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Lekich v. Municipal Police Officers Educational Training Commission

February 26, 2009


The opinion of the court was delivered by: Schiller, J.


Plaintiff Eric Lekich brings this action against Defendants Colonel Jeffrey B. Miller, in his official capacity as chairman of the Municipal Police Officers Educational Training Commission ("MPOETC"),*fn1 and Doylestown Borough ("Doylestown"). Plaintiff's First Amended Complaint alleges that both Defendants regarded him as disabled and discriminated against him on this basis, in violation of the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973 ("RA"), and the Pennsylvania Human Relations Act ("PHRA"). In addition, Plaintiff asserts Fourteenth Amendment equal protection claims, pursuant to 42 U.S.C. § 1983, against Defendants.

Currently before the court are three motions for summary judgment, one filed by the Plaintiff and one by each of the Defendants. The Court held oral argument on February 20, 2009. For the reasons discussed below, Plaintiff's motion is denied and Defendants' motions are granted.


A. Plaintiff's Summary Judgment Filings

As a preliminary matter, the Court notes that Plaintiff's counsel failed to provide, as required by the Court's September 4, 2008 Scheduling Order, a Statement of Undisputed Facts. (See Scheduling Order ¶ 5.) Plaintiff also failed to file a Statement of Disputed Facts in response to the Defendants' Statements of Undisputed Facts. In accordance with the Court's Order, all undisputed facts stated by Defendants are deemed admitted. (See id. ¶ 5. c.)

Unfortunately, Plaintiff's counsel also failed to include a distinct facts section in his Motion for Summary Judgment. He instead chose to present throughout his motion a melange of facts, legal conclusions dressed up as facts, and an occasional citation to legal authority. When facts were presented they were accompanied by citations to as many as ten separate exhibits, many bearing no relation to the factual statement they were purported to support. Nor did any of these citations reference either the relevant page or line in the exhibit, as required by the Court's Scheduling Order. Instead, the Court and Defendants were forced to scour exhibits, including affidavits of as many as 173 pages, hunting for facts Plaintiff's counsel claimed lurked somewhere therein. This failure to cite the record with any specificity runs contrary to the Supreme Court's instructions regarding summary judgment: "[o]f course, 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 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986) (emphasis added).

As the Court's Scheduling Order also clearly states, failure of a moving party to follow in all respects the Court's procedure for summary judgment motions "will result in denial of the motion." (Scheduling Order ¶ 5.) Although the Court could exercise its discretion and deny Plaintiff's motion on this basis, the Court will proceed to an analysis of the merits of all three motions for summary judgment.

B. Facts

Lekich graduated from the Montgomery County Community College's Pennsylvania Municipal Police Officers' Training Program in June 2006. (Dep. of Lekich [hereinafter "Pl.'s Dep."] at 13; Pl.'s Mot. Ex. 14 [Diploma].) On July 7, 2006, Plaintiff interviewed with Doylestown Chief of Police James Donnelly for a police officer position. (Pl.'s Dep. at 18-19; Pl.'s Dep. Ex. Lekich-2 [Letter Providing Interview Schedule].) Shortly thereafter, he received a telephone call offering him a part-time position, which he accepted. (Pl.'s Dep. at 19.) Plaintiff reported to the Doylestown Police Department a few days later; at that time he was measured for uniforms and received the forms to be completed for his MPOETC certification application. (Id. at 22-24.) By letter dated August 11, 2006, Chief Donnelly informed MPOETC that the police department had conditionally hired Lekich on August 9, 2006. (Pl.'s Dep. Ex. Lekich-3 [Letter of Aug. 11, 2006 from Chief Donnelly to MPOETC].) The hiring was "dependant on his passing both physical and psychological testing." (Id.) The police department scheduled appointments for Lekich to see Dr. Jack McEwan, for his general physical exam, and the office of Dr. DeVenuto, for his vision and hearing exam. (Pl.'s Dep. at 29-30.) On August 15, 2006, MPOETC sent Plaintiff a letter notifying him that he was scheduled to take the written certification examination on September 14, 2006. (Pl.'s Dep. at 27-28; Pl.'s Dep. Ex. Lekich-5 [Letter of Aug. 15, 2006 from MPOETC to Lekich].) This written examination is a comprehensive test taken following graduation from the police academy and is a required component of the MPOETC certification process. 37 PA. CODE§ 203.11(a)(11); (Pl.'s Mot. Ex. 2 [Gallaher Dep.] at 49.)

The MPOETC's powers and duties are outlined in 53 PA. CONS. STAT. § 2164 (2008). These include the power "[t]o require minimum standards for physical fitness, psychological evaluation and education as prerequisites to employment as a police officer." Id. § 2164(8). Pursuant to this authority, the Commission requires certain qualifications for those seeking police officer certification. 37 PA. CODE § 203.11. According to the Pennsylvania Administrative Code:

Applicants shall have visual acuity of at least 20/70, uncorrected in the stronger eye, correctable to at least 20/20; and at least 20/200, uncorrected in the weaker eye, correctable to at least 20/40. In addition, the applicant shall have normal depth and color perception and be free of any other significant visual abnormality.

37 PA. CODE§ 203.11(a)(6)(v) (emphasis added). MPOETC reviews applications for certification that are assembled and submitted to it by hiring police departments. (Id. § 203.15(c); Def. Miller's Statement of Undisputed Facts [hereinafter "Def. Miller's Facts"] ¶ 4; Dep. of Major John J. Gallaher,*fn2 Executive Director, MPOETC [hereinafter "Gallaher Dep."] at 50.)

On or about August 24, 2006, Dr. McEwan evaluated Lekich and determined that he was physically fit. However, Dr. Venuto's office concluded that he lacked "normal color perception." (Pl.'s Dep. at 28-29; Pl.'s Dep. Ex. Lekich-4 [Physical Examination Report].) Plaintiff submitted the completed physical examination forms to Doylestown. (Pl.'s Dep. at 35-37.) Shortly after submitting the forms, Plaintiff received a telephone call from Chief Donnelly, informing him that he had failed the vision exam and that his conditional offer was being withdrawn. (Id. at 37-41.)

Plaintiff inquired about seeing another physician, but was informed that Doylestown did not permit "doctor shopping." (Id. at 41.) After this conversation, Plaintiff called MPOETC. He explained that he had not passed the color-vision test and asked whether he could still obtain certification. (Id. at 45-48; Dep. of E. Beverly Young [hereinafter "Young Dep."] at 33.) According to Plaintiff, he was told "that there is no recourse whatsoever, that unless I passed this test, I cannot be certified." (Pl.'s Dep. at 52.) He was also informed that he would not be permitted to take the scheduled written certification exam. (Young Dep. at 33.) Plaintiff visited the Doylestown police station and spoke in person with Chief Donnelly, but was again informed that he would not be permitted to retake the vision examination with a new doctor. (Id. at 71.)

On October 2, 2006, Dr. John Siegfried examined Plaintiff's eyes, using the Nagel Anomaloscope. (Pl.'s Dep. Ex. Lekich-6 [Letter of Oct. 4, 2006 from Dr. Siegfried].) Dr. Siegfried found that Plaintiff had a "mild [color] defect," causing "minor discrepancies in color appearance compared to those of color normal individuals." (Id.) According to Dr. Siegfried, the condition would not cause Plaintiff "to confuse Greens, Yellows, and Reds." (Id.) Dr. Siegfried stated:

I regularly test candidates for the City of Philadelphia, PA who fail the color vision screening test administered as part of their physical examination. These are candidates for police, fire, and corrections officers. For the past 10 years, approximately, the City has accepted Anomalous (mild) color defects in these three categories of employment, but has rejected Dichromats (severe).

In my judgment, this mild defect should not interfere with Mr. Lekich's duties. (Id.) Plaintiff telephoned MPOETC and informed them of Dr. Siegfried's test results, but was told that there were no exceptions to the initial test and that to be certified he needed to have a job offer. (Pl.'s Dep. at 64-67.)

On November 14, 2006, Plaintiff's lawyer, Mr. Brian Wiley, sent a letter to Major John Gallaher, Executive Director of MPOETC. (Pl.'s Dep. Ex. Lekich-7 [Letter of Nov. 14, 2006 from Wiley to Gallaher]; Pl.'s Dep. at 72.) The letter again explained that Dr. Siegfried had evaluated Mr. Lekich and had concluded that he had only a "slight deficiency in [his] ability to differentiate between shades of red, and shades of green." (Pl.'s Dep. Ex. Lekich-7.) It also asserted that "[t]he perceived disability of mild red/green color deficiency has been determined not to be a bar to law enforcement employment in cities of the first class, like Philadelphia and Pittsburgh, Pennsylvania." (Id.) The letter concluded by requesting certification, a waiver, or "a medically substantiated demonstration that this perceived deficiency prevents, or is an actual bar to performing the duties and responsibilities of a Pennsylvania certified law-enforcement officer." (Id.) The letter was sent with various attachments, including the original physical examination reports and Dr. Siegfried's October 2006 letter report. (Pl.'s Dep. Ex. Lekich-7; Pl.'s Dep. at 72.) These were the first documents Plaintiff sent to MPOETC. (Pl.'s Dep. at 73.)

During a subsequent teleconference with MPOETC representatives, Plaintiff was advised that another color screening test, the Farnsworth-Munsell 100-Hue test was available and that, should he receive another job offer, he could pursue that option and submit the results through a hiring police department. (Young. Dep. at 34-36; Def. Miller's Statement of Undisputed Facts ¶ 33.) He was also told that MPOETC could make a certification decision only after it received a certification application from a hiring police department. (Pl.'s Dep. at 87-88.) Around the time of this conference call, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (PHRC). (Id. at 89; Id. Ex. Lekich-8 [Letter of Jan. 2, 2007 from PHRC to Brian K. Wiley].)

In January 2007, Plaintiff's attorney sent two letters directly to Gallaher. (Pl.'s Mot. Ex. 16 [Letter of Jan. 15, 2007 from Wiley to Gallaher] & Pl.'s Dep. Ex. Lekich-9 [Letter of Jan. 23, 2007 from Wiley to Gallaher].) The earlier letter stated:

This correspondence follows my communication with your office regarding the requested medical documentation on behalf of Eric Lekich. As you are aware your office indicated that a successful Farnsworth Bentley 100 vision hue color eye test would suffice to enable Mr. Lekich to obtain certification. He recently completed the test itself and we shall forward to you the results of that test shortly. (Letter of Jan. 15, 2007 from Wiley to Gallaher.) The second letter included as an attachment a January 11, 2007 letter from Dr. Siegfried regarding the results of a Farnsworth-Munsell 100-Hue Color Vision test. (Pl.'s Dep. Ex. Lekich-9.) Dr. Siegfried's letter states that the results of this test "are the same as those reported earlier, from the administration of the Nagel Anomaloscope." (Id.) According to the letter, Plaintiff has a "mild form of inherited color deficiency" and "should not have any problems distinguishing Greens, Yellows, and Reds." (Id.) Relying on this report, the second letter to Major Gallaher requested "a waiver on behalf of Mr. Lekich" and the granting of certification. (Id.) The record before this Court contains no response to this letter. According to MPOETC, it never received an application from a hiring police department for Mr. Lekich's certification and therefore never made a decision regarding his certification. (Young Dep. at 37-38, 45.)

Plaintiff's attorney continued to communicate with Tara L. Patterson, Assistant Counsel for the Pennsylvania State Police, who handles certain legal matters for MPOETC. (See Decl. of Tara L. Patterson ¶¶ 1-2.) Plaintiff's attorney informed Ms. Patterson that "Mr. Lekich has been preliminarily offered a job" and asked her to contact him to discuss MPOETC certification. (Id. ¶ 17 & Attach. C [Letter of May 4, 2008 from Wiley to Patterson].) According to Patterson, she spoke with Wiley by phone on May 17, 2007 and again informed him that a certification application packet must be submitted by the hiring police department. (Id. ¶ 18.) A subsequent letter sent by Wiley to Patterson presented a settlement demand on behalf of Lekich. (Id. ¶ 20 & Attach. D.) The letter, which references a "recently completed fact-finding conference . . . before the Pennsylvania Human Relations Commission," demanded "a Waiver of the challenged color vision/hue fitness requirement." (Id.) It also demanded attorney fees, costs, and expenses and offered in exchange the voluntary discontinuance of the action before the PHRC and an agreement not to seek relief in federal court. (Id.) Patterson responded by reiterating that, pursuant to its governing regulations, MPOETC could only review requests for certification submitted by an individual who has obtained employment as a police officer and had an application for certification submitted by the employing police department. (Id. ¶ 21 & Attach. E.) Ms. Patterson "informed Mr. Wiley that MPOETC had no choice but to reject his demand." (Id. ¶ 22.)

Plaintiff's Amended Complaint contains five counts: (1) claims under the ADA, alleging the denial of reasonable accommodations and reprisal disability discrimination; (2) claims under the RA; (3) Fourteenth Amendment equal protection claims under a "class of one" theory; (4) claims under the PHRA; and (5) a request for relief in the form of back pay; front pay; payments for fringe benefits; compensatory and punitive damages; damages for pain and suffering, and professional and personal embarrassment; attorney's fees, costs, and expenses; and "complete expungement and correction of all of plaintiff's employment and governmental records." (Compl. ¶¶ 26-62.)

On May 6, 2008 Defendant Miller's Motion to Dismiss was granted with regard to Plaintiff's Fourteenth Amendment monetary damages claims. On May 21, 2008 the parties stipulated to dismiss the ADA and PHRA claims as to Doylestown only. Each of the three parties filed for summary judgment on February 2, 2009.


Summary judgment is appropriate when the admissible evidence fails to demonstrate a genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable finder of fact to find for the nonmoving party at trial. Anderson, 477 U.S. at 248.

In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., ...

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