Sulima v. Tobyhanna Army Depot

• Decision Date: 12 April 2010
• Docket Number: No. 08-4684.,08-4684.
• Citation: 602 F.3d 177
• Parties: Ed SULIMA, Appellant v. TOBYHANNA ARMY DEPOT; John McHugh, Secretary of the Army, U.S. Department of the Army; Defense Support Services, LLC, dba DS2.
• Court: U.S. Court of Appeals — Third Circuit

602 F.3d 177

Ed SULIMA, Appellant v. TOBYHANNA ARMY DEPOT; John McHugh, Secretary of the Army, U.S. Department of the Army; Defense Support Services, LLC, dba DS2.

No. 08-4684.

United States Court of Appeals, Third Circuit.

Argued January 29, 2010.

Filed: April 12, 2010.

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Cynthia L. Pollick, Esq., Argued, The Employment Law Firm, Pittston, PA, for Appellant.

Kate L. Mershimer, Esq., Argued, Office of the United States Attorney, Harrisburg, PA, Jennifer Walsh, Esq., Ufberg & Associates, Scranton, PA, for Appellants, Tobyhanna Army Depot, John McHugh, U.S. Dept. Army, Secretary of the Army.

Stephanie E. Lewis, Esq., Argued, Andreas N. Satterfield, Jr., Esq., Martin J. Saunders, Esq., Jackson Lewis, Greenville, SC, for Appellant, Defense Support Services, LLC, dba DS2.

Before: RENDELL and JORDAN, Circuit Judges, and PRATTER, District Judge.^*

OPINION OF THE COURT

RENDELL, Circuit Judge.

Ed Sulima appeals from the District Court's Orders granting summary judgment with respect to his claims under the Americans with Disabilities Act ("ADA"), in favor of Defense Support Services, LLC (known as "DS2"), and dismissing his claims under the Rehabilitation Act ("RA"), which were brought against several federal government defendants, including Tobyhanna Army Depot, the Secretary of the Army, and the United States Department of the Army (collectively, "Tobyhanna"). Throughout most of 2005, Sulima was employed by DS2 and working at the Tobyhanna Army Depot pursuant to a contract between Tobyhanna and DS2. After Sulima took part in a voluntary layoff in December of 2005, he brought suit against DS2 and Tobyhanna under the ADA and RA. Specifically, Sulima claims that he was forced into the layoff because he was disabled, was regarded as disabled by his employer, or was retaliated against for requesting an accommodation for a disability that he believed in good faith existed.

The basis for Sulima's claims lies in the side effects of medications he was taking to treat his obesity and sleep apnea. Thus, we must consider whether the meaning of "disability" under the ADA can encompass an impairment resulting solely from the side effects of medication, whether or not the underlying health problems are disabling. The Court of Appeals for the Seventh Circuit has considered this issue in detail, and held that these side effects may, under certain conditions, constitute a disabling impairment under the ADA. See Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1051-52 (7th Cir.1997). The District Court adopted the reasoning of the Seventh Circuit, but found that the side effects experienced by Sulima did not constitute a disabling impairment. For substantially the same reasons as the District Court, we will adopt the Christian standard. We agree with the District Court that Sulima has not satisfied his burden under this standard, and we will therefore affirm the orders of the District Court.

I. Background

According to the opinion of his treating physician, Dr. Guy Michael Fasciana, Sulima is morbidly obese. Sulima also suffers from sleep apnea, likely related to his obesity. The sleep apnea causes him to occasionally stop breathing for short periods while sleeping, at times requiring him to use a machine to help him breathe while he sleeps. After Dr. Fasciana noticed signs of sleep apnea in August 2005, he referred Sulima to Dr. John Della Rosa, who confirmed the sleep apnea diagnosis and spoke with Sulima about possible surgical options to reduce its effects. Dr. Della Rosa recommended that Sulima lose weight in order to reduce the severity of the sleep apnea.

Sulima had been taking weight-loss medications for several years. It is unclear exactly which medications Sulima was taking in late 2005, the time period at issue in this appeal. However, Sulima had been taking weight-loss medications for several years, including Xenical, a medication that is now sold over the counter as "Alli." Xenical assists in weight loss by binding some of the fat in a person's diet, preventing it from being absorbed into the body. Because the fat is not absorbed, it leaves the body as an oily discharge in the stool. After Sulima consulted with Dr. Della Rosa, he began taking Lactulose, a laxative sometimes sold under the brand name "Kristalose." Sulima received this medication either as samples from Dr. Fasciana or as a prescription. In addition, Dr. Fasciana also prescribed diethylpropion, known by its brand name, "Tenuate," as an appetite suppressant.

In January 2005, while employed by DS2, Sulima began working at Tobyhanna Army Depot in the position of Electronics Technician II, a position created through a United States Air Force contract with DS2 to provide workers to Tobyhanna. The medication that Sulima began taking in the latter months of 2005 caused him to need to use the restroom frequently.

On October 28, 2005, the DS2 team leader, Joe Johnson, observed Sulima leaving his work station several times, remaining in the restroom for a total of approximately two hours during his shift. When Johnson spoke with Sulima about the frequent breaks, Sulima told him that they were due to a medication he was taking. Johnson told Sulima to get a note from a doctor, and the next day Sulima brought in a note from Dr. Fasciana, dated October 29, which said: "Due to gastrointestinal disorder Ed Sulima may need to use the restrooms more than the usual." App. 476. After Sulima brought in the note, his supervisors prepared a sheet of two written questions regarding his medical condition. In response to the questions, Sulima wrote that he was not sure how long he would need the medication, but that he was "going back to my doctor to see if he can give me different medication." App. 477.

After Sulima continued to take frequent long breaks, a Tobyhanna supervisor asked DS2 to transfer Sulima to a different work area. When made aware of the transfer request, Sulima spoke with Dr. Fasciana and brought DS2 a note, dated December 9, which indicated that Sulima's medication had been changed and he was now able to work without needing frequent long breaks. DS2 nonetheless decided to transfer Sulima, but there was no other work area within Tobyhanna available at that time. Sulima accepted a layoff on December 12, 2005, in advance of a general round of layoffs scheduled to take effect in January 2006. Although when he was laid off Sulima was told that he was eligible to be rehired, he was not contacted again by DS2, and he did not inquire about similar advertised positions that later became available. He is currently employed elsewhere.

Sulima filed a complaint in the District Court, alleging several violations of the ADA and RA. The complaint named both DS2 and Tobyhanna as defendants: DS2 as Sulima's primary employer and Tobyhanna as a "joint employer." The complaint alleged that Sulima had been transferred and subsequently laid off because he was disabled, or, in the alternative, because his employers regarded him as disabled. Sulima also claimed that he was transferred by DS2 in retaliation for having requested extra time to use the restroom during work hours, an accommodation he claims he was entitled to request because he believed, in good faith, that he had a disability within the meaning of the ADA.

Tobyhanna moved to dismiss or for summary judgment on the grounds that it was not Sulima's "joint employer," and therefore not a responsible party under the ADA. The District Court agreed, granting the motion in its Order of April 11, 2008. DS2 subsequently moved for summary judgment on the merits. The District Court granted this motion in its Order of October 30, 2008, finding that Sulima had "not produced sufficient evidence" to succeed in the litigation. App. 40. That order also denied Sulima's motion to reinstate Tobyhanna as a defendant, ruling that even if the District Court were to find that Tobyhanna jointly employed Sulima, Sulima's claims would fail on their merits for the same reasons that Sulima's claims against DS2 failed. Sulima appeals.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over these ADA and RA claims pursuant to 28 U.S.C. § 1331. We have jurisdiction of Sulima's appeal from the District Court's final order of October 30, 2008, granting summary judgment to DS2, under 28 U.S.C. § 1291. We also conclude that we have jurisdiction over Sulima's appeal with regard to his claims against Tobyhanna, although Tobyhanna argues that Sulima's failure to specifically refer to the Order of April 11, 2008 (finding for Tobyhanna on the "joint employer" issue) in Sulima's Notice of Appeal is fatal to his appeal of that Order.

We have jurisdiction over "final" decisions of the District Court. 28 U.S.C. § 1291. When an officer or agency of the United States is a party to a lawsuit, a Notice of Appeal must be filed "within 60 days after the order or judgment appealed from is entered." Fed. R.App. P. 4(a)(1)(B). For an action involving claims against multiple parties, a judgment that resolves less than all of the claims against all of the parties is not a "final" judgment unless the court "expressly determines that there is no just reason for delay." Fed.R.Civ.P. 54(b). This includes a situation in which a court grants summary judgment as to one of several defendants. See, e.g., Buzzard v. Roadrunner Trucking, 966 F.2d 777, 779 (3d Cir.1992). The District Court here did not make such a certification, and therefore the District Court's judgment did not become "final" until its order of October 30, 2008.¹ Sulima filed his Notice of Appeal on November 29, 2008, within the sixty-day limitation.

Sulima's failure to fully specify his intent to appeal the District Court's Order of April 2008 in the Notice of Appeal does not preclude our exercise of jurisdiction. A Notice of Appeal must specify the "judgment, order, or part thereof being appealed." Fed. R.App. P. 3(c)(1)(...