The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
In this memorandum opinion the court considers the motion for summary judgment (Docket No. 25) filed by defendant Borough of West View, Pennsylvania ("West View" or "defendant"), against all claims asserted by plaintiff Douglas Drwal ("Drwal" or "plaintiff") under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§12101 et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. ANN. §§951 et seq. in his second amended complaint (Docket No. 17). After considering the joint statement of material facts ("joint statement" or "JS" (Docket No. 43)),*fn1 the other submissions of the parties, and the undisputed facts of record, viewing all disputed facts in favor of the nonmoving party, and drawing all reasonable inferences drawn in favor of plaintiff, defendant's motion for summary judgment will be granted.
Factual and Procedural Background
In November 1995 West View hired Drwal as a police officer. (JS II. ¶12.) As a police officer, Drwal's duties included, inter alia, enforcing the laws of the Commonwealth of Pennsylvania and protecting the citizens of West View. (JS II. ¶13.)
Since 1996 Chief Charles Holtgraver ("Chief Holtgraver") has been the chief of police for West View. (JS II ¶19.) Chief Holtgraver is responsible for overseeing the police department's operations and supervising the police department officers, including the lieutenant and sergeant. (JS II ¶20.) Lieutenant Randall Freedman ("Lt. Freedman") is the officer who is second in command. (JS II ¶¶27-28.) There is some dispute about the extent of the supervisory role of Sergeant James Simmons ("Sgt. Simmons") on the force. Defendant avers that Sgt. Simmons is only responsible for supervising the officers of a shift while he is working that shift, whereas Drwal contends that Sgt. Simmons, at all times, is the supervisor of all West View's police officers. (JS I ¶¶192-95.)
Plaintiff initially experienced symptoms indicative of multiple sclerosis ("MS") in 1996 and again in October 2004. (JS I ¶23-24.) The symptoms he experienced included double vision, tingling sensation in the extremities, pain radiating from the neck to the tail-bone, leg "giving out," incontinence, twitching, and episodic blindness. (JS II ¶35.) According to Drwal, his MS symptoms had "phases of remission," and the manifestation of the symptoms may or may not occur every five to ten years. (JS I ¶26.) Drwal contends that West View Police Officer Todd Towne ("Towne") and Sgt. Simmons ridiculed him and imitated him. (JS II ¶36.)
In October 2004, after West View Police Officer Joseph Connolly ("Connolly") observed Drwal experiencing twitching, back arching, and pain, Drwal told Connolly that he had MS. (JS II ¶37.) Drwal told no one other than Connolly that he had MS. (JS I ¶32.) Drwal asked Connolly to tell the other West View police officers to stop teasing him by imitating his twitching and swearing. (JS II ¶38.) Shortly thereafter, according to Drwal, Lt. Freedman requested that Drwal undergo a physical examination to ensure he was able to do his job because Lt. Freedman had heard that Drwal had MS. (JS II ¶39.) Drwal never received any treatment or medication for his MS. (JS I ¶21.) Drwal never told his primary care physician about his MS. (JS I ¶22.) Drwal never told Chief Holtgraver that he had MS. (JS I ¶19.) In an ADA Questionnaire submitted to the Equal Employment Opportunity Commission ("EEOC"), Drwal stated, "I have been able to perform all major life activities since being diagnosed [with MS]." (JS I ¶25.)
In 2004, an "investigator" position was created on a trial basis by authorization of West View Borough Council (the "Council"). (JS I ¶¶2-3.) Drwal was assigned to the investigator position in or around September 2004 by Chief Holtgraver. (JS I ¶9.) Chief Holtgraver apprised Drwal that it was essential to demonstrate to the Council that the position was necessary by, among other things, submitting monthly reports to the chief for presentation to the Council. (JS I ¶10.) Reports, however, were not always submitted by Drwal while he held the position. (JS I ¶11.) In June 2005, Drwal was informed by Chief Holtgraver that the investigator position was being reassigned to Towne. (JS I ¶12.) Drwal contends that his removal from the investigator position was a demotion, a claim which defendant denies. (JS I ¶¶12, 14-17.)
From August until November 2005, Drwal took a short-term disability leave due to "stress and anxiety." (JS I ¶56, JS II ¶41.) Defendant required Drwal to undergo medical and psychological evaluations before returning to work. (JS I ¶59.) Chris Coburn, Ph.D. ("Dr. Coburn") performed the psychological evaluation of Drwal. (JS I ¶60-61.) A letter dated November 4, 2005, from Dr. Coburn to Chief Holtgraver stated that Drwal's "medical history is significant for a diagnosis of Multiple Sclerosis, which has manifested itself as intermittent episode [sic] of severe pain. He says that the disease has not impacted his ability to function on the job." (JS I ¶62.) Dr. Coburn's acknowledgment of Drwal's MS diagnosis in the letter was based upon the medical history Drwal reported to Dr. Coburn. (JS I ¶63.) Chief Holtgraver claims that he did not believe Drwal had MS after reading Dr. Coburn's letter. (JS I ¶64.)
In 2005, Sgt. Simmons began expressing an interest to Chief Holtgraver in creating a SWAT or SERT or a SWAT/SERT team*fn2 (hereinafter "SERT team"). (JS I ¶49; JS II ¶45.) Also in 2005, West View purchased three AR-15 rifles. (JS II ¶46.) Drwal characterizes the purchase of the assault rifles as being a response to the proposed SERT team and for better officer protection, whereas defendant maintains the AR-15 rifles were purchased to upgrade the police department's arsenal. (JS II ¶48.)
In December 2005, Drwal heard from Towne that Towne and West View Police Officer Matthew Holland ("Holland") were training for a proposed SERT team. (JS I ¶68.) On December 13, 2005, a police association*fn3 meeting was held regarding Drwal's request for representation related to a disciplinary action. (JS I ¶70.) After the matter for which the meeting had been called was closed, Drwal addressed Sgt. Simmons while the meeting was still in session. (JS I ¶73.) Drwal asked Sgt. Simmons why he was not being considered for training for the SERT team*fn4 . (JS I ¶74.) According to Drwal, Sgt. Simmons replied "because you have MS." (JS I ¶75.) Drwal noted to Sgt. Simmons that his comment was discriminatory and asked Sgt. Simmons if he had ever heard of the ADA. (JS II ¶4.) Drwal further stated that he was going to complain to Chief Holtgraver about Sgt. Simmons' comment. (JS II ¶5.) According to Drwal, Sgt. Simmons responded that Chief Holtgraver was aware of his decision and supported it. (JS II ¶6.) Drwal also told Sgt. Simmons that he was going to file a complaint with the EEOC. (JS II ¶7.) Chief Holtgraver did not attend this meeting. (JS I ¶81.) Drwal never discussed Sgt. Simmons' comments at the meeting with Chief Holtgraver. (JS I ¶¶82-83.)
According to defendant, in early December 2005, the police department's records clerk, Barb O'Lare ("Ms. O'Lare"), found a misplaced crime lab report on top of a filing cabinet relating to an arrest for driving under the influence ("DUI"). (JS I ¶161.) In attempting to locate the file in which the report belonged, Ms. O'Lare discovered that it had been improperly placed with the closed cases. (JS I ¶162.) Once found, Ms. O'Lare noticed that the file contained a lab report from a different DUI arrest. (JS I ¶163.) Ms. O'Lare brought the situation to the attention of Lt. Freedman, who forwarded the file to Chief Holtgraver for review. (JS I ¶164.) Chief Holtgraver's review of the file revealed that the DUI charge had been reduced to public intoxication. (JS I ¶165.) Defendant maintains that it was this set of circumstances that led to Chief Holtgraver's directive to Lt. Freedman to conduct an investigation of all DUI arrests for all West View officers for the previous two years to ensure that the charges were not being reduced. (JS I ¶¶166-67.) Drwal points out, however, that a letter written by Lt. Freedman on Chief Holtgraver's letterhead indicates that the internal DUI investigation was in response to an offense tracking number ("OTN") request from the county. (JS II ¶63.) The internal DUI investigation was conducted by Lt. Freedman and Ms. O'Lare. (JS I ¶169.) According to defendant the investigation was commenced on December 13, 2005; according to Drwal it was commenced on December 17, 2005. (JS II ¶¶8, 61.) The results of the investigation disclosed a total of four cases in which an arrest was made of an individual impaired by a blood alcohol level above the legal limit, but criminal charges were not filed. (JS I ¶171; JS II ¶66.) The arresting officer in all four incidents was Drwal. (JS I ¶172; JS II ¶66.)
On December 24-25, 2005, Drwal worked the 11 p.m. to 7 a.m. shift with Holland. (JS I ¶102.) During the shift, Drwal's wife called him and asked him to stop home, which Drwal informed Holland was probably for the purpose of stuffing the Christmas stockings of Drwal's children. (JS I ¶103.) Because Drwal lives in West View, he was permitted to go home during his shift breaks. (JS II ¶108.) Drwal stated that prior to going on break he called out to dispatch to inform them that he would "be on portable" radio, which was Drwal's stated break procedure. (JS II ¶¶117-18.) Drwal was at home for forty minutes. (JS I ¶104.) During that time, according to Drwal, his wife was concerned about his son's temperature, and Drwal assured her that he would return to check in. (JS II ¶119.) Drwal maintains that when he returned home for the second time during his shift his son was having a seizure. (JS II ¶120.) Drwal did not call for an ambulance because, as a first responder, he wanted immediately to address the situation. (JS II ¶122.) While Drwal was at home, Holland called him on his cell phone and informed him that dispatch had been unsuccessfully attempting to call him on his portable to respond to an assault report. (JS I ¶¶111-12; JS II ¶123-24.) Drwal stated that in certain areas inside his home his portable radio does not transmit. (JS I ¶113.) After receiving Holland's cell phone call Drwal responded to the assault, finding, in addition to Holland, an ambulance and police officers from another municipality already on the scene. (JS I ¶117.) Following the assault call, Drwal went home to check on his son for approximately twenty minutes. (JS I ¶118; JS II ¶129.) Defendant avers that Drwal exceeded his break by about twenty minutes during this shift. (JS II ¶131.)
West View police officers are required to record their activities from each shift, inclusive of breaks, on a shift activity log. (JS I ¶119; JS II ¶136.) Drwal asserts that he lost his shift activity log for the December 24-25, 2005 shift. (JS I ¶120; JS II ¶137.) Drwal copied Holland's shift activity log for that shift. (JS I ¶121.) Drwal contends that he intended to tell Chief Holtgraver about his son's seizures and that he was not attempting to conceal his whereabouts. (JS II ¶138.)
West View police cruisers are equipped with GPS units that track the location of the vehicles. (JS II ¶139.) According to Drwal, Chief Holtgraver reviews the GPS reports each night, a fact of which the West View police officers are aware. (JS II ¶¶139-40.)
Chief Holtgraver informed Drwal in a letter dated December 29, 2005, that he was being placed on administrative leave on December 29, 2005, for the mishandling of DUI arrests, failure to respond to a call on December 25, 2005, and submitting a falsified shift activity log for the December 24-25, 2005 shift. (JS I ¶176; JS II ¶141.) The letter further advised Drwal that he would be given a Loudermill*fn5 hearing on January 3, 2006. At the Loudermill hearing, Drwal presented his version of events relating to the incidents referred to in the December 29, 2005 letter. (JS I ¶178.)
On January 19, 2006, Drwal's employment as a West View police officer was terminated. (JS II ¶143.) Although the last official act directing the surcease of Drwal's employment was a vote by the Council, Drwal maintains that Chief Holtgraver was responsible for firing him because Chief Holtgraver recommended Drwal's termination, Chief Holtgraver was present during the meeting at which the Council voted in favor of Drwal's termination, and Chief Holtgraver presented a case to the Council for Drwal's termination. (JS I ¶179.) The termination decision was communicated to Drwal by a letter dated January 20, 2006, signed by Council President Daniel Daugherty. (JS I ¶180.) The letter indicated the reasons for the decision to terminate Drwal's employment were, inter alia, mishandling several DUI arrests, violating the break policy on the December 24-25, 2005 shift, being unreachable by dispatch resulting in a failure to respond to a call to assist another officer on that same shift, and submitting a falsified shift activity log for that shift. (JS I ¶181.) The grounds for Drwal's termination were neglect of duty and conduct unbecoming an officer. (JS I ¶183.)
Chief Holtgraver informed Magisterial District Judge Richard Opiela ("MDJ Opiela") by letter dated January 21, 2006, that Drwal was no longer a West View police officer. (JS I ¶235.) The letter contained Drwal's address and requested that MDJ Opiela's office personally notify Drwal of any hearings at which he was required to appear. (JS I ¶236.) Drwal speculates that because he did not receive personal notification of five out of thirty to forty hearings, the letter may not have been delivered. (JS I ¶237.) While Drwal was still employed by West View there were instances where subpoenae or notices to attend hearings were not served on him. (JS I ¶239.) At least once after Drwal's termination one of the constables responsible for serving notices for MDJ Opiela lost or forgot subpoenae to be served on Drwal. (JS I ¶240.) Drwal does not contend that he ever missed a hearing resulting from his not being served with notice of the hearing. (JS I ¶241.) In a case where Drwal was notified of a hearing by a telephone call from an assistant district attorney made a few days prior to the hearing, Drwal does not know whether any subpoenae for that case issued, or if the borough's police department received the same telephone notification from the assistant district attorney that he did. (JS I ¶¶242-43.) Drwal is unaware whether West View received written notice with his name, or if the police department was given the same short notice. (JS I ¶¶244-45.) Drwal was notified the morning of the hearing for one of his DUI cases, and was able to attend. (JS I ¶246.) Drwal does not know that anyone acting on behalf of West View prevented him from receiving notice of that hearing. (JS I ¶247.)
Drwal appealed his termination to West View's civil service commission (the "Commission"). (JS I ¶185.) On August 17, 2006, and August 24, 2006, a hearing was held before the Commission regarding Drwal's appeal. (JS I ¶186; JS II ¶145.) Holland testified at the civil service hearing. (JS II ¶147.) The Commission concluded that West View's decision to terminate Drwal was justified and affirmed the termination. (JS I ¶187.)
On November 16, 2006, West View adopted the Commission's findings. (JS I ¶188.) Drwal appealed the Commission's decision to the Allegheny County Court of Common Pleas. (JS I ¶189.) Drwal did not raise the issue that his disability was a factor in his termination in the state court appeal. (JS I ¶190.) The state trial court found that West View's decision to terminate Drwal's employment for neglect of duty and conduct unbecoming an officer was supported by substantial evidence and affirmed the Commission's decision.*fn6 (JS I ¶191.)
In early March 2006, Drwal filed a discrimination complaint with the EEOC and cross-filed with the Pennsylvania Human Relations Commission ("PHRC") alleging disability discrimination and retaliation. (JS I ¶269; JS II ¶178.) Drwal's claims were predicated, in part, upon being removed from the investigator position, failure to be considered for the proposed SERT team, and being terminated. (JS I ¶270.) Drwal's complaint did not include any allegations regarding ridicule, mocking or similar harassment. (JS I ¶271.) Drwal's complaint did not specify the condition comprising his disability. (JS I ¶272.) In October 2006, Drwal's complaint was dismissed by the EEOC. (JS II ¶179.) In November 2006, Drwal's complaint was reopened by the EEOC, but dismissed again in January 2007. (JS II ¶180.)
After Drwal's termination, he was informed by an unnamed individual that Holland and West View Officer John Sweeney were making pejorative remarks about him outside of his presence. (JS II ¶186.)*fn7 Not long afterward, on November 21, 2006,*fn8 as Drwal was driving past the West View police department, he saw Holland outside and waved to him and Holland and another West View officer approached his vehicle. (JS I ¶248; JS II ¶¶186-87).*fn9 As Drwal and Holland were shaking hands a colloquy transpired. (JS I ¶249; JS II ¶188.) Although the parties do not agree about the posture and tone of the conversation, it is generally agreed that Drwal said something to the effect that Holland was "f...ing" with his family and that was "f...ed up" or that Drwal would "f...k" Holland up, and that the handshake persisted for the duration of the twenty to thirty-second exchange. (JS I ¶249; JS II ¶¶188-91.) Holland did not arrest Drwal after this encounter. (JS II ¶192.) At least part of the confrontation was observed by the other officers, whom defendant avers were Officer John Cordial ("Cordial") and Sgt. Simmons. (JS I ¶252.)
Later that same day, Sgt. Simmons informed Chief Holtgraver about the interaction between Drwal and Holland. (JS I ¶253.) Chief Holtgraver requested statements from Holland, Cordial, and Sgt. Simmons regarding the incident. ( JS I ¶254.) After reviewing the statements, Chief Holtgraver referred the matter to the Allegheny County Police for an independent investigation because he believed the circumstances involved a threat being made against an individual who testified at Drwal's civil service commission hearing. ( JS I ¶¶255-57.) Chief Holtgraver was not obligated to turn the matter over to an outside agency for investigation, but it was within his discretion. (JS II ¶198.) Chief Holtgraver expressed an intent to remain neutral in the investigation to an interviewing officer from the county police. (JS I ¶258.)
On December 1, 2006, Drwal observed a potential altercation in the parking lot of West View Plaza. (JS I ¶259; JS II ¶202.) A few minutes later, Drwal entered a restaurant to pick up an order and saw Lt. Freedman, who was on duty and engaged in a cell phone conversation. (JS I ¶¶260-61; JS II ¶¶203-05.) Drwal did not report the incident transpiring in the parking lot to Lt. Freedman at the time because Lt. Freedman was talking on his cell phone and because Drwal assumed that the confrontation had discontinued of its own volition. (JS II ¶205.) After leaving the restaurant, as Drwal was exiting West View Plaza in his vehicle, he witnessed the same dispute continuing and anonymously called 911 to report a potential fight. (JS I ¶262; JS II ¶206.) The officers responding to the scene were unable to corroborate that the controversy occurred. (JS I ¶263; JS II ¶212.) West View Police Officer Steve Ganster ("Ganster"), one of the officers to respond to the call, called the number from which the 911 report was made and reached Drwal, and the two discussed what Drwal had observed. (JS II ¶207.)
Chief Holtgraver was informed about the circumstances pertaining to the report of an alleged altercation by one of the responding officers, and requested statements from the officers involved in the incident. (JS I ¶¶263-64; JS II ¶213.) Chief Holtgraver turned the investigation of a potential false report over to the Allegheny County Police because of the ongoing investigation of the encounter between Drwal and Holland the previous month. (JS I ¶265; JS II ¶213.)
The Allegheny County police detectives investigating the November 21, 2006 and December 1, 2006 incidents disclosed the results of their investigation to an assistant district attorney, who directed them to file charges of simple assault, terroristic threats, harassment, retaliation against a witness, and false alarm to an agency of public safety against Drwal. (JS I ¶267.) The criminal charges brought against Drwal were all dismissed. (JS II ¶184.)
In April 2007, Drwal filed a second discrimination complaint with the EEOC and PHRC, alleging that West View retaliated against him for filing his initial complaint in March 2006 by frustrating his receipt of notices of hearings requiring his presence and causing criminal charges to be filed against him. (JS I ¶¶273-74.)
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "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." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007)("In considering the evidence, the court should draw all reasonable inferences against the moving party."). The United States Court of Appeals for the Third Circuit recently stated:
[I]f there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will.
Plaintiff asserts claims of disability discrimination and retaliation under the ADA and PHRA based upon his removal from the investigator position, his non-selection for a SWAT or SERT team (which was never formed), his failure to be selected among the first group for AR-15 rifle training, his termination on January 19, 2006, his failure to be notified of certain court hearings requiring his attendance, and the initiation of a criminal investigation resulting in charges being filed against him.
A. Disability Discrimination Claims
The ADA*fn10 makes it unlawful for an employer to discriminate against any person with respect to, inter alia, advancement, discharge, training, and other terms, conditions, or privileges of employment on the basis of a statutorily recognized disability. 42 U.S.C. § 12112(a). The Supreme Court recognized that it is often difficult for a plaintiff to prove that an employer acted with "conscious intent to discriminate." McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). One manner in which plaintiffs can meet this ultimate burden of persuasion is by demonstrating that an employer's stated reason for the challenged action is not the true reason, but rather was a pretext for unlawful discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
"In order to make out a prima facie case of disability discrimination under the ADA and PHRA, a plaintiff must establish that [he] (1) has a 'disability,' (2) is a 'qualified individual,' and (3) has suffered an adverse employment action because of that disability." Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002) ...