Gary L. Rinehimer v. Cemcolift, Inc.

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. S 12101 et seq.

(2001), the Family Medical Leave Act (FMLA) of 1993, 29

U.S.C. S 2601 et seq. (2001), and the Pennsylvania Human

Relations Act (PHRA), 43 Pa. Cons. Stat. S 951 et seq.

(2001).

I.

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 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.

* * *

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 medical leave, and (c) a

jury instruction that Cemcolift need not make a reasonable

accommodation to Rinehimer under the FMLA.

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.

S 12102(2)(C).

* * *

The ADA prohibits "discriminat[ion] against a qualified

individual with a disability because of the disability of such

individual." 42 U.S.C. S 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. S 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. S 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. S 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 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. S 12102(2)(A). Thus, Rinehimer either fails to satisfy

prong (A) of the three-pronged definition of disability,

S 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. S 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) Has [no such impairment] but is treated by a

covered entity as having a substantially limiting

impairment.

Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir.

1999) (quoting 29 C.F.R. S 1630.2(l)) (omissions and

brackets in Pathmark). In Pathmark, we explained that

when an employer "misinterpret[s] information about an

employee’s limitations to conclude that the employee is

incapable of performing a wide range of jobs," that

employee is "regarded as" disabled under the ADA. Id. at

190. We also stated that "[i]f for no reason whatsoever an

employer regards a person as disabled -- if, for example,

because of a blunder in reading medical records, it imputes

to him a heart condition he never had -- and takes adverse

action, it has violated the statute." Taylor , 177 F.3d at 191

(quoting Johnson v. Am. Chamber of Commerce Publishers,

Inc., 108 F.3d 818, 819 (7th Cir. 1997)).

In the present case, the District Court correctly noted

that to be covered under the "regarded as" prong of the

ADA the employer must "regard[ ] the employee to be

suffering from an impairment within the meaning of the

statutes, not just that the employer believed the employee

to be somehow disabled." Rinehimer, No. 98-562, slip op. at

2 (quoting Francis v. City of Meriden, 129 F.3d 281, 286 (2d

Cir. 1997)). As we discussed above, pneumonia is a

temporary condition and is not protected by the ADA. If

Cemcolift regarded Rinehimer as having pneumonia, that

would not be enough to bring him under the protections of

the ADA. On the other hand, if Cemcolift regarded

Rinehimer as having asthma, that might be enough to bring

him under the protections of the ADA. However, Cemcolift

argues that it did not know that Rinehimer had asthma and

Rinehimer admitted that he did not tell anyone at Cemcolift

that he had asthma. There was thus no basis for a court to

find that Cemcolift regarded him as suffering from asthma.

In Taylor, we held that there were material issues of fact

about whether a supermarket employee who hurt his ankle

and needed to take regular rests and avoid long periods of

standing was "regarded as" disabled by his employer. 177

F.3d at 183. We reached this conclusion because we held

that "an employer’s perception that an employee cannot

perform a wide range of jobs suffices to make out a

‘regarded as’ claim." Id. at 188. We further held that an
employer could be held liable if it misinterpreted

information about an employee’s condition or limitations

and, on this basis, concluded that the employee was

incapable of performing a range of jobs. Id. at 190.

* * *

At trial on the FMLA claim, which survived summary

judgment, the District Court, over Rinehimer’s objection,

permitted Walter Hermann, Jr. to testify that Cemcolift was

told by the company’s physician who examined Rinehimer
that Rinehimer could not wear a respirator. Rinehimer

argues that this statement should have been excluded

because the statement is hearsay, "a statement, other than

one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter

asserted." Fed. R. Evid. 801(c). In particular, Rinehimer

argues that the statement is double hearsay and should be

excluded under Federal Rule of Evidence 805. The District

Court did not admit Hermann’s statement about what the

doctor told Cemcolift to prove the truth of what the doctor

allegedly said. Rather, the court specifically issued a

limiting instruction in accordance with Federal Rule of

Evidence 105 requiring the jury only to "accept[the

statement] as an explanation for what [Hermann said]."

App. at 472.

* * *

To succeed on his FMLA claim, Rinehimer had to

establish not only that he was not returned to an
equivalent position but also that he was able to perform the

essential functions of that position. See 29 C.F.R.

S 825.214(b) (2001); Reynolds v. Phillips & Temro Indus.,

Inc., 195 F.3d 411, 414 (8th Cir. 1999); Tardie v.

Rehabilitation Hosp., 168 F.3d 538, 543 (1st Cir. 1999). The

District Court found that the jury had adequate evidence

before it to decide that, after he returned to work,

Rinehimer could not perform the essential functions of a

working foreman. In light of this, the District Court decided

that the jury’s erroneous determination that Rinehimer was

returned to an equivalent position did not affect the jury’s

determination that Cemcolift did not violate the FMLA. The

District Court did not err when it denied Rinehimer’s

motion. For similar reasons, the District Court did not

abuse its discretion in denying Rinehimer’s motion for a

new trial.

* * *

Additionally, before the jury deliberated, the District

Court instructed the jury that the FMLA did not require

Cemcolift to make reasonable accommodations to

Rinehimer upon his return from medical leave. Id. at *20-

21. Rinehimer argues that this instruction confused the

issues because he was not asking for an accommodation in

the ADA sense of the term. The District Court stated, and

Rinehimer does not dispute, that the FMLA does not

require "an employer to provide a reasonable

accommodation to an employee to facilitate his return to

the same or equivalent position at the conclusion of his

medical leave." Id. at 21. See 29 C.F.R. S 825.214(b); Tardie,

168 F.3d at 544. The District Court’s jury instruction was

designed to clarify for the jury the requirements of the

FMLA and it did so accurately.

* * *

Click the case caption above for the full text of the Court's opinion.

For the reasons given herein, the judgment of the District

Court will be affirmed.

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