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January 6, 1990


The opinion of the court was delivered by: POLLAK


 Plaintiff filed suit alleging that he was constructively discharged from his position as a member of the Montgomery County Narcotics Enforcement Team ("NET") in violation of his rights under the United States and Pennsylvania Constitutions and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. Defendants Montgomery County, Thomas E. Waters, and Michael D. Marino have filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Plaintiff's claims arise out of the following allegations. Plaintiff was initially employed as a police officer with the Cheltenham police force from September of 1983 until September of 1984. While he served on the Cheltenham force, he also worked part-time with the Montgomery NET. In 1984, however, he began to work with the NET full time, and continued to work for Montgomery County until he resigned in 1987.

 As an undercover narcotics officer, plaintiff had to assume different identities, and, at times, he was required to take drugs so that his identity as a police officer would not be revealed to those who sold narcotics to him as part of his undercover operations. During the four years plaintiff worked as an undercover officer, his use of drugs, and, in particular, his use of cocaine, increased. Plaintiff attributes his increased usage to stressful conditions at home and at work. By April of 1987, plaintiff was free-basing up to an eighth of an ounce of cocaine per day. At that time, he entered an in-patient drug rehabilitation program at Eugenia Hospital and remained in the hospital for about a month. Plaintiff also claims that he entered into the hospital because of stress and depression.

 Plaintiff claims that upon his return his co-workers "shunned" him. He states that Lieutenant Woodward, a man with whom he did not have a close relationship, passed him by at the station and merely said hello to him. Plaintiff states that Lieutenant Woodward did not ask him how he felt, nor did he inquire into his absence. Plaintiff also states that, unlike the way other employees who had been absent from work because of illnesses were treated, no one made contact with him at the hospital and no one presented him with a card or warm greeting upon his return.

 In addition, plaintiff alleges that, on one occasion, when he went out on a raid with members of the narcotics team, he was not informed of the circumstances of the raid. Plaintiff admits, however, that he did not ask any of his co-workers what was happening, despite the fact that he waited for four hours prior to the raid as a member of a stake out. Plaintiff alleges that his ignorance about the circumstances surrounding the raid increased the risk to his life and caused him emotional distress. Finally, plaintiff claims that he was given a lighter workload upon his return from the hospital. It is these instances that, plaintiff claims, caused him to resign.

 Prior to his resignation, plaintiff had missed several days of work. The Chief of Detectives, Oscar Vance, called the plaintiff at home to find what the problem was, and plaintiff told him he would resign the following Monday. Plaintiff did so on June 8, 1987. On the next day, his wife met with Oscar Vance. Plaintiff alleges that his wife told Mr. Vance that her husband was not thinking clearly when he resigned and asked Mr. Vance to withdraw the resignation. Mr. Vance refused to do so.

 Plaintiff next alleges that he resumed his use of drugs and once again entered into a rehabilitation program. After he returned from the program, he requested defendant Thomas Waters, then District Attorney of Montgomery county, to reinstate him. His request was denied. In 1988, plaintiff made another request for employment as a detective with Montgomery county, and Michael Marino, who had succeeded Thomas Waters as District Attorney, refused to rehire the plaintiff.

 Based on the above factual allegations, plaintiff claims that the defendants' employment practices violated the equal protection and due process clauses of the fourteenth amendment and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.1

 In Count I plaintiff alleges that the defendants violated the equal protection clause of the fourteenth amendment by denying him employment for reasons that are not rationally related to a legitimate governmental interest. Specifically, plaintiff contends that the defendants manifested a supportive concern for undercover narcotics officers hospitalized for physical illnesses that was not exhibited to those hospitalized for drug use or mental stress. Plaintiff states that he was not "shunned" or given lighter duties when he returned from a previous work absence caused by back problems. By contrast, plaintiff claims that when he returned from his hospitalization for drug rehabilitation/stress, he was relieved of his undercover duties.

 Defendants contend that, to the extent that plaintiff's claim rests on his hospitalization for drug use, it is foreclosed by the Third Circuit's decision in Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3d Cir. 1988), cert. denied, 490 U.S. 1004, 109 S. Ct. 1636, 104 L. Ed. 2d 153 (1989). In Copeland, the plaintiff, a police officer who was dismissed for drug use, claimed that he was disciplined in a more severe manner than officers who had used alcohol. The city conceded that it did discipline officers who used drugs in a more severe manner than those who used alcohol, but it claimed that a rational distinction existed between the two categories of officers: One group violated the law merely by possessing drugs while the other group engaged in an activity that is not per se unlawful. The court accepted the city's distinction as one rationally related to a legitimate government interest.

 Plaintiff argues that Copeland is distinguishable because plaintiff was not using drugs at the time the alleged constructive discharge took place. Plaintiff's distinction, however, as applied to the facts involved in this matter, is without merit. It is not irrational for a police department to treat an undercover narcotics officer who has been hospitalized for drug use in a different manner than an officer who has been hospitalized for a physical ailment. A police department has a legitimate interest in making sure that an undercover narcotics ...

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