we reverse the district court’s grant of
president’s] predisposition towards weight discrimination,         summary judgment on this claim.
Hein presented no evidence to connect [the president’s]
alleged prejudice against heavier individuals with his decision
No. 02-4010                          DiCarlo v. Potter     15    16    DiCarlo v. Potter                            No. 02-4010

D. Age Discrimination Claim                                      demonstrated through direct evidence a prima facie case of
                                                                 age discrimination, a genuine issue of material fact exists, and
  The ADEA prohibits employers from discriminating               the district court’s grant of summary judgment on this claim
“against any individual with respect to his compensation,        was erroneous. We therefore reverse the grant of summary
terms, conditions, or privileges of employment, because of       judgment on this claim. As a result, we need not assess
such individual’s age.” 29 U.S.C. § 623(a). Where a plaintiff    whether DiCarlo could have established a prima facie case of
fails to present direct evidence of discrimination, they must    age discrimination through circumstantial evidence.
prove by a preponderance of the evidence the following four
elements: (1) he or she was forty years old or older at the      E. Disability Discrimination Claim
time of their dismissal; (2) he or she was subjected to an
adverse employment action; (3) he or she was qualified for         The Rehabilitation Act prohibits the United States Postal
the position; and (4) he or she was replaced by a younger        Service from discriminating against their employees on the
person. McDonald v. Union Camp Corp., 898 F.2d 1155,             basis of a disability. 29 U.S.C. §794(a). “[I]f the plaintiff has
1159-60 (6th Cir. 1990).                                         direct evidence that the employer relied on his or her
                                                                 disability in making an adverse employment decision,” the
   DiCarlo asserts that the Postal Service discriminated         plaintiff must prove that he or she is “disabled.” Monette v.
against him on the basis of his age because of statements that   Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996).
he claims were made to him by Bailey. Specifically, Bailey       On the other hand, “[i]f the plaintiff seeks to establish his or
allegedly told DiCarlo that the latter was “no spring chicken”   her case indirectly, without direct proof of discrimination, the
and that he would never be a supervisor at the postal facility   plaintiff may establish a prima facie case of discrimination by
because of his age. J.A. at 122. Bailey denies ever having       showing that: 1) he or she is disabled; 2) otherwise qualified
made such statements.                                            for the position, with or without reasonable accommodation;
                                                                 3) suffered an adverse employment decision; 4) the employer
  Again, taking all inferences in the light most favorable to    knew or had reason to know of the plaintiff’s disability; and
DiCarlo, we assume for the purpose of this appeal that Bailey    5) the position remained open while the employer sought
made the age-based comments. Additionally, as was                other applicants or the disabled individual was replaced.” Id.
established under the national-origin discrimination analysis,
these remarks constitute direct evidence, as they were made         “To be ‘disabled’ for the . . . Rehabilitation Act, an
by someone with decision-making authority.                       individual must (1) have a physical or mental impairment
                                                                 which ‘substantially limits’ him or her in at least one ‘major
  With regard to causation, our discussion above of the Hein     life activity,’ (2) have a record of such an impairment, or
case and its distinction from this case applies here. Because    (3) be regarded as having such an impairment.” Mahon v.
of the close proximity between the age-related remarks and       Crowell, 295 F.3d 585, 589 (6th Cir. 2002). “Major life
DiCarlo’s termination, and because the remarks were made by      activities” include “functions such as caring for one’s self,
Bailey, someone with decision-making authority, and the          performing manual tasks, walking, seeing, hearing, speaking,
comments referenced DiCarlo’s age and stated that he would       breathing, learning, and working.” Id. at 590 (quoting 45
never become a supervisor, DiCarlo has presented sufficient      C.F.R. § 84.3(j)(2)(ii)). It appears that only the first category
evidence to establish a genuine issue of material fact           of disability is at issue in the present case.
regarding causation. Therefore, because DiCarlo has
No. 02-4010                            DiCarlo v. Potter      17    18   DiCarlo v. Potter                            No. 02-4010

   DiCarlo asserts that the Postal Service discriminated            functions of the position.” J.A. at 85. In addition, DiCarlo
against him on the basis of his disability by discharging him.      was given a document detailing the functional requirements
However, DiCarlo cannot establish a prima facie case through        of the position for which he was applying, which included
either direct or circumstantial evidence, because even though       daily activities of walking for two hours, standing for eight
he suffered from a knee injury which arguably can be                hours, repeated bending for eight hours, and which stressed
classified as an “impairment,” he submits no evidence               that both legs were required for the position. He signed this
establishing that this physical impairment substantially limits     document, attesting that he had no “medical disorder or
him in a major life activity, as is required by the                 physical impairment which could interfere in any way with
Rehabilitation Act. Hence, he cannot demonstrate that he is         the full performance of duties of the position for which [he
disabled within the meaning of the Act.                             was] applying[.]” J.A. at 83.
   DiCarlo injured his knee in 1984 while in the Army, and as          DiCarlo also signed another document attesting that he had
a result, he had to undergo surgery. When evaluated by the          no medical condition for which he was presently being treated
Department of Veterans Affairs in June 1996, DiCarlo was            (including the past year), and that to the best of his
noted as having mild osteoarthritis and a twenty-percent leg        knowledge, he did not have any medical conditions. All of
disability. However, this evidence, by itself, is insufficient to   this demonstrates that, by DiCarlo’s own admission, he
demonstrate that DiCarlo is substantially limited in a major        represented to the Postal Service that he did not have any
life activity. “[A]ny impairment that only moderately or            physical or mental impairment that could affect his job
intermittently prevents an individual from performing major         performance. Hence, because there is no evidence to support
life activities is not a substantial limitation under the Act.”     the notion that DiCarlo’s knee injury prevents him from
Mahon, 295 F.3d at 590-91. In Mahon, we held that although          engaging in any major life activities, he cannot be found
the plaintiff suffered a back impairment that “cause[d] him         disabled under the Rehabilitation Act. Accordingly, we
distress and limit[ed] him in performing some activities,” the      affirm the district court’s grant of summary judgment on this
evidence he presented did not demonstrate that he was               claim.
severely restricted in any major life activities. Id. at 591. The
same is true here, for although DiCarlo clearly suffers from          DiCarlo also asserts that the Postal Service violated the
his impairment, it hardly prohibits him from engaging in any        Rehabilitation Act by failing to accommodate his disability.
major life activities, and no evidence has been submitted
demonstrating otherwise.                                              In order for a plaintiff to prevail on an allegation of
                                                                      handicap discrimination based on failure to
  Indeed, the record indicates that at the time he commenced          accommodate, he must first establish a prima facie case
his Postal Service employment, DiCarlo was perfectly                  by showing that: (1) he is an individual with a handicap
capable of performing his job duties, and that he suffered            . . . ; (2) he is qualified for the position . . . ; (3) the
from no medical conditions at all. Although he indicated on           agency was aware of his disability; (4) an
the Postal Service Authorization for Medical Report form that         accommodation was needed, i.e., a causal relationship
he had had knee surgery, the ultimate outcome of the medical          existed between the disability and the request for
evaluation that was completed before DiCarlo was hired                accommodation; and (5) the agency failed to provide the
concluded that he had no medical limitations or restrictions,         necessary accommodation. Once the plaintiff has
and deemed him “medically qualified to perform the                    presented a prima facie case, the burden shifts to the
No. 02-4010                            DiCarlo v. Potter     19    20   DiCarlo v. Potter                           No. 02-4010

  employer to demonstrate that the employee cannot                 assisted, or participated in any manner in an investigation,
  reasonably be accommodated, because the                          proceeding, or hearing under this subchapter.” 42 U.S.C.
  accommodation would impose an undue hardship on the              § 2000e-3(a).
  operation of its programs.
                                                                     Because DiCarlo presents no direct evidence of retaliation,
Gaines v. Runyon, 107 F.3d 1171, 1175-76 (6th Cir.                 he must prove his claim through the use of circumstantial
1997)(citations omitted).                                          evidence. “In order to find a prima facie case of retaliation
                                                                   under Title VII a plaintiff must prove by a preponderance of
  DiCarlo argues that the Postal Service discriminated against     the evidence: 1) plaintiff engaged in activity protected by
him on the basis of his disability by its failure to               Title VII; 2) plaintiff’s exercise of [such protected activity]
accommodate. Specifically, he claims that when he informed         was known by the defendant; 3) that, thereafter, the defendant
Bailey of his disability and the need to rest his leg, Bailey’s    took an employment action adverse to the plaintiff; and
indifference to his need and refusal to allow him to rest          4) that there was a causal connection between the protected
amounted to discrimination on the basis of his disability.         activity and the adverse employment action.” Equal
Bailey asserted in his deposition that he was never told about     Employment Opportunity Comm’n v. Avery Dennison Corp.,
DiCarlo’s leg disability, and that DiCarlo never asked Bailey      104 F.3d 858, 860 (6th Cir. 1997); see also Williams v.
for permission to rest his leg. Bailey did concede that            Nashville Network, 132 F.3d 1123, 1131 (6th Cir. 1997).
DiCarlo had told him about a military disability but stated        “The burden of establishing a prima facie case in a retaliation
that DiCarlo never provided him with any specific details. Of      action is not onerous, but one easily met.” Nguyen v. City of
course, we view contested facts in the light most favorable to     Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). “Once a prima
DiCarlo.                                                           facie case is established, the burden of producing some non-
                                                                   discriminatory reason falls upon the defendant.” Williams,
  Once again, DiCarlo’s claim must fail, as successful             132 F.3d at 1131. “If the defendant demonstrates such, the
establishment of a prima facie case of disability                  plaintiff then assumes the burden of showing that the reasons
discrimination based on a failure to accommodate hinges on         given by the defendant were a pretext for retaliation.” Id.
the plaintiff’s proving that he is disabled under the Act’s
definition. Because there is no evidence to support the claim         DiCarlo asserts that he was terminated in retaliation for
that DiCarlo’s knee injury prevents him from engaging in any       filing an EEO complaint against Bailey. He argues that
major life activities, he cannot be found disabled under the       Bailey was fully aware of DiCarlo’s having filed the
Rehabilitation Act. Accordingly, we affirm the district            complaint prior to making the recommendation that DiCarlo
court’s grant of summary judgment on this claim.                   be terminated. However, the Postal Service asserts that
                                                                   DiCarlo cannot make out a prima facie case of retaliation
F. Retaliation Claim                                               because he has produced no evidence that Bailey knew of
                                                                   DiCarlo’s protected EEO activity when Bailey recommended
  Title VII provides in pertinent part: “It shall be an unlawful   DiCarlo’s termination, and because he presented no evidence
employment practice for an employer to discriminate against        of a causal connection between any prior protected activity
any of his employees . . . because [the employee] has opposed      and his termination. It is clear that DiCarlo engaged in
any practice made an unlawful employment practice by this          protected activity, and that he suffered an adverse
subchapter, or because he has made a charge, testified,            employment action when he was fired by the Postal Service.
No. 02-4010                             DiCarlo v. Potter      21    22    DiCarlo v. Potter                            No. 02-4010

Hence, only the second and fourth elements of the test are at        temporal proximity alone would be sufficient to support” an
issue.                                                               inference of a causal link); Parnell v. West, No. 95-2131,
                                                                     1997 WL 271751, at *3 (6th Cir. May 21, 1997) (noting that
  With regard to the second element, it appears from the             although “[a] time lag of seven months does not necessarily
record that the Postal Service and Bailey in particular were         support an inference of a causal link[,] previous cases that
aware that DiCarlo had engaged in protected activity by filing       have permitted a prima facie case to be made based on the
an EEO complaint. DiCarlo filed his EEO complaint on                 proximity of time have all been short periods of time, usually
March 9, 2000, one day after the remarks allegedly made by           less than six months”).
Bailey on March 8. Subsequently, on March 22, Bailey
submitted a memorandum to his manager requesting                        Various of our sister circuits have also accepted this
DiCarlo’s removal “for failure to meet satisfactory                  concept. See, e.g.,Oliver v. Digital Equip. Corp., 846 F.2d
performance levels . . . .” J.A. at 92. Although Bailey              103, 110 (1st Cir. 1988) (employee’s discharge “soon after”
testified that he did not know that DiCarlo’s EEO complaint          engaging in protected activity “is indirect proof of a causal
implicated Bailey personally, Bailey admitted that he knew           connection between the firing and the activity because it is
prior to March 22 that DiCarlo had in fact filed an EEO              strongly suggestive of retaliation”); Miller v. Fairchild Indus.,
complaint. See J.A. at 207 (Bailey Dep.). Contrary to the            Inc., 797 F.2d 727, 731 (9th Cir. 1986) (“[c]ausation
assertions of the dissent, Bailey conceded that as of March 11,      sufficient to establish a prima facie case of unlawful
2000, he knew that DiCarlo had filed an EEO complaint.               retaliation may be inferred from the proximity in time
Therefore, it is clear that Bailey, as well as the Postal Service,   between the protected action and the allegedly retaliatory
was aware of an EEO complaint having been filed.                     discharge”); Burrus v. United Tel. Co. of Kansas, 683 F.2d
                                                                     339, 343 (10th Cir. 1982) (“causal connection may be
  With regard to the last element, establishment of a “causal        demonstrated by evidence of circumstances that justify an
connection” between the protected activity and the adverse           inference of retaliatory motive, such as protected conduct
employment action, “[a]lthough no one factor is dispositive          closely followed by adverse action”); Grant v. Bethlehem
in establishing a causal connection, evidence . . . that the         Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980) (“proof of causal
adverse action was taken shortly after the plaintiff’s exercise      connection can be established indirectly by showing that
of protected rights is relevant to causation.” Nguyen, 229           protected activity is followed by discriminatory treatment”).
F.3d at 563. In fact, this Circuit has embraced the premise
that in certain distinct cases where the temporal proximity             DiCarlo filed his EEO complaint on March 9, 2000. Bailey
between the protected activity and the adverse employment            submitted the memorandum recommending DiCarlo’s
action is acutely near in time, that close proximity is deemed       termination on March 22. The termination was carried out on
indirect evidence such as to permit an inference of retaliation      March 30, twenty-one days after DiCarlo engaged in
to arise. See, e.g., Brown v. ASD Computing Ctr., 519 F.             protected activity. In light of our prior precedent, the
Supp. 1096, 1116 (S.D. Ohio 1981) (“where there is no direct         temporal proximity between the two events is significant
proof of a retaliatory motive, retaliation may be imputed if the     enough to constitute indirect evidence of a causal connection
timing of the retaliatory act is such as to allow an inference of    so as to create an inference of retaliatory motive. As a result,
retaliation to arise”), aff’d sub nom. Brown v. Mark, 709 F.2d       DiCarlo has satisfied all the elements necessary to establish
1499 (6th Cir. 1983); see also Nguyen, 229 F.3d at 567               a prima facie case, thereby creating a genuine issue of
(noting that there are instances in which “evidence of               material fact as to whether his termination was effectuated in
No. 02-4010                           DiCarlo v. Potter     23    24    DiCarlo v. Potter                            No. 02-4010

retaliation for his filing an EEO complaint. Because the           ______________________________________________
district court did not address the issues of whether a non-
discriminatory reason existed to justify DiCarlo’s termination,     CONCURRING IN PART, DISSENTING IN PART
and whether DiCarlo could prove that the given reason was a        ______________________________________________
pretext for retaliation, we need not engage in that analysis
here. Accordingly, we reverse the district court’s grant of         KENNEDY, Circuit Judge, concurring in part, and
summary judgment on DiCarlo’s retaliation claim and remand        dissenting in part. I agree with the majority that Plaintiff
for further proceedings.                                          failed to establish that he is disabled and accordingly agree
                                                                  with the decision to affirm the district court’s grant of
                    III. CONCLUSION                               summary judgment on the disability discrimination claim. I
                                                                  also agree that the district court improperly granted summary
  For all of the reasons set forth above, we REVERSE the          judgment on the claim of national origin discrimination.
district court’s grant of summary judgment on DiCarlo’s           However, for reasons explained below, I disagree with the
claims of national origin discrimination, age discrimination,     majority’s decision to reverse the district court’s grant of
and retaliation, and REMAND for further proceedings               summary judgment on claims of age discrimination and
consistent with this opinion. We AFFIRM the district court’s      retaliation.
grant of summary judgment on DiCarlo’s disability
discrimination claim.                                             A. Age Discrimination
                                                                    With regard to direct evidence of intentional age
                                                                  discrimination, the district court noted that the “only evidence
                                                                  that Plaintiff has offered regarding his claim of age
                                                                  discrimination is his own affidavit attesting to the fact that on
                                                                  March 8, 2000, Bailey informed him that ‘he was no spring
                                                                  chicken’ and that he would not be a supervisor at the facility
                                                                  because of his age.” DiCarlo, No. 5:01CV1072, slip op. at 9-
                                                                  10. The district court found, and I agree, that this evidence
                                                                  was insufficient to withstand a motion for summary
                                                                  judgment. Id. Plaintiff may not establish a prima facie case
                                                                  of age discrimination based on vague, ambiguous, or isolated
                                                                  remarks. Hein, 232 F.3d at 488 (citing Phelps v. Yale Sec.,
                                                                  Inc., 986 F.2d 1020 (6th Cir. 1993) (finding no prima facie
                                                                  case of age discrimination, even though the plaintiff’s
                                                                  supervisor twice stated that the plaintiff was too old to
                                                                  continue at her prior secretarial position, because these were
                                                                  only isolated and ambiguous comments)). In the present case,
                                                                  a single remark about Plaintiff’s no longer being a “spring
                                                                  chicken” is exactly the type of an isolated remark that is
                                                                  insufficient to establish age discrimination.
No. 02-4010                                 DiCarlo v. Potter        25     26       DiCarlo v. Potter                                  No. 02-4010

   Furthermore, to establish a prima facie case, Plaintiff must             Bailey learned of the complaint at a meeting with Mr.
establish “not only that plaintiff’s employer was predisposed               Zernechel and Mr. Andreatti. J.A. at 206. Although we are
to discriminate on the basis of age, but also that the employer             not provided with the specific date of that meeting, Bailey
acted on this predisposition.” Id. Had he not been promoted                 stated that “[t]he only E.E.O. activity that I knew of was with
to a supervisor position, Bailey’s alleged remark could have                Mr. Stoltz. And that was after I had already done the
evidenced age discrimination. However, in the present case,                 paperwork for the removal.” J.A. at 216. Having carefully
Plaintiff was fired for substandard performance. Plaintiff                  considered the chronology of the events, I cannot come to the
simply failed to present any direct evidence that his                       conclusion that Bailey’s actions were retaliatory. As of
evaluations were motivated by age bias.                                     March 9, 2000, Judson Zernechel, Rick Stoltz, and Gary
                                                                            Andreatti knew of the filing of the complaint. On March 22,
   With regard to circumstantial evidence of disparate                      Bailey prepared the proposal to remove Plaintiff from
treatment, the district court noted that “‘to establish a prima             employment. At some point between March 22 and
facie case of age discrimination..., a plaintiff must prove by              March 29, Bailey learned of the EEO complaint. J.A. at 217
preponderance of the evidence that: (1) he was at least 40                  (indicating that he wanted to wait until March 29th to allow
years old at the time of the alleged discrimination; (2) he was             Plaintiff to deal with his EEO complaint). On March 29,
subjected to an adverse employment action; (3) he was                       2000, the redress hearing ended in a “no agreement” letter.
qualified for the position; and (4) he was replaced by a                    On March 30, 2000, Bailey sent the letter, dated March 29,
younger person.’” DiCarlo, No. 5:01CV1072, slip op. at 10                   2000, to Plaintiff indicating his termination. Based on this
(citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1328                 chronology, I would find that Bailey recommended that
(6th Cir. 1994)). The district court found that Plaintiff failed            Plaintiff be terminated before he learned of the complaint.2
to show either prong (3) or (4). Although I do not agree that               In my mind, his decision to issue the formal termination letter
he had to establish prong (4) since apparently he was not                   after he learned of the complaint is legally irrelevant.
replaced by anybody at all, I agree that Plaintiff failed to
establish that he was qualified for the position.
B. Retaliation
  The majority asserts that “[a]lthough Bailey testified that he
did not know that DiCarlo’s EEO complaint implicated                        provided to this Court by the parties. I understand that the majority reads
Bailey personally, Bailey admitted that he knew prior to                    this excha nge to mean that starting on March 11, 2000, Bailey knew of
March 22 that DiCarlo had in fact filed an EEO complaint.”                  the complaint. I, however, read it to mean that at some point during the
This assertion is not supported by the record.1 We know that                period starting on Marc h 11, 200 0, Bailey learn ed of the com plaint.
                                                                            W hether the date that he learned of the co mplaint is before or after
                                                                            March 22, 2 000 , is therefore unclear. T his read ing is consistent with
                                                                            other portions of Bailey’s testimony that I describe below.
    1
      The majority cites to a question that was asked of Bailey at his           2
deposition: “So what you’re telling me is that from March the 11th, 2000,         This conc lusion is buttressed by the fact that Plaintiff insisted that
to August the 17th, 2000, you only had a passing reference of an E.E.O.     the EE O comp laint and the mediation were kept private (with the lone
complaint being filed against the Postal Service by Henry DiCarlo?”         exception of Rick Stoltz). Contrary to majority’s assertion, Plaintiff has
Bailey answered “R ight.” J.A . at 207. I am unable to determine the        failed to show any evidence that B ailey knew of any EEO complaint
significance of the March 11th date from the excerpted deposition           between M arch 9 , 200 0 and March 2 2, 20 00.
