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Timothy v. Baldwin Borough

February 23, 2006

H. TIMOTHY S. KREGER, PLAINTIFF,
v.
BALDWIN BOROUGH, DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

Memorandum Opinion and Order

I. Introduction and Background

On February 7, 2006, this Court entered an order denying the motion of defendant Borough of Baldwin ("the Borough") for summary judgment on plaintiff H. Timothy S. Kreger's complaint alleging discrimination in failing to hire him for a police officer position, under the Americans with Disabilities Act (ADA), and indicated that an opinion explaining the Court's reasoning would follow in time to assist the parties in their final trial preparations.

The Court finds that plaintiff cannot demonstrate a prima facie case with regard to his ADA claim of "regarded as" disability in the context of alcoholism, and to that extent, the Court will grant summary judgment in favor of defendant. The Court further finds that plaintiff has offered sufficient evidence from which he can establish a prima facie case of discrimination based upon his left hand birth defect, and that, even though defendant has proffered adequate legitimate business reasons for its failure to hire plaintiff, plaintiff has offered sufficient evidence that those reasons may have been pretextual to permit this claim to reach the jury. As set forth below, the Court will grant summary judgment in defendant's favor with regard to plaintiff's ADA claim based on the Borough's perceived alcoholism, but will deny summary judgment with regard to his left hand disfigurement.

Plaintiff suffers from a birth defect in which two fingers are missing from his left hand, and he had been treated for alcoholism. In February 2000, plaintiff applied for the position of police officer with the Borough. Following written aptitude and physical agility testing, both of which plaintiff passed, and an interview with the Civil Service Commission for the Borough of Baldwin ("the CSC"), an advisory panel created pursuant to Pennsylvania's Borough Code, 53 P.S. § 46181 and 46184, to review and certify applicants on behalf of Borough Council, Plaintiff was ranked second among six remaining applicants. However, on May 24, 2000, through its usual process of selection by which the Borough picked one applicant from the top three ranked applicants, and then the next qualified applicant moved up into the selection pool, plaintiff was not hired.

Instead, the Borough hired Jonathon Milkos, Josh Brasso and Robert Pagne, at least two of whom had substantially less work experience as a police officer than did plaintiff, to fill the two slots. Plaintiff alleges that during the CSC interviewing phase, the Chairman of the CSC, Mark Sukevich, made disparaging comments about plaintiff being a "cripple" and a "drunk," that he passed these comments along to then Chief of Police Robert Kelly, who advised the Borough regarding hiring its police officers, and at least one other Borough Council member, and that, as a result of the negative comments and the perception of him as disabled on account of his disfigured hand and alcoholism, the Borough did not hire plaintiff to fill one of the three police officer positions.

The Borough counters that plaintiff's alleged disabilities did not affect its decision, that it hired according to its usual selection process, and that the reasons it did not hire plaintiff was because he performed poorly during his interview with Borough Council on May 24, 2000, Chief Kelly recommended other candidates be hired, and that the three hired candidates were a 'better fit" for the Borough. The Borough further argues that the negative comments made by a CSC member cannot be attributed to it as the CSC merely certified and ranked the qualified applicants, and did not actually make decisions or advise the Borough on which of the applicants it should choose.

The parties stipulate that the Borough is an employer within the meaning of the ADA, that plaintiff "has a disability, as defined by the ADA, with respect to his disfigured left hand," and that plaintiff "was qualified for police officer position and able to perform the essential functions of that job." Joint Stipulations, at ¶¶ 1, 2, 4 (Document No. 25).

II. Standard of Review

Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence . . . through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view ...


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