2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2010

Ed Sulima v. Tobyhanna Army Depot

Precedential or Non-Precedential: Precedential

Docket No. 08-4684

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Ed Sulima v. Tobyhanna Army Depot" (2010). 2010 Decisions. Paper 1418.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1418
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4684

_____________

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

 

Argued January 29, 2010

Before: RENDELL and JORDAN, Circuit Judges, 
2

and PRATTER, District Judge*

(Filed: April 12, 2010)

_________

Cynthia L. Pollick, Esq. [ARGUED]

The Employment Law Firm

363 Laurel Street

Pittston, PA 18640

 Counsel for Appellant

Kate L. Mershimer, Esq. [ARGUED]

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Jennifer Walsh, Esq.

Ufberg & Associates

310 Penn Avenue

Scranton, PA 18503

 Counsel for Appellants 

 Tobyhanna Army Depot, John McHugh, U.S. Dept. Army,

 Secretary of the Army

__________________

 * Honorable Gene E.K. Pratter, Judge of the United States

District Court for the Eastern District of Pennsylvania,

sitting by designation. 
3

Stephanie E. Lewis, Esq. [ARGUED]

Andreas N. Satterfield, Jr., Esq.

Martin J. Saunders, Esq.

Jackson Lewis

55 Beattie Place, Suite 800

Greenville, SC 29601

 Counsel for Appellant

 Defense Support Services, LLC, dba DS2

 

 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
4

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
5

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
6

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. 
7

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
 The District Court first dismissed the claims against 1

Tobyhanna in its order of April 11, 2008. Sulima moved to

reinstate Tobyhanna; the District Court denied this motion in its

order of October 30, 2008, which also granted summary

judgment in favor of DS2. 

8

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. Sulima filed his Notice of Appeal on November 29, 1
9

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)(B). Here, Sulima’s original

Notice of Appealstated that he was appealing from the “October

30, 2008[,] Order and Decision issued by Judge Conaboy

denying Sulima’s right to a jury trial on claims under the

Americans with Disabilities Act.” App. 3. This Notice listed

both DS2 and Tobyhanna as parties to the appeal. Later, on

August 18, 2009, Sulima filed an Amended Notice of Appeal,

which stated that he was appealing from the “Orders and

Decisions of April 11, 2008, [and] October 30, 2008[,] issued by

Judge Conaboy denying Sulima’s right to a jury trial on claims

under the Americans with Disabilities Act along with the

Judgment entered on October 30, 2008.” App. 1. 

If an appeal is taken only from a specified judgment, the

court does not acquire jurisdiction to review other judgments not

specified or “fairly inferred” by the Notice. Elfman Motors, Inc.

v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977).

However, “[o]ur jurisprudence liberally construes notices of

appeal.” Drinkwater v. Union Carbide Corp., 904 F.2d 853,

858 (3d Cir. 1990). In this vein, we have held that we can

exercise jurisdiction over orders not specified in the Notice of

Appeal if: “(1) there is a connection between the specified and

unspecified orders; (2) the intention to appeal the unspecified

order is apparent; and (3) the opposing party is not prejudiced

and has a full opportunity to brief the issues.” Polonski v.
10

Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir. 1998)

(citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989)).

These conditions are satisfied here. 

While Sulima’s original notice of appeal only directly

referenced the October 30 Order, it also named Tobyhanna as a

party to the appeal. As noted above, the April 11 Order did not

resolve all of the claims against all of the parties, and therefore

did not become final until the issuance of the October 30 Order.

As we have previously held, because “only a final judgment or

order is appealable, the appeal from a final judgment draws in

question all prior non-final orders and rulings.” Elfman Motors,

567 F.2d at 1253. Therefore, because the April 11 Order did not

become final until the issuance of the October 30 Order, and

because the October 30 Order denied Sulima’s motion to

reinstate Tobyhanna as a defendant, the orders are sufficiently

connected. See Drinkwater, 904 F.2d at 858 (finding a

connection when, even though a previous order had dismissed

one claim, the order specified in the Notice of Appeal discussed

in detail the merits of the dismissed claim).

Sulima’s Notice of Appeal also demonstrated his intent

to appeal the April 11 Order. We have previously held that an

appeal from the denial of a motion for reconsideration

demonstrates an intent to appeal the underlying dismissal.

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217,

225 n.6 (3d Cir. 2007) (citing Matute v. Procoast Nav. Ltd., 928

F.2d 627, 629-30 (3d Cir. 1991)). In the same way, Sulima’s

specification of the October 30 Order in his Notice of Appeal,

in which the District Court denied Sulima’s motion to reinstate

Tobyhanna as a defendant, demonstrates an intent to appeal the
11

underlying dismissal of Sulima’s claims against Tobyhanna.

Finally, Tobyhanna has not alleged any form of

prejudice, and has fully briefed the disputed issues, so the third

prong of the test is satisfied. MCI Telecomm. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1093 (3d Cir. 1995). We

therefore have jurisdiction to review the District Court’s grant

of summary judgment in favor of DS2 and its dismissal of the

claims against Tobyhanna. 

When reviewing a district court’s summary judgment

decision in an ADA case, we exercise plenary review, applying

the same standard as the district court. Turner v. Hershey

Chocolate U.S.A., 440 F.3d 604, 611 (3d Cir. 2006). Summary

judgment is appropriate if, viewing the record in the light most

favorable to the non-moving party, there are no genuine issues

of material fact and the moving party is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c). We review de novo a

District Court’s decision granting a motion to dismiss pursuant

to Rule 12(b)(6). Ballentine v. United States, 486 F.3d 806, 808

(3d Cir.2007). 

III. Disability Discrimination Under the ADA

Sulima first contends that his transfer and subsequent

layoff constituted unlawful employment discrimination. The

ADA prohibits covered employers from discriminating against
The ADA was amended in 2008; the amendments took 2

effect on January 1, 2009. ADA Amendments Act of 2008, Pub.

L. No. 110-325, 122 Stat. 3553, 3553-59. The parties here have

not argued that these amendments have retroactive effect. The

citations in this opinion are to the statute and regulations as they

existed during the events in question. 

12

disabled individuals. 42 U.S.C. § 12112(a) (2006). To 2

establish a prima facie case of discrimination, a plaintiff must

show (1) that he is disabled within the meaning of the ADA, (2)

that he is otherwise qualified for the job, with or without

reasonable accommodations, and (3) that he was subjected to an

adverse employment decision as a result of discrimination.

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999). An individual is disabled if he has “a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual.” 42 U.S.C. § 12102(2) (2006). 

Equal Employment Opportunity Commission (“EEOC”)

regulations define an impairment as “[a]ny physiological

disorder, or condition . . . affecting one or more of the following

body systems: neurological, musculoskeletal, special sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito-urinary, hemic and lymphatic,

skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1) (2006). “Major

life activities” include “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.” Id. § 1630.2(i). A major life

activity is substantially limited if an individual is unable to

perform it or is “[s]ignificantly restricted as to the condition,
13

manner or duration” under which it is performed, as compared

to an average person in the general population. Id.

§ 1630.2(j)(1). In determining whether a substantial limitation

exists, the regulations require the consideration of three factors:

1. the “nature and severity of the impairment”;

2. the “duration or expected duration of the

impairment”;

3. the actual or expected “permanent or long term

impact” resulting from the impairment. 

Id. § 1630.2(j)(2). A nonpermanent or temporary condition

cannot be a substantial impairment under the ADA. Williams v.

Phila. Hous. Auth., 380 F.3d 751, 765 (3d Cir. 2004). 

For purposes of summary judgment, the District Court

focused on Sulima’s gastrointestinal difficulties as the nature of

his alleged disability, finding that Sulima had not presented any

evidence to show that either his obesity or sleep apnea directly

substantially limited a major life activity. Next, the District

Court noted that Sulima did not argue that the gastrointestinal

problems were caused by anything other than the medications he

was taking. Therefore, the District Court found that Sulima was

claiming to be substantially impaired solely due to side effects

from his prescribed medications. We agree with the District

Court’s conclusion.

Because Sulima is claiming an impairment based on the

side effects from medication, the factual situation presented here
 This is unlike the scenario the Supreme Court 3

considered in Sutton v. United States, where it held that the

effects of medication and other mitigating measures used by the

plaintiff must be taken into account when deciding whether an

underlying impairment, towards which the mitigating measures

are directed, actually substantially limits a major life activity.

527 U.S. 471, 482 (1999). 

One of the express purposes of the ADA Amendments

Act of 2008 was to overturn the Supreme Court’s decision in

Sutton. § 2(b)(3), 122 Stat. at 3554. The statute now contains

a provision declaring that whether an impairment is substantially

limiting must be judged “without regard to the ameliorative

effects of mitigating measures.” 42 U.S.C. § 12102(4)(E)

(2010). This statutory provision does not affect the claim here,

where the plaintiff is claiming a disability only as a result of the

side effects of medical treatment for a health problem which is

not itself claimed to be disabling. 

One reason the Supreme Court gave for requiring

consideration of mitigating measures was the potentially severe

side effects resulting from the treatment of an underlying

condition. Sutton, 527 U.S. at 484. These concerns were not

addressed by Congress in the ADA Amendments Act of 2008.

See § 2(b)(3), 122 Stat. at 3553. The resulting statutory section

only prohibits the consideration of ameliorative mitigatory

14

is somewhat different from a typical ADA claim. Sulima has

health problems that prompt the use of medication, but claims

that his impairment under the ADA is based solely on a disorder

or condition resulting from the medication, not from the

underlying health problem that the medication is meant to treat.3
measures, and does not address potentially negative side effects

of medical treatment. See 42 U.S.C. § 12102(4)(E) (2010). 

15

A few of our sister Courts of Appeals have considered

this issue. In Christian, the principal case relied upon by the

District Court, the plaintiff claimed that she was fired because

of her anticipated medical treatment for hypercholesterolemia

(i.e. high blood cholesterol). 117 F.3d at 1051-52. The Seventh

Circuit Court of Appeals, although ultimately not ruling in favor

of the plaintiff, concluded that “the treatment of a condition that

is not itself disabling” may be a disability within the meaning of

the ADA. Id. at 1052. In a similar case from the Eighth Circuit

Court of Appeals, a plaintiff claimed a disability under the ADA

based both on her hypertension and on side effects resulting

from the interaction between prescribed hypertension and pain

medications. Hill v. Kan. City Area Transp. Auth., 181 F.3d

891, 894 (8th Cir. 1999). Although also not ruling in favor of

the plaintiff, the Eighth Circuit treated these two conditions

separately, acknowledging that each could constitute an

impairment under the ADA. See id. (referring to the side

effects from the medications as an “alleged physical

impairment”). Likewise, although finding that the plaintiff was

not disabled within the meaning of the ADA, the Eleventh

Circuit Court of Appeals did not reject the notion that the

plaintiff could claim an impairment resulting from the side

effects of chemotherapy treatments in response to cancer which

was not itself disabling. Gordon v. E.L. Hamm & Assocs., 100

F.3d 907, 912 (11th Cir. 1996). 

To evaluate Sulima’s impairment for purposes of
16

assessing whether he was disabled within the meaning of the

ADA, the District Court adopted the reasoning of the Seventh

Circuit in Christian in recognizing as disabling the effects of a

treatment for a condition that is not itself disabling, as long as

the plaintiff can show that (1) the treatment is required “in the

prudent judgment of the medical profession,” (2) the treatment

is not just an “attractive option,” and (3) that the treatment is not

required solely in anticipation of an impairment resulting from

the plaintiff’s voluntary choices. Christian, 117 F.3d at 1052.

Applying the Christian standard, the District Court held that

Sulima was not disabled within the meaning of the ADA. The

District Court first assumed for the sake of argument that Sulima

had adequately shown that the medication’s side effects, i.e.

Sulima’s gastrointestinal difficulties, actually constituted a

substantial limitation on a major life activity. Even with this

assumption, the District Court still found that Sulima was not

disabled, because the medications were not “medically

necessary.” App. 23. In reaching this conclusion, the District

Court pointed out that Dr. Fasciana discontinued Sulima’s

medication in December after he was made aware of the

problematic side effects. In the absence of any evidence to the

contrary, the District Court found that the medication was thus

not required “in the prudent judgment of the medical

profession,” as required by the Christian test. Christian, 117

F.3d at 1052. The District Court further held that the two-month

period between the side effects beginning and Dr. Fasciana

discontinuing the medications — assuming they could be

deemed medically necessary during that time — was not a long

enough duration to qualify for “disability” under the ADA.

We agree with the Seventh Circuit that side effects from
17

medical treatment may themselves constitute an impairment

under the ADA. However, as the Seventh Circuit noted, this

category of disability claims is subject to limitation. For a

treatment’s side effects to constitute an impairment under the

ADA, it is not enough to show just that the potentially disabling

medication or course of treatment was prescribed or

recommended by a licensed medical professional. Instead,

following the Christian test, the medication or course of

treatment must be required in the “prudent judgment of the

medical profession,” and there must not be an available

alternative that is equally efficacious that lacks similarly

disabling side effects. Christian, 117 F.3d at 1052. The concept

of “disability” connotes an involuntary condition, and if one can

alter or remove the “impairment” through an equally efficacious

course of treatment, it should not be considered “disabling.” 

We agree with the District Court’s holding that Sulima’s

gastrointestinal problems did not meet this standard, because he

did not demonstrate that his prescribed medication was required

in the prudent judgment of the medical profession. After being

confronted by his employer regarding his frequent long breaks,

Sulima contacted his doctor, Dr. Fasciana, who recommended

that Sulima stop taking the medication that was causing the side

effects. In his deposition, Dr. Fasciana testified that if a patient

reported problems with the medications that Sulima was taking,

“[w]e would have stopped” prescribing those medications. App.

964. There is nothing in the record to contradict this

assessment. Additionally, there is no evidence in the record to

show that the specific medications causing the side effects were,

in the judgment of the medical profession, the only efficacious

medications for Sulima. There is also no evidence in the record
18

to demonstrate that all other equally efficacious courses of

treatment would have caused similarly disabling side effects.

See Christian, 117 F.3d at 1052 (stating that “the disabling

treatment [must] be truly necessary, and not merely an attractive

option”); see also Hill, 181 F.3d at 894 (finding no evidence in

the record that the plaintiff’s “physical condition compelled her

to take a combination of medications [that caused the side

effects]” (emphasis in original)). Therefore, because Sulima did

not demonstrate that the medications that were causing his

problems were medically necessary, their side effects cannot be

considered as impairments within the meaning of the ADA. 

IV. Whether Sulima Was “Regarded As” Disabled

Sulima next argues that, even if he is found not to have

a disability within the meaning of the ADA, the statute also

protects from discrimination individuals who are “regarded as

having such an impairment” by their employer. 42 U.S.C. §

12102(2)(C) (2006). To prevail on a claim of this kind, a

plaintiff must show that the employer either “mistakenly

believed that [the employee has] a physical impairment that

substantially limits one or more major life activities” or

“mistakenly believed that an actual non-limiting impairment

substantially limits one or more major life activities.” Wilson v.

MVM, Inc., 475 F.3d 166, 179 (3d Cir. 2007) (quoting Sutton,

527 U.S. at 489); see also 29 C.F.R. § 1630.2(l)(1),(3) (2006)

(defining “regarded as having such an impairment”).

We agree with the District Court that Sulima’s employers

did not regard him as disabled within the meaning of the ADA.

In particular, Sulima did not allege any facts to support a
19

conclusion that his employers thought that Sulima’s

gastrointestinal problems were going to last for an extended

period of time, as required under the ADA. See Williams, 380

F.3d at 765. Sulima clearly specified to his employers that his

problems were a result of a side effect from medication he was

taking, and indicated that he could get his medication changed.

Unlike medications for a permanent heart condition, the

medication here was designed to enable him to lose weight,

which, if successful, would alleviate the need for the

medication. In addition, the December 9 note from Dr.

Fasciana, given to his employers, indicated that Sulima’s

medication had in fact been changed and that he would no

longer need frequent long breaks. This does not support the

proposition that his employers regarded Sulima as suffering

from a non-temporary impairment, and there are no facts in the

record that would create an issue in this regard. 

V. Whether Sulima Had a Good Faith Belief that He Was

Disabled

Sulima’s complaint also included a retaliation claim

under the ADA. Even if Sulima were found not to be disabled

or regarded as disabled under the ADA, he argues that, in the

alternative, he was transferred and subsequently laid off in

retaliation for having requested an accommodation from his

employer. For purposes of this claim, Sulima alleges that the

October 9 note from Dr. Fasciana, which asserted that Sulima

would have to use the restroom more than usual, constitutes a

request for an accommodation, and that his transfer and layoff

were in retaliation for this request.
20

Prohibited discrimination under the ADA includes

retaliation against an employee for requesting an

accommodation. E.g., Shellenberger v. Summit Bancorp, 318

F.3d 183, 191 (3d Cir. 2003). In Williams, we noted that unlike

a general ADA discrimination claim, an ADA retaliation claim

does not require that the plaintiff demonstrate a disability within

the meaning of the ADA, but only that the plaintiff has a

“reasonable, good faith belief that [he] was entitled to request

the reasonable accommodation [he] requested.” 380 F.3d at 759

n.2. 

The District Court found that when Sulima requested the

accommodation he did not have a good faith belief that he was

disabled within the meaning of the ADA. We agree that Sulima

lacked a good faith belief that he was disabled. There is no

evidence indicating that Sulima believed his condition to be

anything but temporary. As the District Court noted, Sulima

knew that his gastrointestinal problems were caused by his

weight-loss medication, that his medication had been changed

in the past, and that the medication could be changed again if

necessary. This is apparent from the fact that when Sulima was

confronted by his employer, he went directly to Dr. Fasciana to

seek a medication change in order to eliminate the side effects.

Based on these facts, we agree with the District Court’s

conclusion that Sulima could not have had a good faith belief

that these side effects were anything but temporary, and

therefore he could not have had a good faith belief that he was

disabled within the meaning of the ADA. 

VI. Claims Against Tobyhanna
21

We agree with the District Court that there is no material

difference between Sulima’s claims against DS2 and those

against Tobyhanna. Because we find that the District Court

correctly held that Sulima’s claims were without merit, there is

no reason to reach the question of whether Tobyhanna was

Sulima’s joint employer. 

VII. Conclusion

For the reasons set forth above, we will AFFIRM the

Orders of the District Court.