Rinehimer v. Cemcolift, Inc., 01-1428.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Sloviter
• Citation: 292 F.3d 375
• Parties: Gary L. RINEHIMER, Appellant v. CEMCOLIFT, INC.
• Docket Number: No. 01-1428.,01-1428.
• Decision Date: 30 May 2002

292 F.3d 375 Gary L. RINEHIMER, Appellant
v.
CEMCOLIFT, INC. No. 01-1428. United States Court of Appeals, Third Circuit. Argued December 17, 2001. Filed: May 30, 2002.

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Clyde W. Waite (Argued), Stief, Waite, Gross, Sagoskin & Gilman, Newtown, PA, for Appellant.

David A. Koss (Argued), Wynnewood, PA, for Appellee.

Before: SLOVITER and McKEE, Circuit Judges, and HAYDEN, District Judge^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Gary Rinehimer appeals various adverse rulings of the District Court in his case against his former employer, Cemcolift, Inc., brought under the Americans With Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. (2001), the Family Medical Leave Act (FMLA) of 1993, 29 U.S.C. § 2601 et seq. (2001), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons.Stat. § 951 et seq. (2001).

I. BACKGROUND

Rinehimer worked for Cemcolift, a manufacturer of residential elevators, starting in October 1990. In December 1994, he was promoted from the position of technician to the position of working foreman. As a foreman, he worked in the part of the company's facilities where elevators were manufactured. As the result of sawing and painting involved in the construction

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of elevators, there were paint fumes and sawdust in his work environment.

In late 1995, Rinehimer developed pneumonia. Starting December 30, 1995, he spent twenty-two days in the hospital and nine days in a rehabilitation facility. Rinehimer told Cemcolift that he was hospitalized with pneumonia and that he did not know when he would be able to return to work. In late January or early February of 1996, Cemcolift hired a new employee to perform the duties that Rinehimer had performed prior to his hospitalization. On February 15, 1996, Rinehimer told Kenneth Hermann, a manager at Cemcolift, that he wished to return to work. At that time, he gave Hermann a note from his doctor which said that Rinehimer could return to work part-time for two weeks and, thereafter, full-time, so long as precautions were taken to prevent him from being exposed to dust and fumes. Kenneth Hermann advised Rinehimer that there were no part-time jobs available and told him to return to work when he was ready to work full-time.

On March 4, 1996, Rinehimer submitted a letter to Kenneth Hermann from his doctor saying that Rinehimer could return to work full-time but that he should avoid unusual dust and fumes. Thereafter, for two weeks, Rinehimer was assigned to a filing job, and, subsequently, he was assigned to a job assembling a cylinder-grinding machine. While neither of these jobs were equivalent to the job of a working foreman, Rinehimer was paid the same salary as when he was a working foreman.

On April 1, 1996, Rinehimer was given a pulmonary function test to determine if he could wear a respirator, a type of mask that helps to filter out dust and other particles. On April 3, Rinehimer asked Walter Hermann, Jr., a vice-president at Cemcolift, if he could return to his job as a working foreman. Walter Hermann informed him that, because, in light of his pulmonary condition, he was not able to wear a respirator, he could not return to his previous work environment unless he either (1) received permission from his doctor to work around dust and fumes or (2) signed a statement saying that he would take "responsibility for [his] presence in the workplace provided by [Cemcolift]." App. at 131. Rinehimer did neither and was terminated. Thereafter, he filed this suit.

II. JURISDICTION

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331, in accordance with 29 U.S.C. § 2601 et seq. (FMLA) and 42 U.S.C. § 12101 et seq. (ADA) and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over claims brought under 43 Pa. Cons.Stat. § 955(a) (PHRA). This court has jurisdiction over this matter subject to 28 U.S.C. §§ 1291 and 1294(1).

III. DISCUSSION

In this appeal, Rinehimer argues that the District Court erred in (1) granting Cemcolift's motion for summary judgment on his ADA and PHRA claims, (2) admitting hearsay testimony into evidence at the jury trial on his FMLA claim regarding what Cemcolift's doctor allegedly told one of the company's managers about Rinehimer's condition, (3) denying Rinehimer's motion for judgment as a matter of law and his motion for a new trial in light of (a) the jury's erroneous finding that Rinehimer was given an equivalent position at Cemcolift after he returned to work, (b) the jury's finding that Rinehimer failed to prove he made an implied request for additional

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medical leave, and (c) a jury instruction that Cemcolift need not make a reasonable accommodation to Rinehimer under the FMLA.

A. Summary Judgment on ADA and PHRA Claims

On March 17, 1999, the District Court granted Cemcolift's motion for summary judgment concerning Rinehimer's ADA and PHRA claims under Federal Rule of Civil Procedure 56(c). Rinehimer v. Cemcolift, Inc., No. 98-562, slip op. at 3 (E.D.Pa. March 17, 1999). The District Court held that pneumonia was a temporary condition and hence not a disability under the ADA or the PHRA. Further, it found that Cemcolift did not know Rinehimer had asthma and, hence, his asthma could not be the basis of his ADA and PHRA claims. Finally, the District Court concluded that Rinehimer would not be able to show that he was suffering from an impairment within the meaning of the ADA, or that Cemcolift regarded him as impaired to such an extent that he was "completely foreclosed from working in his type of employment." Rinehimer, No. 98-562, slip op. at 2. For these reasons, Rinehimer could not state a claim under the regarded as disabled prong of the ADA. 42 U.S.C. § 12102(2)(C).

We review decisions of the district court granting summary judgment de novo. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir.1999).

The ADA prohibits "discriminat[ion] against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). Under the statute, an individual is defined as disabled if s/he has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment." 42 U.S.C. § 12102(2). However, a temporary, non-chronic impairment of short duration is not a disability covered by the ADA. McDonald v. Pa. Dep't of Public Welfare, Polk Ctr., 62 F.3d 92, 96 (3d Cir.1995).

Rinehimer argues that he satisfies clause (A) of the definition of disability because his ability to breathe, which is, according to federal regulations, a major life activity, 45 C.F.R. § 84.3(j)(2)(ii) (2001), is significantly impaired.¹ Since his pneumonia was a temporary impairment of his ability to breathe, and hence not a disability for purposes of the ADA, Rinehimer's clause (A) argument must relate to his asthma, which is a non-temporary condition. However, to establish discrimination because of a disability, an employer must know of the disability. Taylor, 184 F.3d at 313 (discussing 42 U.S.C. § 12112(b)(5)(A)). Cemcolift argues that it did not know Rinehimer had asthma, a claim that Rinehimer does not dispute. Rinehimer does appear to argue that Cemcolift knew that he had some sort of respiratory

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disorder prior to his termination in light of the letter from his doctor saying that he should avoid dust and fumes. However, Rinehimer's condition of being sensitive to dust and fumes, which is not temporary (in contrast to his pneumonia) and which Cemcolift arguably knew about (in contrast to his asthma), does not "substantially limit" a "major life activit[y]." 42 U.S.C. § 12102(2)(A). Thus, Rinehimer either fails to satisfy prong (A) of the three-pronged definition of disability, § 12102(2)(A), or he cannot establish discrimination under the ADA because Cemcolift did not know about his disability.

Rinehimer also argues that Cemcolift regarded him as having a disability and thus he is disabled under prong (C) of the three-pronged definition of disability. § 12102(2)(C). A person is "regarded as" having a disability if s/he:

(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation;

(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(3)...