The opinion of the court was delivered by: PADOVA
Plaintiff, Thomas C. Layser, filed a Complaint against Defendants West Chester State University ("West Chester") and Dr. Donald Morrison, asserting violations of the Americans With Disabilities Act, 42 U.S.C.A. § 12101-12213 (West 1995 & Supp.) ("ADA") and 42 U.S.C.A. § 1983 (West 1994). Plaintiff asserts two additional state claims against Dr. Morrison alleging medical malpractice and a breach of the psychotherapist-patient privilege. Defendants separately filed Motions for Summary Judgment to which Plaintiff did not respond. Defendants demonstrated that (1) genuine issues of material fact do not exist, and (2) Plaintiff is unable to sustain causes of action under either the ADA or the United States Constitution. Accordingly, I will grant Defendants' Motions.
On March 26, 1988, Plaintiff began working for West Chester as a security officer for the West Chester State University campus. West Chester officers patrol the campus carrying firearms while one officer on each shift acts as the "dispatcher" who stays in the police station relaying calls. Plaintiff patrolled the campus. Between 1988 and 1990, West Chester passed over Plaintiff for eight promotions. Since 1990, Plaintiff has not applied for promotions, and no positions have become available. In October 1990, Plaintiff filed an unsuccessful grievance with his union representative alleging unfair treatment and accusing Michael Bicking, the West Chester University security chief who headed the promotion board, of treating him unfavorably. In a February 11, 1992 evaluation, Bicking described Plaintiff's attitude as unsatisfactory and rated Plaintiff overall as "low scale good."
On or around February 14, 1992, Layser had a dream he walked into Bicking's office, pulled his revolver out of the holster, and pointed the gun at Bicking's forehead. Believing he was suffering from work-related stress and depression, Layser immediately sought professional help from Dr. William Morrison. Layser told Dr. Morrison about the dream, and Dr. Morrison, fearful that Layser presented a threat to Bicking's safety, promptly warned Bicking. On February 17, 1992, Bicking repossessed Layser's revolver. West Chester subsequently put Layser on sick leave with pay, requiring clearance from Dr. Morrison before allowing him to return to work.
On April 24, 1992, Plaintiff met with William Schweitzer, head of personnel for West Chester. Schweitzer furnished Plaintiff with a list of conditions prepared by Bicking limiting Plaintiff's employment. Significantly, Bicking required that Plaintiff (1) remain on dispatch duty without a revolver during an observation period, the length of which was to be determined; (2) receive a second opinion from another psychologist; and (3) be subject to dismissal in the event of any violent behavior. On May 13, 1992, Dr. Morrison wrote Bicking, stating that Plaintiff had enough self control to return to work subject to the before mentioned stipulations. Dr. Morrison wrote another letter on May 18, 1992 recommending Plaintiff for full active duty without any conditions.
On May 27, 1992, Layser returned to active duty as a dispatcher without a firearm. On April 14, 1993, Layser received a second psychiatric opinion, and West Chester reissued his firearm on April 29, 1993. On May 14, 1993, Layser resumed regular street patrol. Bicking appointed Layser "Officer in Charge" in April 1994, a position Layser still holds. On July 28, 1993, Layser filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that West Chester discriminated against him on the basis of a perceived disability in assigning him to the dispatch position from May 1992 until April 1993.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only "material" if it might affect the outcome of the case. Id. A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S. Ct. at 2554. After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id at 322, 106 S. Ct. at 2552.
Plaintiff alleges that Defendants conspired to violate his XIV Amendment rights in violation of 42 U.S.C.A. § 1983 by "depriving Plaintiff of his protected interest in his public employment as a property right . . . [and limiting] Plaintiff's opportunities to perform his duties and earn a living as a public employee." Pl.'s Compl. P 70. Plaintiff cannot bring a suit against either West Chester or Dr. Morrison under § 1983 because neither Defendant is a "person" within that statute. "To succeed on a § 1983 claim, a plaintiff must demonstrate that the conduct complained of was committed by a person acting under color of state law and that the conduct resulted in the ...