Edward J. Whelan v. Teledyne Metalworking Products

* Hon. Anita B. Brody, United States District Court for the
Eastern District of Pennsylvania sitting by designation.
NOT PRECEDENTIAL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

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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
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.

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3
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

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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
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?

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(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

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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
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

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7
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

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8
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.

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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

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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

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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.
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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

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