                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 15-2827
                                  ________________


                              SCOTT D. MICHALESKO,
                                          Appellant

                                           v.

                 FREELAND BOROUGH; ROBERT J. QUINN;
           JOHN BUDDA; JOHN POTOSKIE; BARBARA TULANOWSKI;
             RICK WENNER; JOSEPH PALKO, JR.; DANIEL BOBBY
                           ________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 3-13-cv-02634)
                    District Judge: Honorable Malachy E. Mannion
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 16, 2016

       Before: AMBRO, NYGAARD, and VAN ANTWERPEN, Circuit Judges


                           (Opinion filed: August 15, 2016)





  The Honorable Franklin S. Van Antwerpen participated in the decision in this case, but
died before the opinion could be filed. This opinion is filed by a quorum of the panel
pursuant to 28 U.S.C. § 46 and Third Circuit I.O.P. 12.1(b).
                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Plaintiff Scott Michalesko appeals the dismissal of his due process, First

Amendment, and disability discrimination claims against Freeland Borough and its

Council members. For the reasons that follow, we affirm.

                                             I.

       Michalesko was a police officer with the Freeland Borough Police Department

when the Borough’s Council terminated his employment for conduct unbecoming an

officer. Michalesko appealed the decision to binding arbitration, and the arbitrator

ordered reinstatement with back pay. During this period, the Department and the Council

were negotiating a new employment contract, and Michalesko was a representative for

the Department’s union.

       Michalesko sued the Freeland Borough and the Council members for violations of

his due process right to a pre-suspension hearing, for violations of his First Amendment

rights, and for disability discrimination in violation of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12112, and the Pennsylvania Human Relations Act (“PHRA”),

43 Pa. Const. Stat. § 955. On a motion to dismiss, the District Court dismissed the

disability claim and allowed the others to proceed. At summary judgment, the District



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Court entered judgment for the Defendants on the remaining claims. This appeal

followed.

                                             II.1

       Michalesko first argues that the District Court should have let his disability

discrimination claim proceed past the motion to dismiss. In his complaint, Michalesko

alleged that the Council members terminated his employment because they thought he

suffered from an “alleged mental infirmity” related to an “acute stress reaction with

anxiety distress” he experienced on December 22, 2011.2 We agree with the District

Court that these allegations were insufficient to state a plausible perceived disability

claim under the ADA and the PHRA, which are generally interpreted identically. See

Fasold v. Justice, 409 F.3d 178, 184 n.8 (3d Cir. 2005). Employees cannot bring such a

claim when the alleged impairment is “transitory and minor,” defined by the ADA as “an

impairment with an actual or expected duration of 6 months or less.” 42 U.S.C. §

12102(3)(B). “[T]he relevant inquiry is whether the impairment that the employer

perceived is an impairment that is objectively transitory and minor.” Budhun v. Reading

1
  The District Court exercised jurisdiction per 28 U.S.C. §§ 1331 and 1367, and we have
jurisdiction over this appeal under 28 U.S.C. § 1291. Our review of the District Court’s
decisions granting the motion to dismiss in part and granting summary judgment is
plenary, and we apply the same standards as the District Court. Gager v. Dell Fin. Servs.,
LLC, 727 F.3d 265, 268 (3d Cir. 2013); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d
770, 777 (3d Cir. 2007).
2
  Though not mentioned in the complaint, the summary judgment record clarified that
Michalesko may have tried to commit suicide on December 22, 2011 after receiving a
letter informing him of pending disciplinary charges. On that day, Michalesko’s daughter
found him in the basement of his home with a gun in his hand. His wife called a friend,
who called 911 and reported that Michalesko had put the gun to his head and had
threatened to commit suicide in front of his family.
                                              3
Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014). We conclude that any perceived

impairment related to Michalesko’s single acute stress reaction would have been

objectively transitory and minor, and the District Court thus did not err in dismissing the

disability claim.

       Michalesko next argues that the District Court improperly entered summary

judgment on his First Amendment retaliation claim, where he alleged that the Council

members fired him in retaliation for his union activities. We conclude that, assuming he

had engaged in activity protected by the First Amendment, Michalesko failed to present

sufficient evidence that the protected activity caused his termination. See Lauren W. ex

rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (outlining elements of

retaliation claim). To establish a causal connection, Michalesko could have produced

evidence of an “unusually suggestive” proximity in time “between the protected activity

and the alleged retaliatory action or “a pattern of antagonism coupled with [close]

timing.” Id. At summary judgment, he was unable to produce either type of evidence.

As the District Court explained, three to four months had elapsed between the protected

activity and the first alleged adverse action, and there was no evidence of a pattern of

hostility.

       Finally, Michalesko argues that his procedural due process claim should have

survived summary judgment. We disagree. “[U]nder Pennsylvania law, a policeman’s

property interest in his job is protected from either termination or suspension . . . and due

process therefore entitles him to a pre-suspension or pre-termination hearing—albeit a

brief and informal one.” Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011).

                                              4
Michalesko alleged that he was denied a pre-suspension hearing, but this allegation was

not borne out by the record at summary judgment. It is undisputed that the Council

notified Michalesko in a December 21, 2011 letter that a hearing was scheduled for

December 31 to address, among other things, pending disciplinary charges. It is further

undisputed that he decided not to attend the hearing and, on January 3, 2012, the Council

suspended him without pay. Michalesko responds that he was suspended because of the

alleged suicide attempt on December 22 and that he was never given a pre-suspension

hearing to address the events of that day. But the suspension letter made clear that the

suspension was “a result of the allegations” contained in the December 21 letter and

“pending further hearing” on the events of December 22. Accordingly, Michalesko

received sufficient pre-suspension process, and the District Court was right to enter

summary judgment on this claim.

                                    * *     *    *   *

       For the foregoing reasons, we affirm the District Court’s rulings granting the

motion to dismiss in part and granting the motion for summary judgment.




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