                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2007

Whelan v. Teledyne Metal
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1460




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                                                               NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                    No. 06-1460



                              EDWARD J. WHELAN,
                                                        Appellant,
                                         v.

                 TELEDYNE METALWORKING PRODUCTS;
               ALLEGHENY TECHNOLOGIES INCORPORATED



           Appeal from the Final Order of the United States District Court
                      for the Western District of Pennsylvania
                                  (No. 01-cv-01316)
                       District Judge: William L. Standish



                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 5, 2007

    Before: SLOVITER and AMBRO, Circuit Judges, and BRODY,* District Judge

                               (Filed March 15, 2007)


                                      OPINION


BRODY, District Judge



                 *
                  Hon. Anita B. Brody, United States District Court for the
          Eastern District of Pennsylvania sitting by designation.
       Appellant Edward Whelan suffers from a degenerative eye disease that occludes

his central vision. Whelan sued his former employer, Teledyne Metalworking Products,

for violating the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.

The case went to trial, and the jury found for Teledyne. Challenging the sufficiency of

the evidence underlying the verdict, Whelan moved for judgment as a matter of law under

Fed. R. Civ. Proc. Rule 50(b), or in the alternative, for a new trial under to Fed. R. Civ.

Proc. Rule 59. The District Court denied Whelan’s motions, and we affirm.1

I.     Background2

       Whelan began working for Teledyne in 1965, first as a production worker and then

as a sales engineer for Teledyne’s cutting tools division. In 1993, Whelan first notified

Teledyne of his eye condition, and he requested a transfer to an outside sales job.

Teledyne identified such a position for Whelan in a separate unincorporated division of

Teledyne. After two years, Whelan advised Teledyne that he could no longer work in

outside sales because of his worsening vision. As an accommodation, Teledyne provided

Whelan with a computer and special software to permit Whelan to work as a marketing

coordinator out of his home in Pittsburgh.



                    1
                    The District Court had subject matter jurisdiction under 28
             U.S.C. § 1331. This Court has final order jurisdiction under 28
             U.S.C. § 1291.
                    2
                    The facts will be stated in the light most favorable to
             Teledyne, the verdict winner. Grazier v. City of Philadelphia, 328
             F.3d 120, 128 (3d Cir. 2003).

                                              2
       In 1998, Teledyne’s financial condition worsened. Seeking administrative

efficiencies, it consolidated operations in the company’s Grant, Alabama, facility.

Teledyne wanted to facilitate closer supervision of members of the marketing department,

to encourage better communication among department members, and to resolve issues

quickly and informally. For these reasons, Teledyne concluded that Whelan would have

to move to Grant, and thus it could no longer permit Whelan to continue working from

home in Pittsburgh.

       When Teledyne informed Whelan of the transfer to Grant, Whelan’s attorney

contacted Teledyne’s human resources department about Whelan’s situation. On at least

two occasions, Teledyne sent letters to Whelan’s attorney requesting information about

what accommodations Whelan might need to perform the essential functions of a

marketing coordinator. Whelan’s attorney responded with only one proposed

accommodation, namely, working at home from Pittsburgh, or in the alternative, a 12-

year severance package. It became clear to Teledyne’s management that Whelan was

unwilling to move to Grant, regardless of accommodations that might become available

there. Teledyne informed Whelan that it would terminate him if he did not transfer, but

Whelan never responded. In March 2000, Teledyne terminated him.

       Whelan brought claims against Teledyne alleging that it terminated him because of

his disability, that it failed to provide a reasonable accommodation and that it failed to

engage in the ADA’s “interactive process” in good faith.

       The case went to trial. On his reasonable accommodation claim, the jury was

                                              3
instructed without objection by either party to find for Whelan if Whelan proved: (1) he

proposed an accommodation; (2) the accommodation was reasonable, available, and

would have allowed him to perform the essential functions of the job; and (3) Teledyne

unreasonably refused to provide the accommodation. Appellee’s Br. at 27.3

       On his interactive process claim, the jury was instructed without objection by

either party to find for Whelan if he proved the following: (1) Teledyne knew of his

disability; (2) Whelan requested accommodations or assistance for his disability; (3)

Teledyne did not make a good faith effort to assist him in identifying accommodations;

and (4) Whelan could have been reasonably accommodated but for Teledyne’s lack of

good faith.

       The special interrogatories on the verdict sheet asked, in part, the following

questions:

               (1) Was Whelan a “qualified” individual under the ADA?4

               (2) Did Teledyne violate the ADA by failing to reasonably accommodate

               Whelan?

               (3) Did Teledyne violate the ADA by failing to engage in the interactive

               process with Whelan, in good faith?

                     3
                       The employee does not bear the burden to propose specific
              accommodations under the law of our Circuit. Taylor v.
              Phoenixville Sch. Dist., 184 F.3d 296 , 315 (3d Cir. 1999). Neither
              party ever challenged the jury instructions, and the accuracy of the
              instructions is not before us.
                     4
                       The parties agreed that Whelan was disabled under the
              ADA, and so the jury did not consider that question.

                                               4
              (4) Did Teledyne violate the ADA by terminating Whelan on account of his

              disability?

The Court instructed the jury not to reach the interactive process claim (question #3) in

the absence of finding Teledyne liable for failure to accommodate (question #2). Neither

party objected.

       The jury found Whelan “qualified” but found Teledyne not liable for

discriminatory discharge termination or failure to reasonably accommodate. In

accordance with the Court’s instructions, the jury did not respond to question three

regarding the interactive process claim.

II.    Discussion

       A.     Standard of Review

       Judgment as a matter of law may be granted only if “as a matter of law, the record

is critically deficient in that minimum quantity of evidence from which a jury might

reasonably afford relief.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249

(3d Cir. 2001) (citation omitted). Review of a district court’s denial of a motion for

judgment as a matter of law under Fed. R. Civ. Proc. 50(b) is plenary, id., and we take the

facts in the light most favorable to the non-moving party. Williamson v. Consol. Rail

Corp., 926 F.2d 1344, 1348 (3d Cir. 1991).

       A motion for a new trial may be granted when a party contends that the verdict is

against the weight of the evidence “only when the record shows that the jury’s verdict

resulted in a miscarriage of justice or where the verdict, on the record, cries out to be

                                              5
overturned or shocks our conscience.” Grazier v. City of Philadelphia, 328 F.3d 120, 128

(3d Cir. 2003) (citation omitted). “In reviewing the district court’s denial of [a] motion

for a new trial, we must view the evidence in the light most favorable to the non-moving

party.” Id. (quoting Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 1999) (citation

omitted)). We review the District Court’s denial of a new trial under the more deferential

abuse of discretion standard. Olefins Trading, Inc. v. Han Young Chem. Corp., 9 F.3d

282, 289 (3d Cir. 1993).

       B.     Judgment as a matter of law

       The District Court properly denied Whelan’s motion for judgment as a matter of

law because sufficient evidence supports the verdicts.5

              1.       Reasonable accommodation claim

       First looking at the charge Whelan failed to object to, and viewing the facts most

favorably to the verdict winner, Teledyne, a jury could find that Teledyne did not fail to

provide Whelan a reasonable accommodation prior to firing him. Teledyne

accommodated Whelan at every turn. In 1993, Teledyne placed Whelan in an outside

sales job when he could no longer work as a sales engineer, and then two years later it

created a home-based marketing position for Whelan when his vision deteriorated further.

Teledyne understood that Whelan suffered a degenerative eye disease, and it never

                   5
                     Whelan fails to identify a single evidentiary insufficiency
            other than as it relates to the interactive process. Assuming
            Whelan had articulated a separate ground for insufficiency of the
            reasonable accommodation and discriminatory discharge verdicts,
            we also find no insufficiency.

                                             6
doubted that Whelan was disabled. Teledyne did not require Whelan to undergo a

medical examination, but it sent at least two letters to Whelan’s prior counsel requesting

information about Whelan’s need for an accommodation at the Grant facility. Teledyne

took the position that it was ready to accommodate Whelan if he was willing to move

along with the rest of the marketing department. Whelan’s attorney repeatedly responded

with the same proposal: that Whelan be permitted to continue working from home in

Pittsburgh. Throughout the interactive process, Whelan insisted solely on this

accommodation.

       When an employee “insists on a single accommodation that is unreasonable as a

matter of law, then the employee will be at fault for the breakdown in the interactive

process.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 n.7 (3d Cir. 1999)

(discussing Gaul v. Lucent Techs., Inc., 134 F.3d 576 (3d Cir. 1998)). The record

supports a finding that working from home was unreasonable. Teledyne had consolidated

marketing operations in Grant in order to enhance supervision in the department and

realize administrative efficiencies. By the end of 1998, Whelan was the only non-outside

salesperson working outside of Grant. Whelan’s insistence on working from home would

deprive Teledyne of the efficiency gains and better quality work product it wanted from

consolidation.

       An employer is not liable if the employee fails to supply it information necessary

to devise an appropriate accommodation, or if the employee “does not answer the

employer’s request for more detailed proposals.” Id. at 317. The record reveals that

                                             7
Whelan failed to respond substantively to Teledyne’s requests for proposals. The record

also supports a finding that Whelan never expressed a willingness to transfer to Grant

until trial. Viewing the facts most favorably to Teledyne, the non-moving party, a jury

could reasonably find that Teledyne did not fail to reasonably accommodate Whelan.

              2.    Discriminatory discharge

       Similarly, Whelan has not shown the record lacks the “minimum quantity of

evidence” to justify the jury’s verdict on his discriminatory discharge claim. Trabal, 269

F.3d at 249 (citation omitted). A reasonable jury could readily find that Teledyne fired

Whelan because he refused to transfer, not because he was disabled. Teledyne tried to

engage Whelan in a dialogue about his needs, but his attorney refused to budge from the

one and only proposal of working from home in Pittsburgh. Moving to Grant was a

prerequisite to Whelan’s continuing employment; when he refused to move, he was

terminated.

       C.     Motion for a new trial

       The District Court did not abuse its discretion in denying Whelan’s motion for a

new trial. Whelan challenges the jury’s verdicts on all claims as against the weight of the

evidence, but he points only to the purported dearth of evidence that Teledyne

participated in the interactive process. Ample evidence supports a finding that Teledyne

communicated with Whelan in good faith, tried to accommodate Whelan, and fired

Whelan only once he refused to transfer to Grant. Therefore, the verdicts do not shock

the conscience or constitute a manifest injustice.

                                              8
       D.     Waiver

       Whelan’s other arguments lead him down a path to nowhere. Whelan contends

that Teledyne failed to participate in the interactive process in good faith, but he waived

this argument by failing to object to the special interrogatories on the verdict sheet. The

special interrogatories instructed the jury to skip the interactive process claim if it did not

find Teledyne liable for failure to accommodate. Finding no liability for failure to

accommodate, it never reached the interactive process claim. Whelan never objected to

the special interrogatories at the charging conference, at trial, during deliberations, in

post-trial motions, or even on appeal. Therefore, Whelan waived his right to any further

consideration of his interactive process claim. Inter Med. Supplies Ltd. v. EBI Med. Sys.,

Inc., 181 F.3d 446, 463 (3d Cir. 1999) (party waived objection to special interrogatories

on verdict sheet by failing to raise the issue before the jury was excused).

       E.     Interactive process

       Whelan basically errs in presuming that the failure to participate in the interactive

process is a separate claim apart from the failure to accommodate claim, and that the

interactive process requires an employer to request the employee to undergo a medical

exam. Participation in the interactive process is simply part of the employer’s duty to

determine if a reasonable accommodation exists. The ADA envisions the interactive

process as the means by which a disabled employee and his employer share information

to devise a potential accommodation. Taylor, 184 F.3d at 317. Once an employee

notifies his employer of his need for an accommodation for his disability, the employer

                                               9
must communicate with the employee and solicit whatever information is necessary to

devise a suitable accommodation. Id. The interactive process requires participation from

both parties because “each party holds information the other does not have or cannot

easily obtain.” Id. at 316. An employer may satisfy its obligation to participate in the

interactive process in any number of ways, e.g., by exchanging letters with the employee

to identify and describe vacant positions. See Taylor, 184 F.3d at 317 (discussing

Mengine v. Runyon, 114 F.3d 415, 421 (3d Cir. 1997)).

       Neither the ADA nor the implementing regulations mandate a particular method

for gathering information. The law simply requires that the employer solicits information

from the employee that will help the employer understand the employee’s limitations,

regardless of the form of this information-gathering process. Cf. Taylor, 184 F.3d at 315

(“[I]t makes sense to place the burden on the employer to request additional information

that the employer believes it needs.”) (emphasis added). Indeed, the hallmark of the

interactive process is that it be “flexible.” Williams v. Phila. Hous. Auth. Police Dept.,

380 F.3d 751, 771 (3d Cir. 2004).

       Even when an employer fails to participate in the interactive process in good faith,

it may escape liability by showing that no reasonable accommodation was possible.

Taylor, 184 F.3d at 319. Therefore, failure to participate in the interactive process is not a

ground for liability unless the employee has proven a failure to accommodate, namely,

that a reasonable accommodation existed and the employer unreasonably failed to provide

it. Ultimately, Whelan bases his entire appeal on the incorrect premise that Teledyne

                                             10
violated the ADA by failing to require a medical examination of Whelan, but he

misunderstands both the nature of the interactive process and its purpose in facilitating

the objectives of the ADA.

III.   Conclusion

       We conclude that sufficient evidence supports the verdicts, and that Whelan

waived his right to challenge the jury’s failure to consider his interactive process claim.

The District Court’s order denying Whelan’s motions for judgment as a matter of law and

for a new trial is AFFIRMED.6




                    6
                      Teledyne has also filed motions to strike part of the record,
             for leave to file a supplemental appendix and for reimbursement of
             costs entailed in producing a supplemental appendix. The motions
             will be granted. Whelan inserted into the appendix documents that
             were not part of the record before the District Court. It is well
             established that a reviewing court may not consider evidence that
             is not part of the record. United States v. Donsky, 925 F.2d 746,
             749 (3d Cir. 1987). Whelan also downloaded what appears to be
             a printout of the text of the ADA. Whelan maintains that the Third
             Circuit Local Appellate Rules required him to include this printout,
             but that is not so. The Third Circuit Local Appellate Rules require
             that the parties include in the record relevant statutes, rules,
             regulations or unpublished opinions if not readily available.
             Federal statutes, rules and regulations are readily available in print
             and through on-line publishers, and therefore Whelan’s inclusion
             of those materials was improper. Regarding Teledyne’s motion for
             costs, it appears that Whelan’s appendix was highly edited and
             incomplete, necessitating Teledyne’s supplementation. Deisler v.
             McCormack Aggregates, Co., 54 F.3d 1074, 1089 n. 22 (3d Cir.
             1995). Accordingly, Whelan will bear Teledyne’s costs in creating
             the supplemental appendix.

                                              11
