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Sulima v. Tobyhanna Army Depot

April 12, 2010

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



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 06-cv-00415) District Judge: Honorable Richard P. Conaboy.

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued January 29, 2010

Before: RENDELL and JORDAN, Circuit Judges, and PRATTER, District Judge*fn1

OPINION OF THE COURT

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 ...


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