George Brown sued his former employer, Chase Brass & Copper Co., alleging age discrimination, disability discrimination, and retaliation in the company’s handling of his deteriorating medical condition that eventually left him unable to work. Chase denied those charges and sought summary judgment, which the district court granted because Brown could not
I
Chase Brass & Copper Co., Inc. (“Chase” or “the company”) manufactures brass rods. The company’s production and maintenance employees are represented by the United Steelworkers of America, with the terms and conditions of their employment governed by a collective bargaining agreement. George S. Brown, Jr., worked for Chase as a Finish Helper from 1971 until March 30, 1998, at which time he was 72 years old. Finish Helpers are assigned to specific jobs that fall within that category of employment: finish saw helper, straightener helper, pipe saw helper, buckman helper, strapping helper and finish machine helper (5-line, 6-line, and 8-line).
On February 17, 1997, Brown’s seventy-first birthday, he asked General Foreman Chuck Haynes to transfer him off the finish saw. Haynes advised that any transfer would not happen right away, as none of the job assignments for Finish Helpers on the first shift were vacant at that time. A few days later, Brown revisited his request, explaining to Haynes: “I talked it over with my wife and ... I may retire and you won’t have to worry about that.” As Brown explains it, he withdrew his transfer request because he had heard he might be assigned to the 6-line position, which he did not want, since his age and the carpal tunnel syndrome afflicting his hands would make that assignment particularly difficult, if not impossible, to perform. Additionally, he did not want to displace other workers from their assigned duties.
On March 4, 1997, Brown presented a doctor’s statement certifying that he was “totally incapacitated” and would be unable to return to work for approximately six weeks following surgery to treat carpal tunnel syndrome in both hands. On March 7, 1997, during his leave of absence, Brown filed a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”), alleging age discrimination in Chase’s refusal to rotate the Finish Helpers or assign him to a Finish Helper job then held by a younger worker.
The company held Brown’s job open for him during his surgery-related leave of absence. On June 20, 1997, Brown returned to the finish saw and worked there
On October 29, 1998, Brown filed a second charge of discrimination with the OCRC, claiming disability discrimination (insofar as Chase employed non-disabled workers in the buckman, 5-line, and 8-line positions despite Brown’s request to assume those jobs) and retaliation for participation in a protected activity, presumably the filing of his earlier charge of age discrimination.
Brown admits that the three jobs he wanted were not vacant in 1998; indeed, they had been held by the same three men since before Brown joined the first shift in 1983. In his deposition testimony, Brown described the functions of the buckman, 5-line, and 8-line Finish Helper positions, which included a variety of strenuous manual tasks, all of which required grasping or similar handling of tools and materials. He admitted he could not perform these functions as of June 1998, given the restrictions imposed by his doctor. In a later-filed affidavit, he maintained that he was physically able to perform the buck-man, 5-line, and 8-line jobs “in 1993 and 1994,” before “the physical conditions affecting his wrists became progressively worse.” Foreman Haynes filed an affidavit explaining that the company refused to place Brown in the buckman, 5-line, and 8-line jobs in June 1998 because other workers held those jobs and Brown could not have performed their essential tasks in compliance with his doctor’s restrictions.
Chase sought summary judgment. A-though the briefing proceeded in an unorthodox manner, the district court resolved all three of Brown’s claims.
The court held that Brown had not made out a prima facie case on his age discrimination claim because he admitted that he could not perform the essential functions of his finish saw Finish Helper position, i.e. he was unqualified for the position, and the ADEA does not require employers to accommodate an aging employee. The court additionally observed that Brown could not perform the essential functions of any Finish Helper position and that no such positions were vacant at the time he sought to change jobs.
On the ADA claim, the parties agreed that Brown could not perform the essential functions of the finish saw job he held before going on disability leave, nor could he perform the essential functions of the pipe saw, strapping, or six-line Finish Helper jobs. Brown argued that he might be able to perform the essential functions of the buckman, 5-line, and 8-line positions with some help from co-workers, if given the chance. The court found that Brown never specifically asked Chase to
Resolving the retaliation claim, the district court misapprehended the facts, stating that Brown last worked at Chase on March 30, 1998, was last denied an accommodation when he sought to return to work in June 1998, and filed his age discrimination charge on October 29, 1998. The court held that the retaliation claim failed because Brown could not point to any adverse employment action taken after he filed his charge. As Chase admits on appeal, Brown actually filed his age discrimination charge with the EEOC and OCRC on March 7, 1997, during his first leave of absence. He filed his ADA and retaliation claims on October 29,1998.
The court entered summary judgment in favor of Chase on all claims. Brown timely appealed. His brief on appeal does not address his age discrimination claim, and we accordingly hold that he has abandoned it.
II
McDonnell Douglas and its progeny established a burden-shifting regime for analyzing employment discrimination cases, allocating the burdens of production and persuasion. See Roh v. Lakeshore Estates, Inc.,
The parties agree that Brown made out the first element of his prima facie case: he is an individual with a disability within the meaning of the ADA. The central issue in this case, then, is whether Brown satisfied the second element. The parties agree that, without an accommoda
The “disabled individual bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable.” Monette v. Electronic Data Sys. Corp.,
None of this evidence demonstrates that any of his requests were meant as or treated as a request for an ADA accommodation. Moreover, Brown rescinded his February 1997 request because he did not want to “disrupt the other guys,” and nothing in the record indicates that he repeated his rotation request when he spoke to Haynes in June 1998. At that time he made only vague references to “light duty” job assignments and focused on getting Haynes to reassign Richard Kreischer in order to create a vacancy in the buckman job. The district court correctly held that Brown failed to create a genuine issue of material fact as to whether his longstanding recommendation that Chase establish a rotation system ever became a request for an ADA accommodation.
Brown also takes issue with the district court’s second valid reason for granting summary judgment: establishing a rotation system of the sort Brown advocated was unreasonable. Brown claims that the duties of the four positions he identified, all of which were within the Finish Helper classification, could have been adjusted in order to accommodate his disability. Brown is no doubt correct;
In order to demonstrate that Chase did not adequately support its claim that Brown’s proposal would redistribute essential job duties, see Bratten,
As this court has recognized, 29 C.F.R. § 1630.2(n)(3) enumerates seven non-exclusive factors to weigh in determining if a function is “essential,” to wit: (1) an employer’s judgment that the function is essential; (2) written job descriptions; (3) the amount of time on the job devoted to performing the function; (4) the consequences of not requiring the employee to perform the function; (5) terms in a relevant labor agreement; (6) the work experience of those who have held the position in the past; and (7) the current work experience of those who hold similar jobs.
Brickers v. Cleveland Bd. of Educ.,
Brown effectively challenges the quality of the evidence Chase presented, which included an affidavit by Foreman Haynes and Brown’s own testimonial descriptions of the various job functions given at his deposition but did not include written job descriptions and did not specify the amount of time each Finish Helper devoted to performing the various functions. Yet Brown has not identified any evidence even suggesting that the district court reached the wrong conclusion. He failed to create a genuine issue of material fact as to whether certain functions he could not perform were essential, and the district court did not err in accepting the affidavit of Foreman Haynes and Brown’s own testimony on this point.
Finally, a third separate reason supporting summary judgment in favor of Chase is that Brown leaves unchallenged the district court’s determination — also based on Brown’s testimony at his deposition, and reached in the absence of contrary evidence — that Brown could not have performed the essential functions of the jobs he sought even with an accommodation. Because he could not perform the essential functions of the jobs he sought, he was not qualified for them. This is yet another fact fatal to Brown’s attempt to prove the second element of his prima facie case.
III
To establish a prima facie case of retaliation, a plaintiff must produce evidence showing: “(1) that he engaged in an activity protected by [the civil rights laws]; (2) that this exercise of his protected civil rights was known to defendant; (3) that defendant thereafter took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.” See Canitia v. Yellow Freight Sys., Inc.,
As described above, Chase concedes error in the district court’s reasoning granting summary judgment on Brown’s retaliation claim. Brown engaged in protected activity by filing an age discrimination charge with the OCRC on March 7, 1997, and was last denied an accommodation (assuming he framed his requests as such) when he tried to return to work in June 1998, having taken his last leave of absence on March 30, 1998. Thus, Brown suffered an adverse employment action after he engaged in protected activity.
Chase submits a variety of alternative grounds to support summary judgment in its favor, foremost of which is Brown’s lack of qualification for the jobs he sought. Chase claims that it refused to establish the rotation system or assign Brown to jobs then held by other workers because, by his own admission, Brown could not perform the essential functions of his former position as a finish saw Finish Helper or any of the Finish Helper jobs he wanted to rotate into. In a retaliation case, which typically involves not a refusal to hire but demotion or termination, lack of qualification for a job seems best asserted as a legitimate non-discriminatory reason, since qualification is not explicitly included in the elements of the prima facie case.
We nevertheless affirm summary judgment for Chase because Brown proffered no evidence of a causal link between his March 1997 charge of age discrimination and the company’s actions in June 1998, which occurred after it permitted him to return to work on June 20, 1997. An adverse action occurring fourteen months after engagement in a protected activity will not, by itself, give rise to an inference of retaliation. Compare Cooper,
IV
Brown failed to make out the second element of his prima facie case of disability discrimination and the fourth element of his prima facie case of unlawful retaliation. Accordingly, we AFFIRM the judgment of the district court.
Notes
. The collective bargaining agreement creates a procedure by which employees can bid on vacancies in job classifications other than their own. Brown never sought to “bid off” the Finish Helper classification.
. For the first time on appeal, Brown argues that Chase did not satisfy its obligation to initiate an informal, interactive process with a qualified individual who requested an accommodation in order to craft a reasonable one. See 29 C.F.R. § 1630(o)(3). If an employer’s unwillingness to engage in such a process leads to a failure to reasonably accommodate an employee, the employer might be liable under the ADA. See Beck v. University of Wis. Bd. of Regents,
. "The term 'reasonable accommodation’ may include — (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9); see also 29 C.F.R. § 1630.2(g)(1).
. Bratten explained that "the ADA requires 'job restructuring’ as a 'reasonable accommodation' in appropriate circumstances. However, ... 'job restructuring' within the meaning of the ADA only pertains to the restructuring of non-essential duties or marginal functions of a job. ... [Ejmployers are not required to assign existing employees or hire new employees to perform certain functions or duties of a disabled employee’s job which the employee cannot perform by virtue of his disability.” Bratten,
. The collective bargaining agreement considers Finish Helper a generic classification subject to the bidding process, containing eight sub-classifications. If an employee successfully bid for the broad classification. Chase would assign him to a specific job within that category. Brown's position at oral argument, that the ADA requires reshuffling of workers within the Finish Helper classification because doing so would not violate any workers’ rights under the collective bargaining agreement, is not correct. See Cassidy v. Detroit Edison Co.,
