John Bialko, Jr. v. the Quaker Oats Company; Svc Manufacturing, Inc.1

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2273
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JOHN BIALKO, JR.,
Appellant,
v.
THE QUAKER OATS COMPANY;
SVC MANUFACTURING, INC.1,
Appellees.
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 08-cv-364)
District Judge: Hon. Thomas I. Vanaskie
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Submitted Under Third Circuit LAR 34.1(a)
June 22, 2011
Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges.
(Filed June 28, 2011 )
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OPINION OF THE COURT
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1 Amended see Clerk’s Order dated 6/15/10.

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JORDAN, Circuit Judge.
Appellant John Bialko, Jr. (“Bialko”), appeals the order of the United States
District Court for the Middle District of Pennsylvania granting summary judgment for
The Quaker Oats Company (“Quaker”) and a related company, SVC Manufacturing, Inc.
(“SVC”), on Bialko’s claims of disability discrimination and retaliation under the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12300, and the
Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963, which arose out of
SVC’s denial of Bialko’s request to work only 40 hours per week upon his return from a
leave of absence based on a panic disorder. Bialko also appeals the District Court’s
denial of his motion to compel discovery. For substantially the reasons articulated by the
District Court, we will affirm.
I. Background2
SVC was a wholly-owned subsidiary of Stokely-Van Camp, Inc., which was a
wholly-owned subsidiary of Quaker Oats Company. SVC operated a manufacturing
facility in Mountain Top, Pennsylvania. All hourly production employees at the facility
were SVC employees governed by a collective-bargaining agreement (the “CBA”). The
CBA provided that all hourly production employees must work overtime, i.e., more than
40 hours in a week, when production needs dictated.
2 Because we write only for the parties, we assume their familiarity with the facts.
More detailed factual background is set forth in the District Court’s thorough opinion,
Bialko v. Quaker Oats, 2010 WL 1330285 (M.D. Pa., Mar. 30, 2010).

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Bialko began working as a forklift driver at the facility in 1999. In 2002, he was
diagnosed as having panic and generalized anxiety disorders. On July 29, 2005, Bialko
had to leave work by ambulance due to what he reported as an elevated heart rate,
lightheadedness, and an inability to stand. A few weeks later, Bialko requested leave
under the Family and Medical Leave Act of 1993, certifying to SVC that he occasionally
had severe anxiety and panic attacks that rendered him unable to work. SVC approved
Bialko’s request.
In July 2006, Bialko submitted to SVC a letter from his doctor indicating that he
could return to work, with the only restriction being that he could not work more than 40
hours per week. SVC refused at that time to allow Bialko to return to work with the 40-
hour workweek restriction.
In November 2006, Bialko submitted a complaint to the Pennsylvania Human
Relations Commission, alleging that the refusal to grant him a 40-hour workweek
constituted discrimination based on his medical conditions. In February 2008, Bialko
sued SVC and Quaker in the District Court, alleging violations of the ADA and PHRA.
In March 2010, in separate orders, the District Court both denied Bialko’s motion to
compel Appellees’ response to certain interrogatories and document production requests
and granted summary judgment for SVC and Quaker on all claims. This appeal followed.

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II. Discussion3
Summary judgment can properly be granted when “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact.”4 FED. R. CIV. P. 56(c)(2). Here, summary judgment for Quaker
was proper. Bialko’s paychecks and tax forms leave no genuine dispute that he was
employed by SVC, not Quaker. The evidence to which Bialko cites in arguing that there
is a genuine issue of material fact as to his employer – receiving a service plaque from
Quaker, having Quaker’s name appear on his uniform and on a sign outside the work
3 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s
grant of summary judgment and “apply the same standard as the District Court in
determining whether summary judgment was appropriate.” Dique v. N.J. State Police,
603 F.3d 181, 185 (3d Cir. 2010) (citations omitted). We review for abuse of discretion a
district court’s denial of a motion to compel discovery. Camiolo v. State Farm Fire &
Cas. Co., 334 F.3d 345, 354 (3d Cir. 2003).
4 A factual dispute is “genuine,” and thus warrants trial, “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party … . The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be [significantly probative] evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
252 (1986); Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (“[A]
non-moving party … cannot simply reassert factually unsupported allegations contained
in its pleadings.”). We assume that the non-moving party’s allegations are true and give
the non-moving party the benefit of the doubt when those allegations conflict with the
moving party’s claims. Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir.
1995). However, summary judgment must be entered against any party unable to present
sufficient evidence in support of an essential element of a claim because “a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).

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facility, and sending complaints to a Quaker email address – suggests only that Quaker
and SVC were related entities, not that Quaker employed Bialko. The evidence also fails
to show that Quaker directed SVC to deny Bialko’s request for accommodation or that
the two companies were otherwise so integrated as to be treated as one enterprise. The
unrebutted affidavit of the SVC human resources employee who handled Bialko’s
requests establishes that SVC was the sole decision-maker with respect to Bialko’s
requested accommodations. We will therefore affirm the District Court’s grant of
summary judgment for Quaker.
Summary judgment for SVC was also proper. To succeed on his ADA and PHRA
claims,5 Bialko must show, as a threshold matter, that he is “disabled” under the ADA.
Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). To be “disabled” under the ADA
requires more than simply a diagnosed impairment. Toyota Motor Mfg. v. Williams, 534
U.S. 184, 198 (2002), superseded on other grounds by Pub. L. No. 110-325 (2008).
Rather, a person must have “a physical or mental impairment that substantially limits one
or more major life activities”; “a record of such an impairment”; or been “regarded as
having such an impairment.” 42 U.S.C. § 12102(1).
5 The analytical framework used to evaluate a disability discrimination claim
under the PHRA is effectively indistinguishable from that under the ADA, thus allowing
courts to dispose of both ADA and PHRA claims on the same grounds. See Rinehimer v.
Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002) (noting that the PHRA, in all “relevant
respects,” was “basically the same as the ADA” and was interpreted “in accord” with the
ADA and related case law, thus meaning that “disposition of [plaintiff’s] ADA claim
applie[d] with equal force to his PHRA claim”).

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Bialko claims that his panic and anxiety disorders substantially limited him in the
major life activities of working, thinking, concentrating, and socializing, but neither the
law nor the record in this case supports his claim. Regarding working, Bialko’s claimed
inability to work overtime does not constitute a substantial limitation. See, e.g., Cotter v.
Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002) (stating that “inability to work
overtime is not a substantial limitation on the ability to work”); Kellogg v. Union Pac.
R.R. Co., 233 F.3d 1083, 1087-88 (8th Cir. 2000) (same); Tardie v. Rehab. Hosp. of R.I.,
168 F.3d 538, 542 (1st Cir. 1999) (noting that a 40-hour workweek restriction is not a
substantial limitation in working because it still leaves a person qualified for a broad
range of jobs). Regarding thinking and concentrating, none of the documentation of
Bialko’s medical condition indicates that his disorders were substantially impairing his
abilities to think or concentrate at the time he returned to work. That is fatal to Bialko’s
claim, since the ADA requires that a person be substantially impaired contemporaneous
with his or her seeking accommodation. See Sutton v. United Air Lines, Inc., 527 U.S.
471, 482 (1999) (concluding that the ADA, by its language, requires “that a person be
presently – not potentially or hypothetically – substantially limited in order to
demonstrate a disability”), superseded on other grounds by Pub. L. No. 110-325 (2008).
Last, regarding socializing, Bialko’s only evidence of impairment was his wife’s
testimony that he was disinclined to go out in public by himself or to socialize with
groups of 20 to 30 people. That testimony, however, hardly portrays Bialko’s condition
as atypical and thus fails to show impairment under the ADA. See 29 C.F.R.

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§1630.2(j)(1)(ii) (“An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population.”). Accordingly, Bialko failed to
show that he is substantially limited in a major life activity. He also failed to show that
SVC regarded him as having such a limitation, as the only evidence to which he cites –
the paying of disability benefits under a non-ADA standard – does not, as a matter of
logic, establish that SVC regarded Bialko as being substantially impaired in a major life
activity.6
As for Bialko’s retaliation claim, he failed to raise it at the administrative level and
thus did not properly preserve it before the District Court. See Atkinson v. LaFayette
Coll., 460 F.3d 447, 453 (3d Cir. 2006) (noting, in the context of a Title VII retaliation
claim, that “the parameters of the civil action in the district court are defined by” the
scope of the administrative charge and concluding that a retaliation claim that sounded in
Title IX was not fairly within the scope of the EEOC’s Title VII investigation and could
thus properly be disposed of in defendant’s favor). Summary judgment in SVC’s favor
on the retaliation claim, then, was appropriate.
Finally, with respect to Bialko’s motion to compel discovery, the record reveals
that Bialko’s counsel contravened Rule 37 of the Federal Rules of Civil Procedure by
filing the motion without first having attempted to confer in good faith with Appellees’
6 Bialko does not argue that there was a record of him being substantially
impaired.

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counsel regarding the pending discovery requests. Moreover, the District Court noted
that the requests were, among other things, either duplicative of information that had
already been disclosed or were patently overbroad. We cannot say that the District Court
abused its discretion in those rulings.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.

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