658 F. App'x 105
3rd Cir.2016Background
- Scott Michalesko, a Freeland Borough police officer and union representative, was terminated by the Borough Council for conduct unbecoming an officer.
- He appealed to binding arbitration; the arbitrator ordered reinstatement with back pay.
- Around the same time the Borough and the police union were negotiating a new contract.
- Michalesko sued under the ADA and PHRA (disability discrimination), the First Amendment (retaliation for union activity), and procedural due process (lack of pre-suspension hearing).
- District Court dismissed the disability claim at the motion-to-dismiss stage, allowed the others to proceed, then entered summary judgment for defendants on the remaining claims; Michalesko appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disability discrimination (ADA/PHRA) | Council perceived Michalesko had a mental impairment (acute stress reaction/suicide attempt) and fired him because of it | Alleged impairment was transitory and minor (≤6 months), so not a protected disability | Dismissal affirmed — perceived impairment was objectively transitory and minor, claim not plausible under ADA/PHRA |
| First Amendment retaliation | Michalesko was fired in retaliation for union activities (protected speech) | No sufficient evidence linking protected activity to termination; timing and pattern of antagonism lacking | Summary judgment affirmed — plaintiff failed to show causation (no unusually suggestive temporal proximity or pattern of antagonism) |
| Procedural due process | He was suspended without an adequate pre-suspension hearing, tied to events of Dec. 22 (alleged suicide attempt) | Council notified him of a Dec. 31 hearing in a Dec. 21 letter; suspension on Jan. 3 was tied to earlier notice and pending hearing — he declined to attend | Summary judgment affirmed — pre-suspension process was sufficient under Pennsylvania law (notice of hearing and suspension pending further proceedings) |
Key Cases Cited
- Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005) (ADA and PHRA interpreted similarly)
- Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245 (3d Cir. 2014) (an employer-perceived impairment that is objectively transitory and minor is not a disability)
- Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007) (elements for First Amendment retaliation; causation standards)
- Schmidt v. Creedon, 639 F.3d 587 (3d Cir. 2011) (public employee entitled to brief, informal pre-suspension/termination hearing under Pennsylvania law)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (standards of appellate review for dismissal and summary judgment)
- Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770 (3d Cir. 2007) (summary judgment review standards)