The opinion of the court was delivered by: James M. Munley United States District Court
Before the court is defendants' motion for summary judgment (Doc. 11). Having been fully briefed and argued, the matter is ripe for disposition. Background*fn1
This case concerns the employment of Plaintiff Keith Wagner, a Pennsylvania Capitol Police officer who has a history of illness which has kept him out of work. (Defendants' Statement of Material Facts (Doc. 12) (hereinafter "Defendants' Statement") at ¶ 1). The individual defendants are: Richard Shaffer, Superintendent of the Capitol Police; Gregory Green, now-retired former director of Human Resources for the Pennsylvania Department of General Services ("DGS"); and Robert Dillard, Deputy Superintendent of the Capitol Police. (Id. at ¶¶ 3-5).
Wagner began working for the Capitol Police in 1988. (Id. at ¶ 2). As part of his patrol responsibilities, plaintiff carries a service weapon. (Id. at ¶ 6). Plaintiff is a member of a union, the Fraternal Order of Police. (Id. at ¶ 7). As a member of this union, he is covered by a collective bargaining agreement that contains a grievance process. (Id.). Wagner has previously used this process in connection with his claims here, but without the assistance of an attorney. (Id.; Plaintiff's Statement of Material Facts (Doc. 15) (hereinafter "Plaintiff's Statement") at ¶ 7).
In September 2005, plaintiff began to have seizures. (Defendants' Statement at ¶ 8). He had his last seizure in October 2005. (Id.). Plaintiff insists that he continues to suffer from a seizure disorder; plaintiff's doctor diagnosed him as suffering from seizures in 2006. (Plaintiff's Statement at ¶ 8). Plaintiff took seizure medication until November 2007. (Defendants' Statement at ¶ 9). Plaintiff stopped taking the medication at this point, but reported in his June 2008 deposition that he has since remained seizure-free. (Id.).
Plaintiff also suffers from anxiety attacks, which continue to this day. (Id. at ¶ 10). Despite these continuing attacks, plaintiff has stopped taking his anxiety medication in the past year. (Id. at ¶ 11). At his deposition, plaintiff reported that he could not recall the last time he had seen a physician about this condition. (Plaintiff's Deposition, Exh. A. to defendants' statement, at 13). He guessed that his last visit had come within the previous year. (Id.).
Plaintiff was out of work due to his medical condition following his September 2005 seizure. (Defendants' Statement at ¶ 12). His neurologist cleared him to return to light duty work on October 17, 2005. (Id.). The neurologist ordered restrictions of no access to firearms, no driving, no patrol work and a desk job only. (Id.). These restrictions were to persist until plaintiff "achieved two months seizure free." (Id.).
Defendants contend that the Capitol Police had no light-duty assignment available for plaintiff in October 2005. (Id. at ¶ 13). They insist that plaintiff's restrictions limited him to assignment to the communications center. (Id.). The Capitol Police were short staffed, and during that period assigned only one officer to the area. (Id.). Supervisors did not want to put plaintiff in a posting by himself because of his medical condition. (Id.). Defendants contend that they denied plaintiff's light duty request for these reasons. (Id. at ¶ 14). Plaintiff insists that there was a vacant position, and that he was in fact placed in such a position in 2006. (Plaintiff's Statement at ¶ 13). At that point, defendants allowed him to work alone in the job. (Id.). In any case, plaintiff contends that defendants normally assigned three people, two patrol officers and a supervisor, per shift. (Id.). From plaintiff's perspective, that staffing meant nine slots per day were available for work. (Id.). There is a disagreement among the parties as to whether plaintiff's doctor mandated that he work with someone else.
At some point after this initial refusal, Superintendent Shaffer decided that two officers should work in the communications center. (Defendants' Statement at ¶ 15). Plaintiff contends that Defendant Green, who defendants cite for Superintendent's Shaffer's decision, lacks personal knowledge of the Superintendent's actions. (Plaintiff's Statement at ¶ 15). In any case, Wagner contends that he knows that other officers were allowed to work in light-duty jobs, but he was not. (Id.). After this decision, plaintiff in January 2006 returned to work in a light duty capacity at the Capitol Police's communications center. (Defendants' Statement at ¶ 16). Plaintiff contends that this decision came only after he filed an internal discrimination complaint. (Plaintiff's Statement at ¶ 16).
On April 17, 2006, Wagner was released to full duty work, or work without restrictions. (Defendants' Statement at ¶ 17). Plaintiff contends that he was still under doctor's care for seizures and anxiety at this point. (Plaintiff's Statement at ¶ 17). Defendants contend that plaintiff was absent from work from April 24, 2006 until June 2006. (Defendants' Statement at ¶ 18). Defendants have evidence in the form of a May 26, 2006 letter from Richard Shaffer to the plaintiff regarding his absences (Exh. F. to Defendants' Statement) and a June 9, 2006 letter to plaintiff from Green to plaintiff informing plaintiff that he had been approved for sick leave from May 11, 2006 to July 20, 2006. (Id.). Plaintiff contends that Wagner testified he was working from April to June 2006. (Plaintiff's Statement at ¶ 18).
Defendants informed plaintiff on November 30, 2006 that he had used 932 hours of sick leave without pay and had only 116 hours of such leave remaining.
(Defendants' Statement at ¶ 25). On January 25, 2007, the Bureau of Human Resources requested updated medical certification from plaintiff because he had been on light duty status since June 2006. (Id. at ¶ 26). The Human Resources Bureau sent a similar letter on March 12, 2007. (Id. at ¶ 27). On April 11, 2007, the Bureau of Human Resources informed plaintiff that his light duty assignment would end on April 27, 2007. (Id. at ¶ 28). The letter gave Wagner the option of returning to full duty work or using paid or unpaid leave. (Id.).
On April 17, 2007, plaintiff's attorney sent the Bureau a letter informing the Bureau he suffered from a disability and requesting an accommodation to allow him to continue to work. (Id. at ¶ 29). The Bureau treated the letter as a request for an accommodation and sent plaintiff a letter containing the form he needed to make such a request. (Id. at ¶ 30). Plaintiff responded by returning a letter from his doctor, Elaine Rissinger, that indicated that he could not perform two of the essential functions of his job. (Id. at ¶ 31). This inability to perform two essential functions of his job became the basis by which defendants concluded that no reasonable accommodation was available for plaintiff. (Id. at ¶ 32). The parties disagree about whether plaintiff ever filled out a ...