                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               APR 2 2001
                                 TENTH CIRCUIT
                            __________________________                    PATRICK FISHER
                                                                                   Clerk

 PAUL HEIMAN,

          Plaintiff-Appellant,

 v.                                                         No. 00-3005
                                                             (D. Kan.)
 UNITED PARCEL SERVICE, INC.,                         (D.Ct. No. 98-CV-2253)
 an Ohio corporation,

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, SEYMOUR, and BRORBY, Circuit Judges.



      Mr. Heiman worked at United Parcel Service (“United Parcel”) for eighteen

years, until his termination on December 2, 1998. He sued United Parcel alleging

the company discriminated and retaliated against him in violation of the

Americans with Disabilities Act of 1990 (“Disabilities Act”).     1
                                                                      42 U.S.C.

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      1
          Mr. Heiman also alleged United Parcel retaliated against him in violation of
Kansas state law. The district court held Mr. Heiman failed to prove a prima facie case of
retaliation under state law. Mr. Heiman does not appeal, and we do not address, the
§§ 12101 - 12213. The district court granted summary judgment in favor of

United Parcel. The court held Mr. Heiman failed to present a       prima facie case

that he is disabled or suffered retaliation. Mr. Heiman appeals. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



                                    BACKGROUND

       The material, relevant facts are either undisputed or viewed in the light

most favorable to Mr. Heiman.     See Simms v. Oklahoma , 165 F.3d 1321, 1326

(10th Cir.), cert. denied , 528 U.S. 815 (1999). Mr. Heiman worked for United

Parcel as a feeder driver, which involved “regular, daily pushing, pulling and

twisting in order to lift objects, as well as coupling and uncoupling the trailers

which he hauled over the road on a regular, ongoing basis.” He underwent seven

surgeries during his employment at United Parcel due to injuries to his back,

neck, shoulders and knees.



       To alleviate the physically demanding nature of his job, Mr. Heiman asked

United Parcel to provide him with a Ford power steering tractor, which it did

except for a few isolated occasions. Ultimately, Mr. Heiman sought a transfer




district court’s grant of summary judgment for United Parcel on this issue.


                                            -2-
from his feeder driver position to a job requiring less physical exertion. United

Parcel did not transfer him, and Mr. Heiman filed a complaint with the Equal

Employment Opportunity Commission alleging United Parcel denied him a

reasonable accommodation. On June 8, 1998, Mr. Heiman filed his complaint in

district court, after receiving his “right to sue” letter from the commission. On

October 2, 1998, Mr. Heiman served United Parcel with a copy of the complaint;

United Parcel filed its answer on October 22, 1998.



      On November 19, 1998, Mr. Heiman had an argument with David Larkin, a

fellow United Parcel employee. Mr. Larkin subsequently filed a written

complaint against Mr. Heiman. On November 23, 1998, Mr. Heiman met with his

supervisors and Union steward to discuss the November 19th incident with Mr.

Larkin. Initially, Mr. Cantrell, who is Mr. Heiman’s immediate supervisor, told

him he could continue working at United Parcel pending further investigation, but

warned him to avoid contact with Mr. Larkin. However, Mr. Heiman became

frustrated during the meeting and repeatedly asked Mr. Cantrell for a copy of Mr.

Larkin’s complaint. Mr. Cantrell and the Union steward both asked him to “calm

down.” After multiple requests, Mr. Cantrell told Mr. Heiman he was too

confrontational and was being removed from service pending further

investigation.


                                         -3-
      On December 2, 1998, Mr. Heiman received United Parcel’s letter

terminating him. The letter stated in relevant part:

            On November 23, 1998[,] we became aware of a serious
      incident you were involved in on November 19, 1998.

             On November 23, 1998[,] a meeting was held .... At this
      meeting you refused to listen to or follow your manager’s
      instructions. This type of behavior will not be tolerated at United
      Parcel Service. You were taken out of service at that time.

             After a thorough investigation, due to the seriousness of this
      incident, in addition to the serious incident on November 19, 1998,
      you are herein notified your employment with United Parcel Service
      is terminated, effective December 2, 1998.


      Mr. Heiman initially sued United Parcel alleging the company denied him a

reasonable accommodation, and thereby discriminated against him in violation of

the Disabilities Act. After his termination, Mr. Heiman amended his complaint to

allege unlawful retaliation in violation of the Disabilities Act and Kansas state

law. The district court granted United Parcel summary judgment. The court held

Mr. Heiman failed to establish a genuine issue of material fact that he qualifies as

disabled under the Disabilities Act. Specifically, the court concluded Mr.

Heiman’s evidence, i.e. , a report from a vocational expert, failed to show he was

substantially limited in the major life activity of working. Moreover, the court

held Mr. Heiman did not establish a   prima facie case of retaliation because he

failed to show a causal connection between his protected activity and termination.


                                          -4-
Mr. Heiman appeals the district court’s grant of summary judgment.



       “We review the district court's grant of summary judgment de novo,

applying the same legal standard used by the district court.”     Simms , 165 F.3d at

1326. Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

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). “When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.”       Simms , 165 F.3d at 1326.

“Summary judgment may be granted if the evidence is merely colorable or is not

significantly probative.”   Black v. Baker Oil Tools, Inc. , 107 F.3d 1457, 1460

(10th Cir. 1997) (quotation marks and citation omitted).



                      DISABILITY DISCRIMINATION CLAIM

       We first consider whether Mr. Heiman is a “qualified individual with a

disability.” Steele v. Thiokol Corp ., ___ F.3d ___, 2001 WL 173698, at *4 (10th

Cir. Feb. 22, 2001) (recognizing a showing of disability is a threshold matter for a

Disabilities Act claim). The Disabilities Act defines an individual with a

disability as someone who has, in part, “a physical or mental impairment that


                                            -5-
substantially limits one or more of the major life activities of such individual.”

42 U.S.C. § 12102(2)(A). Pursuant to Equal Employment Opportunity

Commission regulations, “working” constitutes a major life activity.      See Bolton

v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994) (relying on 29 C.F.R.

§ 1630.2(i)), cert. denied , 513 U.S. 1152 (1995).



       To demonstrate that an impairment “substantially limits” the major life

activity of working, an individual must show “significant[] restrict[ion] in the

ability to perform either a   class of jobs or a broad range of jobs in various classes

as compared to the average person having      comparable training, skills and

abilities .” 29 C.F.R. § 1630.2(j)(3)(i) (emphasis added). “The inability to

perform a single, particular job does not constitute a substantial limitation in the

major life activity of working.”    Id.



       The following specific factors “should be considered” when determining

whether an impairment substantially limits a major life activity: “(i) [t]he nature

and severity of the impairment; (ii) [t]he duration or expected duration of the

impairment; and (iii) [t]he permanent or long term impact, or the expected

permanent or long term impact of or resulting from the impairment.” 29 C.F.R.

§ 1630.2(j)(2); Bolton , 36 F.3d at 943. The following additional factors “may be


                                            -6-
considered” when determining whether an impairment substantially limits the

major life activity of working:

       (A) [t]he geographical area to which the individual has reasonable
       access;

       (B) [t]he job from which the individual has been disqualified because
       of an impairment, and the number and types of jobs utilizing similar
       training, knowledge, skills or abilities, within that geographical area,
       from which the individual is also disqualified because of the
       impairment (class of jobs); and/or

       (C) [t]he job from which the individual has been disqualified because
       of an impairment, and the number and types of other jobs not
       utilizing similar training, knowledge, skills or abilities within that
       geographical area, from which the individual is also disqualified
       because of the impairment (broad range of jobs in various classes).

29 C.F.R. § 1630.2(j)(3)(ii);   Bolton , 36 F.3d at 943-44 (recognizing the additional

factors “may be considered,” but holding summary judgment for employer is

appropriate when the evidence failed to show the employee was restricted from

performing a class of jobs, or to address the employee’s vocational training and

accessible geographical area). We apply these factors to the evidence Mr.

Heiman submitted to avoid summary judgment.



       The only evidence Mr. Heiman offers to overcome summary judgment is

Mr. Santner’s vocational report which he claims proves he is substantially limited

in the major life activity of working and creates an issue of fact sufficient to



                                           -7-
withstand summary judgment.       2
                                      Even though the district court never questioned

Mr. Santner’s qualifications as a vocational expert, Mr. Heiman points out the

court nevertheless rejected his conclusion Mr. Heiman was substantially impaired

in the major life activity of working. Specifically, Mr. Santner concluded Mr.

Heiman “lost the ability to perform approximately 30% of the jobs he might

normally have been able to access prior to his injuries incurred at [United

Parcel].” Accordingly, Mr. Heiman claims the district court erred by reasoning

that a “30% diminution in [his] ability to obtain work in the greater Kansas City

area was insufficient as a matter of law.”



       Contrary to Mr. Heiman’s contentions, we cannot limit our focus solely on

Mr. Santner’s expert conclusion that Mr. Heinman suffered a thirty percent

diminution in job availability. Such a limitation would prevent us from

evaluating the merits of Mr. Santner’s vocational report in light of the

abovementioned Equal Employment Opportunity Commission factors.                See

Bolton , 36 F.3d at 943 (reviewing “the record for evidence of six factors set forth

in the [Disabilities Act] regulations.”);    see also Broussard v. University of

California, at Berkeley , 192 F.3d 1252, 1256-59 (9th Cir. 1999) (reviewing the


       2
          Mr. Heiman does not claim he is substantially limited in any other major life
activity besides “working.”


                                             -8-
merits of the vocational expert’s report to determine whether plaintiff is

substantially limited in working). Because we believe the whole report must be

examined on de novo review, we detail the contents of Mr. Santner’s vocational

report.



      Mr. Santner’s expert report is divided into six sections: (1) records

received and reviewed; (2) background; (3) work history; (4) medical restrictions;

(5) procedures; and (6) conclusions.   The labor market statistics are limited to the

Kansas City, Kansas/Missouri metropolitan area.



      In the “background” section, Mr. Santner acknowledges Mr. Heiman has a

college degree in art, completed a nine-week police academy course and two

computer courses, and has a commercial driver’s license. Mr. Santner admits he

did not consider in his report “professional jobs, typically requiring a college

degree, since Mr. Heiman has never had a job which required one and, his degree

in Art would be difficult to use even if it were current.”



      In his “work history” section, Mr. Santner details Mr. Heiman’s

employment history at United Parcel. Prior to working for United Parcel, Mr.

Heiman worked as a dump truck and concrete truck driver. Each of these jobs


                                         -9-
required Mr. Heiman to lift at least seventy-five pounds. Mr. Heiman also

worked as a police officer.



      Under “medical restrictions,” Mr. Santner’s report relies on Dr.

Rondinelli’s March 31, 1998 evaluation of Mr. Heiman. Dr. Rondinelli’s report

indicates:

      According to the Functional Capacity Evaluation mentioned above
      and previous testing in this regard, I believe Mr. Heiman meets the
      demands of a Feeder with [United Parcel] in regards to weight
      handling requirements, per se. Specifically, he qualifies for
      MEDIUM-HEAVY lifting below shoulder level which would allow
      him to lift loads not to exceed 75 lb on an occasional basis or 50 lb
      on a frequent basis below shoulder level. He qualifies for MEDIUM
      category of lifting at or above shoulder level which would allow him
      to lift weights not exceeding 50 lb occasionally or 25 lb frequently at
      or above shoulder level. He should seek assistance when lifting
      weights exceeding 50 lb at or above should[er] level or 75 lb below
      shoulder level....

             ... Although return to work as a “feeder driver” is not
      medically contraindicated based on the examination and testing
      carried out to date, I believe a prudent and judicious course from this
      point forward would be to reassign him, if at all possible, to a less
      physically demanding job with reduced requirements for materials
      handling.

(Emphasis in original.) Following this March 3, 1998 evaluation, Mr. Heiman

continued in his feeder driver position until his termination on December 2, 1998.



      In the “procedures” section of his report, Mr. Santner believes Mr. Heiman


                                        -10-
retains “the capability of performing many jobs classified as medium or less,

however not the entire range of medium jobs or[] jobs classified as heavy to very

heavy.” In other words, Mr. Santner considers Mr. Heiman, in his post-injury

state, incapable of performing very heavy, heavy, and some medium classified

jobs, but able to perform many jobs classified as medium or less. After this

caveat, Mr. Santner explains he divided the data “into seven separate categories

of jobs, not including those that would generally be classified as professional in

nature .... Of the seven classes, Mr. Heiman would be considered to have lost a

highly significant number of jobs in three of the categories and a significant

number in one.”



      In his “conclusions,” Mr. Santner suggests Mr. Heiman “lost the ability to

perform [thirty percent] of the jobs” accessible to him prior to incurring his

injuries. According to the report, “[e]ighty-five percent of this loss falls into the

service, processing and miscellaneous categories of employment.” While

explicitly identifying these three categories, Mr. Santner’s report does not identify

four of the seven other categories he evaluated, or the total number of jobs Mr.

Heiman is disqualified from performing due to his injuries. Despite this

omission, Mr. Santner nevertheless concludes Mr. Heiman’s major life activity of

working was substantially impaired.


                                         -11-
       We believe there are several reasons why this expert’s analysis is

insufficient as a matter of law to show Mr. Heiman is disabled for purposes of the

Disabilities Act. First, Mr. Heiman presents no evidence establishing his access

to jobs is limited to the Kansas City metropolitan area, which is the exclusive area

the expert analyzed.   3
                           See Bolton , 36 F.3d at 944.



       The expert’s report also fails to show the number of jobs Mr. Heiman is

disqualified from performing due to his injuries.          See Bolton , 36 F.3d at 944. The

report identifies only three of the seven job categories considered in Mr.

Heiman’s vocational assessment: service        4
                                                   , processing 5, and miscellaneous.   6
                                                                                            Even


       3
        There is evidence in the record suggesting Mr. Heiman lived in Olathe, not
Kansas City, when United Parcel terminated him. Moreover, he worked in Lexena,
Kansas for United Parcel.
       4
         The “service” category “includes occupations concerned with performing tasks
in and around private households, serving individuals in institutions and in commercial
and other establishments; and protecting the public against crime, fire, accidents and acts
of war.” United States Dep’t of Labor, Dictionary of Occupational Titles, Ch. 3 (4th ed.
1991).
       5
         The “processing” category “includes occupations concerned with refining,
mixing, compounding, chemically treating, heat treating, or similarly working materials
and products. Knowledge of a process and adherence to formulas or other specifications
are required to some degree. Vats, stills, ovens, furnaces, mixing machines, crushers,
grinders, and related equipment or machines are usually involved.” Id. at Ch. 5.
       6
         The “miscellaneous” category “includes occupations concerned with
transportation services; packaging and warehousing; utilities; amusement, recreation and
motion picture services; mining; graphic arts; and various miscellaneous activities.” Id. at
Ch. 9.

                                             -12-
if we assume listing only three of the considered job classes is adequate, the

expert’s conclusion Mr. Heiman suffered a thirty percent diminution in job

availability is unhelpful in the abstract.    Cf. Fjellstad v. Pizza Hut of Am., Inc   .,

188 F.3d 944, 949 (8th Cir. 1999) (recognizing plaintiff created a factual dispute

in whether employment opportunities are limited; “there were 28,000 available

jobs in South Dakota that fit her vocational profile, but ... she is eligible for only

about 1,300 of these jobs due to her functional limitations”). The mere

percentage of lost jobs does not identify the number of jobs Mr. Heiman is

actually disqualified from performing due to his injuries.       See Bolton , 36 F.3d at

944. It is common sense there is a difference between disqualification from thirty

percent of ten million jobs versus disqualification from thirty percent of ten jobs.

Therefore, we hold the expert’s report, which fails to indicate the total number of

jobs Mr. Heiman is disqualified from as a result of his injuries, does not create a

genuine issue of fact demonstrating Mr. Heiman is “substantially limited” in his

major life activity of working.      See 29 C.F.R. § 1630.2(j)(3)(ii). Such evidence is

not significantly probative.      See Black, 107 F.3d at 1460.



       Furthermore, the expert’s report, and ultimately his conclusion, is based on

an incomplete vocational assessment. The expert disregarded Mr. Heiman’s




                                             -13-
college degree when assessing job availability and loss.    7
                                                                See Bolton , 36 F.3d at

944 (recognizing evidence did not address plaintiff’s “vocational training”);       see

also Heilweil v. Mount Sinai Hosp.     , 32 F.3d 718, 724 (2d Cir. 1994) (concluding

plaintiff was not hindered in her ability to work because she possessed advanced

education degrees),   cert. denied , 513 U.S. 1147 (1995). We do not accept the

expert’s conclusory dismissal of Mr. Heiman’s college degree because he never

used the degree, or because the degree was “not current” and would be “difficult

to use.” Mr. Heiman must be compared to “the average person having

comparable training, skills and abilities   .” 29 C.F.R. § 1630.2(j)(3)(i) (emphasis

added). In this instance, we must compare Mr. Heiman to an average person

possessing a college degree in art.



       Finally, even though the district court recognized Mr. Santner as a

vocational “expert,” his “legal” conclusion that Mr. Heiman suffered a substantial

limitation in his major life activity of working does not create a genuine issue of

material fact sufficient to withstand summary judgment. “Summary judgment is

appropriate when an ill-reasoned expert opinion suggests the court adopt an


       7
        Because we view the evidence and draw all reasonable inferences in the light
most favorable to Mr. Heiman, we assume the expert considered Mr. Heiman’s previous
education and experience as a police officer when evaluating job availability. See Simms,
165 F.3d at 1326.


                                            -14-
irrational inference, or rests on an error of fact or law.”      Stearns Airport Equip.

Co., Inc. v. FMC Corp. , 170 F.3d 518, 531 n.12 (5th Cir. 1999). As we

previously discussed, Mr. Santner erred by assuming a thirty percent diminution

in an unreported number of jobs is, as a matter of law, a substantial limitation.

Moreover, his conclusion is based on an incomplete vocational profile.



       Therefore, because Mr. Heiman’s evidence fails to establish a genuine issue

of material fact, we affirm the district court’s determination he is not disabled

within the meaning of the Disabilities Act.          See 42 U.S.C. § 12102(2)(A).

Summary judgment in favor of United Parcel on the disability discrimination

claim is appropriate.   8




                                  RETALIATION CLAIM



       8
          Given our holding, Mr. Heiman’s contention the district court erred in
considering a Tenth Circuit unpublished opinion and not citing additional authority in
reaching the same conclusion is unpersuasive. We also reject Mr. Heiman’s suggestion
that this case cannot be disposed on summary judgment because Mr. Santner was never
afforded the opportunity to provide his details at trial, and United Parcel never elicited
such details by deposition. A careful review of the record shows discovery was
completed on July 1, 1999, i.e., five months before the district court granted summary
judgment. Thus, ample time and opportunity existed to seek, take, or supplement the
record with Mr. Santner’s deposition. Moreover, we have held “summary judgment need
not be denied merely to satisfy a litigant’s speculative hope of finding some evidence” to
rebut the movant’s allegations. Meyer v. Dans un Jardin, S.A., 816 F.2d 533, 537 (10th
Cir. 1987) (quotation marks and citation omitted).

                                              -15-
       Although we hold Mr. Heiman’s underlying disability discrimination claim

fails, such failure does not prevent him from asserting a Disabilities Act

retaliation claim.   See Beuttner v. Arch Coal Sales Co. Inc.   , 216 F.3d 707, 714

(8th Cir. 2000). The Disabilities Act’s retaliation provision states “[n]o person

shall discriminate against any individual because such individual has opposed any

act or practice made unlawful by [the Disabilities Act] or because such individual

made a charge ... under [the Disabilities Act].” 42 U.S.C. § 12203(a).



       To establish a prima facie case of retaliation, Mr. Heiman must show: 1)

he “engaged in a protected activity; 2) [he] was subjected to adverse employment

action subsequent to or contemporaneous with the protected activity; and 3) a

causal connection between the protected activity and the adverse employment

action.” Anderson v. Coors Brewing Co.       , 181 F.3d 1171, 1178 (10th Cir. 1999).

United Parcel does not dispute Mr. Heiman satisfied the first two elements of his

prima facie retaliation claim. We will assume, without deciding, Mr. Heiman

engaged in two acts of protected activity by filing: 1) an Equal Employment

Opportunity Commission complaint; and 2) a lawsuit alleging disability

discrimination. United Parcel also admits Mr. Heiman suffered an adverse

employment action because he was terminated. Thus, the first two elements of his

prima facie case are presumed satisified.


                                           -16-
       Under the third element required to show retaliation, “[a] causal connection

may be shown by evidence of circumstances that justify an inference of retaliatory

motive, such as protected conduct closely followed by adverse action.”       O’Neal v.

Ferguson Constr. Co. , 237 F.3d 1248, 1253 (10th Cir. 2001) (quotation marks and

citation omitted). “Unless there is very close temporal proximity between the

protected activity and the retaliatory conduct, the plaintiff must offer additional

evidence to establish causation.”     Id. We have previously “held that a one and

one-half month period between protected activity and adverse action may, by

itself, establish causation. By contrast, we have held that a three-month period,

standing alone, is insufficient to establish causation.”    Anderson , 181 F.3d at

1179 (citations omitted).



A. Temporal Proximity

       Both parties heavily rely on the temporal proximity between the protected

activity and the adverse employment action, but they dispute the date the

protected activity occurred. Mr. Heiman asserts his protected activity occurred on

October 2, 1998, which is the date United Parcel was       served with the lawsuit

complaint. Thus, according to Mr. Heiman, only two months accrued between his

protected activity and termination. In contrast, United Parcel suggests Mr.

Heiman’s protected activity occurred on or about June 19, 1997, which is the date


                                             -17-
United Parcel received Mr. Heiman’s Equal Employment Opportunity

Commission charge. According to United Parcel, the time lapse was nearly

eighteen months. We disagree with both contentions.



       Both parties misunderstand what triggers a “protected activity.” Protected

activity is “the bringing of charges;” it is not     serving an employer with a formal

lawsuit or receiving an employee’s Equal Employment Opportunity Commission

complaint. Candelaria v. EG & G Energy Measurements, Inc.            , 33 F.3d 1259,

1262 (10th Cir. 1994);     see also Anderson , 181 F.3d at 1178 (“By    filing an [Equal

Employment Opportunity Commission] claim, Plaintiff engaged in protected

activity.”) (emphasis added). We assume, without deciding, the two protected

activities at issue here occurred when Mr. Heiman “filed” the Equal Employment

Opportunity Commission complaint and his discrimination lawsuit.           See Amir v.

St. Louis University,    184 F.3d 1017, 1025 (8th Cir. 1999) (recognizing plaintiff’s

protected activity consisted of filing a grievance and a lawsuit against the

university). Viewing the evidence in the light most favorable to Mr. Heiman, we

must use the filing date most favorable to him.        See Anderson , 181 F.3d at 1179.

In this case, the most favorable filing date is that of Mr. Heiman’s lawsuit, and

not his Equal Employment Opportunity Commission complaint, which occurred




                                              -18-
much earlier.   9




       Mr. Heiman filed his lawsuit in district court on June 8, 1998. Thus, nearly

six months lapsed between the date of his last protected activity and termination.

Our cases demonstrate that an intervening period of nearly six months is not

sufficiently “close temporal proximity” such that an inference of causation is

warranted based on timing alone. In light of our holding that six months accrued

between filing his lawsuit and termination, we need not address Mr. Heiman’s

contention that two months by itself is sufficient to infer a causal connection.



B. Additional Evidence To Establish Causation

       Having established Mr. Heiman’s protected activity is too remote in time

from his termination alone to justify an inference of causation, we next examine

whether Mr. Heiman provided sufficient additional evidence of retaliatory motive.

See O’Neal , 237 F.3d at 1253. We hold the evidence presented does not raise an

inference of causation.   10




       9
         If the filing date for Mr. Heiman’s Equal Employment Opportunity Commission
complaint is considered, approximately one and one-half years lapsed between that
protected activity and his termination.

       10
         Because we hold there is insufficient temporal proximity and additional
evidence to justify an inference of causation, we need not address United Parcel’s
contention the supervisors who terminated Mr. Heiman lacked knowledge of his protected

                                         -19-
       Mr. Heiman presents two types of additional evidence: 1) examples of

other United Parcel employees who raised their voices at their respective

supervisors, but were not terminated; and 2) alleged “inconsistent statements”

made by Mr. Heiman’s supervisors. He suggests this evidence “individually

raise[s] questions of fact concerning the pretextual nature of [United Parcel’s]

position” and “support[s] a finding of causal connection ... [because] they

constitute just the sort of ‘other evidence’ which may be considered by this

court.” In sum, Mr. Heiman presents evidence that goes to the issue of whether

United Parcel’s proffered reason for his termination is pretextual, rather than

evidence establishing causation.



       Mr. Heiman, however, misunderstands his initial burden of proofand the

subsequent burden-shifting that occurs before this pretextual evidence is usually

considered. A Disabilities Act retaliation claim proceeds under the same burden-

shifting framework we use for Title VII retaliation claims.        Anderson , 181 F.3d at

1178. Accordingly, Mr. Heiman first must establish a          prima facie case of

retaliation. Id. Once he establishes a prima facie case, the burden shifts to




activity. “We will not undertake to decide issues that do not affect the outcome of a
dispute.” Griffin v. Davies, 929 F.2d 550, 554 (10th Cir.), cert. denied, 502 U.S. 878
(1991).


                                           -20-
United Parcel to “come forward with a non-discriminatory reason for its

employment decision.”      Id. If United Parcel presents a non-discriminatory reason,

the burden shifts back to Mr. Heiman to show “there is a genuine issue of

material fact as to whether the employer’s proffered reason for the challenged

action is pretextual, i.e. , unworthy of belief.”   Id. (quotation marks and citation

omitted).



       Even if Mr. Heiman understands the nature of his burden at the       prima facie

stage, he fails to articulate how the pretextual evidence he presents supports an

inference that filing a lawsuit motivated United Parcel to terminate him.       First,

Mr. Heiman’s proffered evidence of other United Parcel employees who allegedly

engaged in misconduct is insufficient because it is not probative of causation

between Mr. Heiman’s act of filing a lawsuit and his termination. 11 See Black,

107 F.3d at 1460.



       The other type of pretextual evidence concerns alleged inconsistent



       11
         Of the evidence that actually identifies a specific employee, it is undisputed two
of them did not share Mr. Heiman’s same supervisor. See generally Kendrick v. Penske
Transp. Serv., Inc., 220 F.3d 1220, 1223 (10th Cir. 2000). In addition, uncontroverted
deposition testimony shows the two remaining employees did not engage in conduct
comparable to Mr. Heiman’s.


                                            -21-
statements made by his supervisors. However, even if we assume arguendo that

an employer’s inconsistent reasons for termination can create an inference of

causation, Mr. Heiman still fails to show United Parcel made inconsistent

statements. Cf. Farrell v. Planters Lifesavers Co.   , 206 F.3d 271, 281, 285-86 (3d

Cir. 2000) (recognizing employee did show, in addition to other evidence, the

employer’s reasons for termination were inconsistent). Specifically, Mr. Heiman

argues his supervisors, in deposition, attributed his termination solely to his

insubordination and failure to follow instructions at the November 23, 1998

meeting. In contrast, Mr. Heiman notes United Parcel’s termination letter cites

both the November 23 meeting and the November 19 incident involving his

argument with Mr. Larkin. In other words, Mr. Heiman contends the fact that

there were two incidents causing his termination rather than one establishes an

inconsistency sufficient to justify an inference of causation. We do not agree.



      The two incidents are entirely consistent with each other. United Parcel’s

reference to the “serious incident” occurring on November 19 supplements, rather

than contradicts, his supervisors’ reason for firing him. The November 19

incident merely precipitated the need for the November 23 meeting where Mr.

Heiman’s insubordination and failure to listen and follow instructions resulted in

his termination. As the termination letter stated, “[t]his type of behavior will not


                                          -22-
be tolerated at United Parcel Service.” Thus, while the termination letter cites

both the meeting and Larkin incident as contributing to Mr. Heiman’s termination,

this statement clearly shows Mr. Heiman’s behavior at the November 23 meeting

is the behavior that ultimately led to his termination. Any perceived

inconsistency in this evidence does not support an inference of causation.



       Therefore, based on our independent review of the evidence, we hold Mr.

Heiman fails to establish a   prima facie case of retaliation under the Disabilities

Act. Neither the six-month lapse between filing a lawsuit and termination alone,

nor the additional evidence, establish a causal connection. Therefore, summary

judgment in favor of United Parcel on the retaliation claim is appropriate. Thus,

“[w]hile the burden [of establishing a Disabilities Act        prima facie case] is ‘not

onerous,’ it is also not empty or perfunctory.”        Butler v. City of Prairie Village   ,

172 F.3d 736, 748 (10th Cir. 1999) (quotation marks and citation omitted). In

summary, Mr. Heiman fails to establish a          prima facie case of disability




                                            -23-
discrimination or retaliation, and we   AFFIRM the district court’s grant of

summary judgment in favor of United Parcel.



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge

SEYMOUR, Circuit Judge, concurs in the judgment.




                                          -24-
