Daniel Callaghan v. HAVERFORD TOWNSHIP On Appeal from the United States District Court for the Eastern…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2868
DANIEL CALLAGHAN,
Appellant
v.
HAVERFORD TOWNSHIP
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-06-cv-05001)
District Judge: Hon. Legrome D. Davis
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Filed: September 21, 2009)
OPINION

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The District Court had jurisdiction over Callaghan’s ADA1
claim under 28 U.S.C. § 1331 and supplemental jurisdiction over
his state law claim under 28 U.S.C. § 1367. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review a grant of summary
judgment de novo.
2
SLOVITER, Circuit Judge.
Appellant Daniel Callaghan appeals the District Court’s grant of summary
judgment to appellee Haverford Township (“Township”) on his claims under the
Americans with Disabilities Act (ADA) and the Pennsylvania Whistleblower Law.1
I.
Callaghan began working for the Township in 1991, and by 1994 he was a “crew
leader” who oversaw five to fifteen employees maintaining open fields and areas along
roadways in the Township. In February 2005, at the direction of his physician, Callaghan
took a leave of absence from that job because he was suffering from work-related stress
and his diabetes was worsening. Callaghan claims that he experienced stress on the job
because the employees that he supervised were unfit for duty, and that his concerns were
ignored and disparaged by his supervisor, Michael English. Callaghan’s physician
cleared him to return to work in March 2005, but instructed him to avoid stress and
confrontation.
Upon his return to work, Callaghan was provided a choice to work as a painter or
to assist the (temporary) highway inspector, Robert Lawson. He chose to work with
Lawson. After about two or three weeks, he was reassigned to work alone filling

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potholes.
Callaghan claims he suffered additional stress when his supervisor, Charles
Falance, told a Township employee that Callaghan “won’t be filling potholes much
longer.” App. at 103. His physician allegedly again recommended that he take a leave of
absence. His physician also wrote a letter to the Township on August 9, 2005, which
stated that Callaghan was “being treated for anxiety and depression related to his work”
and that he “should be transferred to a less stressful situation” because the stress was
“making his diabetes poorly controlled.” Supp. App. at 250. Callaghan returned to work
in August 2005 and was reassigned again to a position in which he checked landscapers
for proper licensing.
Callaghan contends that shortly after his return to work one of the Township
commissioners told him to inform English that Lawson had previously been convicted of
driving under the influence (DUI) and should not be assigned to the highway inspector
position. Callaghan passed on this information to English. Around this same time in the
late summer or early fall of 2005, Callaghan also reported to his supervisors that
playground equipment in the Township was not properly inspected, that a Township
employee had operated a snow plow truck without a proper license (although the
offending employee had already been suspended on this ground), and that another
Township employee was using pesticides without a proper license.
In October 2005, Callaghan applied for a full-time, permanent position for

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highway inspector. He refused to attend the interview for the position because he
believed that the Township’s hiring procedure violated his union contract.
At the direction of the Township, Callaghan saw Dr. Marilyn Howarth for an
independent medical evaluation. Dr. Howarth reported to the Township that Callaghan
“has had a number of medical problems, which I believe have combined to make him
currently unable to perform his work duties.” App. at 46. Callaghan was then placed on
short-term disability. Dr. Howarth also recommended that Callaghan see a psychiatrist.
He did so in November 2005, and his psychiatrist concluded that he should not return to
work because of stress. Callaghan contends that in the summer of 2006, while he
remained on leave, he was informed that Falance was telling other Township employees
that Callaghan was “nuts” and “crazy.” Supp. App. at 66.
Although none of his treating physicians stated that he was unable to work at all,
several did recommend that Callaghan be transferred to another department within the
Township and/or receive medical treatment, including continuing mental health care. His
psychiatrist diagnosed Callaghan with chronic depression and anxiety, and never released
Callaghan for work or informed the Township of his limitations. Callaghan requested
that the Township provide his physicians with job descriptions for available positions, but
the Township failed do so.
Callaghan did not thereafter return to work for the Township, and after expiration
of his sick leave and leave under the Family Medical Leave Act, the Township terminated

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his employment on September 22, 2006. In February 2007, Callaghan obtained a job at
the Philadelphia airport.
Callaghan filed this action in November 2006, alleging that the Township
discriminated against him based on an actual or perceived disability in violation of the
ADA and retaliated against him for whistleblowing in violation of the Pennsylvania
Whistleblower Law. Following cross-motions for summary judgment, the District Court
granted summary judgment to the Township on both claims.
II.
Callaghan first challenges the District Court’s conclusion that he was not disabled
or perceived to be disabled for purposes of the ADA. The ADA prohibits an employer
from discriminating against a qualified individual on the basis of a disability. See 42
U.S.C. § 12112(a). The term disability is defined as “(A) a physical or mental impairment
that substantially limits one or more major life activities . . . ; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102.
Here, the only major life activity relevant is that of “working.” A person is
substantially limited in the major life activity of working if s/he is “significantly restricted
in the ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities. The
inability to perform a single, particular job does not constitute a substantial limitation in
the major life activity of working.” 29 C.F.R. § 1630.2(j)(3).

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Callaghan contends that he raised a genuine issue of material fact as to whether he
is disabled under the ADA because his treating physicians advised that he cannot tolerate
work-related stress due to his chronic anxiety and diabetes, and that this limitation would
restrict his ability to perform a broad range of jobs. However, none of his treating
physicians stated that Callaghan was restricted from working a broad range of jobs. Quite
the contrary; they stated that he could return to work for the Township provided that he
was transferred to another department outside the supervision of the management
personnel who had caused Callaghan’s stress and that he received continuing medical and
mental health care. Cf. Aldrup v. Caldera, 274 F.3d 282, 287 (5th Cir. 2001) (holding
that plaintiff was not disabled under ADA where he alleged that he suffered depression
caused by the stress of having to work with certain individuals because such allegations
“would merely tend to show that he was unable to perform any job at one specific
location, and is not evidence of [an] inability to perform a broad class of jobs”).
Further, Callaghan testified at his deposition that he could return to work in a
position other than his crew leader assignment or even as a crew leader if he was
promoted. He was also able to obtain new employment. Thus, we agree with the District
Court that Callaghan was not disabled.
Callaghan next contends that the District Court erred in concluding that the
Township did not regard him as disabled. An individual is regarded as disabled if either
“(1) despite having no impairment at all, the employer erroneously believes that the

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plaintiff has an impairment that substantially limits major life activities; or (2) the
plaintiff has a nonlimiting impairment that the employer mistakenly believes limits major
life activities.” Tice v. Centre Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001).
As evidence that the Township regarded him as disabled, Callaghan points to the
facts that the Township ordered him to undergo an independent medical exam and
“stonewalled” his requests that the Township provide descriptions of available jobs to his
physicians to allow them to evaluate his ability to fulfill those jobs. However, we have
held that independent medical examinations, such as the one to which Callaghan was
subjected, are permitted under the ADA and therefore “will never, in the absence of other
evidence, be sufficient to demonstrate that an employer ‘regarded’ the employee as
substantially limited in a major life activity.” Tice, 247 F.3d at 515.
As to Callaghan’s contention that the Township blocked his attempts to return to
work in 2006, the District Court had evidence before it that there was a mutual
breakdown in communications at this time. In any event, we fail to see how the
Township’s alleged failure to provide job descriptions to Callaghan’s physicians even
remotely suggests that it regarded him as disabled. Indeed, we agree with the District
Court that the Township’s response to the submissions of Callaghan’s physicians,
including its earlier efforts to place Callaghan in a less-stressful position, “indicate that
the Township believed Callaghan could perform jobs other than crew leader.” App. at 13.
Finally, Callaghan contends that the District Court erred in rejecting his state law

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whistleblower claim. Under the Pennsylvania Whistleblower Law, “[n]o employer may
discharge, threaten or otherwise discriminate or retaliate against an employee . . . because
the employee . . . makes a good faith report . . . to the employer . . . of wrongdoing or
waste.” 43 Pa. Stat. Ann. § 1423(a). To prevail on his claim, Callaghan “must come
forward with some evidence of a connection between the report of wrongdoing and the
alleged retaliatory acts.” O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001).
We agree with the District Court that Callaghan failed to do so here because a
significant period of time (at least eleven months) lapsed between the alleged acts of
whistleblowing and his termination. Cf. Lutz v. Springettsbury Twp., 667 A.2d 251, 254
(Pa. Commw. Ct. 1995) (rejecting whistleblower claim where employee was terminated
several months after report of wrongdoing and there was no other evidence to connect the
report and termination). Callaghan contends that the Township retaliated by altering his
terms of employment well-prior to his termination. In support, he points to several
factors, including his supervisors’ alleged failure to address his complaint that the
employees he supervised as crew leader were unfit for duty (which did not materially
affect the terms of Callaghan’s employment). See O’Rourke, 778 A.2d at 1197-99
(concluding that petty acts of intimidation and harassment by supervisors did not
constitute retaliation against employee’s terms of employment). He also points to the
Township’s order that he undergo an independent medical exam (which, as noted above,
it was legally entitled to require), and the Township’s alleged failure to provide job

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descriptions to his physicians to allow them to evaluate whether he could return to work
(which, again, was part of a mutual breakdown in communications). Callaghan simply
fails to present any evidence that these acts by the Township, or his termination, were
retaliation for his reports of alleged wrongdoing.
III.
For the above-stated reasons, we will affirm the District Court’s grant of summary
judgment to Haverford Township.
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