Henry Dicarlo v. JOHN E. POTTER, Postmaster General

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

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No. 02-4010 DiCarlo v. Potter 3
2DiC arlo claims that in his job application, which was supplemented
by two letters from the Department of Veterans Affairs, he informed the
Postal Service about a physical disability he had involving his left leg. He
further alleges that during his orientation for his position with the Postal
Service, he informed the woman leading the orientation about his leg,
telling her that he would need “to rest the leg at intervals and that the leg
stiffening was unpredictable,” to which she informed him that he “could
do the job and that [he] should let the supervisor on duty at the time
[know] that [he] needed a rest.” Joint Appendix (“J.A.”) at 172A
(DiCarlo Aff.).
disability, we AFFIRM the district court’s grant of summary
judgment on DiCarlo’s disability discrimination claim.
I. BACKGROUND
A. Factual Background
DiCarlo applied for and obtained a part-time flexible
(“PTF”) mail processor position with the United States Postal
Service on September 25, 1999. The employment had been
contingent on DiCarlo passing a drug screening and medical
evaluation. As part of the evaluation, DiCarlo was provided
a document, which he signed, outlining the “functional
requirements” the mail processor position would entail. It
included walking for two hours, standing for eight hours, and
repeated bending, and it stressed that both legs were required
for the job. Additionally, DiCarlo confirmed in writing that
he had no medical condition for which he was currently
receiving treatment and further attested to the fact that “[t]o
the best of [his] knowledge, [he] d[id] not have any medical
condition.” Joint Appendix (“J.A.”) at 84. After a complete
medical assessment conducted by the Postal Service, it was
concluded that DiCarlo had no medical limitations or
restrictions, and that he was “medically qualified to perform
the functions of the position.”2 J.A. at 85. DiCarlo was
assigned to the Canton, Ohio Main Post Office, to begin work
on January 15, 2000.
4 DiCarlo v. Potter No. 02-4010
3Bailey’s general comments about DiCarlo were that he lacked
enthusiasm about his job, and that his performance fell below the standard
to which Bailey held the other employees. Bailey also noted that DiC arlo
criticized Bailey about how he ran his operation. Finally, Bailey recorded
the following: “Mr. DiCarlo did not show me or anyone else that he has
worked with that he would like to work here. I don’t feel that he has
wanted to learn the job, or be here. He has projected the image to me and
the other employees that he is only to show up and get p aid. H e doesn’t
want to pull his own load in the o perations. I will not keep M r. DiC arlo
as a PTF. He has not shown the dedication to his job . . . .” J.A. at 140.
4The following are some of the entries made by Bailey about
DiCarlo:
(1) “Jan 18, 2000: I had to give Mr. Dicarlo a talk
about working as a team and keep moving . . . .”
(2) “Feb 9, 2000: I talked with Mr. Dicarlo about
standing and talking, needing to have a sense of
urgency, needing to move from one operation to
another without having to b e told everyd ay,
staying gainfully employed, and keep moving
and doing som e form of work.”
(3) “Feb 14, 2 000 : I gave his first evaluation (30
day) noting his working slowly, his need for
constant supervision, no sense of urgency, and
As a new employee, the first ninety days of DiCarlo’s
employment were deemed a “probationary period.” Under
this agreement, the Postal Service reserved the right to
terminate DiCarlo’s employment at any point during the
probationary period, which termination would not be subject
to the grievance procedure. DiCarlo commenced his
employment on January 15, 2000, and was placed under the
direct supervision of Timothy Bailey (“Bailey”). Bailey
would remain DiCarlo’s supervisor until DiCarlo’s
termination on March 30, 2000. Bailey evaluated DiCarlo
throughout his probationary period and generated
contemporaneous notes of his work performance. These
notes demonstrate that Bailey viewed DiCarlo’s on-the-job
performance as below standard.3 DiCarlo appeared to be
negatively reviewed on a rather consistent basis throughout
the probationary period.4 DiCarlo disputes these

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No. 02-4010 DiCarlo v. Potter 5
low wo rk ethics.”
(4) “March 3, 20 00: Mr. Dicarlo had conflict with
other employee, not working together, and
talking derogatory about other emplo yees.”
J.A. at 140.
5In particular, DiCarlo states in reaction to Bailey’s assertion that he
failed to show any effort or that he wanted to work at the Postal Service,
that he “showed up for work on every d ay and worked ha rd every day,”
and that he “had to learn the machinery by [himself] because Mr. Bailey
or [sic] anyone else failed to train [him] on the machinery.” J.A. at 166.
He also asserts that contrary to what Bailey said, he did show enthusiasm
for his job, in that he “kept asking how [he] could advance in the postal
service.” J.A. at 166.
6DiC arlo received “unaccep table” ratings in the work quantity and
dep endability categories. DiCarlo asserts that Bailey told him at this time
“that everyone gets this type of rating on the first probatio nary month
evaluation and not to wo rry abo ut it,” and that “[B ailey] did not tell
[DiCarlo] what [he] was doing wrong.” J.A. at 168. Bailey, however,
denies having made such statements. W e must view all controverted
evidence in favor of DiCarlo at the summary-judgment stage.
characterizations by Bailey.5 Bailey claims that he informed
DiCarlo of “his deficiencies, and [DiCarlo] failed to correct
the problems,” and that he “talked to him repeatedly as well
as on his 30 and 60 day evaluation[s].” J.A. at 186. DiCarlo
claims that he “was not advised of any work deficiencies prior
to [his] termination and [] was never given the opportunity to
correct alleged deficiencies.” J.A. at 167.
Pursuant to DiCarlo’s probationary employee status, he,
like others during this period, received three performance
evaluations — the first after thirty days, the second after sixty
days, and the third after eighty days. In DiCarlo’s first
evaluation, dated February 14, 2000, out of the six categories
evaluated, he received two “unacceptable” ratings and four
“satisfactory” ratings.6 In the second and third evaluations,
dated March 15, 2000 and March 30, 2000 respectively, he
6 DiCarlo v. Potter No. 02-4010
7In both the seco nd and third evaluations, D iCarlo received
“unacceptable” ratings in the work quantity, dependability, and work
relations categories.
8Bailey testified in his deposition that although he knew that an EEO
complaint had been filed, he did not know that it involved him
specifically until after Dicarlo had been terminated.
9The disability stemmed from a leg injury he had sustained in 1984
while in the Army. Documentation from the Veteran’s Administration
Medical Center corroborated the injury, revealing that the injury had
resulted in a 20% disability in the left leg.
10In DiCarlo ’s deposition testimony, he provided a similar account,
stating that on that day, his left leg had stiffened up by the end of his shift,
so he leaned up against a machine for several minutes to relieve it. This
is when Bailey allegedly said to him, “I’m tired of you limping around
here.” J.A. at 112. DiCarlo told him he had a bad leg and that he was a
disabled veteran, to which Bailey responded, “I don’t care about your
disabilities,” and “I want you to push, push, push.” J.A. at 112.
11DiC arlo was forty-six at the time o f this alleged incident.
received three “unacceptable” ratings and three “satisfactory”
ratings.7
During the course of his employment, on March 9, 2000,
DiCarlo requested an appointment with an EEO counselor to
discuss alleged discriminatory actions taken by Bailey against
DiCarlo on the basis of the latter’s national origin, age, and
disability.8 Specifically, DiCarlo asserts that he told Bailey
on March 8, 2000 that he “had a physical disability9 and
[]asked for a rest period because of the problems [he] was
having” with the disability. J.A. at 169. DiCarlo alleged that
Bailey responded that “he did not care about [DiCarlo’s]
physical disabilities,” and “informed [him] that [he] had better
start pushing.”10 J.A. at 169. DiCarlo also asserted that on
the same day (March 8, 2000), Bailey informed him that “he
was no spring chicken and that [he] would not be a supervisor
at the facility because of [his] age.”11 J.A. at 169. Finally,

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No. 02-4010 DiCarlo v. Potter 7
12DiC arlo specifically requested that Bailey have no involvement in
the mediation.
13DiC arlo never asked for a hearing before an administrative judge
of the EEO C ommission.
DiCarlo said that Bailey called him a “dirty-wop” and
complained that “there were too many dirty wops around [the
facility].” J.A. at 169. Bailey denies ever having made any
of these comments, and further refutes any allegation that he
ever discriminated against DiCarlo in any way.
After meeting with an EEO counselor, both DiCarlo and the
Postal Service agreed to mediate the dispute.12 However, the
mediation, which took place on March 29, 2000, failed to
result in a settlement. Meanwhile, several days earlier, on
March 22, Bailey submitted a memorandum to his manager
“requesting [DiCarlo’s] removal for failure to meet
satisfactory performance levels.” J.A. at 107. His manager,
Gary Andriotti, agreed with the assessment and therefore
approved the proposed termination. A letter was
subsequently sent to DiCarlo on March 29, 2000, signed by
Bailey, stating that DiCarlo was terminated effective April 1,
2000 due to his “unsatisfactory work performance.” J.A. at
109.
On April 13, 2000, DiCarlo withdrew the discrimination
complaint he had filed on March 9, 2000. On April 25, 2000,
DiCarlo filed a new complaint with the EEO office, alleging
discrimination based upon national origin, age, and disability
as well as retaliation, and naming Bailey as the alleged
responsible discriminating official. The Postal Service
proceeded to conduct an investigation into the complaint, and
informed DiCarlo of his right to demand a hearing before an
administrative judge of the EEO Commission.13 The Postal
Service issued a Final Agency Decision on February 6, 2001,
concluding that the evidence failed to establish discrimination
on the basis of national origin, age, disability, or retaliation.
8 DiCarlo v. Potter No. 02-4010
14Specifically, the comp laint states that the suit was:
authorized and instituted pursuant to Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq, providing
for relief from discrimination in employment on the basis of
national origin; to the Age Discrimina tion in Employment Act
[(“ADEA ”)], specifically, 29 U.S.C. sec. 633a (c), providing for
relief from d iscrimina tion in em ploym ent on the basis of age; to
the Rehabilitation Act of 1973, specifically 29 U.S.C. sec.
794(a), providing for relief from discrimination in employment
on the basis of disability; to 29 U .S.C. sec. 623(d), providing
relief from retaliation in employment for filing a complaint of
discrimination on the basis of age; and, to 42 U.S.C. sec. 2000e-
3 providing for relief from retaliation in employment on the
basis of filing a complaint of discrimination on the basis of
national origin.”
J.A. at 5-6 (Compl. ¶ 3).
B. Procedural background
On May 3, 2001, DiCarlo filed suit14 in district court
alleging discrimination on the basis of national origin, age,
disability, and retaliation. The Postal Service filed a motion
for summary judgment on June 20, 2002, which the district
court granted on August 19, 2002. The district court found
“none of [DiCarlo’s] claims [] sufficient to withstand
summary judgment,” as DiCarlo had failed to satisfy his
burden of proof on every allegation of discrimination and
retaliation. J.A. at 259. This appeal followed.
The district court had jurisdiction over DiCarlo’s federal
claims pursuant to 28 U.S.C. § 1331. We have appellate
jurisdiction over the district court’s final order pursuant to 28
U.S.C. § 1291.

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No. 02-4010 DiCarlo v. Potter 9
II. ANALYSIS
A. The Summary Judgment Standard
This court reviews de novo a grant of summary judgment.
Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263
F.3d 627, 633 (6th Cir. 2001); Terry Barr Sales Agency, Inc.
v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). “Under
Rule 56(c), summary judgment is proper ‘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.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R.
Civ. P. 56(c)). “In deciding upon a motion for summary
judgment, we must view the factual evidence and draw all
reasonable inferences in favor of the non-moving party.”
Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.
1997). “We examine the grant of summary judgment to
determine ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.’”
C.T. Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir.
1991) (quoting Booker v. Brown & Williamson Tobacco Co.,
879 F.2d 1304, 1310 (6th Cir. 1989)).
B. Title VII Standards
In Title VII actions, “a plaintiff may establish
discrimination either by introducing direct evidence of
discrimination or by proving inferential and circumstantial
evidence which would support an inference of
discrimination.” Kline v. Tenn. Valley Auth., 128 F.3d 337,
348 (6th Cir. 1997). When using circumstantial evidence to
create an inference of discrimination, the complainant must
carry the initial burden of establishing by a preponderance of
the evidence a prima facie case of discrimination by his or her
employer. In evaluating a claim of employment
discrimination, we employ the burden-shifting approach first
10 DiCarlo v. Potter No. 02-4010
announced in McDonnell Douglas Corporation v. Green, 411
U.S. 792, 802 (1973). See also Vaughn v. Watkins Motor
Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
A plaintiff who successfully establishes a prima facie case
receives the benefit of a presumption that the employer
unlawfully discriminated against him. Burdine, 450 U.S. at
254. The burden then “shifts to the defendant ‘to articulate
some legitimate, nondiscriminatory reason for the employee’s
rejection.’” Id. at 253 (quoting McDonnell, 411 U.S. at 802).
Finally, “should the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a preponderance
of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.” Id. Throughout this shifting burdens
framework applicable when circumstantial evidence is
involved, “[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Id.; see also
Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th
Cir. 1995).
The McDonnell Douglas burden-shifting framework for
circumstantial-evidence cases has been applied in the context
of claims brought under the Age Discrimination in
Employment Act (“ADEA”), Grosjean v. First Energy Corp.,
349 F.3d 332, 335 (6th Cir. 2003), and the Rehabilitation Act.
Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001);
Burns v. City of Columbus Dep’t of Pub. Safety, 91 F.3d 836,
843 (6th Cir. 1996).
C. National Origin Discrimination Claim
Title VII makes it unlawful for an employer “to . . .
discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). A plaintiff who alleges

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No. 02-4010 DiCarlo v. Potter 11
discrimination on the basis of national origin and wishes to
prove a prima facie case through the use of circumstantial
evidence must prove four elements: (1) he or she was a
member of a protected class; (2) he or she suffered an adverse
employment action; (3) he or she was qualified for the
position; and (4) he or she was replaced by someone outside
the protected class or was treated differently than similarly-
situated, non-protected employees. Talley, 61 F.3d at 1246.
When proving a claim through the use of direct evidence,
a plaintiff does not have to proceed under the McDonnell
Douglas burden-shifting framework that applies to
circumstantial evidence cases. Christopher v. Stouder Mem’l
Hosp., 936 F.2d 870, 879 (6th Cir. 1991). “[D]irect evidence
is that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor
in the employer’s actions.” Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.
1999). “Consistent with this definition, direct evidence of
discrimination does not require a factfinder to draw any
inferences in order to conclude that the challenged
employment action was motivated at least in part by prejudice
against members of the protected group.” Johnson v. Kroger
Co., 319 F.3d 858, 865 (6th Cir. 2003). “[T]he evidence must
establish not only that the plaintiff’s employer was
predisposed to discriminate on the basis of [national origin],
but also that the employer acted on that predisposition.” Hein
v. All America Plywood Co., 232 F.3d 482, 488 (6th Cir.
2000). Finally, “an employee who has presented direct
evidence of improper motive does not bear the burden of
disproving other possible nonretaliatory reasons for the
adverse action. Rather, the burden shifts to the employer to
prove by a preponderance of the evidence that it would have
made the same decision absent the impermissible motive.”
Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th
Cir. 2002).
DiCarlo asserts that the Postal Service discriminated
against him on the basis of his Italian-American origin.
12 DiCarlo v. Potter No. 02-4010
Specifically, DiCarlo alleges that Bailey called him a “dirty
wop” and complained of there being too many “dirty wops”
working at the postal facility. Bailey denies having ever
made such comments.
In light of the well-established rule on summary judgment
that, when viewing the factual evidence, we must draw all
reasonable inferences in favor of DiCarlo, the nonmoving
party, all contested facts must be assumed in his favor.
Furthermore, although direct evidence generally cannot be
based on isolated and ambiguous remarks, Weigel, 302 F.3d
at 382, when made by an individual with decision-making
authority, such remarks become relevant in determining
whether there is enough evidence to establish discrimination.
Cf. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.
2003)(“comments made by individuals who are not involved
in the decision-making process regarding the plaintiff’s
employment do not constitute direct evidence of
discrimination”); Hopson v. DaimlerChrysler Corp., 306 F.3d
427, 433 (6th Cir. 2002)(comments by manager lacking any
involvement in the decision-making process do not constitute
direct evidence); Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 354 (6th Cir. 1998) (“isolated discriminatory
remark made by one with no managerial authority over the
challenged personnel decisions is not considered indicative of
[] discrimination”).
It is clear that Bailey was an individual with decision-
making authority with respect to the decision to terminate
DiCarlo. It was Bailey who recommended that DiCarlo be
terminated. After thorough discussion with Bailey’s
manager, Gary Andriotti, who agreed with the
recommendation, the decision was made to terminate
DiCarlo. This shows that Bailey had decision-making
authority with regard to DiCarlo’s future at the Postal Service.
Hence, Bailey’s remarks constitute direct evidence of the
requisite discriminatory animus.

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No. 02-4010 DiCarlo v. Potter 13
After concluding that DiCarlo has pointed to direct
evidence of Bailey’s discriminatory comments on DiCarlo’s
national origin, we must next determine whether Bailey
terminated DiCarlo because of his predisposition to
discriminate on the basis of national origin. Hein, 232 F.3d
at 488. Very few cases exist to provide guidance on direct-
evidence analysis in the arena of employment discrimination.
However, Hein v. All America Plywood Co., 232 F.3d 482, is
helpful to the analysis of causation. Hein involved a 45-year
old, 5'8", 200-pound plaintiff employed as a truck driver, who
was terminated because he could not make an out-of-town
delivery on five-days-advance notice. The plaintiff had
explained to his employer that he could not make the delivery
because his supply of blood-pressure medication would not
have outlasted his return, and he could not arrange to have a
prescription filled before the departure date. Hein alleged that
his termination constituted discrimination on the basis of his
age and weight. To bolster this claim, he presented three
pieces of evidence: (1) a sales update sheet (produced and
distributed by the company president) “with a cartoon of a
reclining Big Boy from the Big Boy restaurant chain,
captioned ‘Wayne Hein Contemplates Lotto Scheme’”; (2) a
magazine cover (hung in the president’s office) depicting a
gorilla with a caption reading “Wayne Hein Ponders Weight
Limits”; and (3) coworkers’ use of various nicknames, such
as “Burger Boy,” “Buffet Boy,” “Double Cheese,” and
“Turtle Hein,” in reference to Hein, and the company driver-
contact list’s reference to Hein as “Buffet Boy.” Id. at 485.
In assessing this evidence under the direct-evidence
analytical framework, we concluded that it “failed to establish
a prima facie case of intentional age or weight discrimination
because the evidence was neither direct nor credible.” Id. at
489. Addressing the weight discrimination claim in
particular, we noted that although the evidence “might raise
a genuine issue of material fact as to [the company
president’s] predisposition towards weight discrimination,
Hein presented no evidence to connect [the president’s]
alleged prejudice against heavier individuals with his decision
14 DiCarlo v. Potter No. 02-4010
to fire Hein,” thereby failing to demonstrate causation. Id.
This conclusion stemmed, we stressed, from the fact that the
sales update sheet and magazine cover were generated more
than five months prior to Hein’s termination, and there was
no evidence to attribute the origin of the nicknames to the
company president. Id.
We believe the instant case is distinguishable from Hein
such that the evidence presented successfully demonstrates a
genuine issue of material fact whether Bailey’s decision to
terminate DiCarlo was based on his predisposition to
discriminate on the basis of national origin. In particular, the
fact that the comments were made by Bailey, DiCarlo’s
immediate supervisor and a decision-maker, that they
specifically negatively and derogatorily referenced DiCarlo’s
Italian-American heritage, and that the hate-speech occurred
three weeks prior to DiCarlo’s termination, all culminate in
the conclusion that DiCarlo has presented sufficient evidence
of causation to withstand summary judgment. Unlike Hein,
the temporal proximity between the discriminatory act and the
termination creates a far different scenario, such that
causation may be demonstrated with a lesser quantum of
evidence than in other cases not involving such a tight time
line of events.
Because we conclude that DiCarlo has presented evidence
that Bailey had discriminatory animus against DiCarlo, and
that this predisposition to discriminate played a role in the
decision to terminate DiCarlo, the plaintiff has successfully
established a prima facie case of discrimination on the basis
of national origin through the use of direct evidence.
Therefore, we need not decide whether DiCarlo could have
proven his case through the use of circumstantial evidence.
Accordingly, because DiCarlo has created a genuine issue of
material fact as to whether he was terminated on the basis of
his national origin, we reverse the district court’s grant of
summary judgment on this claim.

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No. 02-4010 DiCarlo v. Potter 15
D. Age Discrimination Claim
The ADEA prohibits employers from discriminating
“against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a). Where a plaintiff
fails to present direct evidence of discrimination, they must
prove by a preponderance of the evidence the following four
elements: (1) he or she was forty years old or older at the
time of their dismissal; (2) he or she was subjected to an
adverse employment action; (3) he or she was qualified for
the position; and (4) he or she was replaced by a younger
person. McDonald v. Union Camp Corp., 898 F.2d 1155,
1159-60 (6th Cir. 1990).
DiCarlo asserts that the Postal Service discriminated
against him on the basis of his age because of statements that
he claims were made to him by Bailey. Specifically, Bailey
allegedly told DiCarlo that the latter was “no spring chicken”
and that he would never be a supervisor at the postal facility
because of his age. J.A. at 122. Bailey denies ever having
made such statements.
Again, taking all inferences in the light most favorable to
DiCarlo, we assume for the purpose of this appeal that Bailey
made the age-based comments. Additionally, as was
established under the national-origin discrimination analysis,
these remarks constitute direct evidence, as they were made
by someone with decision-making authority.
With regard to causation, our discussion above of the Hein
case and its distinction from this case applies here. Because
of the close proximity between the age-related remarks and
DiCarlo’s termination, and because the remarks were made by
Bailey, someone with decision-making authority, and the
comments referenced DiCarlo’s age and stated that he would
never become a supervisor, DiCarlo has presented sufficient
evidence to establish a genuine issue of material fact
regarding causation. Therefore, because DiCarlo has
16 DiCarlo v. Potter No. 02-4010
demonstrated through direct evidence a prima facie case of
age discrimination, a genuine issue of material fact exists, and
the district court’s grant of summary judgment on this claim
was erroneous. We therefore reverse the grant of summary
judgment on this claim. As a result, we need not assess
whether DiCarlo could have established a prima facie case of
age discrimination through circumstantial evidence.
E. Disability Discrimination Claim
The Rehabilitation Act prohibits the United States Postal
Service from discriminating against their employees on the
basis of a disability. 29 U.S.C. §794(a). “[I]f the plaintiff has
direct evidence that the employer relied on his or her
disability in making an adverse employment decision,” the
plaintiff must prove that he or she is “disabled.” Monette v.
Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996).
On the other hand, “[i]f the plaintiff seeks to establish his or
her case indirectly, without direct proof of discrimination, the
plaintiff may establish a prima facie case of discrimination by
showing that: 1) he or she is disabled; 2) otherwise qualified
for the position, with or without reasonable accommodation;
3) suffered an adverse employment decision; 4) the employer
knew or had reason to know of the plaintiff’s disability; and
5) the position remained open while the employer sought
other applicants or the disabled individual was replaced.” Id.
“To be ‘disabled’ for the . . . Rehabilitation Act, an
individual must (1) have a physical or mental impairment
which ‘substantially limits’ him or her in at least one ‘major
life activity,’ (2) have a record of such an impairment, or
(3) be regarded as having such an impairment.” Mahon v.
Crowell, 295 F.3d 585, 589 (6th Cir. 2002). “Major life
activities” include “functions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” Id. at 590 (quoting 45
C.F.R. § 84.3(j)(2)(ii)). It appears that only the first category
of disability is at issue in the present case.

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No. 02-4010 DiCarlo v. Potter 17
DiCarlo asserts that the Postal Service discriminated
against him on the basis of his disability by discharging him.
However, DiCarlo cannot establish a prima facie case through
either direct or circumstantial evidence, because even though
he suffered from a knee injury which arguably can be
classified as an “impairment,” he submits no evidence
establishing that this physical impairment substantially limits
him in a major life activity, as is required by the
Rehabilitation Act. Hence, he cannot demonstrate that he is
disabled within the meaning of the Act.
DiCarlo injured his knee in 1984 while in the Army, and as
a result, he had to undergo surgery. When evaluated by the
Department of Veterans Affairs in June 1996, DiCarlo was
noted as having mild osteoarthritis and a twenty-percent leg
disability. However, this evidence, by itself, is insufficient to
demonstrate that DiCarlo is substantially limited in a major
life activity. “[A]ny impairment that only moderately or
intermittently prevents an individual from performing major
life activities is not a substantial limitation under the Act.”
Mahon, 295 F.3d at 590-91. In Mahon, we held that although
the plaintiff suffered a back impairment that “cause[d] him
distress and limit[ed] him in performing some activities,” the
evidence he presented did not demonstrate that he was
severely restricted in any major life activities. Id. at 591. The
same is true here, for although DiCarlo clearly suffers from
his impairment, it hardly prohibits him from engaging in any
major life activities, and no evidence has been submitted
demonstrating otherwise.
Indeed, the record indicates that at the time he commenced
his Postal Service employment, DiCarlo was perfectly
capable of performing his job duties, and that he suffered
from no medical conditions at all. Although he indicated on
the Postal Service Authorization for Medical Report form that
he had had knee surgery, the ultimate outcome of the medical
evaluation that was completed before DiCarlo was hired
concluded that he had no medical limitations or restrictions,
and deemed him “medically qualified to perform the
18 DiCarlo v. Potter No. 02-4010
functions of the position.” J.A. at 85. In addition, DiCarlo
was given a document detailing the functional requirements
of the position for which he was applying, which included
daily activities of walking for two hours, standing for eight
hours, repeated bending for eight hours, and which stressed
that both legs were required for the position. He signed this
document, attesting that he had no “medical disorder or
physical impairment which could interfere in any way with
the full performance of duties of the position for which [he
was] applying[.]” J.A. at 83.
DiCarlo also signed another document attesting that he had
no medical condition for which he was presently being treated
(including the past year), and that to the best of his
knowledge, he did not have any medical conditions. All of
this demonstrates that, by DiCarlo’s own admission, he
represented to the Postal Service that he did not have any
physical or mental impairment that could affect his job
performance. Hence, because there is no evidence to support
the notion that DiCarlo’s knee injury prevents him from
engaging in any major life activities, he cannot be found
disabled under the Rehabilitation Act. Accordingly, we
affirm the district court’s grant of summary judgment on this
claim.
DiCarlo also asserts that the Postal Service violated the
Rehabilitation Act by failing to accommodate his disability.
In order for a plaintiff to prevail on an allegation of
handicap discrimination based on failure to
accommodate, he must first establish a prima facie case
by showing that: (1) he is an individual with a handicap
. . . ; (2) he is qualified for the position . . . ; (3) the
agency was aware of his disability; (4) an
accommodation was needed, i.e., a causal relationship
existed between the disability and the request for
accommodation; and (5) the agency failed to provide the
necessary accommodation. Once the plaintiff has
presented a prima facie case, the burden shifts to the

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No. 02-4010 DiCarlo v. Potter 19
employer to demonstrate that the employee cannot
reasonably be accommodated, because the
accommodation would impose an undue hardship on the
operation of its programs.
Gaines v. Runyon, 107 F.3d 1171, 1175-76 (6th Cir.
1997)(citations omitted).
DiCarlo argues that the Postal Service discriminated against
him on the basis of his disability by its failure to
accommodate. Specifically, he claims that when he informed
Bailey of his disability and the need to rest his leg, Bailey’s
indifference to his need and refusal to allow him to rest
amounted to discrimination on the basis of his disability.
Bailey asserted in his deposition that he was never told about
DiCarlo’s leg disability, and that DiCarlo never asked Bailey
for permission to rest his leg. Bailey did concede that
DiCarlo had told him about a military disability but stated
that DiCarlo never provided him with any specific details. Of
course, we view contested facts in the light most favorable to
DiCarlo.
Once again, DiCarlo’s claim must fail, as successful
establishment of a prima facie case of disability
discrimination based on a failure to accommodate hinges on
the plaintiff’s proving that he is disabled under the Act’s
definition. Because there is no evidence to support the claim
that DiCarlo’s knee injury prevents him from engaging in any
major life activities, he cannot be found disabled under the
Rehabilitation Act. Accordingly, we affirm the district
court’s grant of summary judgment on this claim.
F. Retaliation Claim
Title VII provides in pertinent part: “It shall be an unlawful
employment practice for an employer to discriminate against
any of his employees . . . because [the employee] has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
20 DiCarlo v. Potter No. 02-4010
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a).
Because DiCarlo presents no direct evidence of retaliation,
he must prove his claim through the use of circumstantial
evidence. “In order to find a prima facie case of retaliation
under Title VII a plaintiff must prove by a preponderance of
the evidence: 1) plaintiff engaged in activity protected by
Title VII; 2) plaintiff’s exercise of [such protected activity]
was known by the defendant; 3) that, thereafter, the defendant
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.” Equal
Employment Opportunity Comm’n v. Avery Dennison Corp.,
104 F.3d 858, 860 (6th Cir. 1997); see also Williams v.
Nashville Network, 132 F.3d 1123, 1131 (6th Cir. 1997).
“The burden of establishing a prima facie case in a retaliation
action is not onerous, but one easily met.” Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). “Once a prima
facie case is established, the burden of producing some non-
discriminatory reason falls upon the defendant.” Williams,
132 F.3d at 1131. “If the defendant demonstrates such, the
plaintiff then assumes the burden of showing that the reasons
given by the defendant were a pretext for retaliation.” Id.
DiCarlo asserts that he was terminated in retaliation for
filing an EEO complaint against Bailey. He argues that
Bailey was fully aware of DiCarlo’s having filed the
complaint prior to making the recommendation that DiCarlo
be terminated. However, the Postal Service asserts that
DiCarlo cannot make out a prima facie case of retaliation
because he has produced no evidence that Bailey knew of
DiCarlo’s protected EEO activity when Bailey recommended
DiCarlo’s termination, and because he presented no evidence
of a causal connection between any prior protected activity
and his termination. It is clear that DiCarlo engaged in
protected activity, and that he suffered an adverse
employment action when he was fired by the Postal Service.

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

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No. 02-4010 DiCarlo v. Potter 23
retaliation for his filing an EEO complaint. Because the
district court did not address the issues of whether a non-
discriminatory reason existed to justify DiCarlo’s termination,
and whether DiCarlo could prove that the given reason was a
pretext for retaliation, we need not engage in that analysis
here. Accordingly, we reverse the district court’s grant of
summary judgment on DiCarlo’s retaliation claim and remand
for further proceedings.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
district court’s grant of summary judgment on DiCarlo’s
claims of national origin discrimination, age discrimination,
and retaliation, and REMAND for further proceedings
consistent with this opinion. We AFFIRM the district court’s
grant of summary judgment on DiCarlo’s disability
discrimination claim.
24 DiCarlo v. Potter No. 02-4010
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
KENNEDY, Circuit Judge, concurring in part, and
dissenting in part. I agree with the majority that Plaintiff
failed to establish that he is disabled and accordingly agree
with the decision to affirm the district court’s grant of
summary judgment on the disability discrimination claim. I
also agree that the district court improperly granted summary
judgment on the claim of national origin discrimination.
However, for reasons explained below, I disagree with the
majority’s decision to reverse the district court’s grant of
summary judgment on claims of age discrimination and
retaliation.
A. Age Discrimination
With regard to direct evidence of intentional age
discrimination, the district court noted that the “only evidence
that Plaintiff has offered regarding his claim of age
discrimination is his own affidavit attesting to the fact that on
March 8, 2000, Bailey informed him that ‘he was no spring
chicken’ and that he would not be a supervisor at the facility
because of his age.” DiCarlo, No. 5:01CV1072, slip op. at 9-
10. The district court found, and I agree, that this evidence
was insufficient to withstand a motion for summary
judgment. Id. Plaintiff may not establish a prima facie case
of age discrimination based on vague, ambiguous, or isolated
remarks. Hein, 232 F.3d at 488 (citing Phelps v. Yale Sec.,
Inc., 986 F.2d 1020 (6th Cir. 1993) (finding no prima facie
case of age discrimination, even though the plaintiff’s
supervisor twice stated that the plaintiff was too old to
continue at her prior secretarial position, because these were
only isolated and ambiguous comments)). In the present case,
a single remark about Plaintiff’s no longer being a “spring
chicken” is exactly the type of an isolated remark that is
insufficient to establish age discrimination.

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No. 02-4010 DiCarlo v. Potter 25
1The majority cites to a question that was asked of Bailey at his
deposition: “So what you’re telling me is that from March the 11th, 2000,
to August the 17th, 2000, you only had a passing reference of an E.E.O.
complaint being filed against the Postal Service by Henry DiCarlo?”
Bailey answered “R ight.” J.A . at 207. I am unable to determine the
significance of the March 11th date from the excerpted deposition
Furthermore, to establish a prima facie case, Plaintiff must
establish “not only that plaintiff’s employer was predisposed
to discriminate on the basis of age, but also that the employer
acted on this predisposition.” Id. Had he not been promoted
to a supervisor position, Bailey’s alleged remark could have
evidenced age discrimination. However, in the present case,
Plaintiff was fired for substandard performance. Plaintiff
simply failed to present any direct evidence that his
evaluations were motivated by age bias.
With regard to circumstantial evidence of disparate
treatment, the district court noted that “‘to establish a prima
facie case of age discrimination..., a plaintiff must prove by
preponderance of the evidence that: (1) he was at least 40
years old at the time of the alleged discrimination; (2) he was
subjected to an adverse employment action; (3) he was
qualified for the position; and (4) he was replaced by a
younger person.’” DiCarlo, No. 5:01CV1072, slip op. at 10
(citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1328
(6th Cir. 1994)). The district court found that Plaintiff failed
to show either prong (3) or (4). Although I do not agree that
he had to establish prong (4) since apparently he was not
replaced by anybody at all, I agree that Plaintiff failed to
establish that he was qualified for the position.
B. Retaliation
The majority asserts that “[a]lthough Bailey testified that he
did not know that DiCarlo’s EEO complaint implicated
Bailey personally, Bailey admitted that he knew prior to
March 22 that DiCarlo had in fact filed an EEO complaint.”
This assertion is not supported by the record.1 We know that
26 DiCarlo v. Potter No. 02-4010
provided to this Court by the parties. I understand that the majority reads
this excha nge to mean that starting on March 11, 2000, Bailey knew of
the complaint. I, however, read it to mean that at some point during the
period starting on Marc h 11, 200 0, Bailey learned of the com plaint.
W hether the date that he learned of the co mplaint is before or after
March 22, 2 000 , is therefore unclear. T his read ing is consistent with
other portions of Bailey’s testimony that I describe below.
2This conclusion is buttressed by the fact that Plaintiff insisted that
the EEO comp laint and the mediation were kept private (with the lone
exception of Rick Stoltz). Contrary to majority’s assertion, Plaintiff has
failed to show any evidence that B ailey knew of any EEO complaint
between M arch 9 , 200 0 and March 2 2, 20 00.
Bailey learned of the complaint at a meeting with Mr.
Zernechel and Mr. Andreatti. J.A. at 206. Although we are
not provided with the specific date of that meeting, Bailey
stated that “[t]he only E.E.O. activity that I knew of was with
Mr. Stoltz. And that was after I had already done the
paperwork for the removal.” J.A. at 216. Having carefully
considered the chronology of the events, I cannot come to the
conclusion that Bailey’s actions were retaliatory. As of
March 9, 2000, Judson Zernechel, Rick Stoltz, and Gary
Andreatti knew of the filing of the complaint. On March 22,
Bailey prepared the proposal to remove Plaintiff from
employment. At some point between March 22 and
March 29, Bailey learned of the EEO complaint. J.A. at 217
(indicating that he wanted to wait until March 29th to allow
Plaintiff to deal with his EEO complaint). On March 29,
2000, the redress hearing ended in a “no agreement” letter.
On March 30, 2000, Bailey sent the letter, dated March 29,
2000, to Plaintiff indicating his termination. Based on this
chronology, I would find that Bailey recommended that
Plaintiff be terminated before he learned of the complaint.2
In my mind, his decision to issue the formal termination letter
after he learned of the complaint is legally irrelevant.

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