                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-3221
                                    _____________

                                   JOSEPH LYNCH,

                                                 Appellant

                                           v.

 MATTHEWS INTERNATIONAL, Successor in interest to other IDL WORLDWIDE,
      INC.; TIM CIOCCIO, an individual; JOHN MAZOK, an individual;
                    STEVE MILLER, an individual
                            _____________


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2:08-cv-01717)
                     Magistrate Judge: Hon. Amy Reynolds Hay

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 11, 2011

            Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                  (Filed: June 3, 2011)

                                    _____________

                                      OPINION
                                    _____________




 The parties consented to trying the case before a magistrate judge pursuant to 28 U.S.C.
§ 636(c)(1).
CHAGARES, Circuit Judge.

       Joseph Lynch appeals the District Court’s grant of summary judgment in favor of

Matthews International. For the reasons set forth below, we will affirm.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the facts. Prior to beginning work for Matthews International, Lynch suffered an injury

to his left foot that required monthly nerve block injections. So long as he received these

injections, Lynch was not limited in any major life activity. When he began his

employment at Matthews International, Lynch worked the second shift, allowing him to

continue to receive these injections without any accommodation from his employer.

Following a transfer to a facility that did not have a second shift, Lynch was permitted to

miss work to receive the injections, but was required to use sick or vacation time to do so.

Lynch was terminated in 2007, allegedly because of a reduction in force, although Lynch

maintains that it was due to his regular need for time off to receive the nerve block

injections.

       Lynch filed suit in the Western District of Pennsylvania, alleging that the

defendants had violated Title VII of the Civil Rights Act of 1964, the Americans with

Disabilities Act (“ADA”), the Family and Medical Leave Act, and the Pennsylvania

Human Relations Act. The District Court granted summary judgment on all counts

following the defendants’ motion. On appeal, Lynch challenges only the grant of

summary judgment as to his ADA claim against Matthews International, and specifically

the District Court’s conclusion that he was not disabled within the meaning of the ADA.

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                                             II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331 and

this Court has jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the

grant of summary judgment. Pichler v. UNITE, 542 F.3d 380, 385 (3d Cir. 2008).

                                             III.

       In order to establish a prima facie case of disability discrimination under the ADA,

an individual must show that “(1) he is a disabled person within the meaning of the ADA;

(2) he is otherwise qualified to perform the essential functions of the job; and (3) he has

suffered an otherwise adverse employment decision as a result of discrimination.” Gaul

v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998). To establish a qualifying disability,

the plaintiff must show either that he has “a physical or mental impairment that

substantially limits one or more major life activities,” or that he has a record of such an

impairment or is regarded by his employer as having such an impairment. 42 U.S.C. §

12102(2) (2008).

       Lynch’s argument is brief and straightforward: discrimination against an

individual because of the measures taken to mitigate a physical impairment must

constitute disability discrimination under the ADA. Lynch recognizes that this case is

controlled by the Supreme Court’s decision in Sutton v. United Airlines Inc., 527 U.S.

471 (1999).1 In that case, the Supreme Court acknowledged that for purposes of

establishing whether an individual has an impairment that substantially limits a major

1
  We note that with the passage of the ADA Amendments Act of 2008, Sutton would not
be controlling if the conduct occurred today. Sutton did, however, provide the relevant
law at the time that the complained-of conduct occurred in this case.
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life activity, courts must consider mitigating measures taken by the individual to correct

the impairment; if, with mitigating measures, the impairment no longer substantially

affects a major life activity, the individual would not qualify as disabled under the ADA.

Id. at 482-83. Applying that precedent to the present case, the District Court concluded

that Lynch could not bring suit under the ADA, because his mitigating measures were

successful enough that he was not substantially limited in a major life activity. Although

citing no cases, Lynch states simply that “it is fundamentally unfair to permit an

employer to rely on these mitigating measures to deny that an employee has a disability,

while terminating the employee for seeking those same mitigating measures.” Lynch’s

Br. at 5.

       While we agree with Lynch that such a system is, perhaps, less than ideal, it is the

statutory framework that was in place at the time that Lynch suffered his adverse

employment action. Our first step in analyzing a claim under the ADA is to determine

whether the individual qualifies as disabled under the ADA. See Taylor v. Phoenixville

Sch. Dist., 184 F.3d 296, 305-06 (3d Cir. 1999). In the present case, Lynch does not

contest that he was taking mitigating measures that resulted in his not being substantially

limited in a major life activity. Further, he does not assert that he was discriminated

against because he was regarded as having a disability or because of a record of having a

disability; instead, he argues that he was discriminated against because he took mitigating

measures to prevent himself from having a disability. Unfortunately, at the time that any

such conduct occurred, it was not prohibited by the ADA. Because Lynch was not



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disabled within the meaning of the ADA, he could not bring suit under that Act, and the

District Court acted properly in granting summary judgment.

                                          IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




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