                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2005

Caracciolo v. Bell Atl PA Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4472




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                              NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                    No. 03-4472


          FRANCES M. CARACCIOLO

                              Appellant

                         v.

   BELL ATLANTIC-PENNSYLVANIA, INC.

                              Appellee



  On Appeal from the United States District Court
     for the Western District of Pennsylvania
              (D.C. No. 00-cv-00272J)
  District Judge: Honorable Terrence F. McVerry



    Submitted Under Third Circuit LAR 34.1(a)
             Date: February 18, 2005


Before: Sloviter, Ambro and Aldisert, Circuit Judges.

              (Filed: March 4, 2005 )



            OPINION OF THE COURT


                         1
ALDISERT, Circuit Judge.

       This is an appeal by Frances M. Caracciolo from an order of the United States

District Court for the Western District of Pennsylvania granting summary judgment in

favor of the defendant, Bell Atlantic Pennsylvania, Inc. The court held that Caracciolo

was not disabled under the Americans With Disabilities Act (“ADA”) 42 U.S.C. § 12101-

12213 (2000). The district court determined that Caracciolo failed to establish a prima

facie case of discrimination under the ADA because she failed to produce evidence that

she is disabled within the meaning of the ADA. We have jurisdiction pursuant to 28

U.S.C. § 1291.

       The court noted that although she undeniably suffers from depression, Caracciolo

has not proffered sufficient evidence to support a finding that her depression limits her in

one or more major life activities. Having concluded that she failed to present evidence

sufficient to raise a genuine issue of factual dispute regarding her disability, as defined by

the ADA, the district court granted the motion for summary judgment. We will affirm this

conclusion of the district court; therefore, we do not reach the alternative holding that

accommodations sought by Caracciolo were unreasonable under the ADA.

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.


                                              2
                                             II.

       To establish a prima facie case of discrimination under the ADA, a plaintiff must

show that: (i) she is a disabled person within the meaning of the ADA; (ii) she is a

qualified individual with a disability in that she can perform the essential functions of the

job, with or without reasonable accommodation; and (iii) she suffered an adverse

employment decision. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). Under the

ADA, a disability is “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). In defining

when an impaired person is substantially limited, the Supreme Court has explained that

the standard to be used is whether the impairment “prevents or severely restricts the

individual from doing activities that are of central importance to most people’s daily

lives.” Toyota Motor v. Williams, 534 U.S. 184, 198 (2002).

       Here, Caracciolo does not challenge most of the district court’s determinations

about her claimed limitations. She only asserts that she was limited in the ability to

perform a large class of jobs and that she was impaired in the major life activity of

interacting socially with others. Because these are the only inabilities raised on appeal,

we limit our discussion accordingly. See Rule 28(a)(5), Federal Rules of Appellate

Procedure; Third Circuit Local Appellate Rule 28.1(a); Kost v. Kozakiewicz, 1 F.3d 176,

182 (3d Cir. 1993).

                                             III.


                                              3
       Initially, we note Caracciolo’s argument that her abilities should not be considered

solely at the time she was requesting a return to work but rather should be considered for

a longer span of time. Specifically, she argues that we should consider her substantially

lower level of function during the one year period before her request to return to work and

the period immediately after the refusal of that request. Caracciolo’s attempt to read

Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), as a support for this

argument is unavailing.

       We ruled in Taylor that the Plaintiff must show that she was substantially limited

during the year-long “time span when she says that she was denied reasonable

accommodations” that she had requested. 184 F.3d at 308. We concluded that the Plaintiff

was disabled during this time span notwithstanding the fact that she was taking

medication to deal with her mental health issues because “even though lithium has

improved her condition and has reduced the risk of full-blown psychotic episodes, the

drug has not perfectly controlled her symptoms, leaving her still substantially limited in

the ability to think.” Id. It is evident, therefore, that the holding in Taylor depended on

the possibility that the Plaintiff was substantially limited in a major life activity during the

time period accommodations had been requested but not provided. See Marinelli v. City

of Erie, Pa., 216 F.3d 354, 362 (3d Cir. 2000) (drawing the same conclusion about the

holding in Taylor).

       A broader holding that took into account periods of time before the



                                               4
accommodation had been sought would not have been consistent with Sutton v. United

Airlines, 527 U.S. 471 (1999), where the Court noted that the term “substantially limits”

appears in the statute in “the present indicative verb form.” 527 U.S. at 482. The Court

concluded that the ADA requires “that a person be presently. . . substantially limited in

order to demonstrate disability.” Id. We therefore decide that the district court was correct

in considering only whether Caracciolo was disabled at the time she sought to return to

work with accommodations.

       When the correct legal standard is applied, it becomes evident that Caracciolo was

not substantially limited in her ability to work or her ability to interact socially for

purposes of the ADA.

                                              IV.

       In Marinelli, we were faced with a claim that the Plaintiff was substantially

limited in the ability to work because he was not able to operate large snow plows. We

explained that “in order for one to be properly characterized as substantially limited

under the ADA, an individual must be unable ‘to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having comparable

training, skills and abilities.’” Marinelli, 216 F.3d at 364 (quoting 29 C.F.R. §

1630.2(j)(3)(i)). We concluded that Marinelli’s claimed limitation was “far removed

from being unable to perform a ‘broad range of jobs’ as the EEOC regulations require.”

Id. at 365.


                                               5
       Similar to the situation in Marinelli, Caracciolo has not succeeded in alleging an

inability to perform a broad range of jobs. Specifically, she testified that she could not

perform her former maintenance administrator job or a telephone operator job, but “any

other job I could have handled.” These are two very specific jobs at a specific company.

By alleging only that she should not perform these particular jobs, Caracciolo falls well

short of our requirements for proving substantial limitation in the ability to work under

the ADA.

                                              V.

       As to Caracciolo’s second appealed limitation, that she is substantially limited in

the area of social interaction, we have almost no evidence in the record concerning this

claimed limitation. There is evidence that she was alienated from many of her friends for

a time but also that before she sought to return to work, she had restored some of those

friendships. We also have the representation in her brief that she cannot tolerate “angry,

irate or strongly negative communications.” Even assuming this assertion can be

supported by the record, it does not rise to the level of substantial limitation under the

ADA. We are not aware of any case that would support Caracciolo’s position on this

issue, and no case has been cited to support this position in her brief. The Court of

Appeals for the Tenth Circuit recently determined that to assert substantial limitation in

social interaction a plaintiff must “show that [her] relations with others were

characterized on a regular basis by severe problems, for example, consistently high levels



                                              6
of hostility, social withdrawal, or failure to communicate when necessary.” Doyal v.

Oklahoma Heart, Inc., 213 F.3d 492, 499 (10th Cir. 2000) (quoting EEOC Guidance on

Psychiatric Disabilities and the Americans with Disabilities Act, E-4 (1997)). There is no

evidence in this record that even approaches what would be required to meet this

standard. We have no problem, therefore, concluding that the evidence cannot support a

finding of substantial limitation in the area of social interaction under the ADA.

                                            VI.

       Having concluded that Caracciolo is not substantially limited in either of the two

major life activities which she chose to argue on appeal, we do not reach her contention

that Bell Atlantic failed to reasonably accommodate her. Buskirk v. Apollo Metals, 307

F.3d 160, 169 n. 2 (3d Cir. 1997) (assuming that the duty to accommodate arises only if

the employee is determined to be a disabled individual under the ADA, or possibly, as the

Court of Appeals for the First Circuit has held, if the employee has succeeded in bringing

an ADA claim based on an employer’s perception that the employee is disabled).

                                         *****

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary.

       The judgment of the district court will be affirmed.




                                             7
