Sulima v. Tobyhanna Army Depot

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,
 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.

2
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

3
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

4
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

5
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.

6
 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

7
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,

1
The District Court first dismissed the claims against
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
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 Appeal stated 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.

9
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

10
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

11
disabled individuals. 42 U.S.C. § 12112(a) (2006).2 To
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,

2
The ADA was amended in 2008; the amendments took
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
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

13
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

3
This is unlike the scenario the Supreme Court
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
 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

measures, and does not address potentially negative side effects
of medical treatment. See 42 U.S.C. § 12102(4)(E) (2010).

15
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

16
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

17
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

18
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.

19
 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

20
 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.

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