                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 10-1091
                                      __________

                                 HEATHER SEIBERT,

                                                     Appellant.

                                             v.

                              LUTRON ELECTRONICS
                              _______________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. No. 3-08-cv-05139)
                         District Judge: Hon. Lawrence F. Stengel
                             ________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                 on November 4, 2010

               Before: SCIRICA, RENDELL and ROTH, Circuit Judges


                          (Opinion filed: November 24, 2010)

                                     ___________

                                     OPINION
                                     ___________

ROTH, Circuit Judge:

      Heather Seibert appeals the order of the United States District Court for the

Eastern District of Pennsylvania granting Lutron Electronics’s Motion for Summary
Judgment. For the reasons that follow, we will affirm the judgment of the District Court.

I. Background and Procedural History

      Because we write primarily for the parties, we will only briefly revisit the facts

and procedural history here. Seibert began working for Lutron in 1996 as a part-time

summer employee and began working as a full-time employee in June of 1997 in

Lutron’s Technical Assistance Program. Although Seibert received promotions and

raises, she began to receive complaints about her work attendance as early as 1999.

      Seibert began suffering from symptoms of depression in 2005. She requested a

leave of absence in May for her depression, which was granted. After her return to work

on October 6, 2005, Seibert told her counselor that she was no longer experiencing

symptoms of depression. In January of the following year, Dr. Liaw, Seibert’s physician,

submitted a Family and Medical Leave Act (FMLA) notice to Lutron explaining that

Seibert continued to suffer depression, which would continue for an indefinite period of

time, that she was taking medication and receiving counseling, and that she might miss

work ―2 or 3 days once a month‖ due to her symptoms. Seibert missed 70 days of work

between January and July of 2006.

      In July of 2006, Seibert requested – and was granted – maternity leave. She

returned to work on October 6, 2006, without any restrictions. While on maternity leave,

Seibert was informed that she had exhausted her FMLA time and was ineligible for more

leave until she accumulated a certain number of work hours. Upon Seibert’s return,

Lutron reiterated the importance of her regular attendance in a document entitled

―Conditions of Heather Seibert’s Return to Work—October 2, 2006.‖ Consistent with

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Lutron’s ―cross-training‖ program, Seibert was rotated out of her position as a

documentation specialist and into a position as an inventory control specialist. She was

also asked to train a male employee in the documentation specialist position. That same

male employee was asked to train an incoming female documentation specialist when he

rotated out of the position.

       Seibert’s absences continued. Between January and March of 2007, Seibert

missed seven full days and three half days, seven of which she attributed to caring for her

children, not depression. In violation of Lutron’s absentee policy, Seibert marked these

absences as ―vacation days.‖ On March 23, 2007, a Human Resource specialist at Lutron

indicated to Seibert that her absences were causing problems for her department and had

prevented her from obtaining the necessary professional development. Seibert was

offered the choice between termination and resignation and chose the latter.

       Seibert filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (EEOC) on July 24, 2007, and another with the Pennsylvania Human

Relations Commission (PHRC) on July 26, 2007, alleging discrimination based on sex

and disability.

       Seibert filed a complaint in the Court of Common Pleas of Lehigh County. On

October 8, 2008, Lutron removed the case to the United States District Court for the

Eastern District of Pennsylvania and the case proceeded to discovery. At the close of

discovery, Lutron moved for summary judgment on all of Seibert’s claims. The District

Court granted Lutron’s motion. This appeal followed.



                                             3
II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367. We

have jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over a district court’s order granting summary

judgment and apply the same standard that the district court should have applied. Farrell

v Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is

appropriate ―if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.‖ Bouriez v. Carnegie Mellon Univ., 585 F.3d

765, 770 (3d Cir. 2009) (citing Fed. R. Civ. P. 56(c)).

III. Discussion

       A. Seibert Was Not Disabled Under the ADA

       The first issue is whether, drawing all inferences in favor of Seibert, the District

Court correctly determined that no reasonable factfinder could conclude from the record

that Seibert was disabled within the meaning of the Americans with Disabilities Act

(ADA). Shaner v. Synthes (USA), 204 F.3d 494, 500 (3d Cir. 2000). The ADA defines a

disability as (a) a physical or mental impairment that substantially limits one or more of

the major life activities of an individual; (b) a record of such impairment; or (c) being

regarded as having such an impairment. See 42 U.S.C. § 12102(1). Transitory,

temporary or impermanent impairments are not considered an impairment that

substantially limits a major life activity. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375,

380 (3d Cir. 2002); McDonald v. Com. of Pa., Dep’t. of Public Welfare, Polk Center, 62

                                              4
F.3d 92, 94-97 (3d Cir. 1995). Here, the record demonstrates that Seibert’s depression

was not permanent, but instead was induced by specific, non-recurring events and thus

was not a disability under the ADA.

       Even when the facts are viewed in the light most favorable to Seibert, a reasonable

jury would conclude that her depression was temporary and thus not a disability within

the meaning of the ADA. See, e.g., Ogborn v. United Food & Commercial Workers

Union, 305 F.3d 763, 767 (7th Cir. 2002); Soileau v. Guilford of Me., Inc., 105 F.3d 12,

16 (1st Cir. 1997). Therefore, it was proper for the District Court to grant Lutron’s

Motion for Summary Judgment as to Seibert’s disability discrimination claim.

       B. Seibert Failed to Exhaust Her Regarded-As Disabled Claim

       The second issue is whether the District Court properly granted summary

judgment on Seibert’s regarded-as claim because she failed to exhaust her administrative

remedies as required. A disability discrimination plaintiff must exhaust her

administrative remedies by filing a Charge of Discrimination with the EEOC before filing

a civil suit. Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). The facts alleged in

Seibert’s EEOC filing could not reasonably support a claim that Lutron discriminated

against her because it wrongly perceived her as disabled. The District Court properly

determined that Seibert failed to exhaust her administrative remedies as to this subset of

her disability discrimination claim and granted summary judgment on Seibert’s regarded-

as claim.

       C. Summary Judgment on Seibert’s Remaining Claims Was Proper

       The final issue is whether the District Court properly granted Lutron’s Motion for

                                             5
Summary Judgment because Seibert failed to point to evidence sufficient to establish the

existence of the elements of her gender discrimination claim.1 The District Court granted

Lutron’s Motion for Summary Judgment because Seibert provided no specific evidence

to support her claim that she suffered an adverse employment action when Lutron

assigned her to a new position and replaced her with a male employee. Seibert’s transfer

was consistent with Lutron’s ―cross-training‖ rotation of employees. Seibert’s transfer,

moreover, was not met with a reduction in compensation, did not alter her employment

rights, and did not affect her seniority level. Thus, she has not met her burden of

demonstrating that her transfer was adverse by providing evidence that the transfer

―denied [her] of any employment opportunity or altered any employment rights.‖

Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 415 (E.D. Pa. 2000).

       Finally, the District Court concluded, and we agree, that there is no record

evidence to support Seibert’s contention that Lutron’s explanation for her transfer was a

pretext for discrimination. Because Seibert has failed to demonstrate that her transfer

constituted an adverse employment action, Seibert cannot set forth a prima facie case of

gender discrimination.


       1
        Seibert’s PDA claim fares no better. Seibert alleged that she requested, but was
denied, accommodation in the form of a reclining chair. Because this allegation was not
asserted in Siebert’s EEOC charge, she has failed to preserve her claim and it must
therefore be dismissed. See 29 U.S.C.A. § 626(d). Seibert raised new claims in her
response to Lutron’s Motion for Summary Judgment that she was ―singled out and forced
to use her vacation time simply because she was having post natal problems with her
twins.‖ Even if these claims were timely raised, they lack merit. See Piantanida v.
Wyman Center, Inc., 116 F.3d 340, 342 (8th Cir. 1997) (holding that post-natal childcare
duties are not within the protections afforded by the PDA).

                                             6
IV. Conclusion

     For the reasons set forth above, we will affirm the judgment of the District Court.




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