MEMORANDUM ORDER
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 686(e)(3), upon the Defendant’s Motion for Summary Judgment.
A Hearing on the Motion was held on January 25, 1996, at which time the Plaintiff appeared by John A. Fabian, Esq., and the Defendant appeared by Joseph W. Hammell, Esq.
For reasons which follow, we grant the Defendant’s Motion for Summary Judgment.
II. Factual and Procedural Background
On July 7, 1989, the Defendant hired the Plaintiff as a machine operator, when the Plaintiff was 45 years old. The Defendant is engaged in the business of manufacturing and leasing railway maintenance equipment, and of providing trained personnel to provide rail maintenance services to railroads. As a machine operator, the Plaintiff was “responsible for operating and maintaining railway equipment in a safe and efficient manner.” Affidavit of Linda Mealey-Lohmann, Exhibit C, Machine Operator Job Description. In that capacity, the Plaintiff worked on a rail grinding machine, which is a self-propelled train that is equipped with electric grinding motors which are used to grind steel rails into a proper shape. Affidavit of Robert Matthews, at ¶ 6.
On November 30, 1992, the Plaintiff was injured while assisting in the overhaul of a rail grinding machine. As a result of his injury — -which occurred when a 4,000 pound piece of machinery fell upon his chest — the Plaintiff was hospitalized for nine days. The accident fractured several ribs, caused some swelling of his brain, and resulted in an undisclosed injury to his right shoulder. 1
The Plaintiff contends that, during the coursé of his hospital stay, three of the Defendant’s officials visited him, and that one of the three individuals — he cannot recall which one in particular — told him that he should not worry about a job because he was going to have one. Braziel Deposition at 70. The Plaintiff has conceded, however, that he does not specifically recall what was said to him with respect to his continued employment. Id. at 71.
The Plaintiff returned to work for the Defendant on January 18, 1993. According to his deposition testimony, he was reassured, shortly thereafter, concerning his employment. In this respect, he avers that Ralph Weber (‘Weber”), who .is the Manager of Safety and Environment in the Defendant’s Risk Management Department, discussed his future employment with the Defendant on three occasions. Id. at 54. Although, with respect to two of those discussions, the Plaintiff believes that Weber may have been referring to “light duty” positions,. he testified that Weber, in a third discussion, informed him that “he would find me something permanently to do.” Id. at 60-65. The Plaintiff also asserts that James Wood, who was one of the three officials who visited him at the hospital, told him not to worry because he had a job. Id. at 73. 2
*1090 Upon his return to work with the Defendant, the Plaintiff was “assigned light duty work because of his injuries.” Complaint at ¶ 10. The Plaintiff has alleged that, as his condition improved, “he was reassigned to jobs within his physical abilities and medical restrictions.” Id. at ¶ 11. As related in his deposition testimony, the Plaintiff worked as a field clerk, for approximately one month, in order to relieve a vacationing employee, see Braziel Deposition at 46, and he worked as a machine operator for one week. However, rather than work a full shift in the machine operator position, he merely ran the rail grinding machine while the regular operator broke for lunch. Id. at 192-194. The Plaintiff also contends that he worked, for approximately two months, in the Defendant’s research and development center performing tests on grinding stone. Id. at 342. In addition, his deposition testimony reveals that, after the accident, the Plaintiff assembled manuals, in three-ring binders, and delivered parts, by truck, to various locations. Id. at 175.
On April 13 and 14, 1993, the Plaintiff underwent a functional capacity evaluation in order to determine his physical capabilities and limitations. Upon evaluation, Mary Beth Purdie (“Purdie”), who is an Occupational Medicine Specialist, concluded that the Plaintiffs physical capabilities did not match the job requirements of the Machine Operator position, as the substance of those requirements had been related to her by the Plaintiff. In July of 1993, Dr. James R. Allen, who was the Plaintiffs treating physician, certified that the Plaintiff had reached Maximum Medical Improvement (“MMI”) as of June 3,1993. 3
On July 8, 1993, shortly after Weber learned that the Plaintiff had reached MMI, he drafted a Memorandum in which he asked Doug Grant (“Grant”), who is the Defendant’s Manager of Human Resources, and Matthews, who was then the Defendant’s Director of Operations, whether they were aware of any job positions that would satisfy the Plaintiffs medical restrictions. The Memorandum stated as follows:
According to Dr. Michienzi, the company physician, Tony Braziel has now reached maximum medical improvement (MMI). The restrictions are outlined on the enclosed form R-33.
The form is pretty detailed, but the most significant restriction is that Tony cannot lift nor carry more than 55 Lbs, with a rarely lift or carry more than 45 to 50 Lbs at any one time.
Based on these restrictions, does either Operations or Human Resources have a permanent position available for Tony within the organization?
If so, please advise. If not, then Tony will need to be released from Loram employment, based on medical reasons and Wau-sau Insurance will take over payment of wages and determine whether or not training or other vocational type rehabilitation is recommended.
Affidavit of Linda Mealey-Lohmann, Exhibit J, Memorandum dated July 8, 1998.
Matthews has testified that, in response to this Memorandum, he contacted Dave Taylor (“Taylor”), who is the Defendant’s Manager of Engineering, and George Anderson (“Anderson”), who is a Regional Manager of the Defendant. Matthews Deposition, at p. 10. Taylor advised that there were no positions available, and Anderson, who had previously supervised the Plaintiff when he worked as a field clerk, related that the Plaintiff had performed poorly at that position and had to be removed. Id. at 10-11. 4 Grant responded to the Memorandum by informing Weber that the Department of Human Resources did not have any openings for a permanent position, nor did he anticipate any openings for the remainder of 1993. *1091 Affidavit of Linda Mealey-Lohmann, Exhibit K, Letter dated July 16,1993.
On August 19,1993, an opening was posted for the position of Operations Clerk. At his deposition, the Plaintiff testified that Weber and Bill Burg (“Burg”), who was the Defendant’s Manager of Field Safety, encouraged him to apply for that position. The Plaintiff testified that it was his impression that Weber and Burg wanted him to get the job, and that is why they encouraged him to submit an application. With the assistance of a secretary employed by the Defendant, the Plaintiff submitted his application on August 25, 1993. Braziel Deposition at 150. On October 5,1993, the Plaintiff was notified that the Defendant had decided not to fill that position.
On December 28,1993, the Defendant terminated the Plaintiffs employment. According to the Plaintiff, he was summoned to Matthews’ office, where Weber was waiting, and was told that his service was no longer needed. Id, at 349. Matthews then handed the Plaintiff a written termination notice, which provided as follows:
I have been informed by the Loram Risk Management Department that you have reached maximum medical improvement from your work-related injury.
Our department, as well as other departments in the company, have been asked to review the possibility of a permanent position which would incorporate the various physical restrictions that have been identified with your condition. After performing a thorough review of positions that might become available, we do not find any suitable positions that would be able to accommodate your physical restrictions that were determined by the physicians. Therefore, Loram is severing your employment effective December 28, 1993. We will, howevei’, pay you through January 7, 1994. Hereinafter, it is our understanding that you may be eligible for benefits under Minnesota’s Workers Compensation laws.
Affidavit of Linda Mealey-Lohmann, Exhibit N, Termination Letter dated December 28, 1993.
The termination letter was signed by Matthews. After reviewing the letter, the Plaintiff testified to the following exchange:
Q: What happened after you read the letter?
A: I asked [Matthews] why I was being terminated.
Q: And then what did he say?
A: He didn’t say anything. That’s when Ralph Weber spoke up. He said, ‘We have to take into consideration your age and your disability.” I said, ‘What does my age have to do with it?” I said, “I can work along with the 18-year-olds, younger guys than me, 12 hours a day. I can perform the job just as good as they can.” He sat there and didn’t say another word. He couldn’t give me an answer.
Braziel Deposition, at pp. 351-352.
In turn, Weber categorically denies making the alleged statement concerning the Plaintiffs age and disability. Weber Deposition at 14.
On August 11, 1994, the Plaintiff filed a Complaint with the Equal Employment Opportunity Commission (“EEOC”), and with the Minnesota Department of Human Rights (“MDHR”), in which he alleged that he was “wrongfully terminated on 12/28/93 because of [his] age and [his] disability.” Affidavit of Linda Mealey-Lohmann, Exhibit L, Original Charge of Discrimination. Consistent with this assertion, he reported, on an EEOC intake questionnaire, that the earliest discrimination occurred on December 28, 1993, and that the latest discrimination occurred on that same date. Id., Exhibit K, EEOC Intake Questionnaire. On January 11, 1996 — 14 days after the service of the Defendant’s Motion for Summary Judgment — the Plaintiff filed an unsigned amended charge of discrimination. The amended charge states that, in addition to being wrongfully terminated for the impermissible reasons of his age and disability, the Plaintiff was also “denied pay raises, performance evaluations, reasonable accommodation, job transfers and positions within my medical restrictions.” Affidavit of John Fabian, Exhibit 4, Amended Charge of Discrimination.
On or about April 7, 1995, the Plaintiff commenced this action in Minnesota State Court, and the Defendant removed the case to this Court pn April 28, 1995. In his *1092 Complaint, the Plaintiff asserts that the Defendant discriminated against him on the basis of a disability, in violation of the Americans with Disabilities Act (“ADA”), Title 1>2 U.S.C. § 12131 et seq., and the Minnesota Human Rights Act (“MHRA”), Minnesota Statutes Section 363.01, et seq.; that the Defendant discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act (“ADEA”), Title 29 U.S.C. § 621 et seq., and the MHRA; and that the Defendant breached an alleged contract of employment for life. Following its filing of an Amended Answer, the Defendant has moved for Summary Judgment as to the entirety of the Plaintiffs Complaint. We have Federal question jurisdiction, under Title 28 U.S.C. § 1331, over the Plaintiffs Federal claims, and supplemental jurisdiction over the State law claims, as allowed by Title 28 U.S.C. § 1441(e). 5
III. Discussion
A.
Standard of Review.
Summary Judgment is neither an acceptable means of re
*1093
solving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury to weigh the evidence and to render credibility determinations.
Celotex Corp. v. Catrett,
As Rule 56(e) makes clear, once the mov-ant presents a properly supported Motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. While the Court views the evidence in favor of the nonmoving party and gives that party the benefit of every justifiable inference that may be drawn from that evidence, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but * * * must set forth
specific facts
showing that there is a genuine issue for trial.”
Rule 56(e), Federal Rules of Civil Procedure,
[emphasis supplied];
Krenik v. County of Le Sueur,
The non-moving party may not rest upon the mere denials or allegations of its pleadings, nor may it simply argue that operative facts will be subsequently developed which will support its claim.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
supra at 586,
Moreover, a party is entitled to Summary Judgment where its opponent has failed “to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.”
Celotex Corp. v. Catrett,
supra at 322,
Lastly, since employment discrimination cases inevitably involve inferences rather than direct evidence, and since intent is frequently the central issue, our Court of Appeals has cautioned that Summary Judgments should “seldom” be used, or at least used “sparingly” in such causes of action.
Davis v. Fleming Companies,
B. Legal Analysis. We conclude that, with respect to each of the claims that the Plaintiff has instituted, the entry of Judgment, as a matter of law, is appropriate, since we find no genuine issue of material fact which would require a Jury’s resolution.
1. The Plaintiff’s Discrimination Claims.
As a threshold matter, we address the proper framework for analyzing employment discrimination, as a general proposition, and then we turn to the specific claims that the Plaintiff has advanced.
An employee, such as the Plaintiff here, who alleges discrimination in the course of his employment, may rely upon either direct or circumstantial evidence to prove his claim. See,
McDonnell Douglas Corp. v. Green,
A mixed-motives analysis is required “when an employment decision was ‘the product of a mixture of legitimate and illegitimate motives.’”
8
Radabaugh v. Zip Feed Mills, Inc.,
In making this threshold showing, the plaintiff must present evidence which demonstrates “a specific link between the discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the challenged decision.”
9
Id.,
quoting
Stacks v. Southwestern Bell Yellow Pages, Inc.,
In contrast, the premise of a pretext case “is that
either
a legitimate or illegitimate set of considerations led to the challenged decision.”
Radabaugh v. Zip Feed Mills, Inc.,
supra at 448 [emphasis in original], quoting
Price Waterhouse v. Hopkins,
supra at 247,
Once the Plaintiff has made that
prima facie
showing, the burden shifts to the employer to articulate a legitimate nondiseriminatory reason for its challenged decision.
McDonnell Douglas Corp. v. Green,
supra at 802,
Here, the Plaintiff asserts that he has both direct and circumstantial evidence of discrimination and, therefore, we will examine his claims under either the mixed-motive or the pretext framework, as appropriate. 10 Moreover, since the elements of a plaintiffs prima facie case will necessarily vary with the type of discrimination being alleged, we will separately set forth the respective prima facie showings under the his ADA and ADEA claims.
a. The Plaintiff’s Disability Discrimination Claims. In Counts One and Two of his Complaint, the Plaintiff asserts that he was discharged by the Defendant because of a disability which the Defendant failed to accommodate.
1) Standard of Review. The ADA prohibits employers from discriminating “against a qualified individual with a disability because of the disability of such individual.” Title 12 U.S.C. § 12112(a). The ADA defines “qualified individual with a disability”-as follows:
The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
Title 12 U.S.C. § 12111(8).
Our Court of Appeals has articulated a two-part test for determining whether a person is “qualified” within the meaning of the ADA: first, “whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like,” and second, “whether the individual can perform the essential job functions, with or without reasonable accommodation.”
Benson v. Northwest Airlines, Inc.,
Accordingly, “[t]o establish a
prima facie
case under the ADA, a plaintiff must show that [he] is a disabled person within the meaning of the ADA, that [he] is qualified to perform the essential functions of the job (either with or without reasonable accommodation), and that [he] has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises.”
Price v. S-B Power Tool,
2) Legal Analysis. Given these precepts, we conclude that the Plaintiff has failed to present a material issue of fact that he is a “qualified individual with a disability,” as that term is defined in the ADA and, therefore, we grant Summary Judgment to the Defendant on the Plaintiffs disability-based discrimination claims.
Normally, when the employee, as here, alleges both direct and circumstantial evidence of discrimination, the Court begins its analysis with the direct evidence.
11
Thus,
*1097
“[i]f the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles announced in
McDonnell Douglas[.}” Radabaugh v. Zip Feed Mills, Inc.,
supra at 448 (citations omitted). As recently expressed by our Court of Appeals, “[a]fter all, the
McDonnell Douglas
framework exists to provide discrimination plaintiffs a way to prove their case when they do not have ‘explicit, inculpatory evidence of discriminatory intent[;]’ [i]f a plaintiff
does
have such evidence, burden-shifting analysis is unnecessary.”
Shannon v. Ford Motor Co.,
In contrast, in an ADA claim for job termination, the second element of a plaintiffs prima facie case — namely, whether he is qualified to perform the essential functions of the job (either with or without reasonable accommodation) — is, by the express terms of the statute, a statutory precondition to relief. See, Title )2 U.S.C. 12111(8). Unlike claims of race, age, or gender discrimination, which require only that an individual suffer an adverse employment decision because of the improper criterion, the protections encompassed by the ADA are limited to “qualified individuals] with a disability.” Compare Title lf2 U.S.C. § 12112(a) with Title 29 U.S.C. § 623(a) and Title 4-2 U.S.C. § 2000e-2(a). Thus, in order to withstand summary disposition, an ADA plaintiff must present sufficient evidence to raise a genuine issue of material fact concerning his status as “a qualified individual with a disability.” As to this specific issue, we conclude that the Record before us, when viewed in a light most favorable to the Plaintiff, discloses that the Defendant had no available jobs that were compatible with the Plaintiffs medical restrictions.
To avert such a conclusion, the Plaintiff has relied upon Benson v. Northwest Airlines, Inc., supra at 1114, as his basis to argue that, for purposes of ascertaining his ability to perform a position’s “essential functions,” we should focus upon the position that he held at the time of his discharge, rather than his permanent position. We think, however, that his reliance upon Benson is misplaced. In Benson, the plaintiff was injured in a work-related accident, which resulted in his physician’s opinion that he would not be able to perform his previous job as a mechanic. Id. at 1110. Based upon the physician’s prognosis, the plaintiff was transferred to a Department in which employees, who were impaired by work-related injuries, would hold formally established and recognized jobs until they could return to their former positions. The plaintiff was then “bumped” from such a position by a more senior employee, and he assumed the position of a plant maintenance mechanic. Id. Four days later, the defendant disqualified the plaintiff from that position “due to the medical limitations established by [his] physician.” Id. The plaintiff was placed on unpaid leave and, after unsuccessfully seeking a transfer to “at least three vacant positions,” he was terminated. Id. at 1114.
Here, unlike the circumstances in Benson, the Plaintiff was not discharged be *1098 cause the Defendant had determined that he could not physically perform the duties that were assigned to him immediately preceding his termination. 12 We conclude that when, as here, a plaintiff is discharged from temporary, light-duty assignments, 13 for reasons other than the employer’s belief that the employee was not physically capable of performing that work, it would be illogical to focus upon the capacity of the employee to perform the essential functions of the temporary job assignment that he held just prior to his termination. 14
At the time of his injury, the Plaintiff was employed as a machine operator. The job description for that position required the “operator to endure heavy physical exertion.” Affidavit of Linda Mealey-Lohmann, Exhibit C, Machine Operator Job Description. According to that same job description, the position required “work[ingj an average of 12 hour days and an average of 6 days per week[,] * * * lifting, the use of hand tools, grasping, repetitive wrist action, arm-hand steadiness]!,] eyediand coordination [and] considerable balancing.” Id. At his deposition, the Plaintiff testified thát all of these physically exertional duties were essential functions of that job. 15
•Moreover, during the course of his functional capacity evaluation, the Plaintiff de *1099 scribed the Machine Operator position as requiring “very heavy lifting, frequent overhead work, walking on uneven ground, [and] frequent bending and twisting[.]” Id., Exhibit D, Functional Capacity Profile. Based upon the Plaintiffs description, and an independent evaluation of his physical abilities, an Occupational Medicine Specialist concluded that he could no longer perform that job. Similarly, Dr. Allen, who was the Plaintiffs physician, also determined that the Plaintiff would not be able to resume his former employment. As reflected in the following exchange, the Plaintiff concurred with Dr. Allen’s assessment:
A: After my injury I talked to Dr. Allen and Dr. Michienzi. They both advised me that by going back to doing what I was doing I wouldn’t be able to do it.
Q: Do you agree or disagree with that advice.
A: I would have to agree with it.
Q: So you don’t believe you are able to perform the machine operator duties, is that true?
A: Probably, couldn’t do it the same as I did before I got injured. In fact, I know I couldn’t do it on my restrictions. I would be unable to do it.
Braziel Deposition, at p. 263.
In view of the Record before us, inclusive of the opinions of the Plaintiff, his treating physician, and an independent rehabilitation expert, together with the pertinent written job description, we conclude that the Plaintiff was unable to perform the essential functions of the Machine Operator position. See, Title Jp2 U.S.C. § 12111(8) (employer’s written job description shall be considered, evidence of essential functions of the job). Notwithstanding this conclusion, we are obliged to consider whether the Plaintiff has created a genuine issue of fact concerning his ability to perform the essential functions of that position, but with the assist of reasonable accommodation. As set forth in the ADA, the term “reasonable accommodation” may include job restructuring or reassignment to a vacant position. Title 12 U.S.C. § 12111(9).
As to possible job restructuring, the Plaintiff admitted that he never proposed any modifications that would have enabled him to perform the Machine Operator position.
Braziel Deposition,
at p. 332. However, under the ADA, the employee must specifically request the particular accommodation that he seeks.
Lue v. Moore,
In addition, at the time of his deposition, the Plaintiff could not identify how the Machine Operator position could be modified so as to enable him to perform its essential functions. Braziel Deposition, at p. 91. Indeed, the only evidence that the Plaintiff offers, as to a possible accommodation, is a reference to a letter from the Defendant to Plaintiffs counsel which addresses a job offer that had been submitted to the Plaintiff approximately one year after his termination. Braziel’s Memorandum in Opposition, at p. 18 n. 10. As the letter makes clear, the offered position appears to have included several of the duties that were involved in his *1100 former Machine Operator position but, among other modifications, the Defendant ■ was prepared to eliminate the “groundman and maintenance and repairwork functions from this position.” Affidavit of John Fabian, Exhibit 7, Letter dated January 18,1995. The letter also implies that the Plaintiff refused the position, in part, because of his physician’s “impression that, under ideal circumstances, [the Plaintiff] could perhaps handle the job but that it would be yery likely the ideal circumstances could not be reached due to peer pressure and the fact that he would likely get into activities which would worsen his neck and back condition.” Id. In effect, rather than to strengthen the Plaintiffs argument, the letter reveals a legitimate attempt by the Defendant to accommodate his disability through the removal of several functions that were detailed in the applicable job description. Absent any other showing, as to how the Machine Operator position could be modified so as to accommodate his medical restrictions, we conclude that the Plaintiff has failed to present a “facial showing” that he could perform the essential functions of that position even with reasonable accommodation.
With respect to a possible accommodation, by means of a reassignment to another position, at his deposition, the Plaintiff did refer to the positions of Operations Clerk, Research and Lab Technician, Field Clerk and Truck Driver as sources of a reassignment.
Braziel Deposition,
at p. 331. “[0]nee the plaintiff makes ‘a facial showing that reasonable accommodation is possible,’ the burden of production shifts to the employer to show that it is unable to accommodate the employee.”
Benson v. Northwest Airlines,
supra at 1112, quoting
Mason v. Frank,
Under the ADA, reasonable accommodation does not require an employer to create a new permanent position. See, Benson v. Northwest Airlines, supra at 1114. Nor is an employer required to convert a temporary, light-duty job into a permanent position. See, EEOC Technical Assistance Manual on the ADA at § 9.4 (“If the position was created as a temporary job, a reassignment to that position need only be for a temporary period.”). We conclude that, given these abiding principles, the Defendant was not required to retain the Plaintiff as a “Truck Driver,” as the Defendant had no such permanent position, in its roster of jobs, that entailed only those responsibilities. In fact, the Plaintiff has testified that, at most, he delivered parts on a three-quarter-time basis. Braziel Deposition, at p. 248. Moreover, the Plaintiff admitted that those individuals who, like himself, delivered parts to the field on an “as needed” basis, either had injuries from which they were recuperating, or they delivered parts as an aspect of their regular job duties. Id. at 426-252.
As to the other positions that the Plaintiff has identified, he admits that he only applied for the Operations Clerk position.
Braziel Deposition,
at pp. 160, 354-55. In
Chambers v. Wynne School Dist.,
A second exception to the job application rule exists where “the plaintiff made every reasonable attempt to convey his interest in the job to the' employer.”
Chambers v.
*1101
Wynne School Dist.,
supra, quoting
Equal Employment Opportunity Comm’n. v. Metal Service Co.,
At the Hearing, the Plaintiff argued that he should be excused from any job application requirement because employees of the Defendant had informed him, both during his hospital stay and shortly after his return to work, that he would have a job with the Defendant. While the argument has some superficial appeal, we reject its application here for, to accept the argument, would place an employer in the position of having to inventory all positions, within its organization, and then attempt to ascertain those positions that the plaintiff could physically perform. Indeed, the principle underlying those decisions, in which the Courts have required an ADA plaintiff to expressly request the accommodation he seeks, is that the employee is in the best position to know what jobs he can physically accomplish. 17
Even if we overlooked the Plaintiffs failure to apply for a Research Lab or a Field Clerk position, the Plaintiff has presented no evidence that any such a position was available at any time after his accident and before his termination. In this respect, the law is clear that, as a reasonable accommodation, an employer need only assign an employee, to a vacant position — the employer is not obligated to create a vacancy. Title h2 U.S.C. § mil(9)(B). With regard to the Research Lab position, however, the Plaintiff argues that, notwithstanding the absence of any vacancy at the time of his termination, he believed that another individual, who held a similar position, would be approaching retirement. Braziel Deposition>, at p. 135. Based upon this self-held belief, he contends that the Defendant should have continued his employment until that individual retired in order to award him that job. 18 Of course, an ADA claimant can almost always argue that his employer should have continued his light-duty employment until a suitable position opened, but we need not resolve that issue in this instance, because the Plaintiff acknowledged that he did not know when the suspected retirement occurred, if at all, nor did *1102 he know whether the suspected vacancy was ever filled. Id.
Lastly, with respect to the Operations Clerk position, the Plaintiff has made no showing that the job was ever filled. In fact, on October 5, 1993, the Defendant notified the Plaintiff that it had decided not to fill that position, as the Defendant determined that the position was unnecessary and, to this date, the position has never been occupied. Affidavit of Grant, at ¶ 7. The Plaintiff has conceded that he was unaware of the status of that position and, further, he did not have a basis to dispute the Defendant’s decision to discontinue that particular job. Braziel Deposition, at pp. 167-68, and 358. 19 Accordingly, as to the Operations Clerk position, the Plaintiff has failed to raise a genuine issue of material fact concerning the need for the Defendant to reasonably accommodate his disability.
Of course, mere ' speculation about possible positions is not sufficient to defeat a Motion for Summary Judgment. See,
Milton v. Scrivner, Inc.,
b. The Plaintiff’s Age Discrimination Claims. In Counts Four and Five of his Complaint, the Plaintiff maintains that his termination was the product of impermissible age discrimination.
1)
Standard of Review.
Until recently, a plaintiff established a
prima facie
case of age discrimination by showing that: “(1) he was within the protected age group; (2) he met applicable job qualifications; (3) he was discharged; and (4) after his termination, the
*1103
position remained open or the employer hired a person not in the protected class.”
Bialas v. Greyhound Lines, Inc.,
2) Legal Analysis. Given this framework for our analysis, we conclude that the Plaintiff has failed to present sufficient evidence to raise a genuine issue of material fact as to whether the Defendant discharged the Plaintiff on the basis of his age.
First, we examine the Plaintiffs asserted “direct evidence” of age discrimination in order to determine the applicability of the test enunciated in Price Waterhouse. For “direct evidence,” the Plaintiff has relied upon two separate statements by Weber. In a conversation relating to the Operations Clerk position, Weber is alleged to have informed the Plaintiff that “[w]e’re going to have to look at your age and your disabilities.” Braziel Deposition, at p. 144. According to the Plaintiff, Weber repeated a variation of that same statement at the time that he was handed his termination letter, when Weber is purported to have responded to the Plaintiffs question, concerning the basis for his discharge, by stating that “[w]e have to take into consideration your age and your disability.” Id. at 351-52. 21
In turn, the Defendant asserts that Weber’s comments were, at best, “stray comments” and, therefore, insufficient under the Price Waterhouse threshold. Of course, “[n]ot all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision.” Hermeling v. Montgomery Ward & Co., Inc., supra at 1369 [citation omitted]. Therefore, the issue presented is whether Weber was sufficiently involved in the Defendant’s decision to terminate the Plaintiff so as to constitute direct evidence of a discriminatory intent. We conclude that he was not and, accordingly, the Plaintiff has not satisfied the threshold showing required for “mixed motives” treatment.
In support of his contention, that Weber was involved in the termination decision, the Plaintiff points to the Memorandum that had been drafted by Weber, approximately six months prior to the Plaintiff’s termination, in which Weber set forth the Plaintiffs medical restrictions, as they had been related by the Plaintiffs physician, and requested the Manager of Human Resources, together with the Director of Operations, to advise of their awareness of any available permanent positions which were compatible with the Plaintiffs medical restrictions. Although Weber expressed the view in the Memorandum that, in the event there are no positions available, the Plaintiff “will need to be released from Loram employment, based on medical reasons,” the Memorandum does not show Weber’s actual involvement in the termination decision. Rather, the Memorandum shows *1104 no more than that Weber forthrightly sought to explore any positions, within the Defendant’s organization, that might be appropriate for the Plaintiff’s assignment.
Next, the Plaintiff focuses upon Matthews’ deposition testimony as evidencing Weber’s involvement in the decision to terminate him. 22 Specifically, the Plaintiff highlights Matthews’ characterization of Weber as the “point man,” and his testimony that he spoke to Weber before he decided to terminate the Plaintiff. Matthews Deposition, at pp. 15, 32-34. Read in context, however, it is clear that Matthews regarded Weber as the “gatekeeper,” not as to termination decisions, but as to “comp situations.” Id. at 15. Moreover, a fair reading of Matthews’ testimony reveals that his discussion with Weber, prior to the Plaintiffs discharge, was limited to his inquiry concerning the Defendant’s obligation, if any, to create a position for the Plaintiff irrespective of a need for the position. Id. at 34. According to Matthews, Weber responded that the Defendant had no such obligation. Id.
Lastly, the Plaintiff argues that Weber’s presence in Matthews’ office, at the time he was discharged, reflects Weber’s involvement in the termination decision. While conceding that Weber was, indeed, in Matthews’ office, the Defendant maintains, that he was present simply as a witness to what transpired. Affidavit of Matthews, at ¶ 11; Affidavit of Weber, at ¶ 9. We find nothing extraordinary in an employer’s decision to involve a management level employee to witness a meeting in which a termination decision is announced to a discharged employee. Accordingly, without more, we have no basis, other than mere surmise, to conclude that Weber’s presence, at the time that the Plaintiff was given his termination letter, is a sufficient showing that Weber was actively involved in the discharge decision.
Moreover, we note that the Plaintiff worked in the Operations Department, which was directed by Matthews, and not in the Safety Department, which Weber managed.
Braziel Deposition,
at pp. 50-51, 171;
Affidavit of Weber,
at ¶ 6. Accordingly, Weber never supervised Braziel, nor did he ever evaluate his work performance.
Affidavit of Weber,
at ¶ 7. Indeed, the Plaintiff has not rebutted the Defendant’s evidence which demonstrates that Weber lacked the authority to discharge him.
Affidavit of Matthews,
at ¶ 10. Moreover, to the extent the evidence suggests that Weber had input in the decision to terminate the Plaintiff, that input related to a recitation of Weber’s view of the law — a view which proved to be correct. See,
Aungst v. Westinghouse Elec. Corp.,
Under the
McDonnell Douglas
regimen, if the Plaintiff establishes a
prima facie
case of age discrimination, the burden of production shifts to the Defendant to articulate a nondiseriminatory basis for his discharge. Gar
ner v. Arvin Industries Inc.,
With respect to the Plaintiffs job qualifications, the Defendant maintains that, due to the Plaintiffs medical restrictions, he was not qualified for any available position within its organization. In turn, the Plaintiff argues that he need only show that he met the qualifications for the various positions he had been assigned after his accident. 24 We need not, however, resolve the issue of whether an employee, who can perform nonpermanent, light-duty tasks, is “qualified” for purposes of the second element of his prima facie case, because the Plaintiff has not shown that the Defendant’s proffered explanation for its termination decision is untrue. In other words, evidence that the Plaintiff could perform his light-duty jobs is not material since it does not address whether the Defendant’s articulated, nondiseriminatory explanation — that the Plaintiff was physically unable to perform an available, permanent position — was false or otherwise incorrect. Moreover as to this issue, we have previously determined that the Plaintiff has failed to present sufficient evidence to raise an issue of fact concerning his physical capacity to perform work in any available permanent position. Accordingly, we conclude, as a matter of law, that the Plaintiff has failed to rebut the Defendant’s nondiseriminatory explanation for its discharge decision. See, Hutson v. McDonnell Douglas, supra at 779 (question at pretext stage is whether the Plaintiff has shown that the Defendant’s explanation is a pretext for discrimination).
In reaching this conclusion, we note that “[t]he touchstone of a claim of disparate treatment under the ADEA, as it is under a number of the other employment discrimination statutes, is intentional discrimination against the plaintiff.”
Hutson v. McDonnell Douglas,
supra at 775. In disparate treatment claims, such as that presented here, “the employer simply treats some people less favorably than others because of their protected status.”
Hermeling v. Montgomery Ward & Co., Inc.,
supra at 1375, quoting
*1106
Hubbard v. United Press Int’l Inc.,
Accordingly, we conclude that the Plaintiff has failed to produce either direct or circumstantial evidence which staves the award of Summary Judgment to the Defendant on the Plaintiffs age discrimination claim, and wé proceed to his final claim, one for breach of an oral employment contract.
2. The Plaintiff’s Breach of Contract Claim.
The Defendant has also moved for Summary Judgment on the Plaintiff’s breach of contract claim. In Count Three of his Complaint, the Plaintiff contends that he had a valid, lifetime, oral employment contract with the Defendant, which the Defendant breached when it términated his employment. We find this claim to be without merit, as a matter of law.
a.
Standard of Review.
Under Minnesota law, “the ‘usual employer-employee relationship is terminable at the will of either’ party.”
Fox v. T-H Continental Ltd. Partnership,
Nevertheless, “Courts are reluctant to find a lifetime employment contract because such alleged contracts are often ‘oral, uncorroborated, vague in important details and highly improbable.’ ”
Aberman v. Malden Mills Industries, Inc.,
b. Legal Analysis. In support of his contract claim, the Plaintiff relies upon various assurances, by certain of the Defendant’s employees, that he would be retained despite his work-related injury. Braziel Deposition, at pp. 60-73. In this respect, the Plaintiff has testified that he was told, while recuperating in the hospital, not to worry about a job because he was going to have one. Braziel Deposition, at 70. He further testified that, upon his return to work, Web *1107 er informed him that “something permanent” would be found. Id. at 64. Viewed in a light most favorable to the Plaintiff, these assurances do not establish a clear intent to create a contract for permanent employment, nor has the Plaintiff shown that any consideration was extended as would be necessary in order to enforce such a contract. 26
Oral representations, which are quite similar to those at issue here, have been found, as a matter of law, to be too indefinite to create an offer for lifetime employment under Minnesota law. Thus, an assurance of a “career position * * * falls far short of establishing a lifetime contract.”
Michaelson v. Minnesota Min. & Mfg. Co.,
Moreover, “[ajbsent a clear intent to form a contract of permanent employment, an employee’s claim of a promise of permanent employment will not prevail unless the employee supplies some consideration beyond that which is normally involved in the employment relationship itself.” Corum v. Farm Credit Services, supra at 713, citing Pine River State Bank v. Mettille, supra at 627. See also, Aberman v. Malden Mills Industries, Inc., supra at 772 (evidence of “uncharacteristic consideration” may overcome the at-will presumption). Thus, an employee may purchase permanent employment with “a valuable consideration that is other than and in addition to his services.” Pine River State Bank v. Mettille, supra at 628, citing Skagerberg v. Blandin Paper Co., supra.
As evidence of such a form of consideration, the Plaintiff points to the fact that he “continued to stay on the job, even though he was free to leave, and [that] he performed every job he was assigned, including those that required him to exceed his medical restrictions.”
Braziel’s Memorandum in Opposition,
at p. 23. Clearly, this is not the
*1108
type of consideration that “is other than and in addition to his services.” Cf.
Bussard v. College of St. Thomas, Inc.,
Finding no competent evidence of a contract for permanent employment, we are compelled to grant the Defendant Summary Judgment on this claim as well.
Ward v. Employee Development Corp.,
NOW, THEREFORE, It is—
ORDERED:
That the Defendant’s Motion for Summary Judgment [Docket No. 10] be GRANTED in all respects.
Notes
. As a result of the accident, the Plaintiff has received workers’ compensation benefits, inclusive of $27,000 in medical benefits and in excess of $96,000 in wage replacement benefits. The Plaintiff has also received physical and vocational rehabilitation services, and the services of a qualified rehabilitation specialist. Affidavit of Ralph Weber, at ¶ 3. Notably, the Plaintiff is not making any claim in this action against the Defendant, which arises out of the accident, except to the extent that he claims that the Defendant discriminated against him becadse of the injuries that were produced by the accident.
. The Plaintiff has also testified that Theresa Ga-dach, who is the Defendant’s Administrative Services Manager, and Robert Matthews, who is the Defendant’s Vice President of Operations, made certain assurances, after his accident, with respect to his employment. The Plaintiff could not recall, however, what either individual had said *1090 to him, if anything, about continued employment. Braziel Deposition at 66-67.
. As defined in the Minnesota Workers Compensation Act, the term "maximum medical improvement” means "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.” Minnesota Statutes Section 176.011, Subdivision 25.
. In contrast, the Plaintiff testified that no one had criticized the manner in which he had performed in the Field Clerk position. Braziel Deposition at 45.
. As a preliminary matter, we are obliged to determine the scope of the Plaintiff's claims of discrimination. In addition to his claim that he was impermissibly terminated for reasons of his age and disability, the Plaintiff asserts in his Complaint that he was denied positions for which he was qualified, with and without accommodation; that the Defendant failed to provide him with a reasonable accommodation; and that he was discriminated against as to the compensation, terms, upgrading and conditions of his employment. See, Complaint, at ¶¶ 19 and 25 (disability), and ¶¶ 35 and 40 (age). Since his original charge related only to his termination, the Defendant argues the Plaintiff’s non-discharge claims are time-barred. In turn, the Plaintiff maintains that he successfully amended his charge of discrimination or, alternatively, that the conduct set forth in his Complaint is “like or related” to the substance of his original charge to the EEOC.
Our review discloses that the Plaintiff's only "new" claim is that which relates to the terms and conditions of his employment. To the extent that the Plaintiff has argued that he was denied positions for which he was qualified, with or without accommodation, and that the Defendant failed to provide reasonable accommodation, the arguments merely relate to the central question presented by this case — namely, whether the Defendant intentionally discriminated against him when it terminated his position. In fact, whether the Plaintiff is qualified to perform his former job requirements is an element of his prima facie case.
As to his assertion, that he was the victim of discrimination with respect to the terms and conditions of his employment, we agree with the Defendant that this claim is time-barred. The ADEA and the ADA require a plaintiff, as a prerequisite to filing a lawsuit, to file an administrative charge within 300 days of the alleged discriminatory conduct.
Title 42 U.S.C. § 12117(a)
(ADEA, referencing
Title 42 U.S.C. § 2000e-5(e)); Title 29 U.S.C. 626(d)
(ADA). Similarly, the MHRA requires a plaintiff to either file an administrative charge, or commence a lawsuit under the MHRA, within one year of the alleged discriminatory conduct.
Minnesota Statutes Section § 363.06, Subdivisions 1 and 3.
Accordingly, the Plaintiff's "terms and conditions” claim is time-barred unless we find that it was closely interrelated to his original claim of discharge. See,
Anderson v. Block,
As noted, it is well-settled that a plaintiff "may raise claims in his lawsuit which 'grow out of' or are 'like or reasonably related’ to the administrative charges.”
Philipp v. ANR Freight System, Inc.,
Since we conclude that discrimination, as to the terms and conditions of employment, is not *1093 "reasonably related" to a claim of discriminatoiy discharge and, therefore, not within the scope of this proceeding, we grant Summary Judgment as to those claims which involve the terms and conditions of the Plaintiff’s employment.
. While not determinative of the issues before us, we would note that the Minnesota Supreme Court has recently reiterated its application of Summary Judgment, in the context of employment discrimination claims, as follows:
We take this opportunity to express our disapproval of the [Minnesota] court of appeals' sweeping statement that summary judgment is generally inappropriate in discrimination cases. * * * This is not the law of Minnesota.
Dietrich v. Canadian Pacific Ltd.,
. We recognize that the Eighth Circuit has not addressed whether a plaintiff may employ the direct evidence framework in a disability discrimination case, nor has the Plaintiff cited any authority for such a proposition. However, in
Reiff v. Interim Personnel, Inc.,
.Under Minnesota employment law, both "single motive” and "mixed motive” claims of disparate treatment are analyzed under the
McDonnell Douglas
test.
Anderson v. Hunter, Keith, Marshall & Co.,
. Ordinarily, a mixed motives analysis is implicated where the employee presents "direct evidence” of unlawful discrimination.
Beshears v. Asbill,
. Notwithstanding the distinctions between the governing Minnesota and Federal laws that we have noted and that, in our judgment, are not determinative, we have adopted the approach employed by the parties of examining the State and Federal claims under the pertinent Federal standards. See,
Reiff v. Interim Personnel, Inc.,
supra at 1292 (claims brought under the ADA and the MHRA are assessed under the same Federal standards);
Hermeling v. Montgomery Ward & Co., Inc.,
. In this respect, our Court of Appeals, in Stacks v. Southwestern Bell Yellow Pages, Inc., supra at 202, observed that "Price Waterhouse requires the district court to make an explicit finding whether the case is or is not a 'mixed motives’ case." Here, the following discussion, as taken from the Plaintiff's Opposition Memorandum, suggests that he seeks to primarily proceed under the mixed motives paradigm:
The Defendant's analysis of Plaintiff's claims within the framework of McDonnell Douglas is *1097 incorrect. Plaintiff has presented direct evidence of Loram's age and disability motivated discriminatory animus.
Braziel’s Memorandum in Opposition, at p. 12.
Later, however, he argues in the alternative by asserting that, if direct evidence of discrimination is not found, then the Defendant’s Motion should be denied under the approach set forth in McDonnell Douglas. Id. atpp. 15-22.
. At the time of his termination, the Plaintiff's job involved placing materials in three-ring binders. Braziel Deposition, at p. 400. He had been working at this job for the preceding three or four days and, before that, he had been driving parts to field locations on an "as, needed” basis. Id. at 401. There is no suggestion in this Record that the Plaintiff was discharged because the Defendant believed that he was not physically capable of performing the responsibilities of these light duty assignments.
. The Plaintiff admitted at his deposition that he wasn't permanently reassigned to the home office and that, although he considered it a "job,” his duties required him to fill-in where help was needed. Braziel Deposition, at p. 174. 1
. In
Benson v. Northwest Airlines, Inc.,
If, as the Plaintiff appears to urge, an employer will be obligated to maintain the employment of disabled employees who have been given temporary, light-duty assignments, during a period of recuperation, then a disincentive to offer such beneficial employment opportunities will follow. Any such holding would bring added meaning to • Gore Vidal's observation that “a good deed never goes unpunished.” More importantly, such a holding is, in our view, precluded by the decision in Benson, itself. There, the Court took pains to explain that the "ADA does not require that [the employer] take action inconsistent with the contractual rights of other workers under a collective bargaining agreement, * * * nor does it require that [the employer] create a new position.” Id. at 1114. The Court continued by noting a gap in the evidence as to whether a potential vacancy, that may have been available to the plaintiff, was “really a position” and, being unable to resolve the matter on the basis of the undeveloped Record before it, the Court concluded that a "material fact issue remain[ed].” Id. at 1115. The same may not be said here, as all concede that the temporary assignments that the Plaintiff transiendy held, were make-shift in content and were not recognized, permanent job classifications.
.At the Hearing, the Plaintiff argued that his testimony, as to the essential functions of the machine operator position, should not be accorded any weight since it expresses a legal conclusion. We disagree. It is well established that a witness may testify to the knowledge that he has gained from industry experience. See,
Burlington Northern R. Co. v. State of Neb.,
Indeed, as here pertinent, the Regulations implementing the ADA define "essential functions” as "those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation.”
29 C.F.R. Pt. 1630, App. § 1630.2(n);
see also,
White v. York Intern. Corp.,
. Because the ADA expressly requires that its provisions be interpreted in a manner that "prevents imposition of inconsistent or conflicting standards for the same requirements under the ADA and the Rehabilitation Act of 1973,” Title 42 U.S.C. § 12117(b), cases interpreting the Rehabilitation Act are relevant to our analysis. Benson v. Northwest Airlines, supra at 1112 n. 2.
. In addition, the Plaintiff has testified to his understanding that, to be considered for a transfer to a different position in the company, he would have to apply for that job.
Id.
at p. 159; see also,
Lyoch v. Anheuser-Busch Companies, Inc.,
Loram has a policy which applies to all salaried and hourly employees regarding transfers. This policy gives each employee the responsibility and right to apply for open positions. Employees do not need approval from anyone to apply for an open position. All available open positions are posted on a bulletin board that is easily accessible to employees. This policy was in effect during Anthony Braziel’s employment. Job Bulletins also are electronically transmitted via e-mail bulletin. A copy of the Job Bulletins also are sent to each machine in the field so that all employees in the field have access to the job postings.
Affidavit of Grant, at ¶ 6.
. We note that the Plaintiff did not cite any published authority for this proposition, and we are not persuaded that the ADA requires make-work assignments of a disabled worker in order to bridge a period of unemployment caused by the absence of any job vacancies that he would be capable of performing. Cf.,
Wooten v. Farmland Foods,
. Although, at a different point in his deposition, the Plaintiff testified that the Operations Clerk position had been filled by Pat Gallagher ("Gallagher”), he later conceded that Gallagher, who is a manager with the Defendant, not only was several levels above him in the organization, but that he held a different position, the responsibilities of which only partly included the duties that would be entailed in the Operations Clerk’s job description. The Plaintiff also admitted that he did not know whether he would be qualified for Gallagher’s job, because he did know what that job entailed. Braziel Deposition, at pp. 137 and 170.
. Even if we found that Braziel had raised a genuine issue of fact concerning his status as a "qualified individual with a disability,” we would deny Count Two of his Complaint, which is premised on the protections afforded by the MHRA, because Braziel accepted Minnesota workers'. compensation benefits. Pursuant to Minnesota Statutes Section § 1.76.031, ”[t]he liability of an employer, that is prescribed by [the Minnesota Worker's Compensation Act ("WCA”) ] is exclusive.”
In
Karst v. F.C. Hayer Co. Inc.,
. Although Weber denies making any statement about the Plaintiff's age or disability, we assume — as we must — that the Plaintiff's description of the statements is entirely accurate. We expressly make clear, however, that our role in considering Summary Judgment Motions is not to resolve factual disputes and, accordingly, we leave undecided whether the rendition of the facts by one party or the other is the more believable.
. In an Affidavit, Matthews avers that, as head of the Operations Department, "[he] alone was the person responsible for making the decision about [the Plaintiff's] termination." Affidavit of Matthews, at ¶ 8.
. Even if we found that age played a "motivating part” in the Defendant's decision to terminate the Plaintiff's employment, the Plaintiff would still be unable to withstand Summary Judgment, as he has failed to raise a material issue of fact concerning the Defendant's contention that it would have made the same decision even the decision had not been tainted by age animus. As we have noted, when an employee produces direct evidence that age played a motivating part in the employment decision, the employer can prevail, at the Summary Judgment stage, "only if the record evidence that its employment decision was not based on discrimination is so strong that a reasonable trier of fact must so conclude.”
Burns v. Gadsden State Community College,
Otherwise stated, "there must be no genuine issue of fact but that the employer would have made the same employment decision even absent the discriminatory motive.”
Id.;
see also,
Berlett v. Cargill, Inc.,
. However, the case that the Plaintiff cites in support of this proposition, namely,
Hase v. Missouri Div. of Employment Sec.,
. Notwithstanding this testimony, the Plaintiff argues, in his Opposition Memorandum, that he was not provided a pay raise or a performance evaluation in 1993. During 1993, however, the Plaintiff was on light-du1y status, as he was recuperating from his work-related injury. The Plaintiff has failed to present evidence concerning any similarly situated employee, who was denied a pay raise, or who was not provided a performance evaluation. As further evidence of disparate treatment, the Plaintiff contends that he was not given the opportunity to interview for the Operations Clerk position, although the Defendant interviewed several other individuals. This evidence is not material, however, because the position was never filled. Lastly, the Plaintiff asserts that there were two persons, who were younger than himself, and who the Defendant continued to employ. With respect to these two individuals, however, the Plaintiff testified that he did not know their medical restrictions, and he admitted to not knowing whether they were treated differently than he was, based upon their age. Braziel Deposition, atpp. 392-397.-
. Prior to his employment with the Defendant; the Plaintiff submitted an employment application which provided that, if hired, he “may be discharged with or without cause whether before or after the 90 day probationary period." Affidavit of Linda Mealey-Lohmann, Exhibit A, Application for Employment. Thereafter, on July 21, 1989, the Plaintiff signed a written employment agreement. Notably, that contractual agreement did not provide any guarantees of employment, and further provided that it could be modified only in writing, by an authorized officer of the Defendant. Id., Exhibit B, Employment Agreement. Since we conclude that the alleged assurances of permanent employment fail to establish an enforceable lifetime employment contract, as they are too indefinite and are unsupported by adequate consideration, we need not reach the issue of whether the written agreement bars the effectiveness of an subsequent oral modification.